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SEC. 5. And be it further enacted, That the said company shall have the same privileges in every particular, with reference to the said lands which are now by law granted to ordinary preemptors, with reference to the wood and timber on the said lands, with the exception of so much as may be necessarily used by the said company in the erection of buildings and in their légitimate business of manufacturing iron.
NEW YORK AND MONTANA IRON COMPANY. Mr. WADE. I move that the Senate take up Senate bill No. 203 for consideration.
The motion was agreed to; and the Senate, as in Committee of the Whole, proceeded to consider the bill (S. No. 203) to enable the New York and Montana Iron Mining and Manufacturing Company to purchase a certain amount of public lands not now in market.
The PRESIDENT pro tempore. The Committee on Public Lands have reported the bill with an amendment to strike out all of the original bill after the enacting clause and to insert a substitute. The substitute only will be read unless some Senator asks for the reading of the original bill.
Mr. WADE. I suppose it will not be necessary to read anything but the amendment of the committee.
The Secretary read the amendment, which was to strike out all after the enacting clause of the original bill and to insert the following in lieu thereof:
That the New York and Montana Iron Mining and Manufacturing Company be, and they are hereby, authorized, at any time within one year after the approval of this act by the President of the United States, to preempt two tracts of land in the Territory of Montana which, in the aggregate, shall not exceed twenty sections, not included in any Indian reservation or in any Government reservation for military or other purposes, three of which sections may be selected of lands containing iron ore and coal, and the remaining sections of timber lands near the said selections containing iron ore and coal, which selections shall be subject to the approval of the Secretary of the Interior.
SEC. 2. And be it further enacted, That the said company may acquire immediate possession thereof on the selection of the said lands by permanently marking their boundaries and publishing a description thereof in any two newspapers of general circulation in the said Territory.
SEC. 3. And be it further enacted, That it shall be the duty of the Secretary of the Interior to cause patents to issue to the said company for the said lands on the conditions mentioned in this section, all of which must be complied with within two years from the approval of this act by the President of the United States, or the said lands shall revert to the United States:
1. That the said company shall have the said lands carefully surveyed at their own expense, and shall file a plot of the same in the General Land Office of the United States, which surveys shall be by lines running north and south, and cast and west, and each of said tracts of land shall be as nearly in a square form as may be practicable.
2. That the said company shall have furnished the Secretary of the Interior evidence satisfactory to him that they have erected, and have in operation, in one or more places on the said lands, iron-works with a capacity for manufacturing at least fifteen hundred tons of iron per annum.
3. That the said company shall have paid the United States for the said lands the minimum price of $1 25
SEC. 4. And be it further enacted, That the said Patents shall convey no title to any mineral lands except iron and coal, or to any lands held by right of possession, or by any other title, except Indian title, valid at the time of the selection of the said lands.
39TH CONG. 1ST SESS.-No. 138.
Mr. HENDRICKS. It is right that I should say that the committee was greatly influenced in consenting to the passage of this bill by the peculiar condition of the mining interests in Montana. That interior Territory is so far removed from any of the ordinary means of transporting the machinery which is necessary for carrying on mining business that the development of the mining interests of the Territory is likely to be very greatly delayed. It was represented to the committee that this company would establish iron-works and soon produce iron in the Territory itself. It is known that there are very valuable iron mines in that Territory; at least it was so represented to the committee in such a manner that the committee had confidence in that representation; and with great reluctance I consented to the reporting of the bill upon the peculiar state of the case. I desire to say that the committee understand that this shall not be a precedent to any special privileges in the purchase of the public lands. This is not to form a precedent, so far as the committee is concerned, in any other case.
Mr. GRIMES. I should like to inquire of the Senator from Indiana, under what law this New York and Montana Iron Mining and Manufacturing Company was incorporated, and whether or not he has seen the charter.
Mr. HENDRICKS. The bill was not under my charge in the committee. The Senator from Iowa [Mr. KIRKWOOD] had charge of the bill, and made the investigation. I understand that it is a company incorporated under the laws of the State of New York.
Mr. KIRKWOOD. I will give my colleague the information that he desires on that point. This company was chartered under a law of the State of New York, and I hold in my hand a copy of the articles of incorporation. They were submitted to the Senator from New York, [Mr. HARRIS,] who is a member of that committee, and I believe they are in accordance with the laws of New York.
While I am up I will say a word with regard to the bill itself, and in explanation of its provisions. The public lands of Montana Territory have not been surveyed, and therefore can only be located under the existing preemption law, limiting the amount, I think, to one hundred and sixty acres. Mining is being carried on there to a very considerable extent, and in mining operations and in other operations there iron is necessarily used to a large extent. We know that now the iron used in that Territory has to be furnished from the iron manufactories of Pennsylvania and elsewhere, and carried to St. Louis, and up the Missouri river to some point from which it is started on wheels out to Montana, or else brought by rail to Iowa, wheeled across Iowa, and then by wheels carried to Montana. The result is that the freight upon the iron used in that Territory must be from thirty to thirty-five cents per pound. This state of affairs must necessarily be a great drawback upon the prosperity of that Territory, and if we can in any legitimate way reduce to them the expense of iron used there, it seemed to the committee proper so to do. We are expending a great deal of money that does not bring back money again to the public Treasury or increase the wealth of the country; and if we can legitimately legislate so as to increase the wealth of the country and the prosperity of these western Territories, it seemed to the committee well to do so.
What the committee therefore propose to do is, not to give to this company any lands whatever; not to give them an acre of land, but to allow them, in advance of the which we will not make, or do not make, at all events, to take up the quantity of land named in this
bill, with the same privileges and subject to all the liabilities of preemptors, save and except so far as they may use the timber on the land for building and running their iron-works. We require them to make the surveys at their own expense. We require them, before they shall receive a title to the land, to satisfy the Secre tary of the Interior that they have built on these lands iron-works capable of turning out, and turning out, fifteen hundred tons of iron per annum. If they fail in any one of these conditions they forfeit their entire right, and they are compelled to pay for the land the price of $1 25 per acre.
The whole departure from what I understand to be the ordinary policy of the Government is in allowing this company to take up more land One hundred and sixty acres of land would than it can take up under the existing law. not justify an iron company in establishing iron-works. They must have timber for coaling. They cannot get it under the existing law. If they go upon the unsurveyed lands without a law of this kind, they are trespassers and liable to be sued and mulcted in damages for every offense. Without the timber, they cannot do the work. The question then is, shall they, or shall they not, be allowed to take Treasury the ordinary price of the public land, up this land upon paying into the public and establishing works there before they can receive title to their land? It struck the committee that it was necessary for the development of that Territory, and it would tend to do what they thought was required to be done at this time, especially when we have such heavy drains upon our people in the way of taxation, to increase the productive wealth of the country, to some extent, without at all injuring the public.
Mr. POMEROY. I have not had my attention called to this bill, until this moment, since it was reported. I think there is an oversight in it. The Senator who drafted the amendment has neglected to exclude preëmption claims or homestead settlements, and under the bill as it now stands this company may locate over a settler.
Mr. KIRKWOOD. The Senator is mistaken, I think. If it is so it is a mistake in the bill undoubtedly.
Mr. POMEROY. To settle that question I will move that the proviso contained in the original bill be added to this amendment. That proviso is in these words:
Provided, That no title shall be conveyed to any mineral lands except iron and coal, or to any lands held by virtue of any title of possession or other kind, valid at the time of the selection and location of the said tracts.
Mr. CONNESS. I should like to inquire how the Senator would construe or has construed the term "valid" in that proviso. Does he mean by that the possession of one of the inhabitants?
Mr. POMEROY. Yes; I mean a squatter, a settler.
Mr. CONNESS. Then you had better leave out the word "valid" and have it " any location in possession;" otherwise these sections of land may cover all the acquired rights and property of the entire community there. This company are authorized to go there and select the timber lands as well as the iron mines.
Mr. POMEROY. My intention is to prevent them from going on any settlement. Mr. CONNESS. That is all right if the Senator will so draw his amendment as to fully carry out that idea.
Mr. KIRKWOOD. The proviso to the first section of the original bill was intended to be attached to the amendment reported by the committee.
Mr. POMEROY. It is an oversight, I see. I move, then, that the proviso contained in the last section of the original bill be added to the first section of the amendment.
The PRESIDENT pro tempore. It is moved to amend the amendment by adding at the end of the first section the following:
Provided, That no title shall be conveyed to any mineral lands except iron and coal, or to any lands
held by virtue of any title of possession or other kind, valid at the time of the selection and location of the said tracts.
of the committee. If they have not done so,
Mr. CONNESS. I hope the bill will be laid
Mr. WADE. I think this bill is very well guarded so as to prevent this company from taking lands to which any other person whatever can make claim. When a person can acquire no title whatever, I do not really see what title he can get. If a man is on there by a preemptive title, by any possessory title, such a title is a title by which he can defend himself at law, of course, against any other person not having a better title. It is true that the title is not perfect; it is not a fee-simple; he has not acquired that yet; but if he is in possession he has a right against everybody else but the owner or one who can show a better title.
Mr. KIRKWOOD. The committee intended to have that proviso in the substitute reported by them, and how it came to be omitted I do not know.
Mr. CONNESS. I do not know whether that proviso would cover the case fully. The word "title" in that proviso means that no title in fee-simple, such as is proposed to be conveyed by this bill, shall be conveyed to the possessions of other settlers; but it is a question whether under that proviso and by the bill this company would not get an equal right with those possessors to go upon the land; whether they would not get some right that would enable them to disturb those possessors. If the Congress of the United States shall see fit to give to any company, for the purpose of encouraging the production of iron or any other industry in our Territories, a certain amount of the public lands which will be deemed not extravagant, I have no objection. I think the purpose is a good one and would promote the welfare of those communities. But this proviso, it appears to me, is not sufficiently clear and precise to protect the possessors of land among this population against the provision contained in the bill. I would prefer, if the friends of this measure would not object to it, to have the bill laid over at present so as to have an opportunity to look it over.
Mr. KIRKWOOD. If gentlemen look at section four, they will see, I think, that this matter is provided for:
That the said patents shall convey no title to any mineral lands except iron and coal, or to any lands held by right of possession, or by any other title, except Indian title.
Mr. GRIMES. I would call the attention of my colleague and the chairman of the Committee on Indian Affairs especially to that clause. It reads as follows:
And be it further enacted, That the said patents shall convey no title to any mineral lands except iron and coal, or to any lands held by right of possession, or by any other title, except Indian title, valid at the time of the selection of the said lands.
Is it intended here that this company shall take the Indian title out from under them? Mr. KIRKWOOD. Not reservations. Mr. GRIMES. But any Indian title? Is it designed to confer on this corporation existing in the State of New York, not authorized by the Territorial Assembly of the Territory of Montana, to go out into Montana and take nearly half a section of land right out of the Indian Territory-land of Indians with whom we have treaty stipulations to preserve them in the possession of?
Mr. KIRKWOOD. Only such as can be entered, such as I would have the right to go upon or my colleague would have the right to go upon.
Mr. GRIMES. Where is that limitation? Mr. KIRKWOOD. That I apprehend is the limitation of the bill as it stands.
laid aside informally for five minutes, I think we can complete this.
The PRESIDENT pro tempore. The special order is House bill No 11. It is suggested that that bill be laid aside. It can only be done by common consent, except on motion.
Mr. NYE. I move that that be laid aside for the purpose of taking up the business assigned for this hour, the iron-clad question. ["Oh, no."]
Mr. CONNESS. I wish to suggest to the Senator from Ohio, who introduced this bill, that another objection occurs to my mind which, if I had time to state it, would, I think, make it necessary to lay it aside for further consideration. I do not wish to occupy the time of the Senate by stating it now, and I hope he will let it go over.
Mr. WADE. Very well, let it go over; but I give notice that I shall attempt to take it up to-morrow morning, if I can, and try to put it through.
I introduced this bill, and I have no kind of objection to its being made as strong and secure in that particular as it possibly can be. The only object of the bill is to anticipate the surveys in that Territory. If this land had been surveyed and offered for sale it would be subject to entry like the other lands we have. All this company want is to anticipate that, because the country has not been surveyed; otherwise they might enter there and take possession of as much land as they could pay for at the Gov-will be read. ernment price; but the survey is not made, the The Secretary read the bill. Its preamble reland is not in market in this remote region. cites that the Constitution of the United States People are going in there in great numbers, confers upon Congress, in express terms, the and there is no commodity more valuable to power to regulate commerce among the sev them than iron. There is none more difficult eral States, to establish post roads, and to raise to obtain on account of the distance they have and support armies; and it is therefore proto transport it to get there; and this company posed to authorize every railroad company in believe that if they could get the right to go in the United States, whose road is operated by there and to make iron it would be profitable steam, its successors and assigns, to carry upon to them and greatly beneficial to the people of and over its road, connections, boats, bridges, the Territory. I think it would. I know some and ferries, all passengers, troops, Governof these parties, and I know that the company ment supplies, mails, freight, and property on were about to commence operations there with- their way from any State to another State, and out any particular title, only such as they would to receive compensation therefor, and to con acquire by possessory right; but the principal nect with roads of other States so as to form man, Mr. Ward, of Michigan, who is one of the continuous lines for the transportation of the greatest iron manufacturers, I believe, in the same to the place of destination. The act is country, said at once he would take no inter- not, however, to affect any stipulation between est in such an enterprise unless they could be the Government of the United States and any assured of timber, as they would have to work railroad company for transportation or fares their iron by coal. When they found a loca- without compensation, nor impair or change tion where iron could be easily got, men around the conditions imposed by the terms of any act them would at once take possession of the tim-granting lands to any such company to aid in ber in the neighborhood, and would have it in the construction of its road. their power to defeat them, in a great measure, or put them to such inconvenience and expense to get the timber for coal as to defeat the object. Therefore they had no other way to do but to ask Congress, in anticipation of the surveys, to give them the right to purchase lands sufficient for that purpose; and that is all that they want; it is all that the company desire to have.
The Committee on Public Lands have had this bill under consideration and they have amended it and put it under every restriction that they could think of, and they have put them under no restriction, I believe, that they considered disadvantageous to them, their honest purpose being not to acquire title to land except in order to carry on this iron business; and when that is preserved I do not care what restrictions you put upon them to hold them to that purpose, as I think the bill does in every particular. If, however, Senators believe there is any chance for them to get possession in this way of lands to which others have a right or title, if that is not sufficiently secured, I shall not object to any amendment on that point that may be suggested.
The PRESIDENT pro tempore. The morning hour having expired it becomes the duty of the Chair to call up the special order, which is House bill No. 11, to facilitate commercial, postal, and military communication among the several States.
Mr. WADE. I would ask the Senate, if they are willing to go on with this bill, to do so, for I know it is a bill of the utmost importance; if this right is to be granted, it should be done
Mr. POMEROY. If the special order is
The PRESIDENT pro tempore. The spe cial order is House bill No. 11, to facilitate commercial, postal, and military communication among the several States, which is before the Senate as in Committee of the Whole, and
Mr. MORRILL. Mr. President, I was not aware that this bill had been reported from the Committee on Commerce to the Senate. I believe there is another bill of a similar character which has been before the committee, and which originated in the Senate. At this moment I am not sure that I quite understand the distinction between the two bills. I think they are nearly similar, but I am not quite certain. It was my purpose on a former occasion to address the Senate upon this subject; but I find myself here at the present moment without any expectation of this bill being presented to the Senate to-day, and I am not in a condition to make any extended remarks. The bill is of a character which I think should challenge the attention of the Senate. It was passed in the other House, if I am permitted to allude to so much of the proceedings of that House as I gather from the debates, without much consideration, either at this or at the former session of Congress; and if I could bring myself to the conviction that it was not a bill fraught with the most dangerous consequences, I should be content to give a silent vote upon it. But, sir, it is a bill of most marked impression. It is a bill which strikes down deep to the very foundations of the Govern ment. It is a bill that will be remarkable for all time in the legislation of this country if it pass. It is a bill that at once arrests the attention of whoever reads it as one which runs the line between the powers of this Government which are known, delegated, and expressed, and those which are doubtful, latitudinarian, and never to be entered upon except with caution.
ple of New Jersey; I know nothing of the cir cumstances of this case other than I have heard them detailed upon this floor. My objection lies to the bill because it is so broad and comprehensive, because while it is said that it is aimed at a monopoly in New Jersey, it is broad enough to cover the whole American railway system. In the last thirty years this American system has grown from the smallest beginnings to be the grandest system of intercommunication the world has ever seen. To-day not less than thirty thousand miles of railway communication exist in the several States, the product of the energy, the industry, and the capital of these States.
It proposes, sir, in a word, to take by the power of the General Government the direction of the internal railway system of the United States. This is the proposition. I know it may be said that it only proposes to regulate it. To regulate is to control; to control is to direct; and under whatever branch you seek to exercise this authority, whether by the commercial power or by the power to regulate the postal service, or by that to raise and support armies and navies, it is the same thing; it is substantially to assert the power by the General Government to reach out its hand and lay its strong arm on the great American railway system. That is what it is, and I stand here to invite the attention of the Senate to so extraordinary a proposition as that. I ask Senators what is the exigency which justifies or demands it, and I ask Senators to point me to that provision of the Constitution which justifies it and authorizes it in clear, explicit, and intelligible phrase, not by doubtful interpretation.
First, sir, as to the exigency which justifies it or demands it; has anybody told you of any? What is the American railway system? Is it the creation of the Government of the United States in any respect whatever? Not a bit of it. It has grown up spontaneously out of the energy and the industry of the people exercising their functions in their primary and in their municipal capacities, the Government of the United States all the while standing afar off, doing nothing and proposing nothing.
I heard it said on a former occasion that the exigency grew out of the fact that one of the States of this Union had usurped authority, usurped power, and created an unjust monopoly, and that this measure was necessary to remedy that. Why, sir, is the Senate of the United States the place for the correction of such grievances? Are not the courts of the United States open? If the State of New Jersey, to which reference is made, and whose legislation is here arraigned, has been guilty of granting an unconstitutional monopoly, is this the place, is this the forum, to correct it? By no means. The courts are open, and any party aggrieved, any interest offended, has a remedy in the courts; and that should be a sufficient answer to that part of the argument.
It is said, moreover, that it exists as a grievit is a monopoly, and that the action of New Jersey is in restraint of the commerce of the country, of the free intercourse of the people of the country. Now, Mr. President, a little brief history, a little reference to events, puts to flight all argument of that kind at once. What is the fact? Go back to 1830, and you find the whole intercourse between the cities of New York and Philadelphia, by travel, carried on in ordinary stage-coaches. Perhaps as often as once a day it was practicable to pass between those cities in that way. The transportation of the country was carried on in ordinary lumber or baggage wagons. That was so only as far back as 1832; nay, later, in 1838 you find that state of things existing. To-day you may pass and repass between those two cities twenty times each day, and trains for transportation of all kinds pass nearly as often. Now, remember the charge is that the legislation, the action of New Jersey is in restraint of trade, travel, intercourse, transportation. Well, sir, New Jersey, by her own policy, and by the efforts of her own citizens, has done all to which I have alluded. They have given this increased facility; they have done it all alone; the General Government nothing, as it was not proper that she should do anything. A single fact of this kind is sufficient, I submit, to put to flight this argument that the legislation of New Jersey is in restraint of travel, trade, intercourse, is a restriction upon the commerce of the country. But, Mr. President, I care to do no more than to advert to these facts, because they touch but very little upon the case any way. object to this bill on the ground of its comprehension and scope. What it may do for New Jersey, or what it may not do, is of very little concern with me. I know but few of the peo
What are they?
Several SENATORS. Mr. CHANDLER. telegraphic messages. No objection being made, the Senate proceeded to consider the amendments, and they were read. The first amendment was in section two, line three, to strike out the words "during a state of war;" so as to make the section read :
That the said International Ocean Telegraph Company shall at all times give the United States the free use of said cable orcables, through a telegraphic operator of its own selection, to transmit any messages to and from its military, naval, and diplomatic or consular agents.
The next amendment was after the word "agents," in the same section, to insert these words:
And the said company shall keep all its lines open to the public for the transmission, for daily publication, of market and commercial reports and intelligence; and all messages, dispatches, and communications shall be forwarded in the order in which they shall be received; and the said company shall not be permitted to charge and collect for messages transmitted through any of its submarine cables more than the rate of $3 50 for messages of ten words.
of the Senator from Ohio is not a debatable motion.
Mr. SHERMAN. I withdraw it for the present.
Mr. GRIMES. I was only going to suggest to the Senator from Ohio that it seems to me this is a very opportune time to consider this matter. We have now under consideration the bill pressed by the chairman of the Committee on Commerce to relieve the country from one monopoly; and this is to establish another still more odious.
Mr. CHANDLER. Not to exceed that. Mr. SHERMAN. That is to be the rate for messages between Florida and Cuba, one hundred miles. The whole system of telegraphing in the United States will undoubtedly, within the next two or three years, undergo an entire revision and revolution. I suggest whether
this bill had better not be laid over until the Senator from Maine, [Mr. FESSENDEN,] who took a great deal of interest in it at the time of the former discussion, and with whom I conversed about it after the passage of the bill by the Senate, can be present. I move, therefore, that the bill and amendments lie on the table for the present.
Mr. GRIMES. Mr. President-
The consideration of the bill (H. R. No. 11) to facilitate commercial, postal, and military communication among the several States was resumed.
Mr. MORRILL. It is not my purpose, Mr. President to make a formal speech at this time upon this bill. When interrupted I was adverting to the fact that the system of railways in this country, upon which now the Government purposes to lay its hands, is the product of the industry and energies of the people of this country unaided by their Government, acting in their primary relations, and acting upon the exercise of those reserved rights which constituted the strength of this Government in the past and will continue to constitute that strength in the future if they are left unimpaired. It is because the Government undertakes to lay its hand upon this industry, peculiar to the people, and in which the Government has not participated, and it is because the Government steps far over, I think, the line which guards and which should be held to guard those rights which have been delegated and those which have been reserved to the people, that I feel any solicitude at all upon this question.
I was remarking, sir, as to the character of this system. The grandest system of intercommunication any country in any time ever saw, springing up out of the brain of the people thirty years back, now spans the continent, sends out great arteries from every Atlantic commercial city on your coast to the far interior, and these in turn branching in all direction over the States, have made the intercommunication of the people easy, cheap, familiar, and have brought to the door of almost every farmer in the land the best markets the country affords. This has all been done upon that voluntary principle which the American peo
Mr. SHERMAN. That is a very important bill, and the amendments present a question which I should like to look into. We had it under discussion for some time in the Senate,ple and now one of these amendments fixes the rate for telegraphic messages at $3 50 for ten words.
know so well by their guidance and by their direction; and who stands here to complain of it? Who stands here to arraign this American system, to say that it has not on the whole served the grandest purposes that any instrumentality ever served any people? The most that can be said of it is that in the State of New Jersey it is suggested that a monopoly has been granted, which, I believe, to say the worst of it, expires in 1868 or 1869.
Now, sir, what have the American people invested in this enterprise? I have shown you its operation, its workings, beneficent beyond measure, stretching from Maine to New Orleans and the far West, and offering cheap, quick, expeditious, safe intercommunication with all the people; and it is in their hands. Let us consider for a moment what has been the expense of this. What have this people expended? Over three thousand million dollars have been invested out of the earnings and out of the pock
ets of the people to the consummation of this grand system of railway and intercommunication, working all harmoniously, working admirably. And now, if I do not misinterpret this bill, you assert a principle which authorizes the General Government to reach out its hand and take the direction of every mile of the railway system in this country.
Would that be wise? Nobody will venture to say that; but that is the road on which you enter. I suppose the advocates of this measure would not pretend that it would be wise. I dare say they would deprecate it, that the General Government should enter into this competition and take the direction of these railways; but, sir, you assert a principle which authorizes it, and that is what I object to. If you have a right to say that roads may connect and shall connect; if you have a right to say that a railroad company in the interior of New Jersey and that is precisely this case-may ⚫ extend its road across that State and then across the Delaware river and connect with other roads, and that all roads, whether the States authorizing them will or not, shall have the right to connect one road with another, you have thereby asserted a principle which will justify the Government in establishing rules and regulations in regard to the commerce over these internal railways precisely as upon the navigable waters of the United States. And that is the doctrine maintained by those who advocate this bill; for it should be understood that the bill comes from the Committee on Commerce; it came, in the other House, from the Committee on Commerce of that body, and is reported back here from the Committee on Commerce of the Senate. It is based on the power to regulate commerce; and if you can regulate commerce in one particular over these railways, you can in all. Of course it follows that you may establish your customhouse officers in every depot and station-house in these States, and the rules and regulations which are applicable upon the navigable waters regulating the transit in vessels, however borne on the navigable waters, may be applied to these artificial highways. It is for this reason that I object to the bill. I object, to repeat, because I see no occasion for the interposition of such a power. The system works well enough as it is. I object because I believe it to be dangerous.
Now, sir, one word in regard to the authority, and then I shall content myself with re-. cording my vote against the measure. I have already said that the authority is justified apparently in a threefold sense. First, the bill invokes the power of Congress, under the Constitution, to regulate commerce; secondly, the power to establish post roads; and third, the power to raise and support armies. What this nation can do in a state of war we have all of us witnessed in the last four or five years. Undoubtedly a state of war brings extraordinary powers. During the state of war we did not hesitate to put all the railways in the country|| for defense under the power of the General Government for the time being; but nobody supposed that that was a power to be exercised in time of peace. Nobody supposed that that power which we exercised for the time being, as the extreme war power of the nation, was to be the rule of action in time of peace, and that all of these railways were to be subjected in the future to the power of Congress and the control of the General Government under that law. That is the answer to that branch of the argument.
Then, as to the question of the exercise of the power for postal service, let me ask, is there any precedent in the history of this Government which authorizes the pushing of this principle to this extremity? If I recollect the authorities, none of them go any further than to assert the establishment of a post road over roads or ways already existing. The Government has never in a single instance claimed the right to make or construct, either in a State or Territory, or anywhere within its limits or jurisdiction, a road for the purpose
of postal service. The uniform interpretation of the power of Congress under that provision of the Constitution has been to establish as post roads roads existing in the several States; and I am confident that not a single precedent, either executive, legislative, or otherwise, can be found in the whole history of the Government where it has been attempted to push the interpretation of that provision of the Constitution beyond establishing as post roads roads already in existence.
But, sir, this measure during this session of Congress, and particularly at the last session, was argued by its advocates principally on the power of the Government under the Constitution to regulate commerce. Never in the history of this country has the principle been pushed so far as is here contemplated. On this subject of the power of the Government to regulate commerce we certainly have a history by this time. How much power Congress had under that provision of the Constitution very early sprang up in the history of this Government. As I recollect the facts, as early as 1816 Mr. Madison called the attention of Congress to the general subject as involved in the question of internal improvements; but it was not contended then, and during the whole period of the history of legislation in this country from 1816, when the attention of Congress was first drawn to the subject, down to 1830, when the whole question was thoroughly discussed by the Executive at various periods and by Congress, it was never contended that Congress had the power to give facilities to commerce by the creation of artificial highways in the several States. And, Mr. President, I think it is no stretch of reason to suppose that if Congress could not create these artificial highways, if Congress stood afar off and refused to make these internal improvements, and the people undertook these improvements in their own right and upon their own account, I think the argument not far-fetched at all that if Congress had not the right to appropriate the people's money to make these highways, these artificial ways of intercommunication in the several States, they have not the right to appropriate them when the people have made them themselves.
There is nothing better settled in American law than that the right of eminent domain is in the States. The right to control the territory within the limits and jurisdiction of the several States belongs to the States and not to the General Government. It never did belong to the General Government; the General Government never claimed that it did. The General Government never undertakes in a State to erect a fort or an arsenal or exercise any rights whatever in regard to the title to real estate except by consent of the States. When it was thought advisable to construct a national highway between the waters of the Chesapeake and the Ohio, the Cumberland road so called, Congress declined to act at all upon the question until the consent of Maryland, Pennsylvania, and Virginia had first been obtained, and upon the ground that Congress could not authorize the construction of a highway, even for military purposes, for that was the great object of that road, so declared, without having first obtained the consent of the States over which the road was to pass. This illustrates fully, I think, what very many similar acts in the history of the country tend also to show, that the right of eminent domain is in the States. Congress never claimed to have the right to enter the limits and jurisdiction of any one of the States for the purpose of building ordinary highways or railways, and I contend-and it is connected very closely with the argument-that if the Government cannot create these highways it cannot control them when created.
were referred to by the Senators who have preceded me at this session and at the former session, recognize that distinction; it is obvi ous commerce internal and peculiar to the States, and commerce external and among the States. I would ask honorable Senators whose attention has been given to this subject, under which class does this system of internal communication fall? Is a railway constructed under a charter granted exclusively by a State, built entirely within its limits and jurisdiction, a way for commerce peculiar to a State and entirely within it, or does it fall within that principle recognized in the Constitution of commerce among the States?
But, Mr. President, all the authorities, judicial, executive, and legislative, recognize a broad distinction between that commerce which is external and that commerce which is among the States, and that which is internal and within the States. The distinction is broad, well understood, and has been recognized from the earliest period. All the authorities that
In all the books-I have none of them at hand this morning-this distinction is taken and made very clear. I recollect a case in my own State-I think the honorable Senator from Maryland had occasion to refer to it in the speech upon this subject which he made at the last session-where a grant was made for the exclusive navigation of one of the navigable rivers of my State to a private company above a certain point held to be not navigable, and the court held that although that river was navigable to the sea and for some seventy or eighty miles from the sea inward, yet at the point where navigation terminated by reason of an obstruction, and above that point, although navigable for twice that distance, it was internal commerce and exclusively within the jurisdiction of the State; that the Congress of the United States, although supreme in its power to regulate commerce over external waters, here ceased to have any power at all; and simply because the way was wholly within the State and was not open to the sea.
If that principle is applicable to a railway, I submit whether a railway, which is to be regarded as a way for commerce, chartered by a State, created by a State, built entirely by a State, and entirely within its limits and jurisdiction, can possibly be interfered with by the Government of the United States in any way whatever; whether it is not entirely beyond the power of the United States; and whether it is to be said that the Government of the United States may reach out its hand and require it to connect with roads outside of the limits of the State. I maintain that all these internal railways, which are within the limits and jurisdiction of the States exclusively, belong to that class of internal commerce which is exclusively of the States, and over which the United States have no control and no jurisdiction whatever. I do not believe that it is for the interest of the country that this power should be exercised. To repeat what I have said before, I see no occasion for it, no exigency to call for the exercise of this power. That it is a doubtful power, to say the best of it, I think no Senator on this floor will question.
Mr. President, I have accomplished all that I rose to accomplish this morning. I have called the attention of the Senate to the importance of this bill; and, with these brief remarks, I shall content myself with voting against it.
Mr. McDOUGALL. Mr. President, it was my opportunity to use an instrument on the first road that ever carried an engine in the United States of North America, very close to where the two Senators from the State of New York inhabit. That very circumstance induced me to think very much about these questions. I rode over the New Jersey road when it was young. The Baltimore and Ohio road was projected in 1826 I think; I shall not be exact as to the date. These were great enterprises then. It was not public capital, it was individual capital as a rule that built those great railways that have made such great demonstrations in our country. It is true of the Baltimore and Ohio road, which when it was started was a greater enterprise than the Pacific railroad, that when it was projected by a merchant in that city, whose name is not at present in my memory, but who deserves renown, it was thought to be a wild and insane scheme the attempt to climb the Alleghanies and
that is involved in this bill. While I am opposed to all monopolies in the States, all monopolies that are oppressive, I am not opposed to a State having the power to exer cise the right to judge for itself when railroads shall be built through its limits and upon what terms they shall be built; for I deem it essential to the independence of a State in its action upon those rights which are reserved to it.
deliver a line of rail on to the waters of the Ohio.
Mr. President, the observations which I have had the opportunity to make, the lessons I have had the opportunity to learn with regard to enterprise, have convinced me that enterprise should be made as individual as possible; and perhaps in single individuality there is more potentiality even than there is in combination. There is a false tendency in our country to combinations and over-combinations. I speak of this as a reduction, and with some careful observation.
These are my views on the subject. I confess I have been brought up rather in the school of State rights. I am in favor of a pretty strict construction of the Constitution of the United States. In time of war I know the great powers of this Government are waked up, and we exercise powers that we do not exercise in peace; but, sir, in time of peace I would exercise no more power by this Government than is actually necessary. I would leave, as far as possible, the exercise of all governmental powers to the States, because, when left to the States, they come nearer home to the people. The great idea of republicanism, which is a government by the people, comes nearer home to them when it is exercised by the States than when exercised by the Federal Government. If we assume to take all this upon ourselves, the business is so vast, so immense, that this Government will break down under its operations.
I did not intend to go into an argument, but simply to state my general view on this question. The arguments of the honorable Senator from Maine and the honorable Senator from California weigh very heavy upon my mind and accord with my general views on this question.
I say this much in vindication of what I think we must be most careful about, the fundamental law essential to the maintenance of our republican system. We have somewhat departed from it. I think we have departed too far. It would be well that we should pause for a moment and retrieve some of our steps; that we should think not of ourselves or the immediate moment, but think that a nation was not born in a day. Our fathers thought our system was organized to last through time, and we must consider a little that lesson which is worth thinking about by those who can consider. It was once thought in a particular period of the past ages, before the Advent, that men were only immortal in their posterity. Let us not think so much about ourselves, but let us try to be immortal in our posterity by doing exact justice and maintaining true principles. I oppose this bill because it is not within the law of our present license, and I oppose it because it is against sound policy. These are the reasons that govern my conduct, and therefore I shall vote against it.
Mr. JOHNSON. I do not know that it is the purpose of any of the friends of the bill to discuss the question of authority which is involved. If there is any such purpose, I should like to hear them first before I submit to the Senate the views which I propose to submit. [A pause.] I presume from their silence that it is not the design of any of the friends of this bill to debate it. It would seem a little singular, if that be the fact, that a bill containing provisions never before even suggested in any Congress, and apparently so much in conflict with the Constitution of the United States, should not receive at least some support from those who think it does not violate that instrument. Upon a former occasion, when this measure, in a somewhat different shape, was before the Senate, I presented to the Senate the reasons which, in my judgment, demonstrated (to use a strong term) that it went beMr. DOOLITTLE. Mr. President, I sup-yond the constitutional authority of Congress; pose it is beyond question that if the State of New Jersey had never incorporated a railroad company in that State, Congress would have no power to do it. Now, what has New Jersey done? Has she interrupted commerce by cre ating a railroad across the State? All the old avenues of commerce are open still-transportation by land and transportation by water, for freight and passengers. New Jersey created, by this railroad, a new mode of commerce. She had a right to do it, as a State; she had a right to decline to do it, and it comes to that, as it seems to me. I only speak of this case of New Jersey as one case in point.
Without going into an argument on this question at length, I believe for one that our duty is not only to defend the rights of this Government against those who assail it, but it is equally our solemn duty to defend the rights of the States, those rights which are clearly reserved to them in the Constitution. It seems to me that the right of a State to build highways, to build railroads, or to refuse to build highways or to build railroads, is one of the rights which belong to a State. I do not believe that there is a Senator on this floor who will rise and say that if the State of New Jersey had refused to build a railroad across that State, Congress-unless it might be in a time of war-would have the power to charter a railroad and build a railroad across the State of New Jersey. That is exactly the power
and plain as I thought that was in reference to that bill, if the Senate will turn to the particular bill upon their table, I think they will agree that this is still more obnoxious to objection. The bill upon its face professes to be based upon the authority conferred upon Congress to regulate commerce between the States, and upon the authority conferred upon the same department to establish post roads. It does not profess, therefore, to be a measure called for by any military exigency; it does not intimate that we are not in a state of peace; nor does it state that what it proposes to have done under its provisions will become necessary hereafterif we should at any time hereafter be engaged in a war, civil or foreign. The power, therefore, which it assumes to exercise, is a power, if it exists at all, to be found under the authority to regulate commerce between the States, and to establish post offices and post roads. I had supposed until these modern days that the meaning of those two powers in the Constitution of the United States, with reference to such a proposition as this bill involves, had been so long and so uniformly established that it could not well be considered as open to further doubt. A constitution is worth nothing practically if it is not to be considered as authoritatively settled after years of deliberation and frequent decisions by every department of the Govern ment. If it is to be one thing to-day and another thing to-morrow, just as the members of
I do not propose to discuss the question of constitutional power with regard to this proposition; I will only express an opinion. My opinion is that this power does not exist in the Federal Government. If exercised, my opinion is, it would be unwisely exercised. Why should we, when young enterprise has brought forth and has led to great results, by the power of a combination or the millions of our people, interfere with the enterprises that individuals have achieved and undertake to destroy them? No wise reason, no good reason, no sound reason can be affirmed in favor of it. There may be a reason why individuals may make a few hundred thousand dollars out of this great Republic. When they do so, they wrong the millions; they violate great public law; they violate great public policy; and in my judg ment violate the Constitution of the United States.
Congress may be different to-morrow from what they are to-day, we might as well have no Constitution. If the individual judgment of each individual member is to be exercised without regard to what has been the construction of the instrument uniformly up to the time when he undertakes to exercise his individual judgment, we are without a Constitution. And it is essentially (as I think) mischievous if that individual judgment is to be exercised in relation to any of the supposed restrictions upon the powers of Congress, or upon any of what have been in the past supposed to be the clearly reserved rights of the States. In my judgmentand I speak it with all due deference-when we swear to support the Constitution of the United States, we are bound to construe it, in order to support it, as the framers of the instrument are known to have construed it, and the people by whom it was adopted are known to have construed it and to have adopted it because of that construction. Looking to what was said by the members of the Convention, contained in the debates preserved by Mr. Madison with great accuracy, as was admitted by all who participated with him in the deliberations of that great body of great men, and in the proceedings of Congress while this department of the Government was filled by some of the leading members of that Convention, it is perfectly obvious that such a proposition as the one upon the table never would have been suggested by any member, because, in his judg ment, it would have been wholly without the constitutional authority of this department of the Government.
With these general remarks, permit me to call the attention of the Senate to what this bill seeks to accomplish and what powers it undertakes to confer. Nobody even now, as far as I am aware, denies that the States have authority to charter railroad companies; and having authority to charter them, it would seem to follow that they have the authority not to charter them; and having the authority to exercise the discretion of chartering, or of not chartering, they necessarily have the authority, if they decide upon chartering, to state the terms, the conditions, upon which they will charter them; and consequently, having the authority to prescribe the terms or conditions upon which they will charter, they have a right to prescribe what privileges they will confer upon the holders of the franchise and what they will withhold. Those are propositions that need no argument, as I think the Senate will all admit.
What have the States done in the exercise of this admitted authority? They have chartered such companies for the construction of railroads as they have thought proper to charter, and they have given to them certain limited powers and only limited powers. Having the authority to charter and to limit the franchise, another consequence necessarily results: that if the powers granted are abused, if powers not granted are sought to be exercised, the franchise is subject to forfeiture. That would seem to be clear; and if that is clear, then the question of forfeiture or not must depend upon the law of the State by which the franchise is granted. The right of the State to forfeit, if it be a right, is one with which the Congress of the United States cannot interfere, because that would be to interfere with the right of the State to charter and to fix the terms upon which she is willing to charter.
Now, what does this bill do? One company is sufficient to illustrate the argument, and it somewhat simplifies it. New Jersey chartered a company, the name of which, as well as I recollect, was the Raritan and Delaware Railroad Company. I am not sure that I recollect the name. The honorable chairman of the Committee on Commerce will oblige me by giving me the name, for I suppose it has been before him in the deliberations of the committee on this particular measure.
Mr. CHANDLER. The Raritan and Delaware Bay Railroad Cor pany.
Mr. JOHNSON. I thought the honorable