“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.”
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]