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their not having been actually mustered into vada, with an amendment; in which it requested at the prospect of its passing the Senate, says the service of the United States. the concurrence of the Senate.

to us that if we are thus to amend or endeavor Mr. HENDERSON. Certainly not.

The message further announced that the to amend from time to time the Constitution Mr. POVEROY. I think this amendment House of Representatives had passed without of the United States, that if one Congress atter embodies substantially the same thing.

amendment the bill (S. No. 74) for the admis. another may encroach upon its provisions, we Mr. DOOLITTLE. Very well.

-sion of the State of Colorado into the Union. may as well have no Constitution. UndoubtThe PRESIDENT pro tempore. The ques. The message also announced that the House | edly, sir, the convictions of that honorable tion is on the amendment of ihe Senator from of Representatives had passed the following | Senator of the unconstitutionality of this measMissouri.

bills and joint resolution ; 'In which it requested ure are very deep and strong. I could wish The amendment was agreed to. the concurrence of the Senate :

for the sake of the bill and the country that The bill was reported to the Senate as A bill (H. R. No. 179) amendatory of the we could have his full and free concurrence, amended, and the amendment was concurred organic act of Washington Territory;

for I know, and so does the country, that his in. The bill was ordered to be engrossed for A bill (H. R. No. 202) to amend an act enti- | opinion upon so grave a question is entitled to a third reading, was read the third time, and tled “ An act to provide a temporary govern;

and receives very great respect. Still, sir, passed.

ment for the Territory of Montana,” approved | after listening with much attention to his eloPOST OFFICE APPROPRIATION BILL. May 26, 1864; and

quent and ingenious argument against the bill,

A joint resolution (H. R. No. 32) to facilitate I have failed to be convinced by it of the unMr. POLAND. I offer the following order, communication with certain Territories.

constitutionality of the measure. On the other and ask for its present consideration :


hand, I hold it to be strictly within the constiOrdered, That the Secretary be directed to request tho House of Rapresentatives to return to the Senate Mr. NYE. · I ask the Senate to take up the expedient and necessary act for us to pass at

tutional power of Congress, and to be a very the bill (II. R. No. 280) making appropriations for the service of the Post Office Department during the fiscal

bill (S. No. 155) concerning the boundaries of this time, and I regret that so great a length year ending June 30, 1867, and for other purposes, the State of Nevada, which has just been re

of time has passed without such a Federal which passed the Senate with amendments, and was turned from the House of Representatives with sent to the House of Representatives for its concur

statute as this for the protection of the people rence in the said amendments. an amendment, with a view of concurring in

of the different States of the Union in their that amendment. There being no objection, the Senate pro

commercial transactions.

Mr. SHERMAN, I should like to hear what ceeded to consider the order.

The honorable Senator from Maryland init is about. Mr. SUMNER. What is the object of it?

forms us that this is an atteinpt to alter, to Mr. POLAND. To reconsider the Post by the House to our boundary bill

, reserving and he accuses us of an attempt to override

Mr. NYE. It is a simple amendment added modify, and even to enlarge a State charter, Office appropriation bill. Mr. SIJERMAN. Such an order, I believe, the rights of those who have located mines in

the just and legitimate powers of the States in the territory about to be incorporated into is always agreed to, as a matter of course, so

reference to the creation of corporations for Nevada. as to allow a Senator to exercise his privilege

commercial purposes. In order that I may do

The motion was agreed to; and the Senate of moving a reconsideration.

him no injustice in this respect, I will take the Mr. SUMNER. Might we not meet the proceeded to consider the amendment of the

liberty of reading from the Globe a single pasIIouse of Representatives, which was to add question now?

sage which states more clearly than I am able Mr. SHERMAN. I am perfectly willing to at the end of the bill the following:

to do his first ground of objection. He says: meet it to-day if the bill comes back at once.

And providel further, That all possessory rights acquired by citizens of the United States to mining

"In the first place, what the bill docs is to enlarge Mr. SUMNER. Might we not meet it now claims, discovered, locateil, and originally recorded

a charter granted by a Stato; it is amendatory to a on this motion ? in compliance with the rules and regulations adopted

Stato charter. It assuines, as vested in Congrces, Mr. SHERMAN. I think not; that is unby miners in the Pah Ranagat or other mining dis

therefore, the power to take into its own bands the tricts in the Territory incorporated by the provis

charters granted by the several States, and to modify usual. If the Senator should move a recon ionsof this act into the State of Nevada, shall remain

then just as they ihink proper, not only by extendsideration, I should like to have it disposed of as valid subsisting inining claims: but nothing herein

ing the authority which the charter may grant, but contaiacu shall beso construed as granting a title in

if, in the judgment of Congress, at any time herenfto-day. feo to any mineral lands held by possessory titles in

ter, or now, any of the restrictions in those cbarters Mr. SUMNER. I only make the suggestion the mining States and Territories.

are calculated to interfere with coinncrce between

the Statex, or to impede the transportation of the with a view to the economy of time, that we Mr. WADE. I hope that amendment will mails, they have the authority to repeal, practically, should not call the bill back needlessly. If on be concurred in.

any of the limitations in the charter or any of the this proposition the Senator from Vermont will The amendment was concurred in.

powers conferred upon the company by the charter." state the grounds on which he desires a recon


Now, sir, with great deference to that opin. sideration, we might then act on his proposi

ion, I insist that this bill does not assume to tion, and practically pass upon the question of

Mr. SUMNER. I move that the Senate pro alter or amend in any legal respect any charter reconsideration. ceed to the consideration of House bill No. 11.

granted by a State. Mr. MORRILL. But in the mean time they

The motion was agreed to ; and the Senate, The honorable Senator observed further might act upon the bill in the House of Repreas in Committee of the whole, resumed the

and he will pardon me for saying that I think sentatives.

consideration of the bill (H. R. No. 11) to in rather unguarded terms--that in enacting a Mr. POLAND. I supposed that this motion

facilitate commercial, postal, and military | charter of incorporation, it is the right of every was always agreed to as a matter of course.

communication among the several States. State to annex to that charter such terms and Mr. JOHNSON. The honorable member Mr. IIOWARD. Mr. President, I shall take conditions as the State pleases to annex; and from Vermont might lose the privilege which the liberty of detaining the Senate a few min

therefore it follows, according to him, that if, our rules give him of moving to reconsider

utes in the consideration of this bill, and but for instance, the State of New Jersey shall unless we get the bill back speedily. The

a few, for I see about me a disposition to come enact a charter which prohibits the carrying on House may pass upon it, and there would be to a final vote upon it as soon as practicable. of commerce among the States" by any peran end of it. The bill provides

son or by corporation within the limits of that Mr. POLAND. I am not very familiar with That every railroad company in the United States, State, inasmuch as this is a condition annexed the course of business in the Senate, but I

whose road is operated by steam, its successors and
assigns, be, and is hereby, authorized to carry upon

to the charter, Congress cannot interfere to understood that a resolution of this sort was and over its road, connections, boats, bridges, and relieve the people of the other States who are always passed as a matter of course prior to forries, all passengers, troops, Government supplies, trading and trafficking through New Jersey from a reconsideration.

miails, freight, and property on their way from any
State to another State, and to receive compensation

the impediment thus created. The order was adopted.

therefor, and to connect with roads of other States This appears to be the essence of his arguMr. SHERMAN. The motion to recon

so as to form continuous lines for the transportation ment: that a State has a right to annex any

of the same to the place of destination: Provided, sider, if entered at all, must be entered to-day That this act shall not affect any stipulation between

condition which it may see fit to its charters under the rules.

the Government of the United States and any rail of incorporation, and that it is out of the power Mr. SUMNER. The Senator from Vermont

road company for transportation or fares without of Congress, by any act of theirs, to relieve the

compensation, nor impair or change tho conditions did not state the grounds of his motion to recon imposed by the terms of any act granting lands to

community from such condition, however severe sider, or does he merely give notice of such a any such company to aid in the construction of its and unjust it may be in its effects upon the cit. motion ? road.

izens of other States. On that point I take issue The PRESIDING OFFICER, (Mr. CLARK

I thought, Mr. President, when I first read with the honorable Senator from Maryland. in the chair.) No motion to reconsider can

this bill, that its provisions were so plain and Sir, a charter of incorporation for commercial be entered until the bill is returned from the

so evidently within the scope of the constitu purposes, granted by the Legislature of a State House; and debate is out of order.

tional powers of Congress that it would be to private persons, has ever been held by the Mr. POLAND. I supposed it was not proper

difficult for any gentleman, however ingenious, l Supreme Court of the United States to be a con: to move to reconsider untilthe bill was returned.

to raise a doubt as to its constitutionality; but tract-a contract inviolable on the part of the I will then state the grounds on which I shall

like many other bills which we have had under State. It is, then, like any other contract or make the motion.

consideration during the present Congress, as compact between individuals ; the State being

well as in former Congresses, this has encoun: the party of the first part, and the corporators, MESSAGE FROM TUE HOUSE.

tered a very earnest and obstinate resistance, after having accepted the charter, the parties A message from the House of Representa founded upon the idea that it is prohibited by of the second part. In the present case, the tives, by Mr. McPherson, its Clerk, announced the Constitution; and the honorable Senator question is whether a State, by its legislation, that the House had passed the bill (S. No. 155) from Maryland (Mr. Johnson) in very depre- || either in the form of incorporating private comconcerning the boundaries of the State of No- ll catory tones, and almost in accents of despair || panies or otherwise, can take into its hands and

control a power which does not belong to the At page 147 of the same volume will be aware could not obstruct the navigation of that State, but which belongs exclusively to Con found this passage from the opinion of Mr. creek by any structure that she might make. gress under the Constitutior.

Justice Wayne, in the passenger cases: I do not remember particularly about that, but I think the honorable Senator will concede "Kcoping, then, in mind what commerce is, and

I think the Senator will discover that his Blackthat if the matter of commerce, either foreign || how far a nation may legally limit her own commer bird creek case has very little relation to the or among the States, be one which belongs not cial transactions with another State, we cannot be at a loss to determine, from the subject-matter of the

question now before us. to the States at all but exclusively to Congress clause in the Constitution, that the meaning of the

In commenting upon the commercial power, under the Constitution; if a State charter as terms used in it is to exclude the States from regulat- | Judge Story remarks in his Commentaries, sumes in any way whatever to control, to bur ing commerce in any way, except their own internal trade, and to contide its legislative regulation

section 1063: den, to hinder, or to prevent commerce among completely and entirely to Congress. When I say "The next inguiry is, whether this power to reguthe States or commerce with a foreign country completely and entirely to Congress, I mean all that lato commerce is exclusive of the same power in the if it annexes such a condition as this which can be included in the term 'commerce among the

States or is concurrent with it. It has been settled several States,' subject, of course, to thio right of

upon the most solemn deliberation that the power is have described to its charter of incorporation, the States to pass inspection laws in the mode pre

exclusive in the Government of the United States. that condition is void in law, because the State scribed by the Constitution, to the prohibition of

The reasoning upon which this doctrine is founded is has no authority whatever to annex such a con

any duty upon exports, either from one State to to the following effect: the power to regulate comanother State, or to foreign countries, and to that

merce is general and unlimited in its terins. The full dition to its charter. That portion of the char commercial uniformity which the Constitution en power to regulate a particular subject implies the ter, therefore, which assumes to control com joins respecting all that relates to the introduction whole power, and leaves no residuum. A grant of merce antong the States or commerce with a of merchandise into the United States, and those

the whole is incompatible with tho existence of a who may bring it for sale, whether they are citizens

right in another to any part of it. A grant of a power foreign country is void in law for the want of or foreigners, and all that concerns navigation,

to regulate necessarily excludes the iction of all anthority on the part of the State to exercise it. whether vessels are employed in the transportation

others, who would perform the game operation on the It is simply an attempt to exercise a power and

of passengers or freight, or both; including also, all same thing. Regulation is designed to indicate the the regulations which the necessities and safety of

entire result applying to those parts which remain as authority on the part of the State Legislature | navigation may require.”

they were, as well as to those which are nitered. It ultra vires--not within the scope of its power,

produces a uniform whole, which is as much disturbed but belonging exclusively to the Congress of

I read, also, upor the subject of the exclusive and deranged by changing what the regulating power character of the commercial power in the Con

designs to have unbounded as that on which it has the United States.

operated." What, then, is the character of commerce stitution, from the second volume of Story's

Now, sir, if such be the character of the Commentaries, sections 1062 and 1063: as defined by the Constitution, whether known

commercial power as conferred upon Congress as foreign commerce or commerce among the

"In short, in a practical view, it is impossible to by the Constitution, if it be in reality an exStates, for in law there is no difference what

separate the regulation of foreign commerce and do-
mestic commerce among the States from each other.

clusive power, as it has been decided to be by ever? I assert that it has been held over and The same public policy applies to each; and not a the Supreme Court in numerous instances, it over again by the highest judicial authorities reason can be assigned for confiding the power over was given to Congress for some beneficial purof the land that the power over commerce of

the one which does not conduce to establish the pro-
pricty of conceding the power over the other. The

pose, and given with the intent that Congress, either kind pertains exclusively to Congress, next inquiry is whether this power to regulate com on all proper occasions, should exercise it. If and does not belong at all to the States.

merce is exclusive of the same power in the States it be given thus exclusively, and if the whole The Senate will pardon me for refreshing or is concurrent with it."

of it has been given, as Mr. Justice Story ar. their recollection by certain references to ad Upon this subject I desire the attention of

gues that it has been, I ask the honorable Senjudged cases. As the Senator from Maryland Senators. It is sometimes said that there is

ator from Maryland, and the honorable Sen. has indulged rather freely in such references a commercial power in the States connected ator from Maine, who takes the same ground he certainly will pardon me for imitating his

either with foreign commerce or with com in opposition to this bill, upon what principle example. I call his attention to certain pas merce among the States, which is to be re

is it that a State can legislate at all upon sages which I will now read from what are garded as concurrent with the power of the | the subject of foreign commerce or commerce known as the passenger cases,'' decided by || General Government over the same subject

among the States.

Where is the basis of any the Supreme Court of the United in 1848. I matter. I wish to make myself understood on such legislation? The courts say the State read from the opinion given by Judge McLean | this point. The principle is, that the com is divested completely of its power over the in those cases in which he groups together pre

mercial power as granted in the Constitution subject matter known as commerce, in all its vious opinions. On page 125 of 17 Curtis's is not even concurrent in any form or degree parts, and that commerce is a unit, and perCondensed Reports, Judge McLean quotes the

with the power of the States, but that it is tains as such exclusively to Congress. language of Chief Justice Marshall in Gibbons absolutely exclusive in all cases.

Can a State, then, insert, as one of the conos. Ogden, where he says:

Mr. MORRILL. While the Senator is upon ditions of its charter, that the company or the "The power over commerce with foreign nations that point, I will ask him if he recognizes the private person to whom the charter relates, or and among the several States is vested in Congress principle in the Delaware case, the case of to whom the license may be given, shall not as absolutely as it would be in a single government Wilson vs. The Blackbird Creek Company, ll engage in the business of commerce among having in its constitution the same restrictions," &c.

where the court settled that the power might the various States? Can a charter be preAgain, he quotes from the same opinion of be exercised by the States if jurisdiction had dicated


such a condition? The condition Marshall:

not been taken by the United States, and that itself is not one which it is competent for the "Where, then, each government exercises the power to that extent it was concurrent.

State Legislature to impose. It rests upon an of taxation, neither is exercising the power of the Mr. HOWARD. It is some time since I other; but when a Stato proceeds to regulate com

assumption of authority which has been taken merce with foreign nations, or among the several examined the Blackbird creek case to which

away-conceded away to the Congress by the States, it is exercising the very power that is granted the Senator from Maine alludes; but I think will of the American people. to Congress, and is doing the very thing wbich Congress is authorized to do." upon a careful perusal and consideration of that

I need not say to the honorable Senator from case he will find that no such conclusion can Maryland that a condition inserted in any conAgain, says Judge McLean:

be drawn from the rulings of the court. If the tract which in itself is unlawful, or which it is "And Mr. Justice Johnson, who gave a separate Senator will have the goodness to look at the opinion in the same case, observes: The power to

incompetent for the parties to it to agree to, is regulate commerce here meant to be granted, was

comments upon the rulings in the Blackbird of itself void and inoperative, and if it affects the the power to regulate commerce which previously creek case, to be found in the passenger cases, whole instrument, if no part of the instrument existed in the States.' And again: ‘The power to he will discover that the Supreme Court in the can be carried out according to the intention regulato commerce is necessarily exclusive. * In Brown ds. The State of Maryland, 12 Wheat.,

latter cases did not so construe them. There of the parties without giving effect to this pai446, the court say: 'It is not, therefore, matter of sur were some peculiar circumstances connected ticular clause, the whole instrument falls to the prise that the grant of commercial power should be with the Blackbird creek case which have no ground; but if portions of the instrument can as extensive as the inischief, and should comprehend all foreign commerce and all commerce among the

real relation to the question now under con be maintained, and the infected portion, which States.' This question, they remark, 'was considered sideration.

is void as against law or for want of authority, in the case of Gibbons vs. Ogden, in which it was de Mr. MORRILL. As the Senator says the clared to be complete in itself, and to acknowledge

can be separated from the rest, then courts of no limitations.' And Mr. Justice Baldwin, in the case

facts are not fresh in his recollection, he will law uphold the agreement between the parties of Groves vs. Slaughter, 15 Peters, 511, says: “That the allow me to state that that was a case of navipower of Congress to regulate commerce among the gable waters open to the sea in the State of

Now, I insist, sir, that a State charter canseveral States is exclusive of any interference by the States, has been, in my opinion, conclusively settled

Delaware. The State of Delaware, through | not impose conditions upon a company that by the solemn opinions of this court,'in the tyo cases her Legislature, had exercised the right of dam shall prevent, burden, or obstruct commerce, above cited. And be observes: 'If thoso decisions

ming that creek, and that raised the question are not to be taken as the established construction of

because the power to regulate commerce is this clause of the Constitution, I know of none which

of jurisdiction. The Supreme Court held that granted exclusively to Congress, and therefore are not yet open to doubt.'

although it was navigable water and open to such a condition is void. Sir, suppose a State "Mr. Justice Story, in the case of New York vs.

the sea, and undoubtedly on general principles should assume to incorporate a company, and Miln, 11 Pet., 158, in speaking of the doctrine of concurrent power in the States to regulato commerce,

would be within the jurisdiction of the United one of the conditions of the charter should be says, that 'in the case of Gibbons 08. Ogden, it was States, still as the United States had not exer that neither the company nor any stockholder deliberately examined and deemed inadmissible by cised authority over it, the State might not the court. Mr. Chief Justico Marshall, with his

of the company should be engaged in foreign accustomed accuracy and fullness of illustration, re improperly exercise such authority, and her commerce; that the company should not be viewed at that time the whole ground of the contro authority would be good and valid until the engaged in commerce with Canada or with any yersy; and from that time to the present the question United States did intervene. I think I recol- | portion of the British possessions, will the honhas been considered, so far as I know, at rest. The power given to Congress to regulate commerce with lect distinctly the case.

orable Senator from Maryland contend that foreign nations and - among, the States, has been Mr. HOWARD. But I think the Senator | such a condition would be valid; that any force deemed exclusive from the nature and objects of the

wiil find that in the same decision the court could be given to it, or that it would receive power, and the necessary implications growing out of its exercise,

recognized the principle that the State of Del- ll any attentior at the hands of a court of justice?

pro tanto.

I think he will not, because it is too obvious tax is laid on each person who travels over shire, of Maine, of Connecticut, of all the that in such a case the Legislature has passed | that road?

States passing over this railroad, should be the boundaries of its power, and the condition Mr. HOWARD. No, sir; I did not assert made tributary to the selfish policy of New it has assumed to annex is a void condition. that. I say that operatively, practically Jersey ? Ought they to be compelled in this What is the New Jersey case, so called? I Mr. MORRILL. Oh, inferentially.

form to pay the expense of carrying on her shall spend little time upon it; I will merely Mr. HOWARD. In reality it is a tax, State government? allude to it. I understand that the charter of although it goes, perhaps, by another name. And what is commerce, Mr. President? It the Camden and Amboy Railroad Company, It is perfectly immaterial by what name the includes not only an exchange of commodities connecting the city of New York with the city rose is called; you recognize it by its smell. in specie, not only the sale and delivery of per. of Philadelphia, those two points being the Mr. MORRILL. How would it smell if, sonal chattels and the conveyance of lands for termini of the road, contains in it a clause to instead of a revenue of ten cents on each pas money or other consideration, but it includes this effect:

senger, it was in the shape of a tax, State, navigation and travel; it includes, in the lan"That it shall not be lawful at any time during the county, and town, on the company-would that guage of the Supreme Court, “ intercourse" said railroad charter to construct any other railroads be the same thing?

between the citizens of one State and those of in this State without the consent of the said compa Mr. HOWARD. It would be the same thing, another, whether that intercourse be for the nies"That means the companies constituting the

undoubtedly, because it comes out of the pocket purpose of trade and traffic or for anything whole line

of the passenger or shipper who uses the line else; whether it have profit in view or mere

of railroad. It is not denied that this tax pleasure and friendship. The Supreme Court “which shall be intended or used for the transportation of passengers or merchandise between the cities comes out of the pocket of the passenger who have held repeatedly-the principle has never of New York and Philadelphia, or to compete in travels from New York to Philadelphia, is it?

been denied since the case of Gibbons vs. business with the railroad authorized by tho act to Does not pay it?

Ogden-that commerce, as spoken of in the which this supplement is relative."

Mr. MORRILL. He does it upon the as Constitution, includes intercourse between the That charter also contains, as one of its pre- || sumption that the company imposes it; but people of one State and the people of another, cious provisions, this most singular imposition there is no evidence that the fare is increased whatever may be the object of that intercourse. upon the citizens of other States, that the com by one mill by reason of this tax, and it is just It includes, therefore, the right of free and pany shall

pay into the treasury of the State of as comprehensible and conclusive to argue that untrammeled transit from one State to another. New Jersey ten cents per capita for every if a tax had been imposed on the business of the It includes the right of a man who walks on passenger who shall pass over the line between

company, the company, by reason of that tax, foot from an eastern State to visit his friends New York and Philadelphia. If I misstate would have imposed an additional sum on the in the West, and it prohibits the State through this provision of the charter I desire to be traveler to meet that additional tax-just as which he may be compelled to pass from enactcorrected.

conclusive, I submit to the honorable Senator. ing any laws to obstruct his passage from his Mr. MORRILL. Then I will ask the hon Mr. HOWARD. The honorable Senator home to his family or his friends in the West orable Senator to give a little further attention from Maine, I think, differs a little in opinion or wherever he may see fit to go. He cannot to that particular provision, and he will find as to the intention of this charter and the cog be taxed as a citizen of another State passthat it is accompanied with a statement that it nate acts of legislation from the persons who ing through any one particular State; and his is in lieu of all taxation; they are to pay that are in the actual exercise of the franchise. I progress cannot be obstructed, or impeded, or in lieu of taxes; that is the consideration. read from a New Jersey document, emanating embarrassed in any way whatever for the rea

Mr. HOWARD. That does not change the from the executive committee of the coalesced son that he does not happen to be a citizen of principle at all. Whatever may be the consid railroads represented by the Camden and the State wherein the burden is sought to be eration passing to the State or to the company Amboy Railroad Company, the following: imposed upon him. for this provision in the charter, the.charter

" It seems plain, from the acts incorporating these

If I, in passing from New York to Philadelitself imposes upon the company in form, but companies, and the testimony of those best convers phia, can be directly or indirectly by the legisreally and in effect upon the passenger who

ant with the history of their incorporations, that it travels, the sum of ten cents as a State tax, to was the policy of the State, taking advantage of the

lative power of New Jersey subjected to the pay. geographical position of New Jersey, between the

ment of a tax of ten cents, I may be subjected be paid into the treasury of the State of New largest States and cities of the Union, to create a to the payment of a tax of ten dollars or one Jersey. “A rose by any other name would revenue by imposing tax or transit duty upon every hundred dollars. Nay, Mr. President, such is

person who should pass on the railroad across the smell as sweet;" it is a tax in intention, in

State between those cities, from the Delaware river the character of the taxing power that if it can essence, and in practice.

to the Raritan bay; but that it was not their design be exercised upon commerce and intercourse Mr. KIRKWOOD. I wish, with the permis

to impose any tax upon citizens of their own State
for traveling between intermediate places.'

in this way, it can be carried so far as actually sion of the Senator from Michigan, to under

Here, again, the policy and intention of

to exclude and keep out of the limits of one stand this matter aright. As I understand the State is most clearly indicated, in exempting her State citizens of another State. This monopowhat the Senator from Maine and the Senator own citizens from the operation of this system of taxation."

lizing claim has no limits. There is no point from Michigan say, in point of substance, the

at which it can be restrained. If the State entire tax due from the company to the State

I am indebted to the honorable Senator

Legislature has the power to impose a tax upon is levied upon the passengers. The tax on the

from Massachusetts (Mr. SUMNER] for the me, a citizen of Michigan, for going through the passengers, as I understand the Senator from extract which I have now read to the Senate.

State of New Jersey, simply because I am a Maine to say, is in lieu of all State taxes, so Again :

citizen of Michigan and not of New Jersey, that the entire tax levied by the State upon "The company believe that a careful consideration they can prohibit me from going through the the company is really levied upon passengers of the whole matter, as well from the provisions of

State of New Jersey at all; they can by legisthe charter as from a recurrence to the period when traveling from one State to another. it was granted, will produce the conviction that the

lation surround the State by a Chinese wall more Mr. MORRILL. I do not wish to interrupt transit duty was intended to be levied only on citi difficult to scale than that famous wall which the Senator from Michigan, but if he will perzens of other States passing through New Jersey."

was erected to protect the Celestial empire mit me, on that point, I desire to say that it is I will not ransack all the charters and acts | against the incursion of the Tartars. There is a great deal broader than the Senator supposes. of legislation connected with the charter for no boundary, no limit to this in hospitable claim I understand, treating this charter now in the the purpose of eliciting the meaning of the of power. Gentlemen declare that if we pass nature of a contract between the State and the charter. I take it for granted that these gen a bill recognizing simply the omnipotent power company, to encourage the company to enter tlemen who had the documents all before them of Congress over the subject of commerce the upon this work, the State say, we grant you this were as competent as I should be after having Government is dissolved, a requiem is to be exclusive right to carry these passengers, and read the same documents to state to the world | sung over its dead body, and the whole strucif you perform the conditions on your part you what the purpose of this charter actually was ture is to pass into one universal wreck and shall be exempt from all taxation, city, county, and is. Now, sir, I understand it to be true | ruin. Sir, I do not read the Constitution of and town; and in lieu of it you shall pay a in point of fact that for fourteen or fifteen my country in this way. I discover in it an revenue of ten cents upon each passenger you years past the people of New Jersey have intention on the part of the fathers of the carry through the State. There are other res been entirely relieved from all State taxes by | Republic to treat the citizens of the various ervations as to tonnage; but as to the item means of the money which has been accumu States as equals, to allow the citizen of one referred to, it is ten cents, and it is in lieu of lated in their treasury in the form of this spe State the same privilege in another State that taxation.

cific passenger tax and freight tax between he has in his own. I do not see any danger of Mr. HOWARD. There is a small specific New York and Philadelphia. They have not encroachment upon the power of the States. tax upon the through freight according to the paid a dollar, as I have been credibly informed, The history of the Government from its initiasame charter-the through freight from New of State tax for that period of time, and all the tion down to this moment contains the most York to Philadelphla and vice versa; but I do expenses of the government of that State have | lamentable and continuous lesson to us, admonnot care whether this tax upon passengers and been defrayed out of the proceeds of this im ishing us that its tendency has been and is to freight through New Jersey be small or great, position which the State of New Jersey has dissolution and separation rather than to a more it makes no difference as to the principle. The made upon passengers and freight passing strict and perfect union. Why, sir, one of the question of principle is, whether it is a consti- || through between New York and Philadelphia. first attempts that was seriously made by a State tutional power of New Jersey to make such a | I ask, sir, if Congress have the exclusive power || against this great power of the Government to discrimination among the passengers who travel of legislation over the subject, is it not time regulate commerce was made by the State of and the freight which passes over its road as is that the citizens of other States should be re New York, which undertook by her Legislature here made.

lieved from so gross an imposition upon their to create a monopoly of the navigation of the Mr. MORRILL. Do I understand the Sen- good nature? Is it entirely fair that the citi- | navigable rivers of that State in the hands of ator to assert that by the law of New Jersey a zens of Michigan, of New York, of New Hamp. ll the representatives of Robert Fulton.


over commerce.

Are we

the name,

Suppose the Supreme Court had decided or right whatever, except such as may be ourselves hereafter to regulate tolls apon

State otherwise than it did in that famous case of | already granted to it by the State save to this | railroads, is unfounded, rather in the nature of Gibbons vs. Ogden; the waters of the State extent: it declares that although under its an alarm than an argument. of New York would to-day have been closed charter it may be prohibited from carrying I will not undertake to deny that Congress to other States under the authority of the State freight and passengers which are bound from | might, in an exigency, regulate the price of of New York, against all the foreign as well as one State into another, the particular corpo freight and passage moncy upon the ocean. domestic commerce, except upon onerous and ration shall have the right in spite of the pro The time may come when the exercise of such intolerable conditions, by virtue of the same hibition to carry on this inter-State com a power will become necessary. We have monopoly. Not many years ago a similar

That is the effect and the sole effect never, thus far, exercised it, to be sure ; we attempt was made by Maryland to obstruct for of this bill.

have not seen the necessity of excrcising it. eign commerce by requiring that every importer Let me illustrate. Suppose the charter of And for the same reason I shall not deny that of foreign goods who should land his cargo in New Jersey, as it seems to have done, pro- | Congress have the power to regulate even tolls that State should be at the trouble of going to hibits any other railroad company in that State in the matter of trade amoog the States, though the State authorities, taking out a license, and except the Camden and Amboy from trans we have never exercised it, nor assumed to paying for it. the sum of fifty dollars. The porting freight or passengers bound from one exercise it, thus far. I am not, however, by Supreme Court promptly and decisively laid its State to another State through New Jersey; such objections to be frightened out of my posiheavy hand on this pretension. I need not suppose the State prohibits one of its corpora tion, that the power of Congress is just as enumerate instances, Mr. President, of the tions from carrying passengers and freight thus exclusive over the one kind of commerce as attempts of States to encroach upon the just | destined; the bill declares that the State cor the other. powers of Congress touching commerce. The || poration so prohibited shall have the right to His last objection is that if Congress may absolute necessity of such a power in the cen transport such passengers and freight; and pass a bill authorizing every railroad to carry tral Government was, as we all know, the great I insist that we have a perfect constitutional property bound from one State to another, as procuring cause of the formation of the Con- || authority to do so under the power to regulate this bill does, it may make a road; that it may stitution and the establishment of the Union. commerce among the States.

incorporate a company for the purpose of carMr. President, the honorable Senator from Railroad corporations are created for the || rying on commerce among the States, and for Maryland tells us that the bill assumes to purpose of transportation. They are in a broad this purpose make a road. This objection does authorize a State railroad company to carry sense common carriers as known in the com not frighten me; nor will I undertake to say persons and property beyond the terminus of mon law, and they may carry commodities and that Congress is totally disabled from creating its road, to authorize a company to make con passengers bound from one State to another. a corporation for the purpose of carrying on nection and even to make a road. In the No State has a right to make a discrimination commerce among the States; it is not necessary warmth of the honorable Senator's opposition between such commerce and its purely internal to deny even this power. If it could create to this bill, it seems to me he has made on commerce, such a discrimination being incon such a corporation, it could undoubtedly anthis subject assertions which he will see occa sistent with the exclusive power of Congress thorize the corporation to make a road for the sion to review, if not to recall. Does the bill

purpose of carrying on this commerce; but the before us assume to authorize a company in But the honorable Senator takes another bill before us does not contemplate the making New Jersey to carry persons and property objection to the bill; he objects to its passage of a road or any part of a road; so that I do beyond the terminus of its road? Does it | because, he says, if we can pass it we may not see that the last two objections of the honassume to impart a new and additional faculty regulate tolls upon State railroads; we may orable Senator to this bill, in which he seems to those corporations, by which they can con increase the tolls; and he seems to discover to apprehend that Congress may do this thing struct new roads, or parts of new roads, and in the future the danger of Congress inter or the other thing in the future, have the slightest thus extend their franchise by means of this || fering with State railroads by assuming to reg. weight in the discussion of the present bill. bill? No, sir; the bill properly interpreted | ulate the tolls upon property passing through The simple questions are, is this measure in means no such thing.

from one State into another. It is a sufficient accordance with the Constitution? Mr. JOHNSON. Will the honorable mem answer to this objection, if it is deserving of authorized to give this faculty and power to a ber read that part of it?

that it has no place ; it is not founded State corporation, under the Constitution, or Mr. HOWARD. Yes, sir; I was about to upon any clause of the bill; it does not grow are we restrained from it? I have no doubt

The bill provides that “every railroad out of its language or intention, but is a mere whatever upon the subject. I have no doubt company in the United States whose road is | apprehension of the honorable Senator that at that we have full authority to pass the bill in operated by steam, its successors, and assigns, some future day Congress may take it into their the very language which it contains; and I have be, and is hereby, authorized to do what? | head to interfere with the tolls upon State rail just as little doubt that the interests of the pubExtend its road? Carry goods or passengers roads. Mr. President, have we not precisely || lic, the interests of the citizens of the various ultra viam, beyond the road, beyond the ter the same power over commerce among the States who have been made tributary to New minus or off the road? No, sir; but “to carry States that we possess over foreign commerce? Jersey for so many years, and the interests of upon and over its road, connections, boats, Will the honorable Senator deny it? Will he the whole commercial world visiting New York bridges, and ferries, all passengers, troops, Gov undertake to limit the power of Congress in and Philadelphia require that this unblushing, ernment supplies, mails, freight, and property, the one case and not in the other? Whatever persevering, corrupt, and corrupting monopoly on their way from any State to another State." may be the extent of this commercial power, of New Jersey ought to be extinguished ; and

Now, I ask the honorable Senator whether Congress possesses it and the whole of it; and I trust there will be votes enough and deterthis is granting to a railroad company an au if that power extends so far as to grasp within mination enough on the part of the Senate to thority to transport passengers or freight to itself the tolls upon passengers or merchandise put a complete extinguisher upon it. It has anywhere but on and over its road.

transported from one State to another, so be cursed the land long enough; and the people, Mr. JOHNSON. And connections.

it; we can neither enlarge nor restrain it. with united voice, are crying against it. I trust Mr. HOWARD. I will come to that. The When the proper occasion shall present itself we shall obey that voice. honorable Senator will admit that already the it will be for us to determine, if we do possess

Mr. HOWE. Mr. President, I am someState corporation has the authority to trans the power, whether to exercise it or omit to times made to feel that there is nothing so timid port passengers and freight over and upon its exercise it; and this is a sufficient answer to and so abject as the Government of the United road. There is no doubt about that; other the argument of the Senator from Maryland States. Sometimes, thank God, I am made to wise it would be a very useless corporation. upon that subject.

see that there is nothing grander or more heroic. But, says the honorable Senator, it also has the But, sir, in reference to foreign commerce, The power of this Government and its authority right to carry freight and passengers upon and we have precisely the same power, and always || is so often and so obstinately disputed that I over its connections. Sir, what is meant in bave had it ; and if there is any danger that we really get to feeling at times as if it was made the bill by the words, 66 connections, boats, shall interfere injuriously or oppressively in to look at and not to act. I have scarcely heard bridges, and ferries?”' Plainly, the connections the commerce among the States and control the a proposition introduced into this body since I which belong to the particular corporation, | States, has not the same danger existed ever have had the honor of a seat here that has not collateral railroads over which such corpora since the commencement of the Government? found some one to deny the authority of Contion has a right to carry freight and passengers And can the honorable Senator point to a single || gress to enact it. This little proposition now connections which become such lawfully and case where the United States have assumed to before the Senate I think we have been strainproperly under the legislation of New Jersey, || regulate the freights between foreign countries | ing at for something like two years, trying to by contract or by charter; connections which and the United States, or the price of passages, swallow it. The Senator from Maryland, [Mr. may be here regarded as the property of the or anything of the kind? I apprehend he will Johnson,] in the very morning of its appearparticular company; connections which are its find himself at a loss to discover any


pre ance, told us it was unconstitutional; and when property precisely in the same sense in which cedent. While, at he same time, we know he pronounces upon the Constitution, if he does boats, bridges, and ferries are its property; that every State of the Union has always inter not create convictions or change convictions, connections, boats, &c., the use of which, for fered in some form in regulating tolls upon he is apt to influence them very much. I have purposes of transportation, the railroad legit- || bridges, turnpikes, canals, and railroads, the seen a mesmeric experimenter lay his cane imately has, possesses, and enjoys under State Government of the United States have never down on the floor before his victim, and make laws; and that is all that is meant. It does exercised the power in any instance, as far as the victim think it was a serpent and travel all not go a single inch beyond its own chartered I have been able to ascertain. So I think that about the room to dodge it and to avoid it. rights, established by the State. The bill || this objection of the honorable Senator from Here is a bill as harmless, as inoffensive, as assumes in no possible sense to impart to a Maryland, that by passing this bill we shall any man's walking-stick; and yet, because the State corporation any faculty, franchise, license, ll establish a precedent of which we can avail Senator from Maryland told the Senate some

do so.


time ago that it really was a violation of the Congress of the United States. I conclude ized by the States of Virginia and Ohio to build Constitution, we have been hesitating all this that this power of the several States to impose a bridge across the Ohio river, every inch of time as to whether we should adopt it or not. terms upon the companies constructing rail. which was either in the State of Virginia or in

What is this little thing that we dare not enact ways must be exercised in subordination to our the State of Ohio. into a law? It says that every railroad com authority to regulate coinmerce, or the reverse Mr. MORRILL. Virginia. pany in the United States using steam, may of this must be true, and our authority to reg. Mr. HOWE. Well, it was in one State or carry over its road the Government supplies, ulate commerce must be held in subordination the other. The company was authorized by passengers, troops, mails, freight, &c., on their

to the power of the States to construct railways. the laws of a State to build a bridge. A Stateway from one State to another. A railroad is a Mr. GRIMES. Does our power go so far the State of Pennsylvania-complained of it as highway, I suppose. These passengers, troops, as to regulate the tolls?

an injury to her interests, as a wrong done to supplies, mails, and freights are commerce; Mr. HOWE. The question is put to me if her, and declared the structure to be illegal, they are the incident of commerce; they make our power goes so far as to regulate tolls upon and appealed to the Supreme Court of the Uniup commerce; they are included within the

Just how that power is to be exer ted States to redress that wrong. The Supreme term “commerce." What is this bill, then? A cised I do not now say; but that we have the Court heard that complaint, pronounced that simple declaration that commerce may move power to regulate tolls in some way, if it be structure to be illegal, and adjudged that it be over all the highways in any of the States. necessary, I have no more doubt than I have abated, that it be removed. Congress enacted That is all there is of it. And yet we are told of our right to make appropriations. If there a law declaring that that bridge was legal, was we cannot make that declaration. Why can was but one road through which the commerce a lawful structurewe not make that declaration? It is said that from the Atlantic sea-board could reach the Mr. MORRILL. Will the honorable Senone of the States, shoved in accidentally be | valley of the Mississippi, and that led through ator allow me to make a remark just here? tween two of the great metropolitan cities of the State of New York, and the State of New Mr. HOWE. Yes, sir. the United States-New York and Philadel- | York, in the interest of her canal system, was Mr. MORRILL. The Congress of the Uniphia-has declared that of the highways run pleased to say that all of this commerce should ted States did nothing more than this: the ning through its borders, only one of them go on her canals and none of it on her railways, | Supreme Court, on an examination of the facts, shall carry these mails, troops, passengers, and does any one tell me, in view of our Constitu- | had decided it to be an obstruction to the navifreight; in other words, a State lying between tion, that New York could stand at the gateway | gation of the Ohio river; and Congress, hav. New York and Philadelphia has declared that of her canals and levy just such tolls as she ing the supreme jurisdiction of the commerce commerce between one State and another shall

saw fit upon the commerce flowing between the of that river, declared it was not an obstrucmove only upon one of its highways; and that East and the West? There are two empires; || tion, it being the judge. That is all they did. enactment lies in the way of our making this. the commerce flowing between them is of im Mr. HOWE. I think it did more. I think

If that be so I ask, who controls the com mense importance to the world; is it at the the Supreme Court had declared that bridge merce between New York and Philadelphia? || mercy, under our Constitution, of any one to be illegal. Who regulates it? The United States or the State? Whether we could say to the State of Mr. MÖRRILL. No, sir; they declared it State of New Jersey? The State of New Jersey | New York, “You must reduce your tolls on an obstruction. The whole case turned on the says it shall go over one particular way, and that canal to meet the requirements, or what question of whether it was an obstruction to having said so we are told that the United we judge to be the requirements, of the coun the navigation of the Ohio river. The court States cannot say to the contrary. Why, sir, try;'' or whether we could say; “We will build found that it was an obstruction. the State of New Jersey regulates commerce a new canal in the interests of the nation and Mr. HOWE. And therefore not a lawful between those two cities if that be the case, for the life of this great commerce," I will not structure. and the Congress of the United States does stop to argue or to assert; but I do say most Mr. MORRILL. And therefore the State not regulate it. That is as patent to me as the emphatically that it is not in the power of any of Virginia had not a right to obstruct a comlight above us. But the Constitution says that one State to burden the commerce moving on mon highway. The Congress of the United Congress may regulate commerce between the ward between the different States beyond the States said, we have a right to say that it shall States, and not any one of the States. And, Mr. will of the nation. That question is not here. stand notwithstanding that fact. That is what President, I want to remark here that this This is not a question of regulating tolls ; it they said. Co.igress was created, this Government was is a question of regulating commerce; it is a Mr. HOWE. The Supreme Court said, I formed as much for the purpose of taking this question of enabling commerce to move between repeat, that it was not a lawful structure. The very control from the States as for any other different highways leading between the same reason why it was not a lawful structure, in one purpose. One of the leading objects, one points.

their judgment, was precisely what my friend of the moving inducements to aggregate the I said that either this authority to authorize from Maine says, because it obstructed a highoriginal States into one supreme Goverment the construction of railways must be exercised way, not leading through the State of Pennwas the fact that independent of any such gen by the States in subordination to our authority | sylvania, which complained, but leading to eral control the several States did impose just to regulate commerce, or our authority to reg. the State of Pennsylvania, which complained. such restrictions, limitations, and disabilities ulate commerce must be exercised in subor That is what gave the State of Pennsylvania upon the movement of commerce between the dination to the authority of the States to con a right to redress; the fact that it obstructed different States. If we disclaim this power, struct railways or to authorize the construction commerce moving to and from Pennsylvania. therefore, now, we ignore one of the highest of railways. I conclude that the power of the It obstructed the movement of that commerce. and most beneficent purposes had in view in State, even if it be exclusive over the given So the court said. They said it must be abated. the organization of this Government.

subject, must be exercised in subordination to Congress said, in defiance of the legal rights The argument urged against the exercise of the authority of the nation, because the Consti as adjudicated, passed into judgment, of the this authority is very briet. It is said that Con tution of the United States and the laws made State of Pennsylvania, “It is not an unlawful, gress cannot authorize the building of a rail. in accordance with it are declared to be the but a lawful, structure, and shall stand, the way in one of the States; that that is a power supreme law of the land, anything in the laws judgment of the court to the contrary notwithto be exercised exclusively by the State ; and of any State to the contrary notwithstanding. If standing.". Congress did not authorize the the State having the exclusive right to author the law of the State is not subordinate to the building of a bridge, but finding a bridge conize the construction of a road within its limits, law of the United States, then the Constitution structed by a private corporation, without auit must have the right to impose just such terms of the United States is not the supreme law. thority of law, they said “It shall have the . upon the construction of the road as it sees fit. But I said I denied that the power to build authority of law." "Pennsylvania complained. In the first place, I deny the premises. I deny | railways or authorize the construction of rail. It was the exercise of authority within the limthat the Congress of the United States cannot ways is exclusively in the several States. I have its of a State—the State of Virginia-to mainauthorize the building of a highway within one no manner of doubt, if it were adjudged by | tain a bridge which Pennsylvania had not of the States. But conceding that proposition | Congress necessary and expedient to promote authorized; Virginia attempted to authorize it, to be correct, the deductions which are drawn the commercial interests of the United States, but had not the authority to authorize it, simfrom it I deny altogether. Admitting the law to advance the interests of commerce moving ply because it was a wrong to another State. to be that only the Legislature of New Jersey between State and State, to build a railway, that cannot for my life conceive why that power, can authorize the construction of a railway we might authorize the construction of a rail which the United States exercised in Virginia within her limits, I do not concede in that way or build it ourselves. It is an instrument to the injury of the adjudged rights of Pennstate of the law that she is authorized to im of commerce, and if we judge it expedient to sylvania, could not have been just as well pose just such terms upon the use of the rail build one, who shall control the exercise of exercised in Pennsylvania if the call for its way after it is constructed as she sees fit; for our discretion? I am not going to occupy the exercise had been made from Pennsylvania. it is impossible that her right, or the right of time of the Senate with arguing that question. || I must insist, therefore, that the court bas any State, to build a railway, or to authorize It seems to me it has been decided, if any | passed upon and has affirmed, most substan. the building of a railway, can be more abso question ever was decided. It seems to me the tially and most clearly, the right of the Unilute and unlimited than is the right of the Supreme Court of the United States affirmed ted States, if they see fit, to authorize the United States to regulate commerce. Here is that very power in the case of the Wheeling construction of railways within States in the the fact that different railways, different high bridge.

interests of commerce. ways operated by steam, are existing in a par Mr. CRESWELL. The power to build a Mr. President, if it were not for the peculiar ticular State ; here is the fact that each one of bridge ?

course this debate has taken I think it would them is authorized by the law of that State; Mr. HOWE. The power to build a railway; be an astounding thing for us to be told that in but here is the other fact that the right to reg. not in so many words, but by the most neces the face and eyes of the plain, constitutional ulate commerce on those highways is in the Il sary implication. There was a company author declaration of our right to regulate commerce,

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