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their not having been actually mustered into vada, with an amendment; in which it requested the service of the United States.
the concurrence of the Senate.
There being no objection, the Senate proceeded to consider the order.
Mr. SUMNER. What is the object of it? Mr. POLAND. To reconsider the Post Office appropriation bill.
Mr. SHERMAN. Such an order, I believe, is always agreed to, as a matter of course, so as to allow a Senator to exercise his privilege of moving a reconsideration.
Mr. SUMNER. Might we not meet the question now?
Mr. SHERMAN. I am perfectly willing to meet it to-day if the bill comes back at once. Mr. SUMNER. Might we not meet it now
on this motion? Mr. SHERMAN. I think not; that is unusual. If the Senator should move a reconsideration, I should like to have it disposed of to-day.
Mr. SUMNER. I only make the suggestion with a view to the economy of time, that we should not call the bill back needlessly. If on this proposition the Senator from Vermont will state the grounds on which he desires a reconsideration, we might then act on his proposition, and practically pass upon the question of
The message further announced that the House of Representatives had passed without amendment the bill (S. No. 74) for the admission of the State of Colorado into the Union.
The message also announced that the House of Representatives had passed the following bills and joint resolution; n which it requested the concurrence of the Senate:
A bill (H. R. No. 179) amendatory of the organic act of Washington Territory;
A bill (H. R. No. 202) to amend an act entitled An act to provide a temporary government for the Territory of Montana," approved May 26, 1864; and
A joint resolution (H. R. No. 32) to facilitate communication with certain Territories.
BOUNDARIES OF NEVADA.
Mr. NYE. I ask the Senate to take up the bill (S. No. 155) concerning the boundaries of the State of Nevada, which has just been returned from the House of Representatives with an amendment, with a view of concurring in that amendment.
Mr. SHERMAN. I should like to hear what it is about.
Mr. NYE. It is a simple amendment added by the House to our boundary bill, reserving the rights of those who have located mines in the territory about to be incorporated into Nevada.
The motion was agreed to; and the Senate proceeded to consider the amendment of the House of Representatives, which was to add at the end of the bill the following:
And provided further, That all possessory rights acquired by citizens of the United States to mining claims, discovered, located, and originally recorded in compliance with the rules and regulations adopted by miners in the Pah Ranagat or other mining districts in the Territory incorporated by the provisions of this act into the State of Nevada, shall remain as valid subsisting mining claims; but nothing herein contained shall beso construed as granting a title in fee to any mineral lands held by possessory titles in the mining States and Territories.
Mr. WADE. I hope that amendment will be concurred in.
The amendment was concurred in.
Mr. SUMNER. I move that the Senate proceed to the consideration of House bill No. 11. The motion was agreed to; and the Senate, as in Committee of the Whole, resumed the consideration of the bill (H. R. No. 11) to facilitate commercial, postal, and military communication among the several States.
Mr. HOWARD. Mr. President, I shall take the liberty of detaining the Senate a few minutes in the consideration of this bill, and but a few, for I see about me a disposition to come to a final vote upon it as soon as practicable. The bill provides
That every railroad company in the United States, whose road is operated by steam, its successors and assigns, be, and is hereby, authorized to carry upon and over its road, connections, boats, bridges, and ferries, all passengers, troops, Government supplies, mails, freight, and property on their way from any State to another State, and to receive compensation therefor, and to connect with roads of other States so as to form continuous lines for the transportation of the same to the place of destination: Provided, That this act shall not affect any stipulation between the Government of the United States and any railroad company for transportation or fares without compensation, nor impair or change the conditions imposed by the terms of any act granting lands to any such company to aid in the construction of its road.
at the prospect of its passing the Senate, says to us that if we are thus to amend or endeavor to amend from time to time the Constitution of the United States, that if one Congress after another may encroach upon its provisions, we may as well have no Constitution. Undoubtedly, sir, the convictions of that honorable Senator of the unconstitutionality of this measure are very deep and strong. I could wish for the sake of the bill and the country that we could have his full and free concurrence, for I know, and so does the country, that his opinion upon so grave a question is entitled to and receives very great respect. Still, sir, after listening with much attention to his eloquent and ingenious argument against the bill, I have failed to be convinced by it of the unconstitutionality of the measure. On the other hand, I hold it to be strictly within the constitutional power of Congress, and to be a very expedient and necessary act for us to pass at this time; and I regret that so great a length of time has passed without such a Federal statute as this for the protection of the people of the different States of the Union in their commercial transactions.
I thought, Mr. President, when I first read this bill, that its provisions were so plain and so evidently within the scope of the constitu tional powers of Congress that it would be difficult for any gentleman, however ingenious, to raise a doubt as to its constitutionality; but like many other bills which we have had under consideration during the present Congress, as well as in former Congresses, this has encountered a very earnest and obstinate resistance, founded upon the idea that it is prohibited by the Constitution; and the honorable Senator from Maryland [Mr. JOHNSON] in very deprecatory tones, and almost in accents of despair
The honorable Senator from Maryland informs us that this is an attempt to alter, to modify, and even to enlarge a State charter, and he accuses us of an attempt to override the just and legitimate powers of the States in reference to the creation of corporations for commercial purposes. In order that I may do him no injustice in this respect, I will take the liberty of reading from the Globe a single passage which states more clearly than I am able to do his first ground of objection. He says:
"In the first place, what the bill does is to enlarge a charter granted by a State; it is amendatory to a State charter, It assumes, as vested in Congress, therefore, the power to take into its own hands the charters granted by the several States, and to modify them just as they think proper, not only by extending the authority which the charter may grant, but if, in the judgment of Congress, at any time herenfter, or now, any of the restrictions in those charters are calculated to interfere with commerce between the States, or to impede the transportation of the mails, they have the authority to repeal, practically, any of the limitations in the charter or any of the powers conferred upon the company by the charter."
Now, sir, with great deference to that opinion, I insist that this bill does not assume to alter or amend in any legal respect any charter granted by a State.
The honorable Senator observed furtherand he will pardon me for saying that I think in rather unguarded terms-that in enacting a charter of incorporation, it is the right of every State to annex to that charter such terms and conditions as the State pleases to annex; and therefore it follows, according to him, that if, for instance, the State of New Jersey shall enact a charter which prohibits the carrying on of "commerce among the States" by any per son or by corporation within the limits of that State, inasmuch as this is a condition annexed to the charter, Congress cannot interfere to relieve the people of the other States who are trading and trafficking through New Jersey from the impediment thus created.
This appears to be the essence of his argument: that a State has a right to annex any condition which it may see fit to its charters of incorporation, and that it is out of the power of Congress, by any act of theirs, to relieve the community from such condition, however severe and unjust it may be in its effects upon the cit izens of other States. On that point I take issue with the honorable Senator from Maryland. Sir, a charter of incorporation for commercial purposes, granted by the Legislature of a State to private persons, has ever been held by the Supreme Court of the United States to be a contract-a contract inviolable on the part of the State. It is, then, like any other contract or compact between individuals; the State being the party of the first part, and the corporators, after having accepted the charter, the parties of the second part. In the present case, the question is whether a State, by its legislation, either in the form of incorporating private com panies or otherwise, can take into its hands and
At page 147 of the same volume will be found this passage from the opinion of Mr. Justice Wayne, in the passenger cases:
control a power which does not belong to the State, but which belongs exclusively to Congress under the Constitution.
I think the honorable Senator will concede that if the matter of commerce, either foreign or among the States, be one which belongs not to the States at all but exclusively to Congress under the Constitution; if a State charter assumes in any way whatever to control, to burden, to hinder, or to prevent commerce among the States or commerce with a foreign country; if it annexes such a condition as this which I have described to its charter of incorporation, that condition is void in law, because the State has no authority whatever to annex such a condition to its charter. That portion of the charter, therefore, which assumes to control commerce antong the States or commerce with a foreign country is void in law for the want of authority on the part of the State to exercise it. It is simply an attempt to exercise a power and authority on the part of the State Legislature ultra vires-not within the scope of its power, but belonging exclusively to the Congress of the United States.
What, then, is the character of commerce as defined by the Constitution, whether known as foreign commerce or commerce among the States, for in law there is no difference whatever? I assert that it has been held over and over again by the highest judicial authorities of the land that the power over commerce of either kind pertains exclusively to Congress, and does not belong at all to the States.
The Senate will pardon me for refreshing their recollection by certain references to adjudged cases. As the Senator from Maryland has indulged rather freely in such references he certainly will pardon me for imitating his example. I call his attention to certain passages which I will now read from what are known as the "passenger cases," decided by the Supreme Court of the United in 1848. I read from the opinion given by Judge McLean in those cases in which he groups together previous opinions. On page 125 of 17 Curtis's Condensed Reports, Judge McLean quotes the language of Chief Justice Marshall in Gibbons vs. Ogden, where he says:
"The power over commerce with foreign nations and among the several States is vested in Congress as absolutely as it would be in a single government having in its constitution the same restrictions," &c. Again, he quotes from the same opinion of Marshall:
"Where, then, each government exercises the power of taxation, neither is exercising the power of the other; but when a State proceeds to regulate commerce with foreign nations, or among the several States, it is exercising the very power that is granted to Congress, and is doing the very thing which Congress is authorized to do."
Again, says Judge McLean:
"And Mr. Justice Johnson, who gave a separate opinion in the same case, observes: The power to regulate commerce here meant to be granted, was the power to regulate commerce which previously existed in the States.' And again: The power to regulate commerce is necessarily exclusive."
In Brown vs. The State of Maryland, 12 Wheat., 446, the court say: It is not, therefore, matter of surprise that the grant of commercial power should be as extensive as the mischief, and should comprehend all foreign commerce and all commerce among the States.' This question, they remark, was considered in the case of Gibbons vs. Ogden, in which it was declared to be complete in itself, and to acknowledge no limitations.' And Mr. Justice Baldwin, in the case of Groves vs. Slaughter, 15 Peters, 511, says: That the power of Congress to regulate commerce among the several States is exclusive of any interference by the States, has been, in my opinion, conclusively settled by the solemn opinions of this court,' in the two cases above cited. And he observes: If these decisions are not to be taken as the established construction of this clause of the Constitution, I know of none which are not yet open to doubt.',
Mr. Justice Story, in the case of New York vs. Miln, 11 Pet., 158, in speaking of the doctrine of concurrent power in the States to regulate commerce, says, that 'in the case of Gibbons vs. Ogden, it was deliberately examined and deemed inadmissible by the court. Mr. Chief Justice Marshall, with his accustomed accuracy and fullness of illustration, reviewed at that time the whole ground of the controversy; and from that time to the present the question has been considered, so far as I know, at rest. The power given to Congress to regulate commerce with foreign nations and among the States, has been deemed exclusive from the nature and objects of the power, and the necessary implications growing out of its exercise.""
"Keeping, then, in mind what commerce is, and how far a nation may legally limit her own commercial transactions with another State, we cannot be at a loss to determine, from the subject-matter of the clause in the Constitution, that the meaning of the terms used in it is to exclude the States from regulating commerce in any way, except their own internal trade, and to confide its legislative regulation completely and entirely to Congress. When I say completely and entirely to Congress, I mean all that can be included in the term 'commerce among the several States,' subject, of course, to the right of the States to pass inspection laws in the mode pre to the prohibition of any duty upon exports, either from one State to another State, or to foreign countries, and to that commercial uniformity which the Constitution enjoins respecting all that relates to the introduction of merchandise into the United States, and those who may bring it for sale, whether they are citizens or foreigners, and all that concerns navigation, whether vessels are employed in the transportation of passengers or freight, both; including also, all the regulations which the necessities and safety of navigation may require."
I read, also, upon the subject of the exclusive character of the commercial power in the Constitution, from the second volume of Story's Commentaries, sections 1062 and 1063:
"In short, in a practical view, it is impossible to separate the regulation of foreign commerce and do-. mestic commerce among the States from each other. The same public policy applies to each; and not a reason can be assigned for confiding the power over the one which does not conduce to establish the propriety of conceding the power over the other. The next inquiry is whether this power to regulate commerce is exclusive of the same power in the States or is concurrent with it."
Upon this subject I desire the attention of Senators. It is sometimes said that there is a commercial power in the States connected either with foreign commerce or with commerce among the States, which is to be regarded as concurrent with the power of the General Government over the same subjectmatter. I wish to make myself understood on this point. The principle is, that the commercial power as granted in the Constitution is not even concurrent in any form or degree with the power of the States, but that it is absolutely exclusive in all cases.
Mr. MORRILL. While the Senator is upon that point, I will ask him if he recognizes the principle in the Delaware case, the case of where the court settled that the power might Wilson vs. The Blackbird Creek Company, be exercised by the States if jurisdiction had not been taken by the United States, and that to that extent it was concurrent.
Mr. HOWARD. It is some time since I examined the Blackbird creek case to which the Senator from Maine alludes; but I think upon a careful perusal and consideration of that case he will find that no such conclusion can be drawn from the rulings of the court. If the Senator will have the goodness to look at the comments upon the rulings in the Blackbird creek case, to be found in the passenger cases, he will discover that the Supreme Court in the latter cases did not so construe them. There were some peculiar circumstances connected with the Blackbird creek case which have no real relation to the question now under consideration.
Mr. MORRILL. As the Senator says the facts are not fresh in his recollection, he will allow me to state that that was a case of navigable waters open to the sea in the State of Delaware. The State of Delaware, through her Legislature, had exercised the right of damming that creek, and that raised the question of jurisdiction. The Supreme Court held that although it was navigable water and open to the sea, and undoubtedly on general principles would be within the jurisdiction of the United States, still as the United States had not exercised authority over it, the State might not improperly exercise such authority, and her authority would be good and valid until the United States did intervene. I think I recol lect distinctly the case.
Mr. HOWARD. But I think the Senator will find that in the same decision the court recognized the principle that the State of Del
aware could not obstruct the navigation of that creek by any structure that she might make. I do not remember particularly about that, but I think the Senator will discover that his Blackbird creek case has very little relation to the question now before us.
In commenting upon the commercial power, Judge Story remarks in his Commentaries,
"The next inquiry is, whether this power to regulate commerce is exclusive of the same power in the States or is concurrent with it. It has been settled upon the most solemn deliberation that the power is exclusive in the Government of the United States. The reasoning upon which this doctrine is founded is to the following effect: the power to regulate commerce is general and unlimited in its terms. The full power to regulate a particular subject implies the whole power, and leaves no residuum. A grant of the whole is incompatible with the existence of a right in another to any part of it. A grant of a power to regulate necessarily excludes the action of all others, who would perform the same operation on the same thing. Regulation is designed to indicate the entire result applying to those parts which remain as they were, as well as to those which are nitered. It produces a uniform whole, which is as much disturbed and deranged by changing what the regulating power designs to have unbounded as that on which it has operated."
Now, sir, if such be the character of the. commercial power as conferred upon Congress by the Constitution, if it be in reality an exclusive power, as it has been decided to be by the Supreme Court in numerous instances, it was given to Congress for some beneficial purpose, and given with the intent that Congress, on all proper occasions, should exercise it. If it be given thus exclusively, and if the whole of it has been given, as Mr. Justice Story argues that it has been, I ask the honorable Senator from Maryland, and the honorable Senator from Maine, who takes the same ground in opposition to this bill, upon what principle is it that a State can legislate at all upon the subject of foreign commerce or commerce among the States. Where is the basis of any such legislation? The courts say the State is divested completely of its power over the subject-matter known as commerce, in all its parts, and that commerce is a unit, and pertains as such exclusively to Congress.
Can a State, then, insert, as one of the conditions of its charter, that the company or the private person to whom the charter relates, or to whom the license may be given, shall not engage in the business of commerce among the various States? Can a charter be predicated upon such a condition? The condition itself is not one which it is competent for the State Legislature to impose. It rests upon an assumption of authority which has been taken away-conceded away to the Congress by the will of the American people.
I need not say to the honorable Senator from Maryland that a condition inserted in any contract which in itself is unlawful, or which it is incompetent for the parties to it to agree to, is of itself void and inoperative, and if it affects the whole instrument, if no part of the instrument can be carried out according to the intention of the parties without giving effect to this particular clause, the whole instrument falls to the ground; but if portions of the instrument can be maintained, and the infected portion, which is void as against law or for want of authority, can be separated from the rest, then courts of law uphold the agreement between the parties pro tanto.
Now, I insist, sir, that a State charter cannot impose conditions upon a company that shall prevent, burden, or obstruct commerce, because the power to regulate commerce is granted exclusively to Congress, and therefore such a condition is void. Sir, suppose a State should assume to incorporate a company, and one of the conditions of the charter should be that neither the company nor any stockholder of the company should be engaged in foreign commerce; that the company should not be engaged in commerce with Canada or with any portion of the British possessions, will the hon orable Senator from Maryland contend that such a condition would be valid; that any force could be given to it, or that it would receive any attention at the hands of a court of justice?
tax is laid on each person who travels over that road?
I think he will not, because it is too obvious that in such a case the Legislature has passed the boundaries of its power, and the condition it has assumed to annex is a void condition.
What is the New Jersey case, so called? I shall spend little time upon it; I will merely allude to it. I understand that the charter of the Camden and Amboy Railroad Company, connecting the city of New York with the city of Philadelphia, those two points being the termini of the road, contains in it a clause to this effect:
"That it shall not be lawful at any time during the said railroad charter to construct any other railroads in this State without the consent of the said companies"
That means the companies constituting the whole line
"which shall be intended or used for the transportation of passengers or merchandise between the cities of New York and Philadelphia, or to compete in business with the railroad authorized by the aet to which this supplement is relative."
That charter also contains, as one of its precious provisions, this most singular imposition upon the citizens of other States, that the company shall pay into the treasury of the State of New Jersey ten cents per capita for every passenger who shall pass over the line between New York and Philadelphia. If I misstate this provision of the charter I desire to be corrected.
Mr. MORRILL. Then I will ask the honorable Senator to give a little further attention to that particular provision, and he will find that it is accompanied with a statement that it is in lieu of all taxation; they are to pay that in lieu of taxes; that is the consideration.
Mr. HOWARD. That does not change the principle at all. Whatever may be the consideration passing to the State or to the company for this provision in the charter, the.charter itself imposes upon the company in form, but really and in effect upon the passenger who travels, the sum of ten cents as a State tax, to be paid into the treasury of the State of New Jersey. "A rose by any other name would smell as sweet;" it is a tax in intention, in essence, and in practice.
Mr. KIRKWOOD. I wish, with the permission of the Senator from Michigan, to understand this matter aright. As I understand what the Senator from Maine and the Senator from Michigan say, in point of substance, the entire tax due from the company to the State is levied upon the passengers. The tax on the passengers, as I understand the Senator from Maine to say, is in lieu of all State taxes, so that the entire tax levied by the State upon the company is really levied upon passengers traveling from one State to another."
Mr. MORRILL. I do not wish to interrupt the Senator from Michigan, but if he will permit me, on that point, I desire to say that it is a great deal broader than the Senator supposes. I understand, treating this charter now in the nature of a contract between the State and the company, to encourage the company to enter upon this work, the State say, we grant you this exclusive right to carry these passengers, and if you perform the conditions on your part you shall be exempt from all taxation, city, county, and town; and in lieu of it you shall pay a revenue of ten cents upon each passenger you carry through the State. There are other reservations as to tonnage; but as to the item referred to, it is ten cents, and it is in lieu of taxation.
Mr. HOWARD. There is a small specific tax upon the through freight according to the same charter-the through freight from New York to Philadelphla and vice versa; but I do not care whether this tax upon passengers and freight through New Jersey be small or great, it makes no difference as to the principle. The question of principle is, whether it is a constitutional power of New Jersey to make such a discrimination among the passengers who travel and the freight which passes over its road as is here made.
Mr. MORRILL. Do I understand the Senator to assert that by the law of New Jersey a
Mr. HOWARD. It would be the same thing, undoubtedly, because it comes out of the pocket of the passenger or shipper who uses the line of railroad. It is not denied that this tax comes out of the pocket of the passenger who travels from New York to Philadelphia, is it? Does he not pay it?
'It seems plain, from the acts incorporating these companies, and the testimony of those best conversant with the history of their incorporations, that it was the policy of the State, taking advantage of the geographical position of New Jersey, between the largest States and cities of the Union, to create a revenue by imposing tax or transit duty upon every person who should pass on the railroad across the State between those cities, from the Delaware river to the Raritan bay; but that it was not their design to impose any tax upon citizens of their own State for traveling between intermediate places."
Mr. MORRILL. He does it upon the assumption that the company imposes it; but there is no evidence that the fare is increased by one mill by reason of this tax, and it is just as comprehensible and conclusive to argue that if a tax had been imposed on the business of the company, the company, by reason of that tax, would have imposed an additional sum on the traveler to meet that additional tax-just as conclusive, I submit to the honorable Senator.ing Mr. HOWARD. The honorable Senator from Maine, I think, differs a little in opinion as to the intention of this charter and the cognate acts of legislation from the persons who are in the actual exercise of the franchise. I read from a New Jersey document, emanating from the executive committee of the coalesced railroads represented by the Camden and Amboy Railroad Company, the following:
* "Here, again, the policy and intention of the State is most clearly indicated, in exempting her own citizens from the operation of this system of taxation."
I am indebted to the honorable Senator from Massachusetts [Mr. SUMNER] for the extract which I have now read to the Senate. Again:
shire, of Maine, of Connecticut, of all the States passing over this railroad, should be made tributary to the selfish policy of New Jersey? Ought they to be compelled in this form to pay the expense of carrying on her State government?
"The company believe that a careful consideration of the whole matter, as well from the provisions of the charter as from a recurrence to the period when it was granted, will produce the conviction that the transit duty was intended to be levied only on citizens of other States passing through New Jersey."
I will not ransack all the charters and acts of legislation connected with the charter for the purpose of eliciting the meaning of the charter. I take it for granted that these gentlemen who had the documents all before them were as competent as I should be after having read the same documents to state to the world what the purpose of this charter actually was and is. Now, sir, I understand it to be true in point of fact that for fourteen or fifteen years past the people of New Jersey have been entirely relieved from all State taxes by means of the money which has been accumulated in their treasury in the form of this specific passenger tax and freight tax between New York and Philadelphia. They have not paid a dollar, as I have been credibly informed, of State tax for that period of time, and all the expenses of the government of that State have been defrayed out of the proceeds of this imposition which the State of New Jersey has made upon passengers and freight passing through between New York and Philadelphia. I ask, sir, if Congress have the exclusive power of legislation over the subject, is it not time that the citizens of other States should be relieved from so gross an imposition upon their good nature? Is it entirely fair that the citizens of Michigan, of New York, of New Hamp
And what is commerce, Mr. President? It includes not only an exchange of commodities in specie, not only the sale and delivery of personal chattels and the conveyance of lands for money or other consideration, but it includes navigation and travel; it includes, in the language of the Supreme Court, "intercourse" between the citizens of one State and those of another, whether that intercourse be for the purpose of trade and traffic or for anything else; whether it have profit in view or mere pleasure and friendship. The Supreme Court have held repeatedly-the principle has never been denied since the case of Gibbons vs. Ogden-that commerce, as spoken of in the Constitution, includes intercourse between the people of one State and the people of another, whatever may be the object of that intercourse. It includes, therefore, the right of free and untrammeled transit from one State to another. It includes the right of a man who walks on foot from an eastern State to visit his friends in the West, and it prohibits the State through which he may be compelled to pass from enact
any laws to obstruct his passage from his home to his family or his friends in the West or wherever he may see fit to go. He cannot be taxed as a citizen of another State passing through any one particular State; and his progress cannot be obstructed, or impeded, or embarrassed in any way whatever for the reason that he does not happen to be a citizen of the State wherein the burden is sought to be imposed upon him.
If I, in passing from New York to Philadelphia, can be directly or indirectly by the legis lative power of New Jersey subjected to the payment of a tax of ten eents, I may be subjected to the payment of a tax of ten dollars or one hundred dollars. Nay, Mr. President, such is the character of the taxing power that if it can be exercised upon commerce and intercourse in this way, it can be carried so far as actually to exclude and keep out of the limits of one State citizens of another State. This monopolizing claim has no limits. There is no point at which it can be restrained. If the State Legislature has the power to impose a tax upon me, a citizen of Michigan, for going through the State of New Jersey, simply because I am a citizen of Michigan and not of New Jersey, they can prohibit me from going through the State of New Jersey at all; they can by legis lation surround the State by a Chinese wall more difficult to scale than that famous wall which was erected to protect the Celestial empire against the incursion of the Tartars. There is no boundary, no limit to this inhospitable claim of power. Gentlemen declare that if we pass a bill recognizing simply the omnipotent power of Congress over the subject of commerce the Government is dissolved, a requiem is to be sung over its dead body, and the whole structure is to pass into one universal wreck and ruin. Sir, I do not read the Constitution of my country in this way. I discover in it an intention on the part of the fathers of the Republic to treat the citizens of the various States as equals, to allow the citizen of one State the same privilege in another State that he has in his own. I do not see any danger of encroachment upon the power of the States. The history of the Government from its initiation down to this moment contains the most lamentable and continuous lesson to us, admonishing us that its tendency has been and is to dissolution and separation rather than to a more strict and perfect union. Why, sir, one of the first attempts that was seriously made by a State against this great power of the Government to regulate commerce was made by the State of New York, which undertook by her Legislature to create a monopoly of the navigation of the navigable rivers of that State in the hands of the representatives of Robert Fulton.
or right whatever, except such as may be already granted to it by the State save to this extent it declares that although under its charter it may be prohibited from carrying freight and passengers which are bound from one State into another, the particular corporation shall have the right in spite of the prohibition to carry on this inter-State commerce. That is the effect and the sole effect of this bill.
Suppose the Supreme Court had decided otherwise than it did in that famous case of Gibbons vs. Ogden; the waters of the State of New York would to-day have been closed to other States under the authority of the State of New York, against all the foreign as well as domestic commerce, except upon onerous and intolerable conditions, by virtue of the same monopoly. Not many years ago a similar attempt was made by Maryland to obstruct foreign commerce by requiring that every importer of foreign goods who should land his cargo in that State should be at the trouble of going to the State authorities, taking out a license, and paying for it the sum of fifty dollars. The Supreme Court promptly and decisively laid its heavy hand on this pretension. I need not enumerate instances, Mr. President, of the attempts of States to encroach upon the just powers of Congress touching commerce. The absolute necessity of such a power in the central Government was, as we all know, the great procuring cause of the formation of the Constitution and the establishment of the Union.
Mr. President, the honorable Senator from Maryland tells us that the bill assumes to authorize a State railroad company to carry persons and property beyond the terminus of its road, to authorize a company to make connection and even to make a road. In the warmth of the honorable Senator's opposition to this bill, it seems to me he has made on this subject assertions which he will see occasion to review, if not to recall. Does the bill before us assume to authorize a company in New Jersey to carry persons and property beyond the terminus of its road? Does it assume to impart a new and additional faculty to those corporations, by which they can construct new roads, or parts of new roads, and thus extend their franchise by means of this || bill? No, sir; the bill properly interpreted means no such thing.
Mr. JOHNSON. Will the honorable member read that part of it?
Mr. HOWARD. Yes, sir; I was about to do so. The bill provides that "every railroad company in the United States whose road is operated by steam, its successors, and assigns, be, and is hereby, authorized" to do what? Extend its road? Carry goods or passengers ultra viam, beyond the road, beyond the terminus or off the road? No, sir; but "to carry upon and over its road, connections, boats, bridges, and ferries, all passengers, troops, Government supplies, mails, freight, and property, on their way from any State to another State. Now, I ask the honorable Senator whether this is granting to a railroad company an authority to transport passengers or freight to anywhere but on and over its road.
Mr. JOHNSON. And connections. Mr. HOWARD. I will come to that. The honorable Senator will admit that already the State corporation has the authority to transport passengers and freight over and upon its road. There is no doubt about that; otherwise it would be a very useless corporation. But, says the honorable Senator, it also has the right to carry freight and passengers upon and over its connections. Sir, what is meant in the bill by the words, "connections, boats, bridges, and ferries?" Plainly, the connections which belong to the particular corporation, collateral railroads over which such corporation has a right to carry freight and passengers; connections which become such lawfully and properly under the legislation of New Jersey, by contract or by charter; connections which may be here regarded as the property of the particular company; connections which are its property precisely in the same sense in which boats, bridges, and ferries are its property; connections, boats, &c., the use of which, for purposes of transportation, the railroad legitimately has, possesses, and enjoys under State laws; and that is all that is meant. It does not go a single inch beyond its own chartered rights, established by the State. The bill assumes in no possible sense to impart to a State corporation any faculty, franchise, license,
Let me illustrate. Suppose the charter of New Jersey, as it seems to have done, prohibits any other railroad company in that State except the Camden and Amboy from transporting freight or passengers bound from one State to another State through New Jersey; suppose the State prohibits one of its corporations from carrying passengers and freight thus destined; the bill declares that the State corporation so prohibited shall have the right to transport such passengers and freight; and I insist that we have a perfect constitutional authority to do so under the power to regulate commerce among the States.
Railroad corporations are created for the purpose of transportation. They are in a broad sense common carriers as known in the common law, and they may carry commodities and passengers bound from one State to another. No State has a right to make a discrimination between such commerce and its purely internal commerce, such a discrimination being inconsistent with the exclusive power of Congress
But the honorable Senator takes another objection to the bill; he objects to its passage because, he says, if we can pass it we may regulate tolls upon State railroads; we may increase the tolls; and he seems to discover in the future the danger of Congress interfering with State railroads by assuming to regulate the tolls upon property passing through from one State into another. It is a sufficient answer to this objection, if it is deserving of the name, that it has no place; it is not founded upon any clause of the bill; it does not grow out of its language or intention, but is a mere apprehension of the honorable Senator that at some future day Congress may take it into their head to interfere with the tolls upon State railroads. Mr. President, have we not precisely the same power over commerce among the States that we possess over foreign commerce? Will the honorable Senator deny it? Will he undertake to limit the power of Congress in the one case and not in the other? Whatever may be the extent of this commercial power, Congress possesses it and the whole of it; and if that power extends so far as to grasp within itself the tolls upon passengers or merchandise transported from one State to another, so be it; we can neither enlarge nor restrain it. When the proper occasion shall present itself it will be for us to determine, if we do possess the power, whether to exercise it or omit to exercise it; and this is a sufficient answer to the argument of the Senator from Maryland upon that subject.
But, sir, in reference to foreign commerce, we have precisely the same power, and always have had it; and if there is any danger that we shall interfere injuriously or oppressively in the commerce among the States and control the States, has not the same danger existed ever since the commencement of the Government? And can the honorable Senator point to a single case where the United States have assumed to regulate the freights between foreign countries and the United States, or the price of passages, or anything of the kind? I apprehend he will find himself at a loss to discover any such precedent. While, at the same time, we know that every State of the Union has always interfered in some form in regulating tolls upon bridges, turnpikes, canals, and railroads, the Government of the United States have never exercised the power in any instance, as far as I have been able to ascertain. So I think that this objection of the honorable Senator from Maryland, that by passing this bill we shall establish a precedent of which we can avail
ourselves hereafter to regulate tolls upon State railroads, is unfounded, rather in the nature of an alarm than an argument.
I will not undertake to deny that Congress might, in an exigency, regulate the price of freight and passage money upon the ocean. The time may come when the exercise of such a power will become necessary. We have never, thus far, exercised it, to be sure; we have not seen the necessity of exercising it. And for the same reason I shall not deny that Congress have the power to regulate even tolls in the matter of trade among the States, though we have never exercised it, nor assumed to exercise it, thus far. I am not, however, by such objections to be frightened out of my position, that the power of Congress is just as exclusive over the one kind of commerce as the other.
His last objection is that if Congress may pass a bill authorizing every railroad to carry property bound from one State to another, as this bill does, it may make a road; that it may incorporate a company for the purpose of carrying on commerce among the States, and for this purpose make a road. This objection does not frighten me; nor will I undertake to say that Congress is totally disabled from creating a corporation for the purpose of carrying on commerce among the States; it is not necessary to deny even this power. If it could create such a corporation, it could undoubtedly authorize the corporation to make a road for the purpose of carrying on this commerce; but the bill before us does not contemplate the making of a road or any part of a road; so that I do not see that the last two objections of the honorable Senator to this bill, in which he seems to apprehend that Congress may do this thing or the other thing in the future, have the slightest weight in the discussion of the present bill.
The simple questions are, is this measure in accordance with the Constitution? Are we authorized to give this faculty and power to a State corporation, under the Constitution, or are we restrained from it? I have no doubt whatever upon the subject. I have no doubt that we have full authority to pass the bill in the very language which it contains; and I have just as little doubt that the interests of the public, the interests of the citizens of the various States who have been made tributary to New Jersey for so many years, and the interests of the whole commercial world visiting New York and Philadelphia require that this unblushing, persevering, corrupt, and corrupting monopoly of New Jersey ought to be extinguished; and I trust there will be votes enough and determination enough on the part of the Senate to put a complete extinguisher upon it. It has cursed the land long enough; and the people, with united voice, are crying against it. I trust we shall obey that voice.
Mr. HOWE. Mr. President, I am sometimes made to feel that there is nothing so timid and so abject as the Government of the United States. Sometimes, thank God, I am made to see that there is nothing grander or more heroic. The power of this Government and its authority is so often and so obstinately disputed that I really get to feeling at times as if it was made to look at and not to act. I have scarcely heard a proposition introduced into this body since I have had the honor of a seat here that has not found some one to deny the authority of Congress to enact it. This little proposition now before the Senate I think we have been straining at for something like two years, trying to swallow it. The Senator from Maryland, [Mr. JOHNSON,] in the very morning of its appearance, told us it was unconstitutional; and when he pronounces upon the Constitution, if he does not create convictions or change convictions, he is apt to influence them very much. I have seen a mesmeric experimenter lay his cane down on the floor before his victim, and make the victim think it was a serpent and travel all about the room to dodge it and to avoid it. Here is a bill as harmless, as inoffensive, as any man's walking-stick; and yet, because the Senator from Maryland told the Senate some
time ago that it really was a violation of the Constitution, we have been hesitating all this time as to whether we should adopt it or not.
What is this little thing that we dare not enact into a law? It says that every railroad company in the United States using steam, may carry over its road the Government supplies, passengers, troops, mails, freight, &c., on their way from one State to another. A railroad is a highway, I suppose. These passengers, troops, supplies, mails, and freights are commerce; they are the incident of commerce; they make up commerce; they are included within the term commerce." What is this bill, then? A simple declaration that commerce may move over all the highways in any of the States. That is all there is of it. And yet we are told we cannot make that declaration. Why can we not make that declaration? It is said that one of the States, shoved in accidentally between two of the great metropolitan cities of the United States-New York and Philadelphia has declared that of the highways running through its borders, only one of them shall carry these mails, troops, passengers, and freight; in other words, a State lying between New York and Philadelphia has declared that commerce between one State and another shall move only upon one of its highways; and that enactment lies in the way of our making this.
If that be so I ask, who controls the commerce between New York and Philadelphia? Who regulates it? The United States or the State of New Jersey? The State of New Jersey says it shall go over one particular way, and having said so we are told that the United States cannot say to the contrary. Why, sir, the State of New Jersey regulates commerce between those two cities if that be the case, and the Congress of the United States does not regulate it. That is as patent to me as the light above us. But the Constitution says that Congress may regulate commerce between the States, and not any one of the States. And, Mr. President, I want to remark here that this Congress was created, this Government was formed as much for the purpose of taking this very control from the States as for any other one purpose. One of the leading objects, one of the moving inducements to aggregate the original States into one supreme Govermnent was the fact that independent of any such general control the several States did impose just such restrictions, limitations, and disabilities upon the movement of commerce between the different States. If we disclaim this power, therefore, now, we ignore one of the highest and most beneficent purposes had in view in the organization of this Government.
Congress of the United States. I conclude that this power of the several States to impose terms upon the companies constructing railways must be exercised in subordination to our authority to regulate commerce, or the reverse of this must be true, and our authority to regulate commerce must be held in subordination to the power of the States to construct railways. Mr. GRIMES. Does our power go so far as to regulate the tolls?
Mr. HOWE. The question is put to me if our power goes so far as to regulate tolls upon commerce. Just how that power is to be exercised I do not now say; but that we have the power to regulate, tolls in some way, if it be necessary, I have no more doubt than I have of our right to make appropriations. If there was but one road through which the commerce from the Atlantic sea-board could reach the valley of the Mississippi, and that led through the State of New York, and the State of New York, in the interest of her canal system, was pleased to say that all of this commerce should go on her canals and none of it on her railways, does any one tell me, in view of our Constitution, that New York could stand at the gateway of her canals and levy just such tolls as she saw fit upon the commerce flowing between the East and the West? There are two empires; the commerce flowing between them is of immense importance to the world; is it at the mercy, under our Constitution, of any one State? Whether we could say to the State of New York, "You must reduce your tolls on that canal to meet the requirements, or what we judge to be the requirements, of the country; or whether we could say; "We will build a new canal in the interests of the nation and for the life of this great commerce," I will not stop to argue or to assert; but I do say most emphatically that it is not in the power of any one State to burden the commerce moving onward between the different States beyond the will of the nation. That question is not here. This is not a question of regulating tolls; it is a question of regulating commerce; it is a question of enabling commerce to move between different highways leading between the same points.
I said that either this authority to authorize the construction of railways must be exercised by the States in subordination to our authority to regulate commerce, or our authority to reg ulate commerce must be exercised in subor dination to the authority of the States to construct railways or to authorize the construction of railways. I conclude that the power of the State, even if it be exclusive over the given subject, must be exercised in subordination to the authority of the nation, because the Constitution of the United States and the laws made in accordance with it are declared to be the supreme law of the land, anything in the laws of any State to the contrary notwithstanding. If the law of the State is not subordinate to the law of the United States, then the Constitution of the United States is not the supreme law.
But I said I denied that the power to build railways or authorize the construction of railways is exclusively in the several States. I have no manner of doubt, if it were adjudged by Congress necessary and expedient to promote the commercial interests of the United States, to advance the interests of commerce moving between State and State, to build a railway, that we might authorize the construction of a railway or build it ourselves. It is an instrument of commerce, and if we judge it expedient to build one, who shall control the exercise of our discretion? I am not going to occupy the time of the Senate with arguing that question. It seems to me it has been decided, if any question ever was decided. It seems to me the Supreme Court of the United States affirmed that very power in the case of the Wheeling
The argument urged against the exercise of this authority is very brief. It is said that Congress cannot authorize the building of a railway in one of the States; that that is a power to be exercised exclusively by the State; and the State having the exclusive right to authorize the construction of a road within its limits, it must have the right to impose just such terms upon the construction of the road as it sees fit. In the first place, I deny the premises. I deny that the Congress of the United States cannot authorize the building of a highway within one of the States. But conceding that proposition to be correct, the deductions which are drawn from it I deny altogether. Admitting the law to be that only the Legislature of New Jersey can authorize the construction of a railway within her limits, I do not concede in that state of the law that she is authorized to impose just such terms upon the use of the railway after it is constructed as she sees fit; for it is impossible that her right, or the right of any State, to build a railway, or to authorize the building of a railway, can be more absolute and unlimited than is the right of the United States to regulate commerce. Here is the fact that different railways, different high-bridge. ways operated by steam, are existing in a particular State; here is the fact that each one of them is authorized by the law of that State; but here is the other fact that the right to regulate commerce on those highways is in the
ized by the States of Virginia and Ohio to build a bridge across the Ohio river, every inch of which was either in the State of Virginia or in the State of Ohio.
Mr. CRESWELL. The power to build a bridge?
Mr. HOWE. The power to build a railway; not in so many words, but by the most necessary implication. There was a company author
Mr. MORRILL. Virginia.
Mr. HOWE. Well, it was in one State or the other. The company was authorized by the laws of a State to build a bridge. A Statethe State of Pennsylvania-complained of it as an injury to her interests, as a wrong done to her, and declared the structure to be illegal, and appealed to the Supreme Court of the United States to redress that wrong. The Supreme Court heard that complaint, pronounced that structure to be illegal, and adjudged that it be abated, that it be removed. Congress enacted a law declaring that that bridge was legal, was a lawful structure
Mr. MORRILL. Will the honorable Senator allow me to make a remark just here? Mr. HOWE. Yes, sir.
Mr. MORRILL. The Congress of the United States did nothing more than this: the Supreme Court, on an examination of the facts, had decided it to be an obstruction to the navigation of the Ohio river; and Congress, having the supreme jurisdiction of the commerce of that river, declared it was not an obstruction, it being the judge. That is all they did.
Mr. HOWE. I think it did more. I think the Supreme Court had declared that bridge to be illegal.
Mr. MORRILL. No, sir; they declared it an obstruction. The whole case turned on the question of whether it was an obstruction to the navigation of the Ohio river. The court found that it was an obstruction.
Mr. HOWE. And therefore not a lawful structure.
Mr. MORRILL. And therefore the State of Virginia had not a right to obstruct a common highway. The Congress of the United States said, we have a right to say that it shall stand notwithstanding that fact. That is what they said.
Mr. HOWE. The Supreme Court said, I repeat, that it was not a lawful structure. The reason why it was not a lawful structure, in their judgment, was precisely what my friend from Maine says, because it obstructed a highway, not leading through the State of Pennsylvania, which complained, but leading to the State of Pennsylvania, which complained. That is what gave the State of Pennsylvania a right to redress; the fact that it obstructed commerce moving to and from Pennsylvania. It obstructed the movement of that commerce. So the court said. They said it must be abated. Congress said, in defiance of the legal rights as adjudicated, passed into judgment, of the State of Pennsylvania, "It is not an unlawful, but a lawful, structure, and shall stand, the judgment of the court to the contrary notwithstanding." Congress did not authorize the building of a bridge, but finding a bridge constructed by a private corporation, without authority of law, they said "It shall have the authority of law." Pennsylvania complained. It was the exercise of authority within the limits of a State-the State of Virginia-to maintain a bridge which Pennsylvania had not authorized; Virginia attempted to authorize it, but had not the authority to authorize it, simply because it was a wrong to another State. cannot for my life conceive why that power, which the United States exercised in Virginia to the injury of the adjudged rights of Pennsylvania, could not have been just as well exercised in Pennsylvania if the call for its exercise had been made from Pennsylvania. I must insist, therefore, that the court has passed upon and has affirmed, most substantially and most clearly, the right of the United States, if they see fit, to authorize the construction of railways within States in the
interests of commerce.
Mr. President, if it were not for the peculiar course this debate has taken I think it would be an astounding thing for us to be told that in the face and eyes of the plain, constitutional declaration of our right to regulate commerce,