SPEECH IN THE SENATE, ON A BILL TO REGULATE COMMERCE AMONG THE SEVERAL
STATES, FEBRUARY 14, 1865.
April 25, 1864, Mr. Sumner asked, and by unanimous consent
obtained, leave to bring in the following joint resolution,
which was read twice, and referred to the Committee on Military
Affairs.
“A Joint Resolution to facilitate commercial, postal, and
military communication among the several States.
“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 by the Senate and House of Representatives of
the United States of America in Congress assembled_, 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 freight,
property, mails, passengers, troops, and Government
supplies, on their way from any State to any other State,
and to receive compensation therefor.”
May 12th, Mr. Wilson, of Massachusetts, from the Committee,
reported it without amendment.
Meanwhile the House of Representatives had under consideration
a bill to declare certain roads military roads and post-roads,
and to regulate commerce, which was much debated, when, on
motion of Mr. Wilson, of Iowa, Mr. Sumner’s joint resolution,
without the preamble, and with the title, “A Bill to regulate
commerce among the several States,” was adopted as a
substitute, and the bill thus amended passed the House,--Yeas
63, Nays 58.
In the Senate the bill was elaborately discussed, especially by
Mr. Reverdy Johnson, of Maryland; but its friends were never
able to press it to a vote, and it expired with the session. In
one of these efforts Mr. Sumner said: “There are two ways of
killing a measure: one is by voting it down; the other is by
postponing it until you lose an opportunity of voting on it;
and the latter is the policy of certain Senators now.”
March 3, 1865, failing to obtain a vote on the bill, Mr. Sumner
moved it as an amendment to the Post-Route Bill, but without
success.
February 14th, while the bill was under consideration, Mr.
Sumner spoke.
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.
“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]