came within the Act, although such advertisements were couched in the most chaste and elegant language. The decision of the Supreme Court is substantially to the effect that any publication, which appeals to and is calculated to excite the sexual passion, is obscene within the contemplation of the law. And the rule thus laid down embraces certain newspapers which deal entirely or chiefly in the escapades of men and women in respect of their sexual relations, though at one time the Postoffice Department did not go to the extent of excluding such papers from the mails; and the question of their mailability under this law has not been before the Federal courts. Some of the States took up the question, however, and passed statutes to cover them and these statutes have been upheld by the State Courts.

Sec. 246. On a prosecution for mailing obscene matter, defendant is not entitled to an acquittal merely because he did not know that the matter might be characterized as obscene. Knowing what matter is to be published he must determine at his peril whether it be obscene or not. Rosen vs. U. S., 161 U. S. 29.

CHAPTER VI.

THE ADMINISTRATION OF THE LAW BY THE POSTOFFICE

DEPARTMENT.

Sec. 247. This chapter will be devoted to a discussion of the questions that have arisen and that will probably arise relative to the administrative provisions of the laws against lotteries. frauds and obscene matter. In the preceding chapters the discussion was directed to the general rules by which lottery and fraudulent schemes and obscene matter might be known but when the prohibited matter is found in the mails or is offered for mailing, other serious and embarassing questions arise in regard to what action shall be taken to prevent the advertisement of the prohibited schemes or matter through the mails. It will be observed that Congress has seen fit to deal with the different classes of nonmailable matter in different ways. As to lottery and fraudulent schemes the laws provide three remedies, first, by indictment, trial and punishment; second, by excluding open, i. e., unsealed matter from the mails and third by issuing what is known as a "fraud order" against the promoter, which directs the postmaster to refuse to deliver to him any mail matter whatever but as to obscene matter two remedies only are provided. One is by indictment and the other is by excluding open matter from the mails. The Postmaster-General is not authorized to issue fraud orders against parties sending obscene matter through the mails though no good reason for this can be perceived where the party's business is dealing in such matter.

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It is not proposed in this treatise to notice the enforcement of these laws so far as the courts are concerned, but to examine the methods provided by law, by which the Postoffice Department can and does take direct action on the prohibited matter and against the promoters of fraudulent and lottery schemes and to discuss the constitutional and legal questions that have arisen in the administration of these laws.

THE METHODS PROVIDED BY LAW FOR THE ENFORCEMENT OF THESE LAWS BY THE POSTOFFICE DEPARTMENT.

Sec. 248. The Department is authorized to act directly against the prohibited matter itself when it is open, or unsealed. The Department has no right under the law to open a sealed packet for any purpose whatever, though it be addressed to a party or company known to be conducting a lottery or fraudulent scheme through the mails. This proposition is settled not only by the express terms of the laws themselves but also by the decisions of the courts and the Postoffice Department and Department of Justice. One exception to this rule must be noted, however, and that is the Postmaster-General claims the power and has exercised the power to open sealed letters and to refuse to carry letters addressed to the enemies of our country in time of war. This power is not expressly conferred by law but it is exercised under the war power. During the recent Spanish-American War the Postmaster-General directed that all letters addressed to the Spanish Minister after his departure from Washington City and other Spanish Officials be seized and opened but so far as known the contents of these letters have not been made public.

So sacred has the seal of mail matter been regarded by the Postoffice Department that even a packet that is sealed when mailed but which is broken open accidentally or even by design during transit is held to be still constructively under seal and must be delivered according to the directions thereon, though it pertains to a lottery or fraudulent scheme, or contains other

prohibited matter. This rule, however, is not observed in England or Continental Europe. The heads of the Postal Establishments there possess the power to issue orders for the seizure and opening of letters, whenever it is believed the seal covers prohibited matter and especially treasonable matter. 79 Hanzard's Par. Debates, 318 and May's Coun. His. 282. In England this power is seldom exercised at this time. The people are there, as they are here, restive under a practice of prying into correspondence which, they deem, ought to be confidential and personal.

But an important question may be raised and that is what is matter under seal and what is to be held to be open matter. In answer to this question it may be stated that sealed matter does not include letters or packets of letters only, but a party has a right under the Postal Laws and Regulations to seal any matter whatsoever and in that case the postal authorities have no right to break the seal to ascertain what is contained therein. Whenever mail matter is sealed, however, letter postage must be paid and as a rule the amount of the postage required deters the sender from sealing any package, except what is strictly defined as first class matter.

But this is not universally true, especially in regard to obscene matter. Ordinarily the senders of that kind of matter seal it so as to prevent detection though the postage is largely increased thereby.

In this connection another question may be raised and that is what is a seal, when applied to mail matter? To constitute a sealed packet the whole of the matter inclosed must be covered and concealed from view, as in an envelope or closed cover or wrapper. It is not sufficient that the seal of the cover or wrapper be such that it has to be broken in order to see what is contained therein. Second, third and fourth class matter is often wrapped and the wrapper or cover sealed so that it is impossible to know what is contained therein without breaking the seal. Indeed the regulations of the Postoffice Department require that matter belonging to these classes shall be so wrapped and covered as to make it easy for

the postal officials to examine it. These officials are authorized to break the seals on covers of this matter when the matter is not wholly inclosed in the sealed cover or wrapper to see whether the matter be mailable or not, when they have reason to believe it should not be transmitted through the mails. And there is but little doubt if a package of unmailable matter of the second, third and fourth classes should be sealed by the sender in order to prevent its exclusion from the mails and the package should be accidentally broken open during transit, the postal officials would have the right to treat it as if it had never been under seal. The rule above stated in regard to matter under seal, when the seal is broken during transit, applies only to letters or matter wholly or partly in writing.

Sec. 249. Open matter, that is found to pertain to lottery or fraudulent schemes or to be obscene, or scurrilous matter upon postal cards, envelopes, covers or wrappers, should not be received by postmasters for mailing but if it should be inadvertently received it should be withheld from further transmission through the mails, and forwarded to the Postoffice Department unless the postmasters be in doubt about what disposition they ought to make of the matter in a given case, when they should withhold the matter and notify the Department. If the matter be nonmailable and is clearly of no value, except to those who desire to violate the law, the Department directs the postmasters to destroy it, otherwise it is ordered to be sent to Washington to be disposed of. After the matter reaches the Department at Washington either through the action of the postmasters on their own motion or by order of the Postmaster-General it is usually destroyed if it be found to be of the prohibited class. Postal clerks on postal cars and other officials handling mail matter at postoffices or in transit are required to withhold matter deemed by them to be nonmailable until they can be advised by those higher in authority what to do with it.

The postmasters and other postal officials are required to treat matter of foreign origin as they treat domestic matter. It makes no difference that a newspaper has been printed and