Chapter M: T. Johnstone, of the United States Coast Survey, wrote from (1)

Washington:--

“A copy of your speech on the treatment of prisoners of war
has just fallen into my hands. I think the country under
deep obligations to you for that speech, and for saving it
from either acknowledging or practising the principle of
retaliation.”

The following communication from General Robert Anderson, of
the Army of the United States, who commanded at Fort Sumter
when South Carolina madly fired upon that national stronghold,
contains the testimony of a soldier.

“NEW YORK CITY, January 25, 1865.

“HON. CHARLES SUMNER, U. S. Senate.

“HONORED SIR,--The approbation of strangers is sometimes, I
know, not unacceptable. I trust, therefore, that you will
pardon me for giving vent to the promptings of my heart, in
offering you my thanks for the noble, manly, and Christian
sentiments which characterize your resolutions introduced
in the Senate yesterday, in reference to the subject of
Retaliation. No one would go farther than I would, to put
down, with a vigorous and resolute hand, this most accursed
Rebellion. But, in God’s name, Sir, let it be done in such
a manner that those who live after us may be able to say,
that, in all this time of trial, not one act was sanctioned
or permitted by our Government which was not becoming us as
a civilized and Christian nation. And God will bless and
prosper us only as we do so act. My earnest prayer is, that
He will endue our rulers with wisdom, and soon give peace
and prosperity and happiness to our bleeding land.

“With the renewal of my thanks for your having so
beautifully, so ably, so nobly advocated the cause of
humanity, which is the cause of Christ,

“I am, Sir, with high respect, your obedient servant,

“ROBERT ANDERSON.”

In a later letter General Anderson returned to the subject:--

“The sentiments you express in your speech are such as
become a Christian and a patriot. We, as a nation, are
not at liberty to follow the example of men who claim
to owe allegiance to a Government not recognized among
nations,--the self-assumed name of which will, by God’s
blessing, soon sink into oblivion.”

General Donaldson, of the Army of the Cumberland, and of
the staff of the distinguished General Thomas, wrote from
Nashville:--

“Though but slightly acquainted with Mr. Sumner, I trust he
will allow me to tender my thanks as an American for his
noble resolutions on the subject of Retaliation. They are
greater than any speech, and such as a Howard might have
written, had he lived in the days of the mighty crime.”

Such were some of the voices, not only from citizens, but from
the Army.

ADMISSION OF A COLORED LAWYER TO THE BAR OF THE SUPREME COURT OF THE UNITED STATES.

MOTION IN THE SUPREME COURT, FEBRUARY 1, 1865.

John S. Rock, Esq., was a colored lawyer in Boston, who, after
studying medicine, accomplished himself in the law, and visited
Europe. In the hope of advancing his race and of overturning an
obnoxious precedent, he formed the idea of being admitted to
the bar of the Supreme Court of the United States, even during
the life of Chief Justice Taney; but Mr. Sumner, to whom he
applied, could not encourage him, while the author of the Dred
Scott decision presided over the Court. With Mr. Chase as Chief
Justice it was otherwise. Before presenting him, Mr. Sumner
communicated with the Chief Justice, who undertook to sound
his brethren and smooth the way. After some delay he let Mr.
Sumner know that the motion might be made. It seems, that, by
usage of the Court, the Chief Justice acted on the admission of
counsellors without consulting the rest of the bench, and it
was understood that the usage would be recognized in this case.

As only a citizen could be a counsellor of the Supreme Court,
and, according to the Dred Scott decision, a colored person was
not a citizen, the admission of Mr. Rock was regarded by the
country as tantamount to a reversal of that decision.

* * * * *

An informal and intimate correspondence between Mr. Sumner and
the Chief Justice belongs to the history of this case.

* * * * *

On the receipt of a letter from Mr. Rock, saying, “We now have
a great and good man for our Chief Justice, and with him I
think my color will not be a bar to my admission,” Mr. Sumner
wrote to the Chief Justice, inclosing the letter.

“SENATE CHAMBER, 21st December, 1864.

“MY DEAR CHASE,--Please read the inclosed letter, and let
me know what I shall do with regard to it.

“Mr. Rock is an estimable colored lawyer, who, as you will
see, is cordially recommended by Governor Andrew and
others in the public service. He is one of several colored
lawyers in Massachusetts, who practise in all our courts,
and are always received with courtesy.

“Before I came into the Senate, now several years ago, I
was counsel in a case before our Massachusetts Supreme
Court,[62] where one of these colored lawyers was my
associate, and I remember well the very great kindness and
attention with which he was received by Chief Justice Shaw
and all the bench.

“I mention these things that you may see something of Mr.
Rock’s title to admission to the Supreme Court of the
United States.

“I know not how far the Dred Scott decision may stand in
the way.

“Of course, the admission of a colored lawyer to the bar
of the Supreme Court would make it difficult for any
restriction on account of color to be maintained anywhere.
Street cars would be open afterwards.[63]

“Ever yours,

“CHARLES SUMNER.”

The following note, written in pencil, and sent to Mr. Sumner
at his seat in the Senate, was the prompt answer:--

“SUPREME COURT ROOM, December 21, 1864.

“DEAR SUMNER,--I will confer with the Judges on Saturday,
which is consultation day. It is not likely that any, or
any serious, objection will be made.

“Yours faithfully,

“S. P. CHASE.”

Not hearing from the Chief Justice, Mr. Sumner sent the
following reminder:--

“_In re_ John S. Rock, Counsellor at Law, Massachusetts.

“What say you?

“C. S.”

“Senate Chamber, Thursday, 15th January, 1865.”

This was returned with the following reply, written in pencil
on the same paper:--

“Nothing at present,--except not forgotten.

“S. P. C.”

Another note, written also in pencil, opened the door.

“January 23, 1865.

“DEAR SUMNER,--You can make your motion for Mr. Rock’s
admission at any time which suits your convenience.

“Yours ever,

“S. P. CHASE.”

Mr. Rock, who was waiting in Boston, appeared February 1st,
and was at once presented by Mr. Sumner. The few formal words
which passed on this occasion are not without interest.

* * * * *

As soon as the judges had taken their seats, Mr. Sumner rose,
and, with Mr. Rock standing by his side, said:--

MAY IT PLEASE THE COURT,--

I ask leave to present John S. Rock, Esq., a Counsellor at Law of the Supreme Court of Massachusetts, and now move that he be admitted as a Counsellor of this Court.

The Chief Justice bowed, and said:--

“Let him come forward and take the oath.”

The oath was then administered by Mr. Middleton, Clerk of the
Court. At the same time, on motion of Mr. Sumner, Francis
V. Balch, Esq., of Boston, his private secretary, was also
admitted.

* * * * *

This incident, marking a stage in the battle for Equal Rights,
was extensively noticed at home and abroad. It occurred on the
day after the final passage in the House of Representatives
of the Constitutional Amendment abolishing Slavery, and the
correspondent of the _Boston Journal_ remarked the association
of the two events.

“The Slave Power, which received its constitutional
death-blow yesterday in Congress, writhes this morning on
account of the admission of a colored lawyer, John S. Rock,
of Boston, as a member of the bar of the Supreme Court of
the United States.… The rage depicted in the countenances
of some of the old Hunkers present at this invasion of
their citadel beggars description.”

The correspondent of the _New York Tribune_ announced the event
as “The Dred Scott Decision buried in the Supreme Court,” and
then broke forth enthusiastically:--

“O augustly simple funeral _cortège_! O dead, wrapped in
the cerements that the divine hand of Revolution folds
its victims with, augustly exciting in your stormy birth,
transcendently mischievous in your little life!--Senator
Charles Sumner and Negro Lawyer John S. Rock the
pall-bearers,--the room of the Supreme Court of the United
States the Potter’s Field,--the corpse the Dred Scott
decision!

“Through the door that was too narrow to freely let out
the bearers that bore Charles Sumner’s inanimate form from
the Senate Chamber, where he had been stricken down by
the assassins of the Slave Power, Charles Sumner to-day
marched back, leading a negro by the hand, and, standing
upon the very spot that had been stained with his blood for
demanding freedom and equality for the blacks in America,
demanded of the Supreme Court of the United States to
enroll among its members an African lawyer, and to license
him to practise at its bar. The black man was admitted.”

Then mentioning the motion of Mr. Sumner, the same
correspondent says:--

“The grave to bury the Dred Scott decision was in that
one sentence dug, and it yawned there, wide open, under
the very eyes of some of the judges who had participated
in the juridical crime against Democracy and Humanity.
The assenting nod of the great head of the Chief Justice
tumbled in the corse and filled up the pit, and the black
counsellor of the Supreme Court got on to it and stamped it
down, and smoothed the earth for his walk to the rolls of
the Court.

“… A few lawyers of the old _régime_ looked on, stunned
somewhat, but rapidly growing in wisdom, and mixing
deference to destiny with their instinctive reluctance to
this revolutionary intrusion.”

Mr. Cobden, writing from England, also associated this event
with the Constitutional Amendment. In a letter shortly before
his much lamented death, he said:--

“I feel it a pleasant duty to give you my best
congratulations on the recent proceedings within and
without your Halls of Congress. The vote on the Amendment
of the Constitution was a memorable and glorious event in
your history. Another incident--that of your introduction
of a colored man to the Supreme Court--was hardly less
interesting. In all these proceedings at Washington _you_
ought to be allowed to indulge the feelings of a triumphant
general. You served as a volunteer in the forlorn hope,
when the battle of Emancipation seemed a hopeless struggle.
_Your_ position within the Halls of Congress was very
different from that of the agitators out of doors,
meritorious as were their labors. I have served in both
capacities, and know the difference between addressing an
audience of partisans at a public meeting and a hostile
parliamentary assembly.… I heartily congratulate you.”

Doubtless the admission of a colored lawyer to the Supreme
Court helped prepare the way for admission of his race to the
rights of citizenship, and especially the right to vote.

PARTICIPATION OF REBEL STATES NOT NECESSARY IN RATIFICATION OF CONSTITUTIONAL AMENDMENTS.

DECLARATORY RESOLUTIONS IN THE SENATE, FEBRUARY 4, 1865.

Concurrent Resolutions declaring the rule in ascertaining
the three fourths of the several States required in the
ratification of a Constitutional Amendment.

Whereas Congress, by a vote of two thirds of both Houses, has proposed an Amendment to the Constitution, prohibiting Slavery throughout the United States, which, according to existing requirement of the Constitution, will be valid, to all intents and purposes, as part of the Constitution, when ratified by the Legislatures of three fourths of the several States; and

Whereas, in the present condition of the country, with certain States in arms against the National Government, it becomes necessary to determine what number of States constitutes the three fourths required by the Constitution: Therefore,

_Resolved by the Senate_ (the House of Representatives concurring), That the rule followed in ascertaining the two thirds of both Houses proposing the Amendment to the Constitution should be followed in ascertaining the three fourths of the several States ratifying the Amendment; that, as in the first case the two thirds are founded on the simple fact of representation in the two Houses, so in the second case the three fourths must be founded on the simple fact of representation in the Government of the country and the support thereof; and that any other rule establishes one basis for the proposition of amendment and another for its ratification, placing one on a simple fact and the other on a claim of right, while it also recognizes the power of Rebels in arms to interpose a veto upon the National Government in one of its highest functions.

_Resolved_, That all acts, executive and legislative, in pursuance of the Constitution, and all treaties made under the authority of the United States, are valid to all intents and purposes throughout the United States, although certain Rebel States fail to participate therein, and that the same rule is equally applicable to an Amendment of the Constitution.

_Resolved_, That the Amendment of the Constitution prohibiting Slavery throughout the United States will be valid to all intents and purposes as part of the Constitution, whenever ratified by three fourths of the States _de facto_, exercising the powers and prerogatives of the United States under the Constitution thereof.

_Resolved_, That any other rule, requiring the participation of the Rebel States, while illogical and unreasonable, is dangerous in its consequences, inasmuch as all recent Presidential proclamations, including that of Emancipation, also all recent Acts of Congress, including those creating the national debt and establishing a national currency, and also all recent treaties, including the treaty with Great Britain for the extinction of the slave-trade, have been made, enacted, or ratified, respectively, without any participation of the Rebel States.

_Resolved_, That any other rule must tend to postpone the great day when the prohibition of Slavery will be valid to all intents and purposes as part of the Constitution of the United States; but the rule herewith declared will assure the immediate ratification of the prohibition, and the consummation of the national desires.

On motion of Mr. Sumner, these resolutions were printed and
laid on the table. Besides hastening the adoption of the
Constitutional Amendment, it was hoped that they would help
prepare the way for Reconstruction.

APPORTIONMENT OF REPRESENTATIVES ACCORDING TO VOTERS.

PROPOSED AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES, FEBRUARY 6, 1865.

In the Senate, February 6, 1865, Mr. Sumner submitted the
following Amendment to the Constitution, which, on his motion,
was referred to the Committee on the Judiciary.

Representatives shall be apportioned among the several States which may be included within this Union according to the number of male citizens of age having in each State the qualifications requisite for electors of the most numerous branch of the State Legislature. The actual enumeration of such citizens shall be made by the census of the United States.

This Amendment was a first attempt to meet the new exigency
from the abolition of Slavery. One of two alternatives was
open: the extension of suffrage to the new-made freedmen by
the action of Congress, which Mr. Sumner insisted was the just
course; or the apportionment of Representatives according
to voters, which would make it for the interest of a State
to extend the franchise. Without one of these measures the
political power of the former slave-masters would be enlarged
by Emancipation.

This subject occupied much attention at the next session of
Congress.

RAILROAD USURPATION IN NEW JERSEY.

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]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

* * * * *

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

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

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

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

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

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

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

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

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]

I am content, when I find myself with the support of this great name.

By the adoption of the Constitution the people of the United States constituted themselves _a Nation_, one and indivisible, with all the unity and power of a nation. They were no longer a confederation, subject to the disturbing pretensions, prejudices, and whims of component parts; but they became a body politic, where every part was subordinate to the Constitution, as every part of the natural body is subordinate to the principle of life. The sovereignty of the United States, where all are but parts of one vivifying whole, was the controlling unit. The powers then and there conferred upon the nation were supreme. And those very powers I now invoke, in the name of the Union, and to the end that pretensions in the name of State Rights may be overthrown.

* * * * *

I have thus presented a picture of these intolerable pretensions. But they must be examined more minutely. They may be seen, _first_, in their character as a monopoly, and, _secondly_, in their character as a Usurpation under the Constitution of the United States. I need not say that in each they are equally indefensible.

If you go back to the earliest days of English history, you find that monopolies have from the beginning been odious, as contrary to the ancient and fundamental laws of the realm. A writer who is often quoted in the courts says: “All grants of this kind relating to any known trade are made void by the Common Law, as being against the freedom of trade, and discouraging labor and industry, and restraining persons from getting an honest livelihood by a lawful employment, and putting it in the power of particular persons to set what prices they please on a commodity.”[87] But, without claiming that the present monopoly is void at Common Law, it is enough to show its inconsistency with the Constitution. Here I borrow Mr. Webster’s language in his famous argument against the monopoly of steam navigation granted by the State of New York:--

“Now I think it very reasonable to say that _the Constitution
never intended to leave with the States the power of granting_
monopolies either of trade or of navigation,--and therefore,
that, as to this, the commercial power is exclusive in
Congress.”[88]

Then again he says:--

“I insist that the nature of the case and of the power did
imperiously require that such important authority as that of
granting monopolies of trade and navigation _should not be
considered as still retained by the States_.”[89]

And, yet again, he adduces an authority which ought to be conclusive on the present occasion: it is that of New Jersey, on the formation of the Constitution:--

“The New Jersey resolutions complain that the regulation of
trade was in the power of the several States, within their
separate jurisdiction, to such a degree as to involve many
difficulties and embarrassments; and they express an earnest
opinion that _the sole and exclusive power of regulating trade
with foreign states ought to be in Congress_.”[90]