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vember 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."1 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.
1 American State Papers, Post-Office Departinent, p. 15.
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 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, 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. 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."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." 2
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.