Part 10

Look at these words, and it appears, in the first place, that this inhibition is addressed to the States, and not to Congress, whose powers are not touched by it. Look still further at the railroad charters, and, even admitting that they were grants in the nature of contract, you cannot deny that the contract must be interpreted with reference to the Constitution of the United States. Learned judges have held that the law of the place where a contract is made not only regulates and governs it, _but constitutes part of the contract itself_. But if the law constitutes part of the contract, still more must the Constitution. Apply this principle and the case is clear. Every railroad charter has been framed subject to the exercise of the acknowledged powers of Congress, all of which are implied in the grant as essential conditions, not less than if set forth expressly. The Supreme Court has decided that all contracts are made subject to the right of _eminent domain_, so that they cannot be considered as violated by the exercise of this right.[81] But the powers of Congress, invoked to regulate commerce among the several States, to establish post-roads, and to raise and equip armies, are in the nature of _eminent domain_, to which all local charters are subject. Therefore, I repeat, nothing is proposed “impairing the obligation of contracts,” even if that well-known inhibition were applicable to Congress.

From these details of criticism the Senator jumped to a broader proposition. He asserted that the pending measure destroyed what he called the sovereignty of the States, and he even went so far as to say that it was the same as if you said that all State legislation is null and void. These, Sir, were his exact words. How the Senator, even in any ardor of advocacy, could venture on such assertion, it is difficult to comprehend. Here is a measure, founded, as I have already demonstrated, on three different texts of the Constitution, upheld by three unassailable supports, and also in essential harmony with the Union itself; and yet we are told that it destroys the sovereignty of the States. Such an assumption seems uttered in the very wantonness of unhesitating championship. If anything but a phrase, it must be condemned, not only as without foundation, but as hostile to the best interests of the country.

Sir, the pending measure is in no respect destructive of any rights of the States; nor does it in any sense say that all State legislation is null and void. On the contrary, it simply asserts a plain and unquestionable power under the National Constitution. If in any way it seems to touch what is invoked as State sovereignty, or to set aside any State legislation, it is only in pursuance of the Constitution. It is simply because the Constitution, and the laws made in pursuance thereof, are _the supreme law of the land_.

The assumptions of the Senator bring me back to the vital principle with which I began. After exhibiting the public convenience involved in the present question, I said that it concerned still more the unity of the Republic. It is, in short, that identical question which has so often entered this Chamber, and is now convulsing the land with bloody war. It is the question of the Union itself. In his ardor for that vampire monopoly, which, brooding over New Jersey, sucks the life-blood of the whole country, the Senator from Maryland sets up most dangerous pretensions in the name of State Rights. Sir, the Senator flings into one scale the pretensions of State Rights: into the other scale I fling the Union itself.

Sir, the Senator from Maryland is a practised lawyer, and he cannot have forgotten that Nathan Dane, whose name is an authority in our courts, tells us plainly that the terms “sovereign States,” “State sovereignty,” “State rights,” and “rights of States” are “not constitutional expressions.”[82] Others of equal weight in the early history of the country have said the same thing. Mr. Madison, in the Convention which framed the Constitution, said: “Some contend that States are _sovereign_, when, in fact, they are only political societies. The States never possessed the essential rights of sovereignty. These were always vested in Congress.”[83] Elbridge Gerry, of Massachusetts, in the same Convention, said: “It appears to me that the States never were independent. They had only corporate rights.”[84] Gouverneur Morris, of Pennsylvania, with the same distinct language he used in denouncing Slavery, said of the States: “They were originally nothing more than colonial corporations.”[85] Both Patrick Henry and George Mason, in the Virginia Convention, opposed the Constitution on the very ground that it superseded State rights. But perhaps the true intention of the authors of the Constitution may be best found in the letter of General Washington, as President of the Convention, transmitting it to Congress. Here are his words:--

“It is obviously impracticable, _in the Federal Government of these States, to secure all rights of independent sovereignty to each_, and yet provide for the interest and safety of all. Individuals entering into society must give up a share of liberty to preserve the rest.… In all our deliberations on this subject we kept steadily in our view that which appeared to us the greatest interest of every true American, _the consolidation of our Union_, in which is involved our prosperity, felicity, safety, perhaps our national existence.”[86]

I am content, when I find myself with the support of this great name.

By the adoption of the Constitution the people of the United States constituted themselves _a Nation_, one and indivisible, with all the unity and power of a nation. They were no longer a confederation, subject to the disturbing pretensions, prejudices, and whims of component parts; but they became a body politic, where every part was subordinate to the Constitution, as every part of the natural body is subordinate to the principle of life. The sovereignty of the United States, where all are but parts of one vivifying whole, was the controlling unit. The powers then and there conferred upon the nation were supreme. And those very powers I now invoke, in the name of the Union, and to the end that pretensions in the name of State Rights may be overthrown.

* * * * *

I have thus presented a picture of these intolerable pretensions. But they must be examined more minutely. They may be seen, _first_, in their character as a monopoly, and, _secondly_, in their character as a Usurpation under the Constitution of the United States. I need not say that in each they are equally indefensible.

If you go back to the earliest days of English history, you find that monopolies have from the beginning been odious, as contrary to the ancient and fundamental laws of the realm. A writer who is often quoted in the courts says: “All grants of this kind relating to any known trade are made void by the Common Law, as being against the freedom of trade, and discouraging labor and industry, and restraining persons from getting an honest livelihood by a lawful employment, and putting it in the power of particular persons to set what prices they please on a commodity.”[87] But, without claiming that the present monopoly is void at Common Law, it is enough to show its inconsistency with the Constitution. Here I borrow Mr. Webster’s language in his famous argument against the monopoly of steam navigation granted by the State of New York:--

“Now I think it very reasonable to say that _the Constitution never intended to leave with the States the power of granting_ monopolies either of trade or of navigation,--and therefore, that, as to this, the commercial power is exclusive in Congress.”[88]

Then again he says:--

“I insist that the nature of the case and of the power did imperiously require that such important authority as that of granting monopolies of trade and navigation _should not be considered as still retained by the States_.”[89]

And, yet again, he adduces an authority which ought to be conclusive on the present occasion: it is that of New Jersey, on the formation of the Constitution:--

“The New Jersey resolutions complain that the regulation of trade was in the power of the several States, within their separate jurisdiction, to such a degree as to involve many difficulties and embarrassments; and they express an earnest opinion that _the sole and exclusive power of regulating trade with foreign states ought to be in Congress_.”[90]

But the power of regulating trade “among the States” stands on the same reason, and also on the same text of the Constitution.

And yet, in face of these principles, we have a gigantic monopoly organized by New Jersey, composed of several confederate corporations, whose capital massed together is said to reach upwards of $27,537,977,--a capital not much inferior to that of the United States Bank, which once seemed to hold “divided empire” with the National Government itself. And this transcendent monopoly, thus vast in resources, undertakes to levy a toll on the commerce, the passengers, the mails, and the troops of the Union in transit between two great cities, both outside New Jersey. In attitude and pretension the grasping monopoly is not unlike Apollyon, in Bunyan’s “Pilgrim’s Progress,” whose usurpation is thus described:--

“But now in this Valley of Humiliation poor Christian was hard put to it; for he had gone but a little way before he espied a foul fiend coming over the field to meet him: his name is Apollyon. Then did Christian begin to be afraid, and to cast in his mind whether to go back or to stand his ground.…

“Now the monster was hideous to behold: he was clothed with scales like a fish, and they are his pride; he had wings like a dragon, feet like a bear, and out of his belly came fire and smoke, and his mouth was as the mouth of a lion. When he was come up to Christian, he beheld him with a disdainful countenance, and thus began to question with him.

“APOLLYON. Whence come you, and whither are you bound?

“CHRISTIAN. I am come from the City of Destruction, which is the place of all evil, and am going to the City of Zion.

“APOLLYON. By this I perceive thou art one of my subjects; for all that country is mine, and I am the prince and god of it.”

New Jersey is the Valley of Humiliation through which all travellers north and south from the city of New York to the city of Washington must pass; and the monopoly, like Apollyon, claims them all as “subjects,” saying, “For all that country is mine, and I am the prince and god of it.”

The enormity of the Usurpation is seen in its natural consequences. New Jersey claims the right to levy a tax for State revenue on passengers and freight in transit across her territory from State to State,--in other words, to levy a tax on “commerce among the several States.” Of course the right to tax is the right to prohibit. The same power which can exact “ten cents from every passenger,” according to the cry of the Camden and Amboy Railroad, by the voice of its counsel, may exact ten dollars, or any other sum, and thus effectively close this great avenue of communication.

Again, if New Jersey can successfully play this game of taxation, and compel tribute from the domestic commerce of the Union traversing her territory on the way from State to State, then may every other State do likewise. New York, with her central power, may build up an overshadowing monopoly and a boundless revenue, while all the products and population of the West traversing her territory on the way to the sea, and all the products and population of the East, with the contributions of foreign commerce, traversing her territory on the way to the West, are compelled to pay tribute. Pennsylvania, holding a great highway of the Union,--Maryland, constituting an essential link in the chain of communication with the national capital,--Ohio, spanning from lake to river, and forming a mighty ligament of States, east and west,--Indiana, enjoying the same unsurpassed opportunities,--Illinois, girdled by States with all of which it is dovetailed by railroads, east and west, north and south,--Kentucky, guarding the gates of the Southwest,--and, finally, any one of the States on the long line of the Pacific Railroad,--may enter upon a similar career of unscrupulous exaction, until anarchy sits supreme, and there are as many different tributes as there are States. If the Union should continue to exist, it would be only as a name. The national unity would be destroyed.

The taste of revenue is to a government like the taste of blood to a wild beast, exciting and maddening the energies, so that it becomes deaf to suggestions of justice; and the difficulties must increase, where this taxation is enforced by a comprehensive monopoly. The State, once tasting this blood, sees only an easy way of obtaining the means it desires; and other States will yield to the same temptation. The poet, after picturing vice as a monster of frightful mien, tells us in familiar words,--

“Yet seen too oft, familiar with her face, We first endure, then pity, then embrace.”

A profitable Usurpation, like that of New Jersey, would be a tempting example to other States. “It is only the first step that costs.” Let this Usurpation be sanctioned by Congress, and you hand over the domestic commerce of the Union to a succession of local imposts. Each State will be a tax-gatherer at the expense of the Union. Each State will play the part of Don Quixote, and the Union will be Sancho Panza, not only bound to contributions, but driven to receive on bare back the lashes which were the penance of the knightly adventurer. If there be any single fruit of our national unity, if there be any single element of the Union, if there be any single triumph of the Constitution to be placed above all others, it is the freedom of commerce between the States, under which _free trade_, the aspiration of philosophy, is assured to all citizens of the Union, as they circulate through our whole broad country, without hindrance from any State. But this vital principle is now in jeopardy.

Keep in mind that it is the tax imposed on commerce between New York and Philadelphia, two cities outside the State of New Jersey, which I denounce. I have denounced it as hostile to the Union. I also denounce it as hostile to the spirit of the age, which is everywhere overturning the barriers of commerce. The robber castles, once compelling payment of toll on the Rhine, were long ago dismantled, and exist now only as monuments of picturesque beauty. Kindred pretensions in other places have been overthrown or trampled out. Duties levied by Denmark on all vessels passing through the Sound and the Belts, duties levied by Hanover on the goods of all nations at Stade on the Elbe, tolls exacted on the Danube in its protracted course, tolls exacted by Holland on the busy waters of the Scheldt, and transit imposts within the great Zollverein of Germany, have all been abolished; and in this work of enfranchisement the Government of the United States led the way, insisting, in the words of President Pierce, in his Annual Message, “on the right of _free transit_ into and from the Baltic.”[91] But the right of free transit across the States of the Union is now assailed. Can you who reached so far to secure _free transit_ in the Baltic now hesitate in its defence here at home?

Thank God, within the bounds of the Union, under the National Constitution, commerce is made free. As the _open sea_ is the highway of nations, so is this Union made the highway of the States, with all their commerce, and no State can claim any exclusive property therein. The Union is a _mare liberum_, beyond the power of any State, and not a _mare clausum_, subject to as many tyrannies as there are States. And yet the State of New Jersey asserts the power of closing a highway of the Union.

Such a pretension, so irrational and destructive, cannot be dealt with tenderly. Like the serpent, it must be bruised on the head. Nor can there be wise delay. Every moment of life yielded to such a Usurpation is like the concession once in an evil hour yielded to Nullification, kindred in origin and character. The present pretension of New Jersey belongs to the same school with that abhorred and blood-bespattered pretension of South Carolina.

Perhaps, Sir, it is not unnatural that the doctrines of South Carolina on State Rights should obtain shelter in New Jersey. Like sees like. There is a common bond among the sciences, among the virtues, among the vices,--and so, also, among the monopolies. The monopoly founded on the hideous pretension of property in man obtained responsive sympathy in that other monopoly founded on the greed of unjust taxation, and both were naturally upheld in the name of State Rights. Both must be overthrown in the name of the Union. South Carolina must cease to be a Slave State, and New Jersey must also cease her disturbing pretension. All hail to the genius of Universal Emancipation! All hail to the Union, victorious over the Rebellion,--victorious, also, over a Usurpation which menaces the unity of the Republic!

REPRESENTATION OF VIRGINIA IN THE SENATE.

REMARKS IN THE SENATE, ON THE CREDENTIALS OF HON. JOSEPH SEGAR, OF VIRGINIA, FEBRUARY 17, 1865.

February 17th, Mr. Willey, of West Virginia, presented the credentials of Hon. Joseph Segar, appointed Senator by a State Government of Virginia, sitting at Alexandria. Mr. Sumner moved their reference to the Committee on the Judiciary, and during the discussion that ensued said:--

I regret that a question of this magnitude has been precipitated upon the Senate at this late period of the session, when there is so much public business which has not yet received the attention of either House of Congress. The Senator from Michigan [Mr. HOWARD] does not exaggerate its magnitude. Sir, it is much to be a Senator of the United States, with all the powers and privileges pertaining to that office, legislative, diplomatic, and executive; and the question is, whether all these shall be recognized in the gentleman whose certificate has been sent to the Chair. I thought it my duty, on hearing the certificate read as I entered the Chamber, to move its reference to the Committee on the Judiciary. I am astonished that there can be any hesitation in that reference. Senators who hesitate show insensibility to the character of the question. Will the Senate act blindfold, or with eyes open? I insist that on such a question it shall act with eyes open, wide open; and I know no way in which this can be accomplished, except through the intervention of a responsible Committee. Therefore, Sir, I proposed that the credentials should be referred. It will be the duty of the Committee, as my friend from Michigan suggests, to consider, in the first place, whether a State in armed rebellion, like Virginia, can have Senators on this floor. That is a great question, constitutional, political, practical. It will be their duty then to consider whether the gentleman whose credentials are before us is the legal choice of any State under the National Constitution. Now, Sir, I do not intend to prejudge either of these questions. I simply open them for consideration.

I say, Sir, I do not mean to prejudge these questions; but I do insist that a measure of this importance shall not be acted on without due consideration, and in absolute indifference to facts staring us in the face, glaring upon us every day in every newspaper that we read. Sir, you cannot be insensible to facts. It is in vain that Senators say that Virginia, now in war against the Union, is entitled to representation on this floor, when you have before you the inexorable fact that the greater part of the State is at this moment in the possession of an armed Rebellion, and that other fact, repeated by the newspapers of the land, that the body of men who have undertaken to send a Senator to Congress are little more than the Common Council of Alexandria. The question is distinctly presented, whether a representative of the Common Council of Alexandria is to enter this Chamber, and share the powers and privileges of my honorable friend near me, the Senator from New York [Mr. MORGAN], or my friend farther from me, the Senator from Pennsylvania [Mr. COWAN]. I merely open these points, without undertaking to decide them, but simply as an unanswerable argument in favor of the reference.

Afterwards, in reply to Mr. Foster, of Connecticut, Mr. Sumner said:--

Suppose it was matter of public notoriety that I came into this Chamber with a certificate from a body of men in Boston, little more in number and character than the Common Council of that city, not in fact supposed to represent the State; suppose this fact much received in the country; then I submit to the Senator whether it would not be the duty of the Senate, before receiving my credentials, to inquire into their origin.

The debate continued, when Mr. Sherman, of Ohio, moved that the credentials lie on the table. The motion was adopted,--Yeas 29, Nays 13. Mr. Segar’s claim to a seat was never prosecuted.

REPUDIATION OF THE REBEL DEBT.

CONCURRENT RESOLUTION IN THE SENATE, FEBRUARY 17, 1865.

February 17th, Mr. Sumner introduced the following concurrent resolution, and asked its immediate consideration.

Whereas certain persons have put in circulation the report, that, on the suppression of the Rebellion, the Rebel debt or loan may be recognized in whole or in part by the United States; and

Whereas such a report is calculated to give a false value to such Rebel debt or loan: Therefore,

_Resolved by the Senate_ (the House of Representatives concurring), That Congress hereby declares that the Rebel debt or loan is simply an agency of the Rebellion, which the United States can never, under any circumstances, recognize in any part or in any way.

Mr. Saulsbury and Mr. McDougall objecting, its consideration was postponed. In the evening of the same day the resolution was taken up, on motion of Mr. Sumner, and adopted without a division.

March 3d, the resolution was concurred in by the House of Representatives without a division.

This resolution was a direct answer to a pretension set up in England.

NO BUST FOR AUTHOR OF DRED SCOTT DECISION.

SPEECH IN THE SENATE, ON A BILL PROVIDING FOR A BUST OF THE LATE CHIEF JUSTICE TANEY, FEBRUARY 23, 1865.

February 23d, Mr. Trumbull moved to proceed with the consideration of a bill from the House of Representatives requiring the Joint Committee of the two Houses on the Library to contract with a suitable artist for the execution in marble, and delivery in the Supreme Court Room of the United States, in the Capitol, of a bust of the late Chief Justice Taney, and appropriating one thousand dollars for this purpose. On the question of taking it up, Mr. Sumner said: “I object. An emancipated country should not make a bust of the author of the Dred Scott decision.” The motion to take up prevailed, when Mr. Sumner said:--

MR. PRESIDENT,--I objected to this joint resolution, when it was reported by the Senator from Illinois [Mr. TRUMBULL], and he was disposed to hurry it upon the Senate, to the exclusion of important business. I objected to it again to-day; but it was from no indisposition to discuss it.

I know well the trivial apology which may be made for this proposition, and the Senator from Maryland [Mr. JOHNSON] has already shown something of the hardihood with which it may be defended. In the performance of public duty I am indifferent to both.