Founding-Era Socialism: The Original Meaning of the Constitution’s Postal Clause

In December, 1772 the British government designated Hugh Finlay, as “Surveyor [inspector] of the Post roads in the Continent of North America.”

FINLAY, supra note 1, at 1. The formal appointment apparently was on January 5, 1773. Steele, Finlay, supra note 1.

Finlay was a diligent officer.

Steele, Finlay, supra note 1 (noting “the diligence that marked his entire career”).

Falmouth was the northern terminus of the 13-colony post road. From there Finlay followed the road though Boston, Providence, New Haven and New York, and then sailed to Philadelphia, Pennsylvania and to Charles Town, South Carolina. From Charles Town he proceeded overland to the southern post road terminus at Savannah, Georgia, and thence north to Virginia.

Finlay interviewed postmasters and assessed conditions in every major city and town he visited. His journal, which is still extant,

FINLAY, supra note 1.

One reason for the deficiencies may have been prolonged administrative neglect. Two postmasters general were supposed to oversee the northern half of the system, but one of the two had been Europe for nearly ten years. While largely ignoring his postal responsibilities, he served personal clients and continued to collect his postal salary. The truant’s name was Benjamin Franklin.

This narrative of fault in an otherwise-revered American Founder is but one illustration of how inquiry into the Postal Clause offers unusual perspectives on the Constitution, on the framers who wrote it, and on the ratifiers who adopted it.

The Postal Clause itself is distinctive in several ways. It appears to convey two powers: establishing post offices and establishing post roads. Inquiry reveals that it created a single sweeping power: erecting and operating a national transportation, freight, and communication monopoly. Nearly all the Constitution’s other enumerated powers—national defense, taxation, regulation of inter-jurisdictional commerce, protection of intellectual property, and so forth—address functions inherently governmental. Delivery of letters and parcels is not quite in the same category. As the modern history of the United Parcel Service and Federal Express demonstrate, private companies in competitive environments can provide nearly universal service.

Serving expensive marginal locations can create a “network advantage” that more than compensates for the additional cost of service. Cf SHAPIRO, supra note 1, at 2; Metcalf’s Law, BUSINESS DICTIONARY, at http://www.businessdictionary.com/definition/Metcalfe-s-Law.html (last visited Feb. 28, 2018).

History before the founding had demonstrated serious defects in the British postal model. Nonetheless, the Founders sought to copy that model in almost all respects, along with its defects; indeed the wording of the Clause follows closely the language of certain British postal statutes. Our justly-celebrated Founders generally favored private enterprise,

E.g., THE FEDERALIST NO. 24, supra note 1, at 121 (Alexander Hamilton); id. NO. 34, at 164 (Alexander Hamilton) (both assuming that Americans had the goal of being “a commercial people”).

These decisions seem dysfunctional if we think of the postal system as primarily designed to serve the general public

ROPER, supra note 1, at p. xv (“The mightiest implement of human democracy is postal service. Good postal facilities prompt and encourage the spirit and service of that world democracy which makes for the freedom and happiness of mankind.”).

Part I of this Article examines the prior history of the British imperial postal system, the institution from which the American post office evolved. Part II examines the North American colonial branch of the imperial post, and Part III discusses the American system between Independence and the commencement of operations under the new Constitution. Part IV addresses the debates over the Postal Clause at the Constitutional Convention, and Part V addresses the ratification debates. Part VI contains my conclusions as to the original meaning of the Clause. Part VII offers a glance ahead toward post-ratification history: the effect of the Bill of Rights on the Postal Clause, the significance of the 1792 Post Office Act (including its implications for what later became known as the “non-delegation doctrine”),

Act. of Feb. 20, 1792, ch. 7, 1 Stat. 232.

A word about method: When discussing the original meaning of constitutional provisions, legal writers commonly enlist as evidence material arising years, even decades, after the ratification.

E.g., District of Columbia v. Heller, 554 U.S. 570, 606-19 (2008) (relying on nineteenth-century materials in determining the public meaning of the Second Amendment); Baude, supra note 1, at 1751 (relying on “seventy-five years of subsequent practice and precedent” as tending to demonstrate original meaning).

This Article seeks to avoid anachronistic readings by relying almost exclusively on evidence arising before the thirteenth state, Rhode Island, ratified the Constitution on May 29, 1790. Nothing in the Part VII “glance ahead” alters conclusions reached in Part VI.

British, and especially English, historical background is always useful in constitutional interpretation. For re-creating the meaning and scope of the Postal Clause, it is compelling.

In 1692, the British government appointed a postmaster general for the colonies,

JOYCE, supra note 1, at 110.

From 1775, when the Revolutionary War began, until 1790, when the thirteenth state ratified the Constitution, American ideas of what it meant to “establish Post Offices and post Roads”

See infra notes 67-70 and accompanying text for subsequent use in the postal context of the term “establish.”

Independence changed many things, but it did not immediately alter American ideas about the purposes and characteristics of a postal service.

The royal post evolved from a network erected in England during the sixteenth century.

ROBINSON, supra note 1, at 7-22; LEWINS, supra note 1, at 20-21; HEMMEON, supra note 1, at 4-7; Ogilvie, supra note 1, at 443 (all outlining sixteenth century development)

In Elizabeth’s time private persons could travel over the post roads, but the message-courier service was formally closed to them. Royal agents and couriers delivered letters only on official state business. Foreigners and merchants relied on private networks.

LEWINS, supra note 1, at 32; HEMMEON, supra note 1, at 6-7.

Eventually officials recognized that formally opening the network to private letters and parcels might benefit the government, and during the 1630s, a postmaster general named Thomas Witherings, did so.

ROBINSON, id. at. at 27-33; LEWINS, supra note 1, at 38; JOYCE, supra note 1, at 18; HEMMEON, supra note 1, at 11-18; Ogilvie, supra note 1, at 444 (all outlining Witherings’ reforms). However, Blackstone gave primary credit for the then-existing system to Edmond Prideaux. 1 WILLIAM BLACKSTONE, COMMENTARIES *311. Prideaux became postmaster general in 1644. HEMMEON, supra note 1, at 20.

From being a system that no correspondent outside the government could use, the royal post became the system correspondents were required to use: After 1637, it was a mail-carrying monopoly.

LEWINS, supra note 1, at 39. Because this was a time when monopolies were seen as violating natural liberty, there apparently was some public resistance. Id. at 40 & 43; Ogilvie, supra note 1, at 445.

When Elizabeth died in 1603, James VI of Scotland became James I of England as well. In 1707 the two countries submitted to a single Parliament. When speaking of the eighteenth century, therefore, it is appropriate to refer to British rather than English postal institutions.

The British system was based principally on a network of great post roads connecting major cities and towns. During the eighteenth century there were still only six, all radiating from London. The “Great North Road” extended to Edinburgh, the capital of Scotland and the hub of the Scottish post office.

JOYCE, supra note 1, at 52-53 & 117-18 (discussing the Scottish post office).

A post was a station where correspondence and packages were picked up and delivered, tired horses exchanged for fresh ones, tolls collected, and vehicles and guides hired. Either the post itself or the stretch of road between posts could be called a stage.

Compare JOYCE, supra note 1, at 48 (“The post roads were then divided into sections or, as they were commonly called, stages”) with LEWINS, supra note 1, at 23 (“The route from London to Berwick is shown by the lists of posts (or stages)”). ROBINSON, supra note 1, uses the word in both senses. Compare id. at 7 (“the Master of the Posts would divide the road into stages of ten to fifteen or more miles) with id. at 16 (“In 1589 the stages on the road south from Berwick were Berwick, Belford, Alnwick” [and so on, listing stations]).

Each post was overseen by a post-master or post-mistress

A significant number of women were so employed. JOYCE, supra note 1, at 146 (referring to the postmistress at St. Columb); 159 (referring to the postmistress at Ferrybridge) & 161 (referring to the postmistress of Lancaster).

Riders picked up and delivered letters and parcels on a (supposedly) regular schedule. An ad hoc rider for delivering a particular letter or package was called an express.

JOYCE, supra note 1, at 63.

Any traveler using a post road—whether an official courier or a private individual—was said to ride post.

E.g., 9 Ann., c. 10 (1711), § 14 (using the term).

“Her husband posting down Into the country far away.”

Cowper, supra note 1, at 194.

A courier on horseback was called a post rider, a post boy

5 Geo. 3, c. 25 (1765), §§ 20 & 21 (using the term “post boy” to refer to a rider).

The post boy carried letters in a chest called a portmanteau

JOHN, SPREADING, supra note 1, at 32 (using the term “portmanteau”).

In his long poem The Task, Cowper portrayed a post boy trudging his way, blowing his post horn upon arrival, and his indifference to the content of the letters he carried:

Hark! ‘tis the twanging horn o’er yonder bridge,

That with its wearisome but needful length

Bestrides the wintry flood, in which the moon

Sees her unwrinkled face reflected bright;—

He comes, the herald of a noisy world,

With spatter’d boots, strapp’d waist, and frozen locks;

News from all nations lumbering at his back.

True to his charge, the close-pack’d load behind,

Yet, careless what he brings, his one concern

Is to conduct it to the destined inn,

And, having dropp’d the expected bag, pass on.

He whistles as he goes, light-hearted wretch,

Cold and yet cheerful: messenger of grief

Perhaps to thousands, and of joy to some;

To him indifferent whether grief or joy.

These lines proceed:

Houses in ashes, and the fall of stocks,

Births, deaths, and marriages, epistles wet With tears, that trickled down the writer’s cheeks Fast as the periods from his fluent quill,

Or charged with amorous sighs of absent swains,

Or nymphs responsive, equally affect His horse and him, unconscious of them all.

Cowper, supra note 1, at 75-76 (The Task: Book IV, The Winter Evening, lines 1-22).

After 1660, and particularly in the eighteenth century, transport in horse-drawn coaches was increasingly available.

ROBINSON, supra note 1, at 68. A kind of stage coach first appeared in London about 1608. LEWINS, supra note 1, at 74.

The chief executive of the entire system was the postmaster general—the adjective “general” meaning “national” as opposed to “local,” as in “general welfare”

E.g., U.S. CONST., art. I, § 8, cl. 1.(“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the Common Defence and general Welfare”).

The post road’s status as an intercity highway dotted with stations for lodging, eating, renting, and refueling rendered it the founding-era analogue to the modern interstate highway. In Britain, however, the transportation component of the royal post enjoyed monopoly privileges absent from modern interstate highways. For many years it was illegal to rent a horse or carriage for use on a British post road from anyone but the local postmaster or postmistress. Only if he or she could not provide a horse or carriage within a half hour of demand was the traveler free to make his own arrangements.

JOYCE, supra note 1, at 130-31; 9 Ann., c. 10 (1711), § 20.

The monopoly was weakened in 1749 when certain chaises and calashes, both light vehicles, were exempted from the rental restrictions.

22 Geo. 2, c. 25 (1749).

Thus in 1782, Cowper’s John Gilpin was permitted to ride onto the post road mounted on a horse borrowed from a friend rather than leased from the postmaster. Gilpin also avoided paying tolls, because his appearance—dashing at break-neck speed with stoneware bottles flying from his belt—caused the toll gate keepers to think he was running a race:

Away went Gilpin—who but he?

His fame soon spread around;

“He carries weight! He rides a race!”

“’Tis for a thousand pound!”

And still, as fast as he drew near,

’Twas wonderful to view,

How in a trice the turnpike-men

Their gates wide open threw.

Cowper, supra note 1, at 191.

Thus, by the eighteenth century the royal post was an elaborate carriage and transportation institution. The verb usually employed for erecting such an institution was to establish. The dictionary said that establish denoted “[t]o settle firmly, to fix unalterably; to found, to build firmly, to fix immovably; to make settlement of any inheritance.”

THOMAS SHERIDAN, A COMPLETE DICTIONARY OF THE ENGLISH LANGUAGE (2d ed. 1789) (unpaginated) (defining “establish”). The definitions in other dictionaries were similar, e.g, SAMUEL JOHNSON, A DICTIONARY OF THE ENGLISH LANGUAGE (8^th ed. 1786) (unpaginated) (listing seven definitions, including “To settle firmly; to fix unalterably”); NATHAN BAILEY, A UNIVERSAL ETYMOLOGICAL ENGLISH DICTIONARY (25^th ed. 1783) (unpaginated) (“to make stable, firm and sure, to fix or settle”).

Today we think of the British and American post offices as primarily public service institutions and as networks for popular distribution of information. The eighteenth century records disclose some evidence of that mode of thought, particularly among printers campaigning for free or reduced-cost newspaper carriage.

Infra Part V.B.

Throughout the eighteenth century the Post Office circulated propaganda distributed by Country Deputies [i.e., MPs] … . Propaganda consisted of Proclamations, prayers, and notices usually sent as State’s Franks, and Gazettes, newspapers, and pamphlets, as Newspaper Franks … [W]ith the expansion of the government press in the early eighteenth century, its value greatly increased. Pamphlets, then the best propaganda, were frequently delivered at the office on the government’s orders for free distribution by Country Deputies, Customs and Excise officers. Subsidized newspapers, known as Pension Papers, were also circulated to meet the growing demand of gentry, innkeepers, and provincial editors.

ELLIS, supra note 1, at 47-48.

The postal system enabled officials to collect as well as distribute communications. By having the post send newspapers to them, officials could monitor activities throughout the country.

Id. at 61; ROBINSON, supra note 1, at 120; JOYCE, supra note 1, at 7 (“[I]t is a fact beyond all question that the posts in their infancy were regarded and largely employed as an instrument of police. It was not until the reign of William the Third that they began to assume their present shape of a mere channel for the transmission of letters.”).

The practice of letter opening diminished somewhat after the accession of William and Mary in 1689,

ROBINSON, supra note 1, at 45 (stating that during the seventeenth century, “[s]uspected letters were constantly opened.”); id. at 54 (discussing a “device for the expert opening and resealing of letters); HEMMEON, supra note 1, at 21 (discussing the opening of letters under the Commonwealth [1649-60]). See also id. at 47:

We find very few complaints about the opening of letters during the second half of the eighteenth century. On the other hand it must be confessed that letters were at times opened and searched merely to learn the beliefs and plans of political opponents.

However, Professor Ellis’ findings tend to show the level of spying in the late eighteenth century was greater than Hemmeon suggests. Infra notes 80 & 83-86 and accompanying text.

[T]he early English postal System was mainly political in its aims. The great post roads were important from a political rather than an economic standpoint. It was necessary to keep in close touch with Scotland because the Scotch would always stand watching. The wild Irish needed a strong hand and it was expedient that English statesmen should be well acquainted with things Irish. The post to and from the continent was quite as necessary to keep them informed of French and Spanish politics.

HEMMEON, supra note 1, at 97-98.

Other targets were Englishmen whom those in power thought “stood watching.” Royal governors in the colonies routinely opened letters coming into their territory.

ELLIS, supra note 1, at 64.

Security depended on technical skill, restricted knowledge, loyalty, and the absence of parliamentary criticism. As regards the first, a high level of efficiency was maintained, especially in the case of diplomatic correspondence, the seals being carefully engraved, special wax procured, and opening and closing done without trace. Neither time nor trouble were spared, three hours being regularly spent on the King of Prussia’s dispatches in mid-century.

ELLIS, supra note 1, at 75-76.

Despite the care taken, many people knew, or suspected, that letter-opening was common. Members of Parliament knew.

JOYCE, supra note 1, at 170-71:

As early as 1735 members of Parliament had begun to complain that their letters bore evident signs of having been opened at the Post Office … .but it was not until six years later … that the state of the case became fully known. It then transpired that in the Post Office there was a private office, an office independent of the postmasters general and under the immediate direction of the Secretary of State, which was expressly maintained for the purpose of opening and inspecting letters. It was pretended, indeed, that these operations were confined to foreign letters, but as a matter of fact, there was no such restriction… . It was in June 1742 that these shameful facts became known, through the report of a committee of the House of Commons ….

The third reason was revenue,

ENCYCLOPAEDIA BRITANNICA, supra note 1, at 6442 (“The duty for the carriage of letters by post in Britain, forms a branch of the REVENUE.”); 1 WILLIAM BLACKSTONE, COMMENTARIES *311-312 (“Another very considerable branch of the revenue is … the post-office, or duty for the carriage of letters.”)   ELLIS, supra note 1, at 2 & 38-39 (describing the postal system as a source of revenue). See also ROPER, supra note 1, at 11:

From this time [1708] until the opening of the first English railways and the postal reforms of Roland Hill, the British post office was deliberately used by the Government as a means of taxation, with little or no regard for the advantages to be gained by facilitating correspondence among the people.

The relative importance of these four motivations varied over time. Transaction of official business always remained significant, as did revenue.

Ogilvie, supra note 1, at 451 & 453 (providing charts with eighteenth century and early nineteenth century revenue amounts).

Late in the eighteenth century, some Englishmen began to see the postal system as an agent of public service.

Cf. ELLIS, supra note 1, at 59.

The English Parliament adopted comprehensive postal legislation in 1657

ROBINSON, supra note 1, at 46; HEMMEON, supra note 1, at 23-24, 138 & 195; JOYCE, supra note 1, at 27-28; LEWINS, supra note 1, at 45-46.

The overhaul came in 1711, during the reign of Queen Anne, in the form of a statute entitled “an Act for establishing a General Post-Office for all Her Majesty’s Dominions, and for settling a Weekly Sum out of the Revenues thereof, for the Service of the War, and other Her [sic] Majesty’s Occasions.”

9 Ann., c. 10 (1711).

It was adopted at the behest of William Lowndes, the secretary of the treasury,

ELLIS, supra note 1, at 7.

–

authorized chief letter offices in Edinburgh, Dublin, and New York,

9 Ann., c. 10 (1711), § 4.

Thus, the statutory title’s reference to “establishing a General Post-Office” signified creating an entire postal system, with all its elements.

During the period between this statute’s passage and the Constitution’s ratification, Parliament supplemented the measure several times.

6 Geo. 1, c. 21 § 51 (1719) (clarifying postage rates on merchants’ documents); 4 Geo. 2, c. 33 (1731) (clarifying charges for delivery by penny post); 22 Geo. 2, c. 25 (1749) (exempting chaises and calashes from the exclusive hiring rule); 26 Geo. 2, cc. 7 & 8 (1753) (clarifying postage rates on legal writs and clothing patterns); 4 Geo. 3, c. 24 (1764) (curbing the practice of franking); 5 Geo. 3, c. 25 (1765) (altering rates of postage and adopting other reforms); 7 Geo. 3, c. 50 (1767) (extending service to the Isle of Man); 19 Geo. 3, c. 51 (1779) (licensing horse rental and eliminating monopoly); 20 Geo. 3., c 51 (1780) (replacing 1779 statute); 22 Geo. 3, c. 70 (1782) (expanding the frank) & 23 Geo. 3., c. 69 (1783) (expanding the frank); 25 Geo. 3. c. 51 (1785) (a rental licensing and toll law)

Several persistent motifs characterized the history of the royal post before the American Revolution erupted in 1775. These motifs were (1) proliferation of post roads and routes, (2) the post office’s enjoyment of significant legal privileges, (3) proliferation of private privileges against the post office, in tension with the revenue-raising goal, and (4) sporadic progress in methods and technology.

The expansion in the number of post roads and routes was certainly impressive. By 1737, treatise writer Giles Jacob could report that the “Conveyance of Post-Letters extends to every considerable Market-Town.”

JACOB, supra note 1, at 263.

The royal post enjoyed various legal privileges denied to private enterprise. One was the carriage and transportation monopoly. Others were exemptions from otherwise-general legal duties. Thus, postal couriers were exempt from the tolls that everyone else paid,

25 Geo. 3, c. 57 (1785) (exempting carriages and horses carrying mail from all tolls); LEWINS, supra note 1, at 140-41 (discussing the exemption and its effects).

While granting the postal system special privileges against the public, Parliament granted individuals and institutions privileges against the postal system. The third motif was the conflict between these privileges and revenueraising objectives. The 1711 statute exempted England’s two universities, Oxford and Cambridge, from the postal monopoly. Students, professors, and staff could send letters any way they wished.

Ogilvie, supra note 1, at 449; 9 Ann., c. 10 (1711), § 32.

A particularly costly privilege was franking. The frank exempted many people from paying postage at all,

ROBINSON, supra note 1, at 113-19 (discussing franking).

Parliament periodically expanded

5 Geo. 3, c. 25 (1765), § 26 (extending the privilege) 22 Geo. 3, c. 70 (1782) (same) & 23 Geo. 3, c. 69 (1783) (same).

Newspaper publishers and printers (generally the same people) received special privileges. Their papers passed free or at very low cost.

ROBINSON, supra note 1, at 147. For this, William Cowper was grateful. Once the post boy delivered the newspaper on a winter evening, Cowper settled down comfortably:

This folio of four pages, happy work!

Which not even critics criticise, that holds

Inquisitive attention while I read

Fast bound in chains of silence, which the fair,

Though eloquent themselves, yet fear to break,

What is it but a map of busy life,

Its fluctuations and its vast concerns?

The Task, Book IV, lines 50-56, COWPER, supra note 1, at 76. “The fair” is Cowper’s common appellation for womankind.

The privilege afforded newspapers can be seen as a laudable exercise of public spirit, for it facilitated dissemination of information,

ROBINSON, supra note 1, at 147-49.

A fourth motif in British post office history pertains to its progress (and nonprogress) in methods and technology. In competitive markets, efficiency improvements occasionally burst in with leaps and bounds, but far more often they crawl in. That is, improvements occur in small increments, identified by participants who operate under strong incentives to seek even marginal ways of doing things better. However, a state owned enterprise with monopoly privileges offers few incentives for such vigilance. The methods and technology of the royal post typically stagnated until a zealous reformer, usually an outsider, found a way to force change.

Judith Blow Williams, Book Review: The British Post Office: A History. By Howard Robinson, 21 J. MODERN HIST. 141, 142 (1949) (“[T]he stimulus for change came usually from persistent criticism from without the regular organization of the post office.”); ROBINSON, supra note 1, at vii (“Again and again reformers labored to speed up a slowly evolving government department.”).

There are many illustrations of this motif. One of the most cited is the episode of Thomas Dockwra’s “penny post” of 1680.

Before Dockwra arrived on the scene, the royal post carried letters to cities and towns throughout England, but although headquartered in London it offered no service within London. When the London Common Council tried to fill the gap with its own courier operations, Parliament quickly suppressed them.

JOYCE, supra note 1, at 24-25.

In 1680 Dockwra created a new company called the “penny post” to serve the capital city and its suburbs.

ROBINSON, supra note 1, at 70-76 (discussing Dockwra’s penny post). See also JOYCE, supra note 1, at 36-40; HEMMEON, supra note 1, at 28; Ogilvie, supra note 1, at 447-48.

At that time, the principal beneficiary of revenue from the royal post was the Duke of York, the future James II.

The Duke acquired this benefit in 1675, while his brother, Charles II, was still king. See JACOB, supra note 1, at 256 (“By 15 Car. 2, “All the Profits … were settled upon James Duke of York”); LEWINS, supra note 1, at 52.

After the 1688 Revolution had evicted James II, the government partially compensated Dockwra with a pension and a short-lived job as penny post administrator.

LEWINS, supra note 1, at 55. Dockwra was dismissed in 1700. HEMMEON, supra note 1, at 30.

Other entrepreneurs rose to challenge the postal monopoly, each to be suppressed in turn. The government’s motives for crushing them were not wholly financial:

[In 1683] the panic caused by the discovery of the Rye-House Plot had led to the issue of a Proclamation which, if differing little from others that had gone before, acquires importance from the circumstances under which it appeared. Unauthorised posts had again sprung up in all directions, simply, no doubt, because there was a demand for the accommodation they afforded; but the Government, no less than the persons who denounced Dockwra’s undertaking as a Popish contrivance, seem to have been possessed with the idea that these posts were mere vehicles for the propagation of treason. To prevent treasonable correspondence was the avowed object of the present Proclamation, and the means by which the object was sought to be attained was the suppression of private and irregular posts, for by these, the Proclamation went on to declare, the conspirators had been materially assisted in their designs.

JOYCE, supra note 1, at 43.

The Rye House plot was long gone when, in 1708, another entrepreneur, Charles Povey, created a “half penny post” for London. The government prosecuted him and destroyed his enterprise.

ROBINSON, supra note 1, at 87-88; LEWINS, supra note 1, at 82-84; JOYCE, supra note 1, at 121-23; HEMMEON, supra note 1, at 197.

Other challenges arose after the rate increases in the statute of 1711.

JOYCE, supra note 1, at 133-34.

John Palmer was another who successfully negotiated the route to lucrative crony capitalism. As is important for crony capitalists, Palmer was well connected: He had a friend in the younger William Pitt, then prime minister. Palmer convinced Pitt to allow him to contract for letter delivery on major routes using coaches rather than riders. Despite stubborn bureaucratic resistance,

Id. at 69 & 134-36.

After Palmer’s reforms, post boys drove coaches as well as rode horseback, as illustrated in Cowper’s poetic account of the vicissitudes of John Gilpin. In Cowper’s poem, Mrs. Gilpin offered the post boy a half-crown to pursue her husband and bring him back safely. The post boy had been driving a post-chaise. He uncoupled one of the horses, swung onto its back, and headed after Mr. Gilpin:

Away went Gilpin, and away

Went postboy at his heels,

The postboy’s horse right glad to miss

The lumbering of the wheels.

Cowper, supra note 1, at 194.

But unlike this post boy’s horse, British postal institutions advanced only by fits and starts. In some instances, the office wielded government power to shatter competitors, enabling it to scavenge among the debris. In other cases, innovators wielded the government power against the post office, compelling it to reform.

Until 1775, the American postal network operated under the aegis of the Crown. From 1775 to March 1, 1781 it functioned under the Continental Congress and from the latter date until April 1789 (when the new government began operations) under the Confederation Congress. Throughout those years the post office remained essentially the same institution.

JOHN, SPREADING, supra note 1, at 25 states the same idea another way:

Prior to 1792, the American postal system remained constrained by the assumptions that had shaped royal policy … In the seventeen-year period between 1775 and 1792, the American postal system was little more than a mirror image of the royal postal system for British North America as it had existed in the period prior to 1775.

As explained in Part VII.B the situation did not change radically even in 1792.

The seventeenth century witnessed scattered efforts to create an indigenous American postal service,

Wooley, supra note 1, probably remains the leading study of pre-1711 American postal matters. She begins with the practice of employing Indians as messengers and details the unsuccessful efforts to create an inter-colonial service. Id. at 270-74. See also RICH, supra note 1, at 1-8; LEECH, supra note 1, at 7-8 (describing those efforts).

Neal remained in Britain, but designated Andrew Hamilton as his man on location. Hamilton was an energetic Scottish merchant and a former lieutenant governor and future governor of New Jersey.

Id. at 275; RICH, supra note 1, at 14. See LOUISE P. KELLOGG, THE AMERICAN COLONIAL CHARTER 235, 239-40 (Washington: Government Printing Office 1904) (stating that Hamilton served as lieutenant governor under the Andros administration and later served as a competent governor).

Parliament’s 1711 statute completed the process of pulling the American postal system under the same umbrella that covered England, Wales, Scotland, Ireland, and the British West Indies.

9 Ann., c. 10, § 2 (1711).

The 1711 statute created a central post office in New York City to govern operations in North America.

Id. § 4 (1711).

In Virginia there was resistance to the notion that Parliament, rather than local assemblies, could set the postal rates. Some Virginians saw these charges as a form of taxation.

Id. at 268; JAFFE, supra note 1, at 38-39.

In 1737, Franklin became postmaster in Philadelphia, and in 1753, jointly with William Hunter, deputy for the colonies.

LEECH, supra note 1, at 8.

Franklin’s early contributions were admirable, but the fact remains that he was absent for 15 of his 21 years as deputy postmaster general, and this absent period included virtually the entire time he headed the northern district.

Smith, supra note 1, at 270 n.42 (observing that Franklin was in England from 1757 to 1762 and again from 1764 to his dismissal in 1774).

In Finlay’s time the American postal system centered on a single post road extending from Falmouth, Massachusetts (now Portland, Maine)

FINLAY, supra note 1, at 14.

The southernmost post office in the northern district was Suffolk, Virginia. The northernmost post office in the southern district was Edenton, North Carolina.

FINLAY, supra note 1, at 72 & 84.

I have not been able to determine with certainty how many post offices then served the thirteen colonies. Finlay’s journal does not provide a complete list: His expedition was interrupted by his appointment as joint deputy postmaster general,

Steele, Finlay, supra note 1.

As in Britain, postmasters often were newspaper publishers.

JAFFE, supra note 1, at 36; e.g., FINLAY, supra note 1, at 30 (noting that the Providence postmaster was also a printer).

Regulation of travelers was less thorough than in Britain. Efforts to establish transportation monopolies in some colonies

Wooley, supra note 1, at 276-77 (describing New York legislation creating a horse and “furniture” rental monopoly on the post road); 286 (describing a Pennsylvania law providing for rental of horses to travelers); 289 (describing a New Jersey law banning private renting of “horses or furniture”).

The colonies north of Maryland were far more densely populated than those to the south. There were post offices every twelve to fifty miles in the North, each supervised by a deputy postmaster. The South had but a handful. Much of the southern post road ran through “Pine, Sand, and Swamp,” and was difficult of passage.

FINLAY, supra note 1, at 52-53.

Finlay found that while American deputy postmasters generally were conscientious,

FINLAY, supra note 1, at 30 (describing John Carter, deputy postmaster for Providence, Rhode Island, as a “seemingly active sensible man”); FARRAND, supra note 1, at 40 (stating of the New Haven, Connecticut, deputy postmaster, “he understands his business thoroughly”); FARRAND, supra note 1, at 57 (stating of the Savannah, Georgia deputy that “he is an excellent officer.”).

Finlay concluded that in the restless state of the colonies, attempts to enforce the law would have been useless. His report written in Salem, Massachusetts, is illustrative:

October 11th.- [Deputy Postmaster Edward Norice’s] books were not in good order, he follows the form, but they are dirty and not brought up regularly; he understands the business of a deputy. The office is kept in a small mean looking place. He teaches writing. He has no commission [i.e., formal credentials] to act, he took charge of the office at the death of his father; he reports that every other day the stage coach goes for Boston, the drivers take many letters, so that but few are forwarded by Post to or from his office. If an information were lodged (but an informer wou’d get tar’d and feather’d) no jury wou’d find the fact; it is deemed necessary to hinder all acts of Parliament from taking effect in America. They are they say to be governed by laws of their own framing and no other.

Id. at 23-24 & 40. See also id. at 32 (“Were any Deputy Post Master to do his duty, and make a stir in such matter, he would draw on himself the odium of his neighbours and be marked as the friend of Slavery and oppression and a declar’d enemy to America.”).

Distaste for the imperial post induced Americans to opt out. In 1774, William Goddard,

On Goddard’s career and activities, see JAFFE, supra note 1, at 53-55 & 61-62 & 63-65; Adelman, supra note 1, at 725-28, 732 & 740.

On April 28, 1775, Boston’s committee of safety recommended establishment of new postal services, and the following month it created its own routes.

RICH, supra note 1, at 46.

Goddard was unsuccessful in convincing the First Continental Congress to sponsor his “constitutional post office.”

J. CONT. CONG., supra note 1, at 55 (Oct. 5, 1774).

Congress authorized a line of posts from Falmouth to Savannah—the same route then served by the royal post. All profits were to be paid to the treasury. Presumably as an inducement for the public to utilize the congressional network, postage rates were slashed 20 percent.

2 J. CONT. CONG., supra note 1, at 203-09 (Jul. 26, 1775). When in England, Franklin had successfully lobbied for lower postage rates, accurately predicting that the result would be more business and more revenue. JAFFE, supra note 1, at 43 & 62.

The royal post, shunned by the public, formally closed its doors on December 25, 1775.

ROPER, supra note 1, at 40; Smith, supra note 1, at 275.

Because the new United States post office was the direct successor to the North American branch of the imperial system—even many of the personnel and operational policies were the same

Adelman, supra note 1, at 742 & 744.

During the time of the Continental Congress (1775-81) and the Confederation Congress (1781-89), the Post Office functioned as one of several executive departments reporting directly to Congress.

By the end of the Confederation era the congressional bureaucracy included, in addition to the post office, departments of war and foreign affairs (each administered by a secretary), and a department of finance (administered by the board of treasury consisting of three commissioners). There were other officers as well, including superintendents of Indian affairs for the northern and southern departments.

Confederation executive and judicial functions have, perhaps, been too little studied, since Confederation-era usage has consequences for constitutional interpretation—for example, in defining the meaning of the constitutional word “department.” E.g., U.S. CONST. art. I, § 8, cl. 18 (“To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested… in any Department … thereof.”); id. art. II, § 2, cl. 1 (“The President … may require the Opinion, in writing, of the principal Officer in each of the executive Departments”).

Congress’s actual or perceived need for intelligence often motivated its postal decisions.

E.g., 5 J. CONT. CONG., supra note 1, at 717-18 (Aug. 20, 1776) (appointing committee to consider establishing “advice boats” “so as to facilitate and expedite the conveying of intelligence”); id. at 720 (Aug. 30, 1776) (“That the communication of intelligence with frequency and despatch [sic], from one Part to another of this extensive continent, is essentially requisite to its safety”); 6 id. at 927 (Nov. 5, 1776) (instructing the postmaster general to hire more riders “for obtaining early and frequent intelligence” from the armies); 17 id. at 467 (May 27, 1780 (“the establishment of Posts and expresses who shall bring the earliest intelligence of the arrival of the fleet of our ally and the motions of the Enemy”).

See also Letter from Benjamin Franklin to Ebenezer Hazard (Sept. 25, 1775) in 2 DELEGATE LETTERS, supra note 1, at 56 (stating, “It seems the more necessary to establish Speedily a Post to Albany, as we have an Army on your Frontiers.”).

Thus, Professor Desai’s description of the post office at this time as “simply a revenuegenerating enterprise,” Desai, supra note 1, at 677, was much too limited.

As in Britain, some official postal espionage took place without legal sanction. In 1788 Postmaster General Ebenezer Hazard informed Congress that the president of Pennsylvania had been opening private mail, or at least attempting to do so. Hazard questioned whether this was permitted,

34 id. at 232 (Jun. 13, 1788) (reproducing letter).

–

Because of Congress’s exclusive power over the post office, only Congress could delegate authority to open private letters.

The Pennsylvania president on the receiving end of this slapdown was Ben Franklin.

Congress hoped to use the post office as a source of general revenue as well as of intelligence.

E.g., 12 id. at 930 (Sept. 19, 1778) (committee report on application of postal revenue).

During the war years generating income was difficult. Congress repeatedly raised rates and salaries to offset wartime inflation.

E.g., 9 id. at 817 (Oct. 17, 1777) (rate increase of 50 percent); 13 id. at 463 (Apr. 16, 1779) (rate doubling); 16 id. at 413 (May 5, 1780) (rate doubling); 19 id. at 191 (Feb. 24, 1781) (rate doubling). See also 18 id. at 1142 (Dec. 12, 1780) (salary increases)

During the war Congress frequently had to cover deficits.

E.g., 13 id. at 74 (Jan. 16, 1779) (payment to the postmaster general of $20,000); 13 id. at 463 (Apr. 16, 1779) (payment of additional amounts of $6967 and $5000); 14 id. at 633 (May 22, 1779) (payment of $10,000). See also 15 id. at1203-04 (Oct. 23, 1779) (reporting large deficits).

The importance of the post office as an aid to commerce was reinforced by the close relationship between trade and revenue. As Postmaster General Hazard repeatedly reminded Congress, merchants were by far the system’s most important paying customers.

29 id. at 527 (Jul. 12, 1785) (reproducing a letter from the postmaster general in which he refers to “the mercantile Interest, from whence the Post Office Establishment derives its principal Support”); 33 id. at 671, 672 (Oct. 12, 1787) (reproducing letter from postmaster general stating, “Trade is the principal, and almost only, Support of the Post Office Department”).

In most respects the structure of the American post office, as well as its goals, mirrored that of the British. Congress required operatives to take loyalty oaths, as in Britain.

10 id. at 69 (Jan. 21, 1778).

Congress granted franking privileges much as Parliament did. “[T]he members of Congress were determined to enjoy all the privileges of officials under the old [royal] office, for on November 8 [1775] it was provided that all letters and packets sent or addressed to the delegates should be free during the sessions of Congress.”

RICH, supra note 1, at 50.

Insofar as American practices were looser than those in Britain, officials made efforts to tighten them. While still post office surveyor, Ebenezer Hazard wrote to the North Carolina legislature asking that it impose British-style mandates on ship masters and increase its mandates on ferries.

Memorial from Ebenezer Hazard to the North Carolina General Assembly (Apr. 6, 1778), in 12 N.C. RECORDS, supra note 1, at 395-96.

In 1777, Congress adopted the final version of the Articles of Confederation

9 id. at 907 (Nov. 15, 1777).

The United States in Congress assembled shall also have the sole and exclusive right and power of … establishing or regulating post offices 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 the said office …

ARTS. CONFED., art. IX.

During the 1780s, Congress negotiated a postal convention with France

30 J. CONT. CONG., supra note 1, at 80-82 (Feb. 15, 1786) (reproducing some of the proceedings); 30 id. at 141-42 (Mar. 29, 1786) (same).

In the main, the 1782 measures tracked the subject matter of Parliament’s 1711 statute and of subsequent parliamentary enactments.

Supra Parts I.E & I.F.

In a few respects the ordinances departed from British precedents. They did not disqualify postal personnel from parliamentary politics because America had no general parliament. They did not attempt to control transportation on the post roads; any such regulation would have been impossible to enforce. The principal ordinance seemed to subordinate revenue-raising to conveyance of information: It recited “the communication of intelligence with regularity and despatch”

23 id. at 670 (Oct. 18, 1782).

Congress eventually concluded that the 1782 reforms were not sufficient. On February 25, 1786, it appointed a new committee “to prepare and report an Ordinance on the post Office.”

30 J. CONT. CONG., supra note 1, at 84 (Feb. 25, 1986).

When the Constitutional Convention met, this draft ordinance represented the latest official thinking on postal affairs. The following year the Confederation Congress adopted the newspaper exchange provision,

34 J. CONT. CONG., supra note 1, at 144 (May 7, 1788).

State owned enterprises suffer from widely-recognized challenges, particularly when they operate in non-competitive environments. These challenges include, but are not limited to, conflicting objectives, political interference, anti-competitive behavior, inefficient operations, and lack of accountability.

World Bank Group, Corporate Governance of State-Owned Enterprises: A Toolkit 12 15 (2014), available athttps://openknowledge.worldbank.org/bitstream/handle/10986/20390/9781464802225.pdf?sequence=1&isAllowed=y. See also   O E C D, OECD GUIDELINES ON CORPORATE GOVERNANCE OF STATE-OWNED ENTERPRISES 12 (2015), available athttp://www.oecd-ilibrary.org/governance/oecd-guidelines-on-corporate-governance-of-state-owned-enterprises-2015_9789264244160-en.

In other respects, the Constitution favored private and competitive solutions rather than government enterprises and monopoly. It did not establish a state church, for example, and it proscribed religious tests.

U.S. CONST., art. VI, cl. 3 (“no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”).

Yet for postal services, the framers wrote into the Constitution a clause authorizing a state-owned monopoly, and this decision was almost unquestioned during the ratification debates.

Infra Part VII.B.

One underlying reason may have been that the founders were temperamentally disposed toward preservation. They fought a revolution, but a conservative revolution. They repudiated specific English institutions, but they did not repudiate their entire heritage. The Postal Clause is only one of many constitutional provisions reflecting continuity with England.

Moreover, Congress inherited the American branch of the imperial post office at a time when Congress desperately needed two benefits that institution traditionally provided: intelligence and revenue. The framers and ratifiers may have believed that a socialized monopoly was the only way the system could generate revenue. Some contemporaneous writers defended government postal monopolies on grounds similar to the modern economic concept of the “natural monopoly.”

Natural Monopoly, Investopedia, http://www.investopedia.com/terms/n/natural_monopoly.asp (“A natural monopoly is a type of monopoly that exists as a result of the high fixed costs or startup costs of operating a business in a specific industry.”). Cf. 1 WILLIAM BLACKSTONE, COMMENTARIES at *312 (“[N]othing but an exclusive right can support an office of this sort: many rival independent offices would only serve to ruin one another.”); ENCYCLOPAEDIA BRITANNICA, supra note 1, at 6442 (repeating the same justification).

Newspaper publishers saw the post office as a ready, and perhaps subsidized, way to deliver their product. A few outside the newspaper business envisioned the post office as what it later became—a great democratic circulatory system. Dr. Benjamin Rush, a signer of the Declaration of Independence and friend of Franklin, presented this concept in a pamphlet published in early 1787:

For the purpose of diffusing knowledge, as well as extending the living principle of government to every part of the united states—every state—city—county—village—and township in the union, should be tied together by means of the post-office. This is the true non-electric wire of government. It is the only means of conveying heat and light to every individual in the federal commonwealth. Sweden lost her liberties, says the abbe Raynal, because her citizens were so scattered, that they had no means of acting in concert with each other. It should be a constant injunction to the postmasters, to convey newspapers free of all charge for postage. They are not only the vehicles of knowledge and intelligence, but the centinels of the liberties of our country.

Benjamin Rush, Address to the People of the United States, AMERICAN MUSEUM (Jan. 1787), in FRIENDS OF THE CONSTITUTION: WRITINGS OF THE “OTHER” FEDERALISTS, 1787-1788 1, 4 (Colleen A. Sheehan & Gary L. McDowell eds. 1998).

Rush’s sentiments were not representative of wider public opinion, but other individuals may have shared them.

Probably a greater factor was the prestigious presence of Benjamin Franklin. Franklin sat in the Continental Congress that created the American post office. He produced the initial draft of the Articles of Confederation, which included a postal power.

2 J. CONT. CONG., supra note 1, at 195 (July 21, 1775).

The proceedings of the Constitutional Convention refer only rarely to the Postal Clause. Apparently everyone assumed that the new government would continue to operate the Confederation postal service. A June 11, 1787 speech by James Wilson, as reported by Robert Yates, discloses the assumption: “He supposed that the impost will not be the only revenue—the post office he supposes would be another substantial source of revenue.”

1 FARRAND, supra note 1, at 205 (June 11, 1787) (Yates).

Resd. that in addition to the powers vested in the U. States in Congress, by the present existing articles of Confederation, they be authorized to pass acts for raising a revenue … by a postage on all letters or packages passing through the general post-Office, to be applied to such federal purposes as they shall deem proper & expedient ….

1 FARRAND, supra note 1, at 243 (Jun. 15, 1787) (Madison).

A constitutional plan of uncertain date traditionally ascribed to South Carolina’s Charles Pinckney also featured the enumerated power “of establishing Post-Offices.”

2 id. at 135 (Committee of Detail records).

The next reference to the post office in convention records was a June 27, 1787 speech by Luther Martin, who also spoke of the subject in a revenue context.

1 id. at 442 (Jun. 27, 1787) (King) (“Congress could not raise a penny except agreeably to Rule of Taxation in the 8th Art—not even from the Post Office”).

Nothing in the ensuing debate is recorded about the postal power until August 16, when Elbridge Gerry of Massachusetts moved to add “and post-roads.” John Francis Mercer of Maryland seconded Gerry’s motion.

2 FARRAND, supra note 1, at 308 (Aug. 16, 1787) (Madison).

The state-by-state voting on the proposed amendment to add post roads was close (six states to five), but does not display any particular pattern.

Id. at 308 (Aug. 16, 1787) (Madison). Voting in favor were Massachusetts (Gerry’s state), Maryland (Mercer’s state), Delaware, Virginia, South Carolina, and Georgia. Voting against were New Hampshire, Connecticut, New Jersey, Pennsylvania, North Carolina. There were large and small states on both sides. There were also states with a developed road system on both sides and states with large undeveloped tracts on both sides.

Until July 17, 1787 advocates of a strong central government were in control of the federal convention. After that date, the convention usually resisted efforts to add federal powers.

Natelson, Enumerated, supra note 1, at 473 (marking July 17 as “the high tide of nationalization”).

The framers’ rejection of proposals pertaining to stage carriages can be read two ways: (1) The framers may have viewed them as superfluous, because post-road authority always had included regulating vehicles on the road, or (2) the framers may have wanted to constrain federal power over post roads more narrowly than in Britain. The former is more probable, if only because, in the absence of contrary evidence we should presume that people as lawyerly as the framers wanted to retain what was familiar. As far as I know, there is no contrary evidence.

The Constitution was signed on September 17, 1787. Convention president George Washington transmitted it to Congress, which sent it to the states for ratification. Each state legislature eventually called a popular ratifying convention to consider the document. All ratified. Rhode Island was the last to do so—on May 29, 1790. Thus, the ratification era extended from September 17, 1787 to May 29, 1790.

See 13 DOCUMENTARY HISTORY, supra note 1, at xl - xlii (containing a chronology of events).

In one respect, the debates over the Postal Clause in the ratifying conventions and among the general public were similar to those in the Constitutional Convention: There was some controversy, but not very much. Both Federalists

E.g., Thomas McKean, Speech to the Pennsylvania ratifying convention, in 2 DOCUMENTARY HISTORY, supra note 1, at 415 (Nov. 28, 1787) (“The punishment of forgery and the establishment of post offices and post roads are subjects confessedly proper to be comprehended within the federal jurisdiction”); CUMBERLAND GAZETTE, Nov. 15, 1787, in 4 DOCUMENTARY HISTORY, supra note 1, at 245-46 (pointing out that congressional jurisdiction over the post office was granted by the Articles of Confederation); THE FEDERALIST NO. 40, supra note 1, at 202 (James Madison) (“Do these fundamental principles require particularly, that no tax should be levied without the intermediate agency of the States? The confederation itself authorises a direct tax to a certain extent on the post-office”); THE FEDERALIST NO. 42, supra note 1, at 222 (James Madison) (“The power of establishing post-roads, 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.”).

Some dissention arose at the margin. At the New York ratifying convention, Samuel Jones, a state legislator, offered an amendment that would narrow the scope of the term “establish:”

Resolved … that the power of Congress to establish post-offices and post-roads is not to be construed to extend to the laying out, making, altering, or repairing high ways, in any state, without the consent of the legislature of such state.

22 DOCUMENTARY HISTORY, supra note 1, at 2077 (Jul. 2, 1788) (Chiles, Debates).

The proposal was not adopted, and may have may provoked amusement among those who thought it querulous.

N.Y DAILY ADVERTISER, Jul. 8, 1788, in 22 DOCUMENTARY HISTORY, supra note 1, at 2079, 2080 (claiming Jones’s proposal was greeted with laughter).

If the ratification era witnessed little controversy about the Postal Clause as such, it witnessed a raging controversy over the post office itself. Some people were convinced their mail was being interrupted or opened and scrutinized,

George Washington to the Marquis de Lafayette, Feb. 7, 1788, 8 DOCUMENTARY HISTORY, supra note 1, at 355:

As to my sentiments with respect to the merits of the new Constitution, I will disclose them without reserve (although by passing through the Post offices they should become known to all the world) for, in truth, I have nothing to conceal on that subject.”

See also Letter from Richard Henry Lee to Samuel Adams (Oct. 27, 1787), in 13 DOCUMENTARY HISTORY, supra note 1, at 484 (stating, in a letter carried by Elbridge Gerry, “Our mutual friend Mr. Gerry furnishes me with an opportunity of writing to you without danger of my letter being stopt on its passage, as I have some reason to apprehend has been the case with letters written by me and sent by the Post.”); Letter from William Ellery to Benjamin Huntington (Jun. 7, 1788), in 26 DOCUMENTARY HISTORY, supra note 1, at, 1037 (“By some bad conduct of the Post master at Little Rest your letter of the 22d. of May did not come to hand timely enough to be answered in my last of the 1st. of June.—This is not the first time that he has been guilty of mal-conduct.”).

On November 2, 1786, Hazard had written to Congress about postal contracts for the calendar year 1787. He recommended that Congress continue to contract with stage coaches for mail delivery from New York to points south. However, he requested authority to revert to post riders for routes from New York through New England.

31 J. CONT. CONG., supra note 1, at 922-23 (Nov. 2, 1786).

Congress made no change for calendar year 1787. On October 12, 1787, Hazard renewed his request for calendar 1788.

33 J. CONT. CONG., supra note 1, at 672 (Oct. 12, 1787).

The ensuing change probably did not cause major kinks in letter delivery, but the results for newspapers turned out to be very bad. Stagecoaches had carried newspapers from publisher to publisher without charge,

JAFFE, supra note 1, at 86.

Complaints about unreliable delivery came from both sides of the constitutional controversy. Some (not all)

2 id. at 644 (editor’s note).

By March, 1788, the charges against the post office had become very numerous. Hazard believed they justified response. He issued a public letter itemizing a series of supposed facts:

That the post-office was established for the purpose of facilitating commercial correspondence; and has, properly speaking, no connection with news-papers, the carriage of which was an indulgence granted to the post-riders, prior to the revolution in America:

That the riders stipulated with the Printers for the carriage of their papers, at a price which was agreed upon between them; and this price was allowed as a perquisite to the riders …

That news-papers have never been considered as a part of the mail, nor (until a very few years) admitted into the same portmanteau with it; but were carried in saddle-bags, provided for that purpose, by the riders, at their own expence:

That, to promote general convenience, the post-masters (not officially) undertook to receive and distribute the news-papers brought by the riders, without any other compensation for their trouble than the compliment of a newspaper from each printer:

That, although the United States in Congress assembled, from an idea that beneficial improvements might be made in the transportation of the mail have directed alterations as to the mode of carrying it; yet they have not directed any to be made in the custom respecting newspapers:

And, That the post-master-general has given no orders or directions about them, either to the post-masters, or to the riders. From this succinct state of facts the post-master general apprehends it will clearly appear, that so far as the post office is concerned, the carriage of news-papers rests exactly on its original foundation; and that the attempts to excite clamors against the department must have some other source than a failure in duty on the part of the officers.

16 id. at 567-68 (Mar. 19, 1788).

This response was politically inept. It conveyed a tone sounding in arrogance, doubly so because it came from a person who was supposed to be a public servant. Furthermore, at least two of Hazard’s “Thats” were not strictly accurate. Congress had not “directed” a change in the mode of carriage. Congress had authorized it at Hazard’s request. Also, his claim that the post office was primarily for “commercial correspondence” was overstated. Opponents had no trouble shredding Hazard’s defense.

A True Federalist, Mar. 25, 1788, in 16 id. at 569. The author reproduced in his response, id. at 571, the resolution of Congress that authorized, but did not require the postmaster general to revert to post riders. See also Algernon, PHILA. INDEPENDENT GAZETTEER, Apr. 10, 1788, in 16 id. at 582.

Adding to Hazard’s difficulty is that he had annoyed people who purchased ink by the barrel.

“Never pick a fight with people who buy ink by the barrel”— attributed to Mark Twain.

What could be more in the nature of public service than distributing newspapers?

The stopping of public newspapers, in a free country, is an outrage upon all mankind, because it interrupts business, and foils the public in general of the only easy and expeditious mode of communicating important events and sentiments.—In them we find many interesting thoughts in religion, morals, politics, law, physic, agriculture, and commerce—by them we learn the state of foreign nations and foreign affairs—the various things that concern domestic oeconomicks, as well as the casualties of neighbourhoods. The merchant learns the general state of trade, hears the prices current, knows his losses in every quarter of the globe—thus he and the insurer are mutually advantaged and do mutual benefit to the community. The artist hears of employ or presents an advertisement of the various things he has for sale. The learned hears of new publications—their vent is increased—and innumerable advantages are extended to all.

New Hampshire Spy, Mar. 28, 1788, in 16 id. at 577. See also Mentor, PETERSBURG VA. GAZETTE, Apr. 3, 1788, in 16 id. at 578 (containing another panegyric to newspapers coupled with an attack on the post office).

I have not found any printer who admitted at this juncture that he produced his papers for profit, or that he could have secured stage coach distribution merely by paying for it.

The campaign of newspapermen for a compliant post office is the theme of Adelman, supra note 1.

The controversy is notable from the constitutional perspective in that even amid sharp debates over the Constitution, no one questioned the propriety of the Postal Clause, or argued that postal service should not be a government monopoly. All recorded complaints were about the quality of the service only.

The ratification-era record of the Confederation Congress can be summarized in a short sentence: Congress opted for the status quo. During this period, Congress spent perhaps more time on postal matters than in any comparable period, but it did nothing that would alter public understanding of what it meant “to establish Post Offices and post Roads.”

Thus, in the fall of 1787, Congress remitted a breach-of-contract penalty for a contractor and authorized him to switch from coaches to horses.

33 J. CONT. CONG., supra note 1, at 533 (Sept. 25, 1787).

During 1788, most activity was of the same kind.

E.g., 34 J. CONT. CONG., supra note 1, at 65-66 (Feb. 27, 1788) (authorizing posts for the transportation of mail between Philadelphia and Pittsburgh); 34 id. at 66-67 (Feb. 27, 1788) (entertaining the postmaster’s request for authority to cancel an unfulfilled contract); 34 id. at 76-77 (Mar. 3, 1788) (receiving postmaster general’s report on the Pittsburgh route); 34 id. at 81-82 (Mar. 4, 1788) (receiving his report on a proposed Maine route); 34 id. at 142-44 (May 6, 1788) (receiving his report on a damaged mail shipment); 34 id. at 273-74 (Jul. 1, 1788) (authorizing bidding for mail contracts).

Perhaps the most interesting development in 1788 was a harbinger of future patronage battles: A debate erupted among Pennsylvania, Massachusetts, and Delaware delegates over which states would obtain new postal routes.

Id. at 161-63 (May 20, 1788) & 174 (May 22, 1788).

A 1788 report from the post office committee summarized the condition of the postal system.

Id. at 462-65 (Aug. 27, 1788).

The committee commended the post office for its contracting standards and the extremely low rate of contractual default.

When the First Federal Congress convened in April, 1789,

The House attained a quorum on April 1 and the Senate on April 6. 1 ANNALS OF CONG. 16 & 100.

Congressional attention was mostly on revenue.

E.g., I ANNALS OF CONG. 316 (May 9, 1789) (quoting Theodorick Bland on the post office as a source of revenue); id. 1566-67 (April 1, 1790) (quoting Jeremiah Wadsworth in discussing postal revenue as part of a review of the secretary of the treasury’s report); id. at 1579 (Apr. 13, 1790) (quoting remarks by Hugh Williamson on postal revenue). See also id. at 1936 & 1938 (Jan. 31, 1791) (quoting post-ratification statement by Hugh Williamson and James Jackson on the revenue effects of different postal routes).

Osgood rejected the idea that newspapers should travel free, advocating a charge of one or two cents on each.

1 ANNALS OF CONG . 2163.

To the extent that Osgood proposed reform, he recommended changes that would have moved the American system closer to the British model. He favored strengthening the postal monopoly by cracking down on competition.

Id. at 2166 (extending prohibition on carriage of letters for those who carried without compensation and defining postal crimes more carefully).

Congress’s September, 1789 legislation “for the temporary establishment of the Post Office”

So characterized id. at at 82 (Sept. 15, 1789); id. (Sept. 17, 1789); id. at 927 (Sept. 16, 1789); id. at 928 (Sept. 17, 1789); id. at 1027 (June 21, 1789) and passim.

Congress may have failed to adopt comprehensive postal legislation from a sense that the office was working well enough to allow it to concentrate on other priorities. The reason usually cited, however, is that Senate and House were divided on Osgood’s request that Congress delegate to him authority to designate post roads. It is true that, while other issues arose in congressional debate,

E.g., I ANNALS OF CONG. 1580 (Apr. 13, 1790) (discussing whether “farming” [contracting out] should be permitted); 13 FIRST CONGRESS, supra note 1, at 1570 (1995) (Jun. 15, 1790 discussion of whether private stage passengers should be permitted to carry letters).

One way to clarify the original meaning of the Postal Clause is to answer several questions repeatedly posed about the scope of the postal power:

Cf. ROGERS, supra note 1, at 10 & 31-36.

–

What was a “post road?” Was it any road over which the mail was carried?

The material presented heretofore in this Article enables us to answer most of these questions. The question pertaining to eminent domain requires additional discussion, presented below.

Infra Part VI.E.

Before answering the first question, it may be helpful to summarize some of the findings already presented in this Article.

During the founding era, post offices and post roads were not separate institutions. They comprised parts of single system, and the Postal Clause granted power to create and regulate it. The system was a network designed primarily to (1) facilitate information flow between the central government and the public at large (including government intelligence and propaganda), (2) raise revenue, and (3) facilitate trade and commerce. Providing a means of private correspondence and information dissemination was a subsidiary goal

The activities of a postal system included carriage of persons, freight, and letters. For international and coastal transportation and delivery, the system relied on a fleet of packet boats.

LEWINS, supra note 1, at 94-95.

A post road was a highway punctuated by posts—and thereby distinguished from public ways of other kinds.

Cf. Natelson, Enumerated, supra note 1, at 480 n.65 (referring to “roads [except post roads”] & 488 (similar distinction).

We are now prepared to answer the first question. A post road was not so called because the mail was carried over it. Precisely the reverse was true: The mail was called the “post” because it was carried principally on the post road. The post road was the central feature of a postal system, and it gave its name to the freight, to post offices, post boys, and riding post. If a post boy carried letters from the post office across city streets to individual addresses, as King’s Bench required in Smith v. Powdich,

(K.B. 1774) 1 Cowp. 182, 98 Eng. Rep. 1033.

Of course, a particular post or stage might lack one or more facilities available at others, and a postal system might have more or fewer features than others. However, the scope of the constitutional phrase “Post Offices and post Roads” cannot be defined by the activities of any particular postal institution at any one time, but by what the founding generation understood could be within a postal system’s purview. In essence, this comprised the maintenance of packet boats, the construction and care of post roads, and the carriage and delivery of humans, animals, letters, and freight by means of packet boats and post roads.

To “establish” a postal system, or one of its components, comprehended all actions necessary to make the system or component work: In the case of the postal system, this included purchasing, maintaining, and operating packet boats; laying out, constructing, and maintaining posts, toll gates, and post roads; hiring and directing postal employees and contractors; specifying the rules for travel,

Thus, the decision of the Committee of Detail at the Constitutional Convention not to include the phrase “to regulate stages on the post roads,” ROGERS, supra note 1, at 23, did not affect the scope of the Clause.

In Anglo-American practice, “establishing” a postal system always included defining and providing for prosecution and punishment of postal crimes. This was not a mere incidental power memorialized by the Necessary and Proper Clause,

U.S. CONST., art. I, § 8, cl. 18 (“The Congress shall have Power … To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”).

Entrepreneurial activities engaged in by the post office, or proposed for it, have included the parcel post, banking, job placement, telephone and telegraph services, and, most recently, delivery of groceries. Assessing which of these is within or without the original meaning of the Postal Clause requires that we consider what the founding generation understood a postal system to be: a system of staged roads, vehicles, packet boats, and associated institutions for transport of letters, animals, goods, and persons. Certainly, this grant was not limited to the technology of the founding era: Congress could replace horses with motor vehicles, gravel with asphalt, and sailing vessels with diesel or atomic power. But the grant did not encompass establishing or operating businesses the Constitution’s ratifiers would have thought quite distinct from postal services.

Except for the London penny post,

E.g., 5 Geo. i, c. 21 § 14 (eliminating general practice of delivering bulky parcels in the penny post).

On the other hand, nothing within the founding-era understanding of a postal system encompassed banking

In 1792, the British post office began to offer a money order service but this was, of course, after the Constitution was ratified. Additionally, money orders were then limited to soldiers and sailors who wished to send part of their pay home without entrusting coins or bank notes to the mail. LEWINS, supra note 1, at 152. It was not a general banking service.

Thomas Jefferson once suggested that “establishing” a post road was limited to merely designating which existing roads should be used for the transport of the mail—that the power to “establish” did not include building roads.

Letter from Thomas Jefferson to James Madison (Mar. 5, 1796), in THE FOUNDERS’ CONSTITUTION (Philip B. Kurland & Ralph Lerner eds. 1987), available athttp://press-pubs.uchicago.edu/founders/documents/a1_8_7s4.html (last visited Feb. 28, 2018) (“Does the power to establish post roads, given you by Congress, mean that you shall make the roads, or only select from those already made, those on which there shall be a post? If the term be equivocal, [& I really do not think it so,] which is the safest construction?”) (italics in original).

Just as “establishing” a postal system encompassed performing what was needed to create and regulate that system, founding-era sources show that “establishing” a road included whatever was necessary for bringing it into existence: planning, laying out, clearing, surfacing, and so forth.

Supra notes 252 & 253 and accompanying text.

In Kohl v. United States,

91 U.S. 367, 368-73 (1875).

Professor Baude’s study focused primarily on developments well after the founding. His founding-era evidence was relatively slender, and some of it was equivocal,

Professor Baude seems to recognize its equivocal nature. E.g. Baude, id. at 1758-60 (relying on words and phrases such “it might suggest,” “not the only plausible construction” and “suggests”).

During the eighteenth century, the exercise of eminent domain customarily accompanied construction and widening of roads and canals. Statutes empowering boards of trustees to undertake those activities routinely included grants of condemnation authority.

E.g, 33 Geo. 2, c. 56 (1759) (Alexander Kincaid, Edinburgh, 1775) at 21-23 (providing for exercise of mandatory sale in repairing and widening a road); 1 Geo. 3, c. 35 (1761) (published as An Act for Amending the Road from Sacred Gate …), at 6-7 (providing for mandatory sale in improving a road);18 Geo. 3, c. 75 (1778) (published as An Act for Making a Navigable Canal from the Town of Basingstoke …), at 4-5 (providing for condemnation in construction of canal); 28 Geo. 3, c. 86 (1787) (published as An Act for Amending, Widening, and keeping in Repair, the Road from the Bottom of Whitesheet Hill…”), at 12 (providing for condemnation in improving and widening a road); 31 Geo. 3, c. 94 (1790) (published as An Act for Making a new Road from Saint George’s Gate …”), at 11-13 (providing for condemnation in constructing a road).

See also Stoebuck supra note 1, at 561n. 28 (citing colonial laws authorizing condemnation for roads).

The fact that the drafters of road statutes took the trouble to enumerate eminent domain authority expressly is evidence that it was regarded as a principal, rather than incidental, power. However, parliamentary road statutes and the Constitution were very different kinds of documents. One expects a statute to itemize more than a constitution.

Cf. McCulloch, supra, 17 U.S. at 407 (“A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind.”)

The evidence falls into two broad categories. One consists of contemporaneous law books classifying fields of Anglo-American jurisprudence. Professor Herbert A. Johnson’s survey of eighteenth century American law libraries provides evidence of which of these works were in common use on this side of the Atlantic.

JOHNSON, IMPORTED TREATISES, supra note 1.

The most probative law books may have been the multi-volume digests or “abridgments” that sorted Anglo-American law into topics, subtopics, and lesser divisions. Probably the best, one of the most popular, and certainly the most current, was the 1786 edition of Matthew Bacon’s A New Abridgment of the Law.

Bacon’s work appeared in ten of the 22 law libraries surveyed. JOHNSON, IMPORTED TREATISES, supra note 1, at 59. The abridgment by Knightly D’Anvers was more widely held (by thirteen libraries), but it had not been updated since 1737, id. at 17-18, and as far as I can ascertain, was never completed. My assessment that Bacon’s digest was probably the best in its category is based on my own experience with such works over the last thirteen years.

The other three among the four most popular digests—those by Knightly D’Anvers, Charles Viner, and John Lilly—similarly contained no first-order title for the subject.

JOHNSON, IMPORTED TREATISES, supra note 1, at 59 sets forth the number of libraries for each of the following: KNIGHTLY D’ANVERS, A GENERAL ABRIDGMENT OF THE COMMON LAW (2d ed. 1725-37) (3 vols.) (held by 13 of 22 law libraries surveyed); CHARLES VINER, A GENERAL ABRIDGMENT OF LAW AND EQUITY (1^st ed. 1742-45) (24 vols.) (held by nine libraries); JOHN LILLY, THE PRACTICAL REGISTER, OR A GENERAL ABRIDGMENT OF THE LAW (2d ed. 1745) (two vols.) (held by eight libraries).

Lists of topics in the D’Anvers and Viner works appear in unpaginated sections at the beginning of each volume.

Also widely-used were “institutes.” These were treatises surveying the entire scope of the law. The two eighteenth century institutes most generally held in America were William Blackstone’s Commentaries, and Thomas Wood’s Institute of the Laws of England.

JOHNSON, IMPORTED TREATISES, supra note 1, at 59 (indicating that Blackstone’s Commentaries appeared in ten of 22 libraries, and Wood’s Institute in eight).

I have not relied on Edward Coke’s Institutes, which were widely held but already well over a century old. In any event, eminent domain and its synonyms do not appear as a title in eighteenth century editions of this treatise. EDWARD COKE, THE FIRST PART OF THE INSTITUTES OF THE LAWS OF ENGLAND (13^th ed. 1788) (unpaginated table near the end of the volume); EDWARD COKE, THE SECOND PART OF THE INSTITUTES OF THE LAWS OF ENGLAND (unnumbered ed. 1797) (unpaginated tables near beginning and end of the volume); EDWARD COKE, THE THIRD PART OF THE INSTITUTES OF THE LAWS OF ENGLAND (unnumbered ed. 1797) (same); EDWARD COKE, THE FOURTH PART OF THE INSTITUTES OF THE LAWS OF ENGLAND (unnumbered ed. 1797) (same).

Founding-era legal dictionaries consisted of more than definitions. Their comprehensive entries made them akin to single volume encyclopedias. In America the most popular work of this kind—by a wide margin—was Giles Jacob’s A New Law-Dictionary.

The edition used in this search was GILES JACOB, A NEW LAW-DICTIONARY (10^th ed. 1782). JOHNSON, IMPORTED TREATISES, supra note 1, at 61, states that Jacob’s dictionary in one edition or another was in twelve of 22 surveyed law libraries. Next in popularity was John Cowell’s Interpreter, held by six libraries, tied with a Law-French dictionary.

In sum, the classification schemes adopted by leading works of eighteenth century law imply that eminent domain was not a prominent legal concept. It surely did not rank with taxation, military affairs, or commercial regulation as a principal power in a grant of governmental authority.

Another form of evidence consists of contemporaneous documents that, like the Constitution, conveyed legislative authority to governments and governmental agents. Those most relevant to America were (1) colonial charters by which the British Crown empowered colony organizers, (2) commissions by which the Crown empowered colonial governors, and (3) founding-era state constitutions, by which the people of each state created new governments and granted power to them.

English law recognized a subsidiary legislative authority within the royal executive’s prerogative to govern conquered and unorganized territories.

Campbell v. Hall, 98 Eng. Rep. 848 (K.B. 1774) (holding that the Crown may legislate for conquered territories until formally admitting English law and institutions into the territory, but not afterward). Cf. U.S. CONST. art. IV, § 3, cl. 2 (“The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory … belonging to the United States”).

In 1688 the absolutist government of James II (1685-89) issued a commission to Edmund Andros as governor of the “Dominion of New England.”

Commission to Sir Edmund Andros as governor of the Dominion of New England, in EHD, supra note 1, at 239.

In the century after the British evicted James II and the colonists disposed of Andros, the commissions of colonial governors became highly standardized. They all enumerated legislative functions to be exercised in conjunction with an elective assembly. They all left eminent domain to implication.

ANTHONY STOKES, A VIEW OF THE CONSTITUTION OF THE BRITISH COLONIES 150-64 (B. White 1783) (reproducing form commission) (available at http://books.google.com/books?id=VmNzusdnHlcC&printsec=frontcover&dq=anthony+stokes#PPP7, M1).

The legislative authority granted was very broad, e.g., id. at 155 (“And you the said A. B. by and with the consent of our said Council and Assembly, or the major part of them respectively, shall have full power and authority to make, constitute, and ordain laws, statutes, and ordinances, for the public peace, welfare, and good government of our said province”). Governors also had the arguably legislative powers, without need for assembly consent, to “constitute” as well as appoint judges, id. at 158; to dispose of lands, id. at 162; and to establish fairs, markets, and harbors—considered aspects of the power to “regulate Commerce,” id. at 163.

See also EHD, supra note 1, at 195 (editor’s note) (observing that “By the eighteenth century, the commissions of royal governors had arrived at a standard pattern,” and setting forth as an example the commission of New York governor George Clinton, issued Jul. 3, 1741).

Between 1776 and May 29, 1790, when Rhode Island ratified the Constitution, all states except Connecticut and Rhode Island adopted new constitutions. The framers of these documents typically contemplated general purpose governments, so most state constitutions granted legislative authority in bulk rather than in enumerated detail.

E.g., DEL. CONST., art. 5 (1776) (granting to the legislature “all other powers necessary for the legislature of a free and independent State”); GA. CONST. (1777), art. VII (granting to the legislature “power to make such laws and regulations as may be conducive to the good order and well-being of the State”). Other constitutions without detailed enumerations of legislative powers include MD. CONST. (1776), N.C. CONST. (1776), N.H. CONST. (1784), Part II (enumerating separately from a general legislative grant only the power to constitute courts); N.J. CONST. art II (granting indefinite legislative authority); N.Y CONST. (1777), art. II (stating a general legislative grant); PA. CONST. (1776), § 2 (granting “supreme legislative power”) & § 9 (granting to the legislature, in addition to authority to regulate its own proceedings, “all other powers necessary for the legislature of a free state or commonwealth”); S.C. CONST. (1776), art. VII (general grant of legislative authority to “the president and commander-in-chief, the general assembly and legislative council”); S.C. CONST. (1778), art. II (vesting legislative authority in a general assembly); VA. CONST. (1776) (creating a legislature without a specific grant of authority).

It thus appears that the founding generation did not consider eminent domain to be a “great,” or principal, power. There was no need for the Constitution’s framers to enumerate it separately, because it was incidental to items they did enumerate. Among these was authority to “establish post Roads.”

The Constitution’s plenary grant of a power to Congress ordinarily permits Congress to exercise it in any way and for whatever reasons it chooses.

United States v. Darby, 312 U.S. 100, 114 (1941) (stating that motive or consequence of an otherwise valid regulation of commerce does not render that exercise unconstitutional); Champion v. Ames, 188 U.S. 321 (1903) (upholding use of commerce power to prohibit trafficking in lottery tickets; cf. ROGERS, supra note 1, at 47-57 (discussing the promotion of social policies by banning items from the mail).

Parliament authorized compensation for takings in road construction only as to certain kinds of land.

E.g., 1 Geo. 3, c. 35 (1761) (published as An Act for Amending the Road from Sacred Gate …), at 7 (authorizing payment of damages for injury to some real estate, but not for injury to “Commons and waste Grounds”).

Most importantly, the First and Fourth Amendments limited the role of postal institutions as instruments of political control. The Fourth Amendment restricted the kind of warrantless mail searches previously so common

Cf. Ex Parte Jackson, 96 U.S. 727, 727 (1877).

The constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be. Whilst in the mail, they can only be opened and examined under like warrant, issued upon similar oath or affirmation, particularly describing the thing to be seized, as is required when papers are subjected to search in one’s own household.

Events occurring after May 29, 1790 (the day Rhode Island ratified the Constitution) generally are poor evidence of what the constitutional bargain meant to the parties earlier. This is especially true of events arising after adoption of the Bill of Rights. In reconstructing the original meaning of the Postal Clause, therefore, I have not relied on the Postal Act of 1792, adopted by the Second Federal Congress.

Act of Feb. 20, 1792, ch. 7, 1 Stat. 232.

Adoption of the Bill of Rights signaled a modest change in the postal mission.

Supra Part VII.A.

As for the contention that the 1792 law protected the privacy of letter writers by prohibiting mail tampering, it is difficult to see how this was a significant change. Most postal tampering always had been illegal.

Supra notes 80 & 261-263 and accompanying text.

Professor John’s assertion that the 1792 law laid the basis for future growth is difficult to evaluate, for there is strong reason to believe growth would have come in any event. Both the slow growth of the postal system during the Continental-Confederation era and the faster expansion later are better explained by factors other than the marginal changes in the 1792 law.

Among the reasons for slow growth were the war and, as Professor John recognizes, the limitations of Postmaster Bache. JOHN, SPREADING, supra note 1, at 27. Among the reasons for faster growth later were relative peace, the First Amendment, increased literacy, Jacksonian democracy, technological progress, and the nation’s explosive population and territorial expansion.

The net effect on growth of Congress’s decision to retain control over postal routes is also unclear. Intuitively, it would seem that granting the postmaster more flexibility would have been growth-friendly, but some believe that the congressional decision promoted expansion. Richard B. Kielbowicz, Preserving Universal Postal Service as a Communication Safety Net: A Policy History and Proposal, 30 SETON HALL LEGIS. J. 383, 394 (2006) (suggesting that congressional retention of power to designate routes contributed to system expansion).

Congressional debate on the 1792 law sometimes is treated as a landmark in the constitutional history of the Supreme Court’s “nondelegation principle.”

E.g., GARY LAWSON & GUY SEIDMAN, “A GREAT POWER OF ATTORNEY:” UNDERSTANDING THE FIDUCIARY CONSTITUTION 118-24 (2017) (discussing the congressional debate and its implications for the nondelegation principle).

In the modern era, when Congress routinely delegates massive authority to administrative agencies, legal commentators may opine that constitutional scruples over delegation were “little short of absurd”

E.g., Currie, supra note 1, at 631-32 (labeling the congressional decision “little short of absurd”). See also DAVID P. CURRIE, THE CONSTITUTION IN CONGRESS: THE FEDERALIST PERIOD, 1789-1801 146-49 (1997) (assessing the controversy).

–

The 1782 Confederation postal ordinance authorized the postmaster general to add posts “to and from such other parts of the United States, as from time to time, he shall judge necessary.”

23 J. CONT. CONG., supra note 1, at 670 (Oct. 18, 1782) (reproducing post office ordinance).

On balance, these factors strongly suggest the Second Congress reached the correct constitutional decision when it refused to delegate authority to designate post roads.

Professor Currie argues that the 1792 statute delegated more authority than initially appears, Currie, supra note 1, at 631 (observing that the statute empowered the postmaster to place deputies “at all places where such shall be found necessary,” Act of Feb. 20, 1792, ch. 7, 1 Stat. 232, § 3 (emphasis added), and that the postmaster general could “extend the line of posts” by contract. Id. § 2). However, the “necessity” referred to could mean merely the necessity of serving posts established by Congress. This language is different from that used for deciding whether to use stages or horses (“as he may judge most expedient”). In founding-era drafting practice, the former wording granted less authority. Robert G. Natelson, The Legal Origins of the Necessary and Proper Clause, in LAWSON, ET AL., supra note 1, at 72-76 (2010) (explaining the variations in founding-era “further-powers” clauses).

With respect to § 2, Professor Currie has a better case. However, there are answers to his rhetorical question of why the difference between direct designation and designation by contract mattered. Currie, supra note 1, at 631n. 145. Those answers are (1) contractual designations were only temporary commitments, and (2) they were limited to “extensions” of existing post roads. Overall, delegation was narrower than in the 1782 ordinance.

Amid this relative institutional continuity, there was a change in personnel. The administration of Ebenezer Hazard had been marred by the newspaper delivery controversy, but congressional committee reports in 1783 and again in 1788 demonstrated that, overall, he had done a very good job with a defective institutional model.

24 J. CONT. CONG., supra note 1, at 329 (May 5, 1783) (reproducing a laudatory committee report); 34 id. at 462, 463 (Aug. 27, 1788) (reproducing a committee report praising certain post office procedures).

Nevertheless, George Washington was angry with Hazard over the ratification-era delivery problems.

Letter from George Washington to John Jay (July 18, 1788), in 16 DOCUMENTARY HISTORY, supra note 1, at 595 (complaining of Hazard’s use of riders rather than coaches).

As sometimes happens in the wake of political injustice—the career of Cicero comes to mind

Cicero’s absence from politics during the ascendancy of Julius Caesar (46-44 B.C.E.) was adorned by a written creativity that laid the foundation of philosophy in western Europe. ANTHONY EVERITT, CICERO: THE LIFE AND TIMES OF ROME’S GREATEST POLITICIAN 251-59 (2001).

Hazard eventually published two volumes of documents, thereby claiming the title of America’s first historical editor. His compilations served as a crucial resource for an entire generation of American historians.

Shelley, supra note 1, at 71-72. On Hazard’s scholarly accomplishments, see also Pilcher, supra note 1, and Lawrence Shaw Mayo, Jeremy Belknap and Ebenezer Hazard, 1782-84, 2 NEW. ENG. Q. 183 (1929).

The termination of the Confederation Congress freed its long-time secretary, Charles Thomson to labor on a translation of the Septuagint from Greek to English. Ebenezer Hazard acted as Thomson’s consultant on the mechanics of book publication. Because Hazard had the benefit of an excellent classical education, he was able to serve as Thomson’s editor and translation critic. As Thomson’s published correspondence demonstrates, Hazard thereby strongly influenced the first-ever English rendition of the oldest extant version of the Bible.

Pilcher, supra note 1, at 11. See generally Paul Odell Clark, Letters of Charles Thomson on the Translation of the Bible, 33 J. PRES. HIST. SOC’Y 239, 242-43 (1955) & 34 id. 112 (1956).