Part 9

“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 two largest States and cities of the Union, _to create a revenue by imposing a tax or transit duty upon every person who should pass on the railroad across the State_ between these 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 travelling between intermediate places.… 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.”[65]

I quote the words of another functionary, equally frank, belonging to the same railroad connection.

“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_.”[66]

The spirit in which this tax has been laid appears from another incident, not without interest to the Senators from New York. The Erie Railroad, so important to transportation in the great State which they represent, has been compelled, in addition to the usual tax on that part of the road in New Jersey, to pay an extra tax in the shape of “a transit duty of three cents on every passenger and two cents on every ton of goods, wares, and merchandise, _except passengers and freight transported exclusively within_ this State.” This imposition was as late as 1862, and is part of that same system which constitutes the Railroad Usurpation of New Jersey to this day.

This Usurpation becomes still more apparent in the conduct adopted toward another railroad in New Jersey. It appears that a succession of railroads has been constructed, under charters of this State, from Raritan Bay, opposite New York, to Camden, opposite Philadelphia, constituting a continuous line, suitable for transportation, across New Jersey and between the two great cities of New York and Philadelphia. The continuous line is known as the Raritan and Delaware Bay Railroad. On the breaking out of the Rebellion, when Washington was menaced by a wicked enemy, and the patriots of the land were aroused to sudden effort, the Quartermaster General of the United States directed the transportation of troops, horses, baggage, and munitions of war from New York to Philadelphia over this line. The other railroad, claiming a monopoly, filed a bill in equity, praying that the Raritan and Delaware Bay Railroad “be decreed to desist and refrain” from such transportation, and also praying “that _an account_ may be taken to ascertain the amount of damages.” The counsel of the monopoly openly insisted that by this transportation the State was “robbed of her ten cents a passenger,” and then cried out: “I say it is no defence whatever, if they have succeeded in obtaining an order of the Secretary of War, _when we call upon them to give us the money they made by it_; and that is one of our calls. They have no right to get an order to deprive the State of New Jersey of the right of transit duty, _which is her adopted policy_.” Such was the argument of Mr. Stockton, counsel for the monopoly, November 12, 1863. The _transit duty_ is vindicated as the _adopted policy_ of New Jersey.

Nor is it modern in time. It may be traced to the beginning of the National Government, under the administration of Washington, when it awakened the indignant comment of Timothy Pickering, Postmaster General. This patriot citizen, in a communication to the House of Representatives, under date of February 9, 1793, and entitled “Tax on Mail Stages in New Jersey,” says, “The avowed design is to increase the revenues of that State,” precisely as now; and he adds, what may be repeated: “And thus the citizens of the United States have to purchase permission to travel on the highways of New Jersey.” Then, calling the tax “an annual tribute,” which the United States are to pay, he says: “And from the example of New Jersey they may erelong become tributary to all the States from Virginia to New Hampshire, inclusively; for so far the mail is carried in stage-wagons.”[67] But our “stage-wagons” are on railroads now.

* * * * *

Such, Sir, are the pretensions of New Jersey to interfere with commerce, passengers, mails, and troops _from other States_, on the way, it may be, to the National Capital, even with necessary succors at a moment of national peril. Such pretensions, persistently maintained and vindicated, constitute a Usurpation, not only hostile to the public interests, but menacing to the Union itself. Here is no question of local taxation or local immunity under State laws, but an open assumption by a State to tax the commerce of the United States on the way from State to State.

From the nature of the case, and according to every rule of reason, there ought to be a remedy for such a grievance. No usurping monopoly should be allowed to establish itself in any State across the national highway, and, like a baron of the Middle Ages perched in his rocky fastness, levy toll and tribute from the wayfarers of business, pleasure, or duty. The Usurpation should be overthrown. The nuisance should be abated. And, happily, the powers are ample under the National Constitution. Following unquestionable principles and authentic precedents, the Committee propose a remedy which I proceed to discuss.

* * * * *

The measure under consideration was originally introduced by me into the Senate. It was afterward adopted and passed by the other House as the substitute for a kindred bill pending there. Beyond the general interest which I take in the public business, this is my special reason for entering into this discussion.

The bill is arraigned as unconstitutional. But this objection is a commonplace of opposition. When all other reasons fail, then is the Constitution invoked. Such an attempt, on such an occasion, attests the weakness of the cause. It is little better than the assertion of an _alias_ in a criminal case.

The entire and unimpeachable constitutionality of the present measure is apparent in certain familiar precepts of the Constitution, brought to view in the title and preamble of the measure as introduced by me, but omitted in the bill now before us. The title, as introduced by me, was, “A joint resolution to facilitate commercial, postal, and military communication among the several States.” This opens the whole constitutional question. Then came the preamble:--

“Whereas the Constitution of the United States confers upon Congress, in express terms, the power to regulate commerce among the several States, to establish post-roads, and to raise and support armies: Therefore, _Resolved_,” &c.

In these few words three sources of power are clearly indicated, either of which is ample; but the three together constitute an overrunning fountain.

_First._ There is the power “to regulate commerce among the several States.” Look at the Constitution and you find these identical words. From the great sensitiveness of States, this power is always exercised by Congress with peculiar caution; but it still lives to be employed by an enfranchised Government.

Asserting this power, I follow not only the text of the Constitution, but also authoritative decisions of the Supreme Court. Perhaps there is no question in our constitutional history more clearly interpreted by our greatest authority, Chief Justice Marshall. In the well-known case where the State of New York undertook to grant an exclusive right to navigate the waters of New York by vessels propelled by steam, the illustrious Chief Justice, speaking for the Court, declared the restriction illegal, because it interfered with commerce between the States, precisely as is now done by New Jersey. In his opinion commerce was something more than traffic or the transportation of property. It was also “the commercial intercourse between nations and parts of nations in all its branches”; and it embraced, by necessary inference, _all inter-State communications_, and the whole subject of intercourse between the people of the several States. It was declared that the power of Congress over the subject was not limited by State lines, but was coëxtensive with commerce itself, according to the enlarged signification of the term. Here are the words of Chief Justice Marshall:--

“But in regulating commerce with foreign nations, the power of Congress does not stop at the jurisdictional lines of the several States. It would be a very useless power, if it could not pass those lines.… Every district has a right to participate in it. The deep streams which penetrate our country in every direction pass through the interior of almost every State in the Union, and furnish the means of exercising this right. _If Congress has the power to regulate it, that power must be exercised whenever the subject exists._ If it exists within the States, if a foreign voyage may commence or terminate at a port within a State, then the power of Congress may be exercised within a State.”[68]

This important decision was before railroads. It grew out of an attempt to appropriate certain navigable thoroughfares of the Union. But it is equally applicable to those other thoroughfares of the Union where the railroad is the substitute for water. According to the genius of jurisprudence, a rule once established governs all cases within the original reason on which it was founded. Therefore I conclude that the power of Congress over internal commerce by railroad is identical with that over internal commerce by water. But this decision does not stand alone.

Mr. Justice Story, a member of the Supreme Court at that time, in a later decision explained the extent of the power.

“It does not stop at the mere boundary-line of a State; nor is it confined to acts done on the water, or in the necessary course of the navigation thereof. _It extends to such acts done on land which interfere with, obstruct, or prevent the due exercise of the power to regulate commerce_ and navigation with foreign nations and _among the States_.”[69]

From various cases illustrating this power I call attention to those known as the _Passenger Cases_, where the Supreme Court declared that the statutes of New York and Massachusetts, imposing taxes upon alien passengers arriving at the ports of those States, were in derogation of the Constitution. On this occasion Mr. Justice McLean said:--

“Shall passengers, admitted by Act of Congress without a tax, be taxed by a State? The supposition of such a power in a State is utterly inconsistent with a commercial power, either paramount or exclusive, in Congress.”[70]

Mr. Justice Grier said, with great point:--

“To what purpose commit to Congress the power of regulating our intercourse with foreign nations and among the States, _if these regulations may be changed at the discretion of each State_?… It is, therefore, not left to the discretion of each State in the Union either to refuse a right of passage to persons or property through her territory, or to exact a duty for permission to exercise it.”[71]

But this is the very thing now done by New Jersey, which “exacts a duty” from passengers across the State.

I call attention also to the case of the Wheeling Bridge, where Congress, under peculiar circumstances, exercised this identical power. In this case the State of Pennsylvania denied the power of Virginia to authorize a bridge across the Ohio River obstructing navigation; but, under the pressure of public demand, and in the exercise of the very powers now invoked, Congress declared the Wheeling Bridge a lawful structure, anything in any State law to the contrary notwithstanding. The Supreme Court, after the passage of this Act, denied a motion to punish the owners of the bridge for contempt in rebuilding it, and affirmed that the Act declaring the Wheeling Bridge a lawful structure was within the legitimate exercise by Congress of its constitutional power to regulate commerce.[72] This very power is here invoked in a case more important and far more urgent than that of the Wheeling Bridge.

There is also another case. I refer to the Steubenville Bridge and Holliday’s Cove Railroad across the Ohio, in what is called the Panhandle of Virginia. This bridge was first attempted under a charter granted by Ohio; but Congress at last interfered, and enacted,--

“That the bridge partly constructed across the Ohio River at Steubenville, in the State of Ohio, abutting on the Virginia shore of said river, is hereby declared to be _a lawful structure_.”

“That the said bridge and Holliday’s Cove Railroad are hereby declared a public highway, and established a _post-road_ for the purpose of transmission of mails of the United States.”[73]

Such are precedents of courts and of statutes, showing how completely this power belongs to Congress in the regulation of internal commerce. The authorities are plain and explicit. They cannot be denied. They cannot be explained away. It would be superfluous to dwell on them. There they stand like so many granite columns, fit supports of that internal commerce, in itself a chief support of the Union.

_Secondly._ There is also the power “to establish post-roads,” which is equally explicit. Here, too, the words are plain, and they have received authoritative exposition. It is with reference to these words that Mr. Justice Story remarks that “constitutions of government do not turn upon ingenious subtleties, but are adapted to the business and exigencies of human society; and the powers given are understood in a large sense, in order to secure the public interests. Common sense becomes the guide, and prevents men from dealing with mere logical abstractions.”[74] The same learned authority, in considering the text of the Constitution, seems to have anticipated the very question before us. Here is a passage which may fitly close the argument on this head:--

“Let a case be taken _when State policy_”--

as, for instance, in New Jersey at this time,--

“or State hostility shall lead the Legislature to close up or discontinue a road, the nearest and the best between two great States, rivals, perhaps, for the trade and intercourse of a third State; shall it be said that Congress has no right to make or repair a road for keeping open for the mail the best means of communication between those States? May the National Government be compelled to take the most inconvenient and indirect routes for the mail? _In other words, have the States a power to say how and upon what roads the mails shall and shall not travel?_ If so, then, in relation to post-roads, the States, and not the Union, are supreme.”[75]

_Thirdly._ Then comes the power “to raise and support armies,”--an unquestionable power lodged in Congress. But this grant carries with it, of course, all incidental powers necessary to the execution of the principal power. It would be absurd to suppose that Congress was empowered to raise an army, but could not authorize the agencies required for its transportation from place to place. Congress has not been guilty of any such absurdity of abnegation. Already by formal Act it has proceeded “to authorize the President of the United States in certain cases to take possession of railroad and telegraph lines.” By this Act the President is empowered “to take possession of any or all the railroad lines in the United States, their rolling stock, their offices, shops, buildings, and all their appendages and appurtenances,” and it is declared that any such railroad “shall be considered as a post-road and a part of the military establishment of the United States.”[76] Here is the exercise of a broader power than any now proposed. The less must be contained in the greater.

Such are the three sources of power in the Constitution, each and all applicable to the present case. Each is indisputable. Therefore the conclusion, sustained by each, is threefold indisputable.

So plain is this power, that it has been admitted by New Jersey in a legislative act, as follows:--

“That, when any other rail road or roads for the transportation of passengers and property between New York and Philadelphia across this State shall be constructed and used for that purpose, under or by virtue of _any law of this State or the United States authorizing or recognizing said road_, that then and in that case the said dividends shall be no longer payable to the State, and the said stock shall be re-transferred to the Company by the Treasurer of this State.”[77]

Thus, in formal words, has New Jersey actually anticipated the very measure under consideration. All that is now proposed, so far as concerns New Jersey, is simply to recognize other railroads for the transportation of passengers and property between New York and Philadelphia across this State.

* * * * *

Such is the argument in brief for the constitutionality of the present bill, whether regarded as a general measure applicable to all railroads, or only applicable to the railroads of New Jersey. The case is so plain and absolutely unassailable that I should leave it on this simple exhibition, if the Senator from Maryland [Mr. REVERDY JOHNSON], who always brings to these questions the authority of professional reputation, had not most zealously argued the other way. According to him the bill is unconstitutional. Let me say, however, that the conclusion of the learned Senator is only slightly sustained by the reasons he assigns. Indeed, his whole elaborate argument, if brought to the touchstone, is found inconclusive and unsatisfactory.

The Senator opened with the proposition, that the internal commerce of a State is within the exclusive jurisdiction of the State, and from this he argued that the present bill is unconstitutional. But the Senator will allow me to say that his proposition is not sufficiently broad for his conclusion. The present bill does not touch the internal commerce of a State, except so far as it is a link in the chain of “commerce among States,” committed by the Constitution to the jurisdiction of Congress. This distinction must be made; for it is essential to a right understanding of the case.

From this inapplicable proposition the Senator passed to another equally inapplicable. He asserted that the jurisdiction of a State over all territory within its limits was exclusive, so that the United States cannot obtain jurisdiction over any portion thereof, except by assent of the State; and from this again he argued the unconstitutionality of the present bill. But this very illustration seems to have been anticipated by Mr. Justice Story in his excellent Commentaries, where he shows conclusively, first, that it is inapplicable, and, secondly, that, if it were applicable, it would be favorable to the power. Here are his words:--

“The clause respecting cessions of territory for the seat of Government, and for forts, arsenals, dock-yards, &c., has nothing to do with the point. _But if it had, it is favorable to the power.…_ But surely it will not be pretended that Congress could not erect a fort or magazine in a place within a State, unless the State should cede the territory. The only effect would be that the jurisdiction in such a case would not be exclusive. Suppose a State should prohibit a sale of any of the lands within its boundaries by its own citizens, for any public purposes indispensable for the Union, either military or civil; would not Congress possess a constitutional right to demand and appropriate land within the State for such purposes, making a just compensation? _Exclusive jurisdiction over a road is one thing; the right to make it is quite another._ A turnpike company may be authorized to make a road, and yet may have no jurisdiction, or at least no exclusive jurisdiction, over it.”[78]

Had the distinguished Commentator anticipated the argument of the Senator, he could not have answered it more completely.

Passing from these constitutional generalities, the Senator came at once to an assumption, which, if sustained, would limit essentially the national power with regard to post-roads. According to him, the words of the Constitution authorizing Congress “to establish post-roads” mean only that it shall “designate roads already existing”; and in support of this assumption he relied upon the message of Mr. Monroe, in 1822, on the Cumberland Road. The learned Senator adds, that this is “the received opinion, uniformly acted upon, and since recognized as the correct opinion by the judiciary.” Of course his testimony on this head is important; but it is overruled at once by the authority I have already cited, which says that “the power to establish post-offices and post-roads has never been understood to include no more than the power to _point out_ and _designate_ post-offices and post-roads.”[79] In the face of Mr. Justice Story’s dissent, expressed in his authoritative Commentaries, it is impossible to say that it is “the received opinion,” as asserted by the Senator. But the much quoted Commentator insists that “the Constitution itself uniformly uses the word ‘established’ in the general sense, and never in this peculiar and narrow sense,” and, after enumerating various places where it occurs, says, “It is plain that to construe the word in any of these cases as equivalent to _designate_ or _point out_ would be absolutely absurd. The clear import of the word is to create, and form, and fix in a settled manner.… To establish post-offices and post-roads is to frame and pass laws to erect, make, form, regulate, and preserve them. Whatever is necessary, whatever is appropriate to this purpose, is within the power.”[80] I might quote other words from the same authority; but this is enough to vindicate the power the Senator has denied.

Here it is my duty to remind the Senate that the argument of the Senator on this head is not only false in assumption, but that the assumption, even if correct, is entirely inapplicable. The bill before the Senate does not undertake to create, but simply to _designate_ or _point out_, certain roads. Therefore it does not fall under the objection the Senator makes. Even by his own admission it is constitutional.

But, not content with an erroneous assumption concerning post-roads, which, even if correct, is entirely inapplicable, the Senator makes another assumption concerning another clause of the Constitution, equally erroneous and inapplicable. He argues that the railroad charters in New Jersey were grants in the nature of a contract, and were protected by “the constitutional inhibition upon the States interfering with contracts”; and here he refers to several decisions of the Supreme Court of the United States. I do not trouble you with the decisions. It is enough, if I call attention to the precise text of the Constitution, which is, “_No State_ shall pass any law impairing the obligation of contracts.”