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]