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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 wellknown 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 peo
ple of the several States. It was declared that the power of Congress over the subject was not limited. by State lines, but was coextensive 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 of Congress may be exercised within a State."1
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.
1 Gibbons v. Ogden, 9 Wheaton, R., 195.
"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." 1
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." "
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."3
But this is the very thing now done by New Jersey, which "exacts a duty" from passengers across the State.
1 United States v. Coombs, 12 Peters, S. C. R., 78.
27 Howard, R., 400.
3 Ibid., 462, 464.
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.1 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 postroad for the purpose of transmission of mails of the United States." 2
1 State of Pennsylvania v. Wheeling and Belmont Bridge Company: 18 Howard, R., 421.
2 Statutes at Large, Vol. XII. pp. 569, 570.
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 postroads," 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." 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
1 Commentaries on the Constitution, Vol. II. § 1134.