United States v. Huggett

• Decision Date: 01 July 1889
• Citation: 40 F. 636
• Parties: UNITED STATES v. HUGGETT. SAME v. DARKESS.
• Court: U.S. District Court — Northern District of Ohio

40 F. 636

UNITED STATES v. HUGGETT.

SAME v. DARKESS.

United States Circuit Court, N.D. Ohio.

July 1, 1889

Robert S. Shields, Dist. Atty., and Lee = Brown, for Huggett.

A Farquharson, for Darkess.

HAMMOND J.

These demurrers present the disputed question whether or not a message or communication in writing from one person to another, of the ordinary and conventional form and style known in common speech as 'a letter,' deposited in the mails, is within the inhibition of the Revised Statutes Sec. 3893, if it use language that is obscene within the meaning of that statute. The adjudicated cases being divided the expressions of opinion are very conflicting, and a case is thought to be now pending in the supreme court requiring its decision of the question. The cases cited in the affirmative of the proposition, and sustaining the indictment, are U.S. v. Gaylord, 17 F. 438; U.S. v. Hanover Id. 444; U.S. v. Britton, Id. 731; U.S. v. Morris, 18 F. 900; and U.S.v. Thomas, 27 F. 682. Those in the negative, and against the indictment, are U.S. v. Williams, 3 Fed.Rep. 484; U.S. v. Loftis, 12 F. 671; U.S. v. Comerford, 25 F. 902; and U.S. v. Mathias, 36 F. 892. No opinion was expressed in U.S. v. Chase, 27 F. 807, certified to the supreme court; and in U.S. v. Foote, 13 Blatchf. 418, the judgment proceeded upon a proper construction of the word 'notice,' as used in this section as it stood prior to the amendment of 1876, and as it may be found in the original edition of the Revised Statutes or the italic print of the second edition. It was there held that under that clause of the statute it was quite immaterial whether the 'notice' mailed should be in the form of a letter or some other form. Any 'notice' was especially interdicted. Standing so upon the authorities, it may well be held, as it plainly is, at least very doubtful how this disputed question should be decided; and the defendants first insist that, where there is a reasonable doubt, the construction should be in their favor. I am not quite prepared to hold that this rule of reasonable doubt, by analogy to the well-known principle which governs a jury in trying the facts, should exempt the defendants from that penalty which they have incurred if the statute be against them, for this would be to abrogate by judicial action every dubious or doubtful enactment; and the elasticity of language is such, and the carelessness of legislation is so fruitful of ambiguity in drawing statutes, that it would be a dangerous doctrine to establish by that broad expression of it. Nor do I find that the supreme court of the United States has so expressed it in the cases cited for it in U.S. v. Whittier, 5 Dill. 35; U.S. v. Clayton, 2 Dill. 219, 226, 12 Myer, Fed.Dec. § 345; and U.S. v. Comerford, supra. That court has undoubtedly enforced the rule of a strict, though reasonable, construction of penal statutes, confines them within the clearly expressed or necessarily implied meaning of the language used, and refuses to enlarge the words to include other conduct of like, equal, or greater atrocity, simply because it may be within the same mischief to be remedied, when it is not fairly included in the language of the act; but I do not observe that it lays down any rule that a reasonable doubt as to the interpretation of a statute is to be resolved in favor of the accused. U.S. v. Sheldon, 2 Wheat. 119; U.S. v. Wiltberger, 5 Wheat. 76, 95; U.S. v. Morris, 14 Pet. 464, 475; U.S. v. Hartwell, 6 Wall. 385; U.S. v. Reese, 92 U.S. 214. Such a formulary of a rule for expounding statutes may be found elsewhere, perhaps, but not in these decisions, I think; and nowhere, it seems to me, can the doctrine mean more than they express. End. Interp. St. Secs. 329, 330. Hence it becomes necessary to resolve the doubt according to the proper construction of the statute, however much the court might be inclined to mitigate the punishment, or withhold it altogether, perhaps, because of the ambiguous or misleading character of the language used; but the defendants cannot claim to be discharged because of a reasonable doubt about that construction. But I am of the opinion that the adjudications which have affirmed the validity of these indictments do fall into the very latitude of construction which was condemned by the supreme court of the United States in the above-cited cases; and that upon the somewhat gratuitous assumption that congress intended to purge the mails of all impurity whatever, and that because, forsooth, the use of obscene language in private letters is as impure there as elsewhere, is as offensive, to the addressee, and as much deserves punishment, they have too eagerly held that letters were included in the act. I may upon a gratuitous assumption, because the history of the legislation shows quite clearly, it seems to me, that, until the recent acts of congress, that body has never come up to the elevated plane of moral action suggested by these decisions, and to be implied from putting this restriction upon the absolute freedom of that form of correspondence, but has especially refused to do that thing. Acts 1888, c. 394, p. 187; Id. c. 1039, p. 496. And this reluctance to interfere with the freedom of private correspondence is readily explainable by the suggestion of Mr. Justice FIELD that congress felt the difficulty of accomplishing its purpose to protect the morals of the people by a wise use of its power over the postal establishment, 'consistently with rights reserved to the people, of far greater importance than the transportation of the mail. ' Ex parte Jackson, 96 U.S. 727, 732. Free speech, and particularly free speech in private intercourse, and the aversion of our race of freemen to interference with it, stood somewhat in the way of this legislation, at least in the popular estimation; and this popular sensitiveness upon the subject found its expression in the reluctance of congress to place letters upon the list of expurgated mailable matter. It was akin to the action of a state, having larger jurisdiction and opportunities to protect morals, inhibiting the use of obscene or indecent language in private conversation or speech; and it was this sentiment that protected letters at first, and until congress concluded to take the advanced step: It may be that congress was oversensitive and overcareful; but that the legislation has gone through this process of development is an important consideration in the interpretation of this section of the Revised Statutes. As originally conceived, it was a mere trade regulation for the territory within the exclusive jurisdiction of the United States, and exclusion from the mails was merely a method of aiding in its enforcement.

The notion that the intention ever was or is now to protect the mails and purify them, or to guard the postal officials from contamination, is, in my judgment, a barren sentimentality that deserves no place in the serious consideration of this statute. Postal officials are not supposed to examine or to appropriate to themselves the indulgences of reading that which goes into the mails in any form, but their duty is to handle and distribute it without doing that. They violate their duty when they so use any mail matter whatsoever, except for the purposes of such official inspection as may be authorized. Therefore it is that this sentiment seems a useless one. But the purpose was, as we have the authority of the supreme court for saying, to refuse the facilities of the postal establishment for the distribution of matter deemed injurious to the public morals. Ex parte Jackson, supra. At first, traders were not allowed to use the mails as an instrumentality for administering to depraved tastes, and now the prohibition has been likewise extended to include a purpose of refusing carriage of any message, even in a private letter, which in its language violates the common sense of decency.

Also, I think that in the discussion of this subject too much stress has been laid upon the sanctity of that sealing of mail matter, especially letters, which the postal laws guard so sedulously, as a guide to the proper interpretation of the statute. Judge DRUMMOND effectually disposes of that argument in his opinion by showing that the sealing and paying of letter postage on those articles confessedly inhibited does not remove the inhibition or protect the culprit. It may delay detection, but it does not make the matter mailable but it does not follow from this that a letter sealed or unsealed is within this statute. No doubt that from the time when postal facilities were first provided in the world, and the governments were first charged with the duty of establishing them, this sealing of letters and documents carried in the mails was protected as a right of the highest importance, without which the postal establishments would become mere freighters; but the consideration of that matter in its relation to the subject we have in hand is fully covered by the suggestion already referred to, of a reluctance on the part of congress to restrict freedom of speech in private correspondence by letters; and except so far as this sanctity of the seal is included in that principle of freedom of private speech I do not deem it of much importance in interpreting this statute, and think it should not be exaggerated, as there is some danger of doing. It might not be an impossible construction of the statute, in my view of it, that a letter, or, as I prefer to express the idea, a written or printed message or communication in the form of epistolary private correspondence, containing obscene thoughts in language which happens to be expressed upon a sheet of paper displaying some obscene 'pictures,'-- no matter in what style of the art of making pictures,...