THE POSTAL POWER OF CONGRESS
THE POSTAL POWER OF CONGRESS
A STUDY IN CONSTITUTIONAL EXPANSION
BY
LINDSAY ROGERS
A DISSERTATION
Submitted to the Board of University Studies of The Johns
Hopkins University in Conformity with the Requirements
for the degree of Doctor of Philosophy
1915
BALTIMORE
1916
COPYRIGHT 1916 BY
THE JOHNS HOPKINS PRESS
PRESS OF
THE NEW ERA PRINTING COMPANY
LANCASTER, PA.
CONTENTS
PAGE
PREFACE vii
CHAPTER I. Introductory: The Antecedents of the Power 9
CHAPTER II. The Power of Congress to Establish Postoffices 26
Expansion of Facilities 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 Seizures 123
CHAPTER V. The Power of the States to Interfere with the
Mails 127
CHAPTER VI. The Extension of Federal Control Over Postroads 150
Federal Ownership of Railroads 150
Postal Telegraphs and Telephones 156
CHAPTER VII. The Extension of Federal Control Through
Exclusion From the Mails 158
PREFACE
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 constitutionality 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 constitutional expansion, and does not consider the history
or efficiency of the postoffice 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 with the Freedom of the Press,” and “The Extension of
Federal Control through the Regulation of the Mails,” in the _Yale Law
Journal_ (May, 1914) and the _Harvard Law Review_ (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 Law Review_ (November, 1915).
I am under great obligations to Professor W. W. Willoughby, not only
for much direct assistance in the preparation of this essay, but for
the inspiration of his productive scholarship.
L. R.
THE POSTAL POWER OF CONGRESS
CHAPTER I
INTRODUCTORY: THE ANTECEDENTS OF THE POWER
It is, perhaps, not insignificant that _The Federalist_ contains but
a single reference to the power lodged in Congress “to establish
postoffices and postroads.” The writers of that incomparable collection
of political papers which discussed 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 delegation
could not be deemed dangerous and was admittedly one of national
concern. “The power of establishing postroads,” 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.”[1]
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 hesitating 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 patriots.”[2]
At the time Story wrote, the postal power had, of course, already
achieved a “commercial, political, intellectual and private”
importance, “of incalculable value to the permanent 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.”[3] The remarkable 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 exchange but for savings deposits, and other
collectivist activities 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.[4] 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 emphasized the importance of this power, “both theoretically
and practically.”
Yet it is not unnatural that at the time the Constitution was 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 advisable 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 Constitution 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 Rome. 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 conducted under the auspices of, and
supported directly by the government.[5]
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 Fairbanks, 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 take
care, that they bee delivered or sent according to their directions
and hee is allowed for every such letter 1_d._ 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.[6]
This, however, applied only to foreign mail, and it was not until
December, 1672 that there was an effort to establish a domestic post,
Francis Lovelace, governor of New York, taking the initiative, and his
messenger going to Connecticut. Soon afterwards the General Court of
Massachusetts appointed a postmaster and a proclamation was issued by
the home government calling for the establishment of postoffices at
convenient places on the American continent.[7]
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 establish “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.”[8]
The next forty years saw some extensions of postal facilities, 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 postmaster general of the
Colonies in 1753 that there were any noticeable gains, or any signs of
important developments 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 postoffice] 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.”[9]
After Franklin’s dismissal the new postmaster at Philadelphia raised
the rates on newspapers to such proportions that William Goddard, an
editor of Baltimore and Philadelphia, 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 establish.[10]
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 assemblies in New Hampshire, Massachusetts, Rhode Island,
New Jersey, and New York.[11] 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.[12]
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 of the Continent
to the other,” a committee be appointed to consider the best means of
establishing a post,[13] and on July 26, 1775 the Congress took up the
committee’s report, appointed 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 general.[14] Franking privileges were
almost immediately established for the members of Congress and for the
army commanders, and were later extended, with some limitations, to
private soldiers in the service.[15]
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 governmental function which inspired the
motion that the parliamentary posts be stopped. Richard Henry Lee, for
example, argued that “the Ministry are mutilating our correspondence
in England, and our enemies here are corresponding 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 recommended 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 intervention of Congress for the British postoffice stopped its
service in the colonies.[16]
During the war the adequacy of the postal facilities was often before
Congress. Committees were appointed to investigate conditions;
Congress by resolution appreciated the fact that the “communication
of intelligence with frequency and despatch from one part to another
of this extensive continent, is essentially requisite to its safety.”
The postmaster 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 packages.[17]
On November 7, 1776, Richard Bache was appointed postmaster 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.[18] 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 employed
“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.”[19] In February a committee
was appointed to revise the regulations; it recommended extensions
and suggested 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.[20] The legislatures of
the states were asked to exempt from all military duties “persons
immediately concerned in conducting the business of the postoffice,”
but still the establishment did not work to the satisfaction of
Congress, and other committees were appointed to make recommendations
and the rates of postage were several times increased. 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 purpose.”[21]
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 postoffices throughout all the United Colonies, on lines of
communication 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.”[22] In the
second draft, the grant was made more limited; it gave Congress “the
sole and exclusive 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 passing 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,[23] and there was no further discussion of the power,
negative action being taken on the motion of the Pennsylvania delegates
(June 25, 1778) “that such part of the 9th article as respects the
postoffice, be altered or amended so as that Congress be obliged to
lay the accounts annually before the legislatures of the several
states.”[24]
The Articles of Confederation gave the limited power of establishing
and regulating postoffices “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
Congress 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, desiring 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. Expenses grew apace while the revenues
diminished and this called for measures of retrenchment. A resolution
of December 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 be totally abolished except by the
particular order of Congress upon very special occasions.”[25]
On October 18, 1782, under the power granted by the Articles of
Confederation, there was passed “An Ordinance for Regulating the
Post-Office of the United States of America.” For the period it
was a most elaborate statute and marks the birth of a real postal
establishment. Of such comprehensiveness was the act that when, ten
years later, Congress passed legislation under the authority delegated
by the Constitution, the Ordinance was merely amplified. Its preamble
recited:
“Whereas the communication of intelligence with regularity and dispatch
from one part to another of these United States is essentially
requisite to the safety as well as the commercial interest thereof;
and the United States in Congress assembled being by the Articles of
Confederation vested with the sole and exclusive right and power of
establishing and regulating postoffices throughout all these United
States; and whereas it is become necessary to revise the several
regulations heretofore made relating to the postoffice and reduce to
one act:
“Be it therefore ordained by the United States in Congress assembled,
and it is hereby ordained by the authority of the same, that a
continued communication of posts throughout these United States shall
be established and maintained by and under the direction of the
postmaster general of these United States to extend to and from the
state of New Hampshire to the state of Georgia inclusive, and to and
from such other parts of the United States as from time to time he
shall judge necessary or Congress shall direct.”[26]
The duties of the postmaster general were “to superintend and direct
the postoffice in all its various departments and services ...
agreeably to the rules and regulations” of the ordinance. He was given
the power to appoint an assistant and deputies, for whom he should be
responsible; to station them, and to fix their commissions, with a
maximum limit of 20 per cent. on money “to arise from postage in their
respective departments.” He was given the further power of appointing
postriders, messengers and expresses.
In this ordinance, moreover, Congress attempted to lay down certain
regulations, infraction of which would be punishable, although not
criminally or in an efficient manner. All persons in the service were
forbidden knowingly or wilfully “to open, detain, delay, secrete,
embezzle, or destroy, or cause, procure, permit, or suffer to be
opened, detained, delayed, secreted, embezzled or destroyed, any
letter or letters, packet or packets, or other dispatch or dispatches,
which shall come into his power, hands, or custody, by reason of his
employment in, or relation to, the postoffice, except by the consent
of the person or persons by or to whom the same shall be delivered or
directed, or by an express warrant under the hand of the president
of the Congress of these United States or in time of war, of the
commander in chief of the armies of these United States, or of the
chief executive officer of one of the said states, for that purpose, or
except in such other cases wherein he shall be authorized to do so by
this ordinance.”
All persons in the postal service were required, antecedent to their
employment, to take an oath promising to carry out and obey these
meticulous provisions to safeguard the mails, but the method of
enforcement was ineffective. Congress provided that “if the postmaster
general shall be guilty of the said oath or affirmation or any part
thereof, and be thereof convict, he shall forfeit and pay 1,000 dollars
in an action of debt in the state where the offense shall be committed,
by the treasurer of the United States for the time being.” The penalty
for other employees was $300, but all were “rendered incapable ever
hereafter of holding any office or place of trust or profit under these
United States.”[27]
In order to make probable a higher degree of efficiency and to
insure adequate revenues, the Congress attempted to make and enforce
a monopoly. The Ordinance specified that the postmaster and his
assistants, but “no other person whatsoever shall have the receiving,
taking up, ordering, dispatching ... carrying and delivering of any
letters, packets or other dispatches, from any place within these
United States for hire, reward, or other profit or advantage ... and
any such person or persons presuming to do so, shall forfeit and
pay for every such offense, 20 dollars, to be sued for and recovered
in an action of debt with costs of the suit.” Persons on private
missions were exempted and private cross posts could be established
with the approval of the postmaster general. By the ordinance rates
were fixed and special provisions were made for newspapers which
were to be carried “at such moderate rates as the postmaster general
shall establish.” The franking privilege, finally, was extended to
the officials at Washington and single letters could be sent without
postage to officers of the line in actual service; by early amendments
to the ordinance there were further extensions, Washington was relieved
of paying postage and allowance was made for ministers at foreign
courts.[28]
The incompleteness of the national control over the postoffice and in
particular the inadequacy of the device that really criminal offenses
should be punished by civil suits, were shown in January, 1784 when
Congress considered a robbery which had taken place at Princeton. The
mail had been carried off and some days later was found in a meadow,
several letters having been lost and several more, franked by members
of Congress, having been broken open. The “supreme executive of the
state of New Jersey” was requested to undertake an investigation to
discover those guilty, but when his reply exculpated the Princeton
postmaster “from every suspicion of collusion or fraud” the inquiry was
dropped. Congress could proceed no further.[29]
Another incident showing general acceptance of the fact that the
regulation of the mails and the punishment of offenses against them
should be under plenary national control, occurred a few months later
and was considered by the Committee of the States during a recess of
Congress. An investigating committee reported that an advertisement of
French packet boats was “an open avowal of an intention to contravene
an ordinance of Congress for regulating the postoffice of these United
States; and that the measures therein mentioned ... are a flagrant
violation of the same ordinance ... will greatly injure the revenue
of the postoffice, and, if not prevented, may defeat that useful
institution.” The Committee of the States agreed to the report and
directed that if the postmaster general should determine that the
ordinance had been violated, he should cause the prosecution of the
offenders according to law, namely, make them defendants in actions of
debt for the penalties provided by the ordinance.[30]
On September 4, the postmaster general was given authority to contract
for the conveyance of the mails by stage carriages, if practicable, for
one year, but on the part of some of the states considerable opposition
developed. A motion was made to construe the words “if practicable” as
not binding the postoffice “to form the contract for the transportation
of the mail on terms inconvenient to the mercantile interest, or to
comply with the extravagant demands of the contractors,” but the
vote was in the negative and a second attempt to modify the original
instruction was also unsuccessful.[31] The later motion showed a
disposition on the part of the states to desire flexible national
regulations, which would not necessarily be uniform, but would be
adapted to local needs. The resolution recited that in respect to the
states of New Jersey, Pennsylvania, Delaware, Maryland and Virginia,
the mails might “be carried upon more reasonable and convenient terms
should the postmaster general be left at liberty to contract for the
same either by stage carriages or postriders, as shall appear to him
most conducive to the public interest.
“And whereas the intention of Congress in having the mail transported
by stage carriages was not only to render their conveyance more
certain and secure, but by encouraging the establishment of stages to
make intercourse between different parts of the union less difficult
and expensive than formerly; and as a discretionary power in the
postmaster general either to employ postriders or contract with the
owners of stage carriages for conveying the mail in the states of North
Carolina, South Carolina, and Georgia might interfere with the object
of promoting and establishing the running of stages in said states,
Resolved, that so far as respects these states it is improper to alter
the postmaster general’s present instructions.”[32] Thus very early
attempts were made to secure special local facilities.
During this period, however, subsequent to the ordinance of 1782,
Congress took no important action in regard to the postoffice. It
annually gave the postmaster general authority to contract for the
succeeding year, and to encourage the useful institution of the
postoffice when it could be done without material injury to the
public.[33] In the enforcement of federal regulations, as has been
said, the government was limited by having to sue in actions of debt,
and so it was a foregone conclusion that the postal power, inadequately
vested in Congress under the Articles of Confederation, would be one
of the grants contained in the Constitution. The Pinckney plan as it
was submitted to the Committee of Detail, mentioned “establishing
Post-Offices” as one of the exclusive powers of “the Senate and House
of Delegates in Congress assembled.”[34] Pinckney’s original draft
outlined the power as that “of establishing Post-Offices and raising a
revenue from them.”[35]
In the Convention Mr. Paterson on June 15, 1787 suggested “that in
addition to the power vested in the United States by the existing
articles of Confederation, they be authorized to pass acts for raising
a revenue, ... by a postage on all letters and packages passing through
the general postoffice, to be applied to such federal purposes as they
shall deem proper and expedient.”[36] The report of the Committee of
Detail was made to the Convention on August 6 and provided (Art. VII)
that “The Legislature of the United States shall have the power ... to
establish postoffices.”[37]
Ten days later, the Committee’s report being under consideration it was
proposed that the words “and postroads” be added. This was carried by a
close vote, though it is difficult to attribute the opposition to any
source other than a general fear of giving the federal government too
much power and thus endangering the chances for adoption.[38] To this
feeling also, may be ascribed the result that, when, later, some urged
the insertion of an additional grant “to regulate stages on the post
roads,” the proposal was not reported from the Committee of Detail.[39]
Such a power has, however, been fully exercised.
The report of the Committee of Style, made on September 12, fixed the
grant as that “to establish postoffices and postroads,” this being the
form in which it became a part of the Constitution.[40] Dr. Franklin,
however, advocated that there be added “a power to provide for
cutting canals where deemed necessary.”[41] The motion was seconded,
but Mr. Sherman started the opposition by objecting on the ground
that the “expense in such cases will fall on the United States and
the benefits accrue to the places where the canals may be cut.” Mr.
Wilson, on the contrary, argued that instead of being an expense to
the United States, the canals might be made a source of revenue, and
Madison wanted “an enlargement of the motion into a power to grant
charters of incorporation where the interest of the United States might
require, and the legislative provisions of the individual states might
be incompetent. His primary object, however, was to secure an easy
communication between the states which the free intercourse, now to be
opened, seemed to call for. The political obstacles being removed, a
removal of the natural ones as far as possible ought to follow.”[42]
The question, however, was limited to the single case of canals, and
when put to a vote was defeated, because there was an antipathy to
monopolies,[43] and because, as Gouverneur Morris admitted, “It was
extremely doubtful whether the Constitution they were framing could
ever be passed at all by the people of America; that to give it its
best chance, however, they should make it as palatable as possible,
and put nothing into it, not very essential, which might raise up
enemies.”[44]
This history of the postal clause in the Federal Convention offers
little of interpretative importance. The intent of the framers is
sufficiently clear, although, as pointed out by one commentator, the
delegation is clothed in words which “poorly express its object” and
“feebly indicate the particular measures which may be adopted to carry
out its design. To establish post offices and post roads is the form
of the grant; to create and regulate the entire postal system of the
Government is the evident intent.”[45]
It is possible partially to explain the specific negativing of the
power to cut canals on the ground that there was no limitation to those
cases in which the construction would have been an aid to interstate
commerce or the transportation of the mails. Under the amendment as
proposed Congress would have had the authority to cut a waterway wholly
within a state for purely intrastate purposes.[46] As a matter of fact,
however, this power, which later was to give rise to considerable
controversy, has been exercised by the federal government under its
authority to regulate interstate commerce and establish postroads, just
as the postal grant itself has been extended to cover fields, neither
existing nor within the range of possibility when the Constitution was
adopted.
In the state conventions there was practically no discussion of the
postal power. Its innocuousness was granted. Mr. Jones of New York
was alone in finding a latent aggression, and it was resolved, as
the opinion of the state committee, “that the power of Congress to
establish post-offices and postroads is not to be construed to extend
to the laying out, making, altering, or repairing highways, in any
state, without the consent of the legislature of such state.”[47]
Such a stipulation was destined very soon to become a mere _brutum
fulmen_.[48]