APPORTIONMENT OF REPRESENTATIVES ACCORDING TO VOTERS.

RAILROAD USURPATION IN NEW JERSEY.

MR. PRESIDENT,—The question before us concerns the public convenience to a remarkable degree. But it concerns also the unity of this Republic. Look at it in its simplest form, and you will confess its importance. Look at it in its political aspect, and you will recognize how vital it is to the integrity of the Union itself. On one side we encounter a formidable Usurpation with all the pretensions of State Rights, hardly less flagrant and pernicious than those which ripened in bloody rebellion. On the other side are the simple and legitimate claims of the Union under the Constitution of the United States.

Thus stands the question at the outset: public convenience and the Union itself in its beneficent powers on the one side; public inconvenience and all the discord of intolerable State pretensions on the other side.

The proposition on its face is applicable to all the States throughout the Union, and in its vital principle concerns every lover of his country. But it cannot be disguised that the interest it has excited in the other House, and also in the Senate, must be referred to its bearing on the railroads of New Jersey. Out of this circumstance springs the ardor of opposition,—perhaps, also, something of the ardor of support. Therefore pardon me, if I glance one moment at the geographical position of this State, and its Railroad Usurpation in the name of State Rights.

Look on the map, or, better still, consult your own personal experience in the journey from Washington to New York, and you will find that New Jersey lies on the great line of travel between the two capitals of the country, political and commercial. There it is, directly in the path. It cannot be avoided, except by circuitous journey. On this single line commerce, passengers, mails, troops, all must move. In the chain of communication by which capital is bound to capital,—nay, more, by which the Union itself is bound together,—there is no single link of equal importance. Strike it out, and where are you? Your capitals will be separated, and the Union itself loosened. But the evil sure to follow, if this link were struck out, must follow also in proportionate extent from every interference with that perfect freedom of transit through New Jersey which I now ask in behalf of commerce, passengers, mails, and troops.

Such is the geographical position of New Jersey. And on this highway pernicious pretensions are set up which can be overthrown only by the power of Congress. The case is plain.

New Jersey, in the exercise of pretended State rights, has undertaken to invest the Delaware and Raritan Canal and the Camden and Amboy Railroad and Transportation Companies with unprecedented prerogatives. These are the words of the Legislature: “It shall not be lawful, at any time during the said railroad charter, to construct any other railroad or railroads in this State, without the consent of the said companies, 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 Act to which this supplement is relative.”[64] Here, in barefaced terms, is the grant of monopoly in all railroad transportation, whether of commerce, passengers, mails, or troops, between New York, a city outside of New Jersey, and Philadelphia, another city outside of New Jersey. Or, looking at this grant of monopoly again, we find, that, while leaving the local transportation of New Jersey untouched, it undertakes to regulate and appropriate the transportation between two great cities outside of New Jersey, constituting, from geographical position, the gates through which the whole immense movement, north and south, must pass.

If this monopoly is offensive on its face, it becomes still more offensive, when we consider the motive in which it had its origin. By confession of its supporters, it was granted in order to raise a revenue for the State out of men and business not of the State. It was an ingenious device to tax commerce, passengers, mails, and troops in transit across New Jersey, from State to State. I quote a confession from the Legislative Journal of New Jersey, as long ago as 1841, in a document by the executive committee of the coalesced railroads, represented by the Camden and Amboy Company.

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

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:—

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:—

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.

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:—

Mr. Justice Grier said, with great point:—

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,—

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:—

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

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:—

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:—

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.”

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:—

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:—

Then again he says:—