It may have been that the phrase "liability to military service" was borrowed from the previous acts. It would seem as if the present draft act were in completest harmony with other military service statutes in that behalf. Be that as it may, however, the act does provide in express terms that the draft shall be based upon liability to military service of all male citizens and of all male persons not alien enemies who have declared their intention to become citizens, and, as above recited, contains the further provision that of all persons registered none shall be exempt from service unless exempt or excused "as in the act provided." The language seems indicative of such a "positive repugnancy" (Chew Heong v. United States, 112 U. S. 536, 549, 5 Sup. Ct. 255, 28 L. Ed. 770) to the terms of the treaty with Spain as to leave no room for the conclusion that they can be read together, and that Congress was intending that citizens of Spain as well as of other countries who had declared their intention of becoming citizens of the United States under the naturalization laws. should be subject to the demands of the emergency.

The conclusion here announced is confirmed in a degree by the concluding section of the act suspending all laws in conflict with it during the period of emergency.

It follows that the court, conceiving it to be its duty to follow the intent of Congress, must needs remand the petitioners to such relief as may be accorded to them by the political department of the Government. The order to show cause is discharged and the writs petitioned for are denied.

4. MASSES PUB. CO. v. PATTEN.

(Circuit Court of Appeals of the United States, Second Circuit, 1917. 246 Fed. 24, 118 C. C. A. 250, L. R. A. 1918C, 79, Ann. Cas. 1918B, 999.) Before WARD and ROGERS, Circuit Judges, and MAYER, District Judge.

This cause comes here on appeal from an interlocutory order of the United States District Court for the Southern District of New York granting a temporary injunction commanding the defendant to transmit a certain publication through the mails, which order was entered on July 26, 1917. 245 Fed. 102, 157 C. C. A. 398.

Thereafter and on August 4, 1917, the aforesaid order was stayed until the hearing and determination of the appeal taken by the defendant.

ROGERS, Circuit Judge. The complainant seeks an injunction restraining the defendant as postmaster of the city of New York from treating the August issue of a magazine known as "The Masses" as nonmailable matter under the act of Congress of June 15, 1917, commonly known as the "Espionage Act," and commanding him to transmit the said magazine through the mail in the usual way.

Upon the filing of the complaint an order was entered requiring the defendant to show cause why the injunction should not issue.

At the hearing affidavits were presented on behalf of the complain

ant to show that if the magazines should be excluded from the mails. the business of the complainant would be practically ruined.

An affidavit of the Postmaster General of the United States was presented on behalf of the defendant.

Under the provisions of Espionage Act (Act June 15, 1917, c. 30, 40 Stat. 217) title 12, it became the official duty of the Postmaster General to determine what matter is nonmailable, and that official had instructed the postmaster at New York that "The Masses" was nonmailable. It appears that before this order was issued the solicitor for the department, the Attorney General of the United States, and the Judge Advocate General of the Army, the latter being a lawyer and charged with the administration of the Draft Act, were consulted, and that they each advised that the circulation of the issue in question would constitute an offense under the Espionage Act. And the Judge Advocate General informed the department that it was his opinion that the necessary effect of the issue of this August number would be to cause insubordination, disloyalty, mutiny, and refusal of duty in the naval and military forces of the United States, and that it would obstruct the recruiting and enlistment service of the United States.

The learned district judge, in a carefully prepared opinion, reached the conclusion that the August issue of the publication in question did not contain any illegal matter, and that the injunction should issue.

That part of the Espionage Act which is involved here is title 12, which relates to the use of mails, and it reads as follows:

"Section 1. Every letter, writing, circular, postal card, picture, print, engraving, photograph, newspaper, pamphlet, book or other publication, matter or thing of any kind in violation of any of the provisions of this act is hereby declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier: Provided, That nothing in this act shall be so construed as to authorize any person other than an employee of the Dead Letter Office, duly authorized thereto, or other person upon a search warrant authorized by law, to open any letter not addressed to himself. "Sec. 2. Every letter, writing, circular, postal card, picture, print, engraving, photograph, newspaper, pamphlet, book, or other publication, matter or thing of any kind containing any matter advocating or urging treason, insurrection, or forcible resistance to any law of the United States, is hereby declared to be nonmailable."

Section 3 of title 12 relates to the punishment to be imposed upon any person who uses, or attempts to use, the mails for the transmission of any matter declared to be nonmailable, and is not involved in this proceeding. But as section 1 of title 12 makes nonmailable any matter which is in violation of any of the provisions of the act, it will be necessary to consider section 3 of title 1, which reads as follows: "Sec. 3. Whoever, when the United States is at war, shall willfully make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies, and whoever, when the United States is at war, shall willfully cause, or attempt to cause, insubordination, disloyalty, mutiny or refusal of duty in the military or naval forces of the United States, or shall willfully

obstruct the recruiting or enlistment service of the United States, to the injury of the service or of the United States, shall be punished by a fine of not more than $10,000 or imprisonment for not more than 20 years, or both."

It is the clear intent of title 12 to close the United States mails to any letters or literature in furtherance of any acts prohibited under the other titles of the statute.

It is said that the act violates the first amendment to the Constitution,

which declares that "Congress shall make no law * * * abridging the freedom of speech or of the press."

It is also said that the act violates the fifth amendment, which provides that "No person shall be * * * deprived of life, liberty, or property without due process of law."

In his Commentaries on the Laws of England, Mr. Justice Blackstone, in speaking of the liberty of the press, declares that it is "essential to the nature of a free State." It consists, he says, "in laying no previous restraint upon publications, and not in freedom from censure for criminal matter when published. Every free man has an undoubted right to lay what sentiments he pleases before the public; but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity." Vol. 4, p. 151. And Mr. Justice Story, in his Commentaries on the Constitution, states that "Every free man has undoubted right to lay what sentiments he pleases before the public; to forbid this is to destroy the freedom of the press." Vol. 2, § 1884, 4th ed.

In Patterson v. Colorado, 205 U. S. 454, 462, 27 Sup. Ct. 556, 51 L. Ed. 879, 10 Ann. Cas. 689 (1907), the court, speaking through Mr. Justice Holmes, declares that the main purpose of the constitutional provision as to the press is "to prevent all such previous restraints upon publications as had been practiced by other Governments, and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare." Now, clearly the Espionage Act imposes no restraint prior to publication, and no restraint afterwards except as it restricts circulation through the mails. Liberty of circulating may be essential to freedom of the press, but liberty of circulating through the mails is not, so long as its transportation in any other way as merchandise is not forbidden.

The act of Congress now called in question does not undertake to say that certain matter shall not be published nor that it shall not be transmitted in interstate commerce. It simply declares that such matter shall not be carried in the United States mails.

In Ex parte Jackson, 96 U. S. 727, 24 L. Ed. 877 (1877), the Supreme Court held that the power vested in Congress to establish post offices and post roads embraced the regulation of the entire postal system of the country, and that under it Congress could designate what might be carried in the mail and what excluded. In that case Mr. Justice Field, speaking for the court, said:

"In excluding various articles from the mail, the object of Congress. has not been to interfere with the freedom of the press or with any other rights of the people, but to refuse its facilities for the distribution of matter deemed injurious to the public morals."

* * *

This court holds, therefore, that the Espionage Act, in so far as it excludes from the mails certain matter declared to be unmailable, is constitutional.

The provisions contained in title 12 of the Espionage Act respecting the use of the mails do not abridge the freedom of the press or deprive the complainant of its property within the meaning of the First and Fifth Amendments. Congress has not attempted to prevent the transportation of this publication as merchandise by the railways or by the express companies, and it has not authorized the confiscation of it, neither has it in any way prohibited publication.

In 1798 Congress enacted what is known as the Sedition Law. Act July 14, 1798, c. 73, 1 Stat. 596. It provided, among other things, for the punishment of any person who published any false and malicious thing against the Government of the United States, or any matter intended to excite the people to oppose any law or act of the President in pursuance of law, or to resist, or oppose or defeat any law. The act provoked great resentment throughout the country, and when it expired by its own limitation in 1801 it was not renewed. From that time until the present no similar legislation, so far as we are aware, has been enacted.

The Espionage Act, now under consideration, bears slight resemblance to the Sedition Law of 1798. The act as originally drafted provided that every publication "containing any matter of a seditious, anarchistic, or treasonable character" should be nonmailable. when the act was under discussion in the Senate the words above quoted were stricken out, it having been objected that they were too indefinite and left too much room for construction. * * *

The Espionage Act being constitutional, the question which arises then is whether the action of the Postmaster General in excluding "The Masses" from the mails warranted the district judge in issuing an injunction commanding him to allow it to be transmitted by mail. The Postmaster General is the head of the Post Office Department. The obligations of his oath of office oblige him to see that the provisions of the Espionage Act are carried into effect, so far as they relate to the use of the mails, and that matter declared by the act to be nonmailable shall be excluded from the mails. The performance of that duty involves the exercise of his judgment and discretion. To what extent can the courts control him by injunction in the performance of this duty? * * *

In Public Clearing House v. Coyne, 194 U. S. 497, 24 Sup. Ct. 789, 48 L. Ed. 1092, the court held that it was within the power of Congress to entrust the Postmaster General with the power of seizing and detaining letters upon evidence satisfactory to himself, and that his action would not be reviewed by the court in doubtful cases. The act authorized the Postmaster General, upon evidence satisfactory to him. that any person who was conducting a scheme or device for obtaining money or property through the mails by fraudulent pretenses, to instruct postmasters at any post office at which registered letters arrived directed to any such persons to return the same to the postmaster at the office at which they were originally mailed with the word "Fraudulent" stamped upon the outside. * *

*

This court holds, therefore, that if the Postmaster General has been authorized and directed by Congress not to transmit certain matter by mail and is to determine whether a particular publication is nonmailable, under the law, he is required to use judgment and discretion in so determining and his decision must be regarded as conclusive by the courts unless it appears that it was clearly wrong.

We come, therefore, to consider the authority vested by Congress in the Postmaster General to determine whether he acted within his jurisdiction when he excluded the complainant's magazine from the mails.

* * *

The excluded publication is a magazine known as "The Masses." By its own statement it is a radical and revolutionary publication— not revolutionary, however, in that it desires to overturn existing forms of government by force of arms, as it is opposed to war. It is revolutionary not only in matters political but in art and literature and religion as well. It is a monthly publication of about 50 pages, and has a circulation of from twenty to twenty-five thousand copies each month. For a number of years it has passed freely through the mails to its subscribers throughout the United States.

The objectionable matter was contained in the August issue, and consisted of certain articles. These were entitled: "A Question," "A Tribute," "Conscientious Objectors," "Friends of American Freedom." Besides these articles there were four cartoons which were also objected to. These were entitled: . "Liberty Bell," "Conscription," "Making the World Safe for Capitalism," and "Congress and Big Business."

In the article entitled "A Question" the editor writes:

"I would like to know to-day how many men and women there are in America who admire the self-reliance and sacrifice of those who are resisting the conscription law on the ground that they believe it violates the sacred rights and liberties of man. How many of the American population are in accord with the American press when it speaks of the arrest of these men of genuine courage as a 'round-up of slackers'? Are there none to whom this picture of the American Republic adopting towards its citizens the attitude of a rider toward cattle is appalling? I recall the essays of Emerson, the poems of Walt Whitman, which sounded a call never heard before in the world's literature for erect and insuppressible individuality, the courage of solitary faith and heroic. assertion of self. It was America's contribution to the ideals of man. * * * I wonder if the number is few to whom this high resolve was the distinction of our American idealism, and who feel inclined to bow their heads to those who are going to jail under the whip of the State because they will not do what they do not believe in doing? Perhaps there are enough of us, if we make ourselves heard in voice and letter, to modify this ritual of contempt in the daily press and induce the American Government to undertake the imprisonment of heroic young men with a certain sorrowful dignity that will be new in the world."

The article idealizes those who resist the conscription law and it represents them as heroic. In saying that the law violates sacred rights