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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."1
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."2 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
1 Commentaries on the Constitution, Vol. II. § 1146. 2 Ibid., § 1136.
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 postoffices 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." 1 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
1 Commentaries on the Constitution, Vol. II. § 1131.
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.1 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 pend
1 The West River Bridge Company v. Dix et al., 6 Howard, R., 507
ing 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 lifeblood 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."1 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." 2 Elbridge Gerry, of Massachusetts, in the same Convention, said: It appears to me that the States never were independent. They had only corporate rights." 3 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.' 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
1 Abridgment of American Law, Appendix to Vol. IX. p. 10
2 Yates's Minutes, June 29, 1787: Elliot's Debates (2d edit.), Vol. I. p. Ibid., p. 464.
4 Madison's Debates, July 7, 1787: Madison Papers, Vol. II. p. 1049.