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looks to the nature, history and ends of the thing itself and of the government.
Now the first inquiry is, at the time of the formation of the Constitution, what was understood by the terms post-offices and post-roads, which Congress had the power given to it to establish. One might stop at any point, from the mere designation of buildings and routes, up to the monopoly of mail carriage
-the present postal system. How far was the grant actually thought to extend when it was made ?
Post-offices and post-roads are of recent origin. Under the English government, the carriage of the mails of the realm, had been an exclusive right; a monopoly, secured as a source of revenue to the King, or some subject, by grant; as the various acts of parliament, from the time of the first establishment of mails downwards, show.
In this country, under the colonial governments, a few short periods excepted, the post-office had always been understood to mean, not a place of deposit, or for receipt and delivery of letters; not the carriage of the mails ; not alone a system of offices, posts, and officers ; but the department in which was vested the monopoly of the mail business of the country,
In the earlier history of the Colonies, indeed, we find the Virginia idea of a post-office. Thus in Massachusetts, on the records of the General Court in 1639, 5th, 9th month, it ap
“For preventing the miscarriage of letters :- It is ordered
In 1667 the merchants of Boston presented to the General
“We whose names are under written, hearing many complaints
letters of great moment are frequently lost: our humble request, therefore, to this Honoured Court is, that they will please to depute some meet person to take in and convey Letters according to their direction : and the Honoured Court sett the prices on letters & state that affaire. And if this Honoured Court please, we suppose Lt. Richarde Way may be a fit person for that service.
(Signed) William Brattle & others.”
But in 1693 a postal system was established. The act of Massachusetts, after reciting that their Majesties in 1691 had, by letters patent, granted, for the term of twenty-one years, the right to establish an office, enacted that a general Letter Office be erected and established in some convenient place within the town of Boston, from whence all letters and pacquets could be sent into any part of their Majesties' dominions; and it conferred on " the master of the Office, his servant or agent & no other person or persons whatsoever,” the right of
receiveing, takeing up, ordering, dispatching and sending post or with speed and delivering of letters and pacquets whatsoever” where posts should be established, except letters of merchants and masters sent by any masters of ships, &c., and letters sent by private friends on the way of their journey, or by special messenger.
The act after fixing the rates provides :
“ That no person or persons whatsoever, or body politic or corporate, other than the Post Master general aforesaid shall presume to carry, recarry or deliver letters for hire other than as before expressed, or to set up or employ any foot post, horse post or pacquet boat whatsoever, for the carrying, conveying and bearing of any letters or pacquets, by, sea or land within this Province, or shall hire or maintain horses & furniture for the equipping of any persons riding post with a guide & horn, as is usual in their majesties' realm of England, upon the pain of forfeiting the sum of forty pounds current money of this Province for every several offence against the tenor of this present act, to be sued and recovered in any Court of record within this Province, by bill, plaint or information, wherein no essoyne, protection or wager of law shall be allowed,” &c.
It then provides that all letters or pacquets brought by any masters of ships, or their company or passengers, must be delivered to the Postmaster to be delivered by him. Provisions were made to compel the Postmaster to support the reg. ular posts, to deliver and despatch promptly and to stamp all
letters with the day of receipt, and to compel ferrymen to carry the post riders.
Similar acts were passed in the other Colonies.
In 1774, the Boston Committee of Correspondence proposed to the Salem Committee to establish a post-office and post riders between those cities, independent of parliament. The proposal recognizes the exclusive character of the mail system.
In 1775, Congress resolved “that a Postmaster-General be appointed for the United Colonies and a line of posts established.” This created a monopoly.
By the articles of confederation, Art. 9th, the United States, in Congress assembled, had “ the sole and exclusive right and power” of ...“establishing and 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.”
Thus stood this subject when the Convention of 1787 was called. The first trace of it in that convention is found in the draft of a plan of government submitted by Pinckney, May 29th, 1787, in this language, “ to establish post-offices. In Patterson's resolutions it was proposed to raise revenue by postages on letters and packages passing through the postoffice. The subject, however, was left in the language of Mr. Pinckney in the the draft of a constitution reported Aug. 6th. It was amended on the 16th by adding the words “and postroads." A proposition was afterwards made and referred to the committee to vest in Congress power “to regulate stages on post-roads,” but the provision was not altered.
Now the general language “ to establish post-offices and post-roads” is broad enough to confer a sole power if the idea then attached to the grant was that of an unit, an indivisible thing. It is true the language of the confederation, “ the sole and exclusive right and power,” is not used. Were the Constitution in fact a mere revision or copy, the omission would be significant of an intent that the grant should not be exclusive. As it is, it is rather to be inferred that the omission was because the terms themselves, the general language without prohibition, were expressive of an entire and exclusive grant. The Post-office was first created, had from time immemorial been, and then was in actual operation as a monopoly, a unit, a department of government. It was not thought of as having an existence in any other form; and it was thus thought to be granted. More would have been tautology.
This conclusion is confirmed by the fact that there are no marks of design in the omission that can warrant the inference of an intent to leave the business of mail carrying to private enterprise, or to create a public department that should be subject to the rivalry of private competition.
Such, too, was the understanding of the framers of the Constitution. The law passed in 1789 provided that “the regulations of the Post-office should be the same as they were under the resolutions and ordinances of the late Congress.”
It is not just to say that this was passed without thought, in the emergency of the time, whilst getting a new government into operation. But if there did then exist a necessity for creating an exclusive power, it would follow that the power granted was meant to be exclusive, rather than the entire grant should be empty and useless.
Congress, under the Constitution, took the thing as it existed, as it had been created and used under the Colonies. The document of Postmaster Osgood, of 1790, shows that, according to the best opinions of that day, the Constitution vested in Congress the right to exclude all persons from interference with the internal or the foreign postal system. Thus he names, amongst the evils which can be more easily remedied“ under the present government,” that "stage-drivers, and private post-riders may have been carriers of many letters which ought to have gone in the mail,” and “ that ship-letters may not have been properly attended to."
The grant was not made to Congress as of a thing to be taken away, in this mode, from the States or the body of the people, and for which a monopoly could be secured for the benefit of the general government, a regular branch of trade then followed by private men and companies, but as a system, which had always been an unit, self-supporting, because not of such universal use as to be a just ground of general taxation ; exclusive, because a monopoly was the only means by which its existence could be preserved, and one to be built up and confirmed, to meet the wants of trade and commerce, to add to the comfort and convenience of the people. Strictly, this grant created a department, not for the State, but “ for the people," a public institution.
The object of the grant was not stated, as was that of granting the power to secure patents and copy-rights to authors and inventors, but it is obvious enough. It was to answer the wants of the people ; to promote their good by providing safe,
sure and prompt means for receiving, carrying, and delivering mail matter ; that is, all such matter, written or printed, as is ordinarily used for communicating intelligence. Congress was made the judge of what the grant was, and of the extent of the necessity for its exercise. Congress alone could judge what means were necessary to be used to make the exercise of the grant useful. Had the grant been different still, in order to sustain it, if it had been necessary that all others should be prohibited from interfering with it, Congress must judge of the necessity.
The suggestion that as Congress can define mailable matter it may monopolize the carrying trade of the country, is a mere bugbear, a shadlow. It might, as reasonably be dreamed that the people, acting through Congress, would, to their own destruction, define coin, patents or commerce to be something that was never dreamed of. Because things, not letters, but ordinarily sent with them, and like them, and not interfering with their carriage, but a natural incident thereto, and others ordinarily used and required by the state of society for communicating intelligence, are defined to be mailable matter, it by no means follows that heavy merchandise can be so defined. The exact line of division may not be marked. But the species are distinct enough to any clear mind. The suggestion is scarcely worth answering.
This view is confirmed by the fact, which scarcely leaves the point open, that Congress has uniformly exercised the power as it was originally understood to have been granted, as creating a monopoly in the general government.
The result is a just comment on the exercise of the grant as an exclusive one.
Suppose, from the beginning, that the mails had always been open to private competition, would the country have had in 1847 sixteen thousand post-offices ? and four millions paid for postage? Would the country be what it is? Would the people be what they are ? Individuals would have found little encouragement to establish posts even between the greater cities in the earlier years of our history, could never have sustained them between the most numerous class of places where the mail was transported under government, and would never have dreamed of such a folly as to fancy that money could be made by maintaining them on to the frontier towns and posts, in advance of our widening civilization.
Yet it is plain that the establishment of posts between those