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Series xxxiv No. 2



Historical and Political Science

Under the Direction of the

Departments of History, Political Economy, and
Political Science


A STUDY IN constitutional EXPANSION


Adjunct Professor of Political Science in the University of Virginia




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Historical and Political Science

Under the Direction of the

Departments of History, Political Economy, and
Political Science





Adjunct Professor of Political Science in the University of Virginia



Copyright 19 i6 by






Preface vii

Chapter I. Introductory : The Antecedents of the

Power 9

Chapter II. The Power of Congress to Establish

Postoffices 26

Expansion of Facihties 26

Collectivist Activities 33

Postal Crimes 36

Fraud Orders 56

Chapter III. The Power of Congress to Establish

Postroads 61

Legislative Action 61

Judicial Determinations 80

Chapter IV. Limitations on the Postal Power 97

Freedom of the Press 98

Unreasonable Searches and Seiz-
ures 123

Chapter V. The Power of the States to Interfere

with the Mails 127

Chapter VI. The Extension of Federal Control Over

Postroads 1 50

Federal Ownership of Railroads 150

Postal Telegraphs and Telephones 156
Chapter VII. The Extension of Federal Control

Through Exclusion From the Mails 158


The purpose of this essay is to trace the legislative and
judicial history of the grant to Congress of the power "to
establish postoffices and postroads," and to discuss the con-
stitutionality of the proposals that, under this clause, federal
control may be extended to subjects over which Congress
has no direct authority. The essay is thus one in constitu-
tional expansion, and does not consider the history or effi-
ciency of the postofftce as an administrative arm of the
government. A treatment of this subject, which has as yet
received scant notice, I may some day attempt.

Portions of Chapters IV and VII have appeared as
articles on " Federal Interference w^ith the Freedom of the
Press," and " The Extension of Federal Control through
the Regulation of the Mails," in the Yale Laiv Journal
(May, 1 9 14) and the Harvard Law Revieiv (November,
1913) respectively. They have been thoroughly revised for
publication in their present form. Chapter V appeared in
substantially the same form in the Virginia Laiv Revieiv
(November, 191 5).

I am under great obligations to Professor W. W. Wil-
loughby, not only for much direct assistance in the prepara-
tion of this essay, but for the inspiration of his productive

L. R.


Introductory: The Antecedents of the Power

It is, perhaps, not insignificant that The Federalist con-
tains but a single reference to the power lodged in Congress
"to estabhsh postoffices and postroads." The writers of
that incomparable collection of political papers which dis-
cussed in such exhaustive detail the disputed points of the
proposed governmental frame- work for the United States
of America, hardly needed to argue that the proposed dele-
gation could not be deemed dangerous and was admittedly
one of national concern. " The power of establishing post-
roads," said Madison, " must, in every view, be a harmless
power, and may, perhaps, by judicious management, become
productive of great public conveniency. Nothing which
tends to facilitate the intercourse between the states can be
deemed unworthy of the public care."^

Half a century later. Story prefaced the discussion of this
power in his Commentaries, with the remark that, "One
cannot but feel, at the present time, an inclination to smile
at the guarded caution of these expressions, and the hesitat-
ing avowal of the importance of the power. It affords,
perhaps, one of the most striking proofs, how much the
growth and prosperity of the country have outstripped
the most sanguine anticipations of our most enlightened

At the time Story wrote, the postal power had, of course,
already achieved a " commercial, political, intellectual and

1 The Federalist, No. 42.

2 Story, Commentaries on the Constitution, vol. iii, p. 22.


private" importance, "of incalculable value to the perma-
nent interests of the Union," vital both to the government
and to individuals. But there was also the problem, lately
acute, as to whether Congress had simply the power " to
designate, or point out, what roads shall be mail roads, and
the right of passage or way along them when so designated,"
or the larger power " to construct any roads which Congress
may deem proper for the conveyance of the mail, and to
keep them in due repair for such purpose."" The remark-
able benefits already achieved and the disputed extensions
were the developments which excited Story's surprise at the
unprophetic remark of The Federalist.

But for some time the postoffice has been a common
carrier and is now supplanting the express companies ; it
exercises banking functions not only for facilitating ex-
change but for savings deposits, and other collectivist activi-
ties are most strongly urged. The Supreme Court of the
United States has upheld a broad power in Congress to
prevent and punish interference with the carriage of the
mails, and it is thus possible to make further extensions of
federal authority.* The right to incorporate railways and
build postroads is firmly established, and assertions are made
that it is both competent and advisable for federal authority
to assume control of the telephone and telegraph systems
and perhaps the railways themselves. It is, finally, argued
that Congress may solve problems of purely local origin, and
of primary sectional concern, through the simple expedient
of denying the use of the mails unless certain regulative
conditions are complied with. Viewing these extensions as
either definitely upheld by the Supreme Court, or seriously
urged, one cannot now but smile at the " guarded caution "
of Story's description and his " hesitating avowal " that
postroads might, with certain restrictions, be constructed
under federal auspices. The distinguished jurist, however,
wrote more prophetically than he knew, when he empha-

3 Story, Commentaries on the Constitution, vol. iii, p. 26.
*In Re Debs, 158 U. S. 564 (1895).


sized the importance of this power, " both theoretically and

Yet it is not unnatural that at the time the Constitution
Avas framed, the importance of the postal power should have
been inadequately estimated, since, inherently, it must be
conditioned by the existing mechanical means of intercourse
and communication. It seemed that the nation would be
sufficiently fortunate were it to be born with promise of
maintaining existence, and it was neither possible nor ad-
visable to scrutinize its powers of which future necessity or
expediency might require an extension for the purposes of
the nation. And, moreover, the growth of postal facilities,
from their first manifestation up to the adoption of the Con-
stitution was not sufficiently pronounced to augur a great
deal for the future. Travel and intercourse were extremely
difficult ; and the cognate questions were to come only with
the development of society.

The maintenance of postal facilities has always been a
recognized function of the state, and this was true even in
early Rom.e. In England, the sixteenth century saw the
first definite steps for the establishment of a service, but
even before this communications were carried by royal
messengers compensated by the Crown. Private posts
were, of course, used, but official letters on state matters
constituted so large a bulk of the correspondence and the
problem was one so fitted for solution by the state that it
was inevitable that the postal establishment should be con-
ducted under the auspices of, and supported directly by the

In the American colonies the first attempt to establish a
mail service was made in 1639 by the General Court of
Massachusetts. " For preventing the miscarriage of letters,
... It is ordered that notice bee given, that Richard Fair-
banks, his house in Boston, is the place appointed for all
letters, which are brought from beyond the seas, or are to
bee sent thither ; . . . are to bee brought to him and hee is to

5 Hemmeon, The History of the British Post Office, p. 3 flf.


take care, that they bee delivered or sent according to their
directions and hee is allowed for every such letter id. and
must answer for all miscarriages through his owne neglect
in this kind ; provided no man shall bee compelled to bring
his letters thither except hee please." So runs the entry in
the court records.^

This, however, applied only to foreign mail, and it was
not until December, 1672 that there was an effort to estab-
lish a domestic post, Francis Lovelace, governor of New
York, taking the initiative, and his messenger going to Con-
necticut. Soon afterwards the General Court of Massa-
chusetts appointed a postmaster and a proclamation was
issued by the home government calling for the establish-
ment of postoffices at convenient places on the American

The office of postmaster general for America was created
in 1692, permission being granted Thomas Neale and his
executors by the Lords of Trade and Plantations to estab-
lish " an office or offices for the receiving and dispatching
letters and pacquets, and to receive, send and deliver the
same under such rates and sums as the planters shall agree
to give."^

The next forty years saw some extensions of postal facili-
ties, but the improvement was slight. In 1683 William
Penn established a postoffice in Pennsylvania, and in 1736
a weekly mail was begun between Boston and New York,
but intercolonial communication was very restricted, and it
was not until 1737, with the appointment of Benjamin
Franklin as postmaster general at Philadelphia and post-
master general of the Colonies in 1753 that there were any
noticeable gains, or any signs of important developments

8 Mass. Historical Collections, 3d Series, vol. vii, p. 48; quoted by
Mary E. Wooley in her monograph on " Early History of the Colo-
nial Post Office," Publications of the Rhode Island Historical So-
ciety, New Series, vol. i, p. 270 ff .

■'' Hemmeon, p. 32; Joyce, The History of the Post Office from its
Establishment down to 1836, p. 196.

^ Wooley, Early History of the Colonial Post Office, p. 275 ; Hem-
meon, p. S3- See also Pliny Miles, " History of the Post Office,"
American Bankers' Magazine, n. s., vol. vii, p. 358 (November, 1857).


for the state function of which he was placed in charge.
Franklin was active in establishing new posts as far as was
possible and began the practice of sending newspapers
through the mails free of charge. When he was turned out
of office in 1774, he wrote that " before I was displaced by a
freak of the ministers, we had brought it [the postofifice] to
yield three times as much clear revenue to the crown as the
postoffice in Ireland. Since that impudent transaction they
have received from it not one farthing."^

After Franklin's dismissal the new postmaster at Phila-
delphia raised the rates on newspapers to such proportions
that William Goddard, an editor of Baltimore and Phila-
delphia, was forced to discontinue the publication of his
journal. In March, 1774 Goddard began a lengthy journey
through the New England States to gain support for the
" Constitutional American Post Office " which he hoped to
estabhsh.^" A tentative line was inaugurated between
Baltimore and Philadelphia, but this was gradually extended
so as to provide tolerably adequate facilities for all of the
colonies, Goddard having secured the support of the as-
semblies in New Hampshire, Massachusetts, Rhode Island,
New Jersey, and New York.^^ He realized from the first
that the facilities he was seeking should be furnished under
the auspices of the Continental Congress, and when this
body acted on July 26, 1775 and agreed to the establishment
of a post, Goddard's plans were accepted.^^

The establishment of postal facilities was one of the very
first problems taken up by the Continental Congress when
it began to exercise sovereign powers which it did not
legally possess, but which of necessity it had to assume.
On May 29, 1775 the Congress resolved that, "As the
present critical situation of the colonies renders it highly
desirable that ways and means should be devised for the
speedy and secure conveyance of Intelligence from one end

9 Miles, p. 361.

1° American Archives, Fourth Series, vol. i, pp. 500-504.

11 Ibid., vol. ii. p. 536 ff.

^- See Jameson (Ed.), Essays in Constitutional History, p. 168 ff.


of the Continent to the other," a committee be appointed to
consider the best means of establishing a post,^^ and on July
26, 1775 the Congress took up the committee's report, ap-
pointed Benjamin Franklin postmaster general for the
United Colonies, established a line of communication from
Falmouth to Savannah and recommended the inauguration
of cross posts within the discretion of the postmaster gen-
eral.^* Franking privileges were almost immediately estab-
lished for the members of Congress and for the army com-
manders, and were later extended, with some limitations, to
private soldiers in the service.^^

As yet the Congress had not aimed to make its postal
establishment a monopoly and so it was a question of war
policy rather than of the unrestricted exercise of a govern-
mental function which inspired the motion that the parlia-
mentary posts be stopped. Richard Henry Lee, for ex-
ample, argued that *' the Ministry are mutilating our cor-
respondence in England, and our enemies here are cor-
responding for our ruin ; " but the better opinion prevailed
that the measure was an offensive one not proper at that
particular juncture. In fact the ministerial post had been
of service to the colonists in giving them information which
they could not otherwise have obtained, and so it was recom-
mended that the people use the constitutional establishment
as much as possible. Before the end of the year, as it
turned out, this problem was settled without the interven-
tion of Congress for the British postoffice stopped its ser-
vice in the colonies.^*'

13 Journals of the Continental Congress (edited by Ford), ii, p. 71.
(References up to 1781 are to this edition, Washington, 1904 . . .
Since the sixteenth voU:me, the editor has been Gaillard Hunt.)

^* Ibid., vol. ii. p. 208.

^^ Ibid., vol. iii, p. 342; vol. iv, p. 43.

16 Ibid., vol. iii, p. 488. In the discussion referred to Paine re-
marked that the " ministerial post will die a natural death ; it has
been under a languishment a great while ; it would be cowardice to
issue a decree to kill that which is dying ; it brought but one letter
last time and was obliged to retail newspapers to pay its expenses."
Lee was more facetious, saying : " Is there not a Doctor, Lord North,
who can keep this creature alive?" On December 25. 1775, it was
announced that incoming mail would not be sent to the various
colonies but would be held in New York and advertised.


During the war the adequacy of the postal facihties was
often before Congress. Committees were appointed to in-
vestigate conditions ; Congress by resolution appreciated the
fact that the " communication of intelligence with frequency
and despatch from one part to another of this extensive
contineiit, is essentially requisite to its safety." The post-
master general was therefore requested to exercise care in
the selection of riders and to discharge dilatory ones when
discovered. Deputy postmasters were excused " from those
public duties which may call them from attendance at their
offices ; " admonitory resolutions directed ferry keepers to
expedite the passage of postriders, and a public monopoly
was aimed at through the indirect method of reducing the
wages of government messengers who carried private

On November 7, 1776, Richard Bache was appointed post-
master general vice Franklin who had gone on the mission
to France, and after this change the attempts of Congress
to improve the service seem to be more frequent.^ ^ In
January of the next year, Bache was requested to furnish a
list of those in the service, it having been reported that
" persons disaffected to the American cause " had been em-
ployed " with the most mischievous effects " and he was
further requested to " assign reasons why the late resolves
of Congress for regulating the postoffice are not carried into
execution. "^^ In February a committee was appointed to
revise the regulations ; it recommended extensions and sug-
gested that all employees be required to take an "oath of
fidelity to the United States and also an oath of office," and
urged that once in six months the postmaster general be
required to transmit to Congress a list of those in the
service.^^ The legislatures of the states were asked to
exempt from all military duties *' persons immediately con-

1'' Journals of the Continental Congress, vol. v, pp. 719, 720; vi,
p. 926.

^8 Ibid., vol. vi, p. 931.

19 Ibid., vol. vii, p. 29.

20 Ibid., p. 153.


cerned in conducting the business of the postoffice," but still
the establishment did not work to the satisfaction of Con-
gress, and other committees were appointed to make recom-
mendations and the rates of postage were several times in-
creased. One new step was taken when an inspector of
dead letters was appointed to " examine all dead letters at
the expiration of each quarter; to communicate to Congress
such letters as contain inimical schemes or intelligence; to
preserve carefully all money, loan office certificates, lottery
tickets, notes of hand, and other valuable papers enclosed
in any of them, and be accountable" for their safekeeping,
subject to the restriction that he take " no copy of any letter
whatever," and refuse " to divulge their contents to any but
Congress or those whom they may appoint for the pur-

Meanwhile the Articles of Confederation had been agreed
upon and submitted to the states. There was no objection
to a grant of the postal power, but the terms in which it
was made limited its extent. Part of Article XVIII in the
first draft gave the United States "the sole and exclusive
right and power of . . . establishing and regulating post-
offices throughout all the United Colonies, on fines of com-
munication from one colony to another," and later on in
the same article, it was provided that the United States
" shall never impose or levy any taxes or duties except in
managing the postoffice."" In the second draft, the grant
was made more limited ; it gave Congress " the sole and ex-
clusive right and power ... of establishing and regulating
postoffices from one state to another throughout all the
United States and exacting such postage on the papers pass-
ing through the same as may be requisite to defray the
expenses of said office." In this form the clause became
part of the Articles of Confederation as adopted by the
states,-^ and there was no further discussion of the power,

21 Journals of the Continental Congress, vol. vii, pp. 258, 347; ix,
816, 817, 898; xi, 550.

22 Ibid., vol. V, p. 551.

2' Ibid., pp. 681, 682; ix, 907. In the second draft the postal clause
comes under Article 14 and in the final draft under Article 9.


negative action being taken on the motion of the Pennsyl-
vania delegates (June 25, 1778) "that such part of the 9th
article as respects the postof^ce, be altered or amended so
as that Congress be obliged to lay the accounts annually
before the legislatures of the several states."-*

The Articles of Confederation gave the limited power of
establishing and regulating postofficcs " from one state to
another." Thus, intrastate postal facilities were beyond
the purview of Congress ; nothing was said, moreover,
about the establishment of postroads, or the opening up of
new routes, and the sole power of taxation granted to Con-
gress was confined to an amount sufficient to defray the
expenses of the system. Nevertheless, the inadequacy of
the grant was theoretical rather than real, since Congress
was so occupied with other more pressing affairs, that it was
content with a limited communication of intelligence, desir-
ing solely that this be as speedy and secure as possible.

From this time on references to the postal establishment
in the congressional journals are of frequent occurrence;
additional investigating committees were established and
the personnel of the standing committee was changed. Ex-
penses grew apace while the revenues diminished and this
called for measures of retrenchment. A resolution of De-
cember 27, 1779, contained the regulation that "the post
shall set out and arrive at the place where Congress shall be
sitting twice in every week," and it was at the same time
urged that " the whole expensive system of express riding

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Online LibraryLindsay RogersThe postal power of Congress; a study in constitutional expansion → online text (page 1 of 17)