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Once the power of the United States has attached to the subject it can not be displaced in favor of the State by the act of the parties engaged in the transportation of the goods.

If the criminal law proposed in this bill is violated in respect of a shipment of goods to Bristol in Tennessee, the crime can not be condoned, nor can the criminal escape punishment by cutting short the journey by a matter of ten feet, and delivering the goods in Bristol, Virginia.

The crime in such cases would consist in the intent to transport goods into Tennessee contrary to this act of Congress, although a lawful agreement was afterwards made between the culprits that they should stop in Virginia 10 feet short of the Tennessee line.

The intent is the crime, if its execution is entered upon, although the thing to be done is not in itself criminal, and although it is never done, but is prevented by a lawful agreement.

I am not attempting to illustrate my point by presenting a difficulty in the execution of the law as proposed in this bill. I am endeavoring to show that it is a mistake, if not a legal impossibility, to measure the constitutional power of Congress to regulate commerce among the several States by the mere fact that the points of delivery and shipment of goods were in different States. This power of Congress rests on quite different grounds than these narrow and embarrassing views of the subject.

If commerce gains a national character because it is shipped from one State to or through another, and in virtue of that character falls within the exclusive protection of Congress, to the exclusion of the right of any State to regulate it, what would be the character of commerce shipped from Buffalo to New York city on a line of railroad running through Pennsylvania? The points of shipment and destination are in the same State; would that fact make it State commerce while it is passing through Pennsylvania? New York could not protect this commerce while it is beyond her borders, and the United States could not protect it because it was State commerce when it was shipped and when it was delivered, and could not change this character while it was in transit. The geography of the United States was not made the foundation plan on which the power of Congress to regulate commerce among the several States was laid. It was placed on a higher plane of reason than that, and it can never be justly measured by so low and artificial a standard. If goods are shipped at Knoxville, Tenn., by steamboat to Nashville, which must traverse the Tennessee, Ohio, and Cumberland Rivers, passing a long distance of the route through Alabama, the points of shipment and destination being both in Tennessee, the commerce would not be national in its character, according to this bill, and Congress could not regulate it. Yet for more than half the journey it was beyond the borders of Tennessee.

If there is any case in which the power of Congress to protect this commerce ought to exist it is in the case I have stated, where the State of its origin and delivery can not protect it. Yet the geographical definition of the power of Congress to regulate commerce among the States deprives this commerce of all protection while it is not within the State of Tennessee. If this cargo, while passing through Alabama, should meet with some law of that State that imposed upon it any unjust tax, restriction, or burden, or some person, acting under color of such law, to impose such burden, a law of Congress removing such impediments and punishing persons engaged in imposing

them on this commerce would find its full warrant in the Constitution and would protect it.

If a thief should steal a part of this cargo while the boat was in Alabama the laws of that State would punish him, whether the commerce on which his raid was directed was State or national in its character. These illustrations sufficiently indicate my view of the nature of the regulations that Congress may enforce in respect of the commerce among the several States and that the points of shipment and delivery are not the proper tests of the limits of this jurisdiction or of the cases to which it is applicable.

I regard it as a deplorable mistake that the decisions of the Supreme Court have rested on this erroneous ground, in which the physical and political geography of the United States is made to define the limits of a power delegated to Congress.

The assumption of this bill is the same that the Supreme Court have made that all articles of commerce intended to be carried from one State to another are, when in transit, subject to the United States laws that regulate the transit. The deduction they make from this premise is that the State laws do not apply to such articles while in transit or to the persons engaged in moving them,

Admitting, as they do, the plenary jurisdiction of the States over all regulations of the transit of commerce completed within their limits, they omit to give any effect to the fact that the laws of the United States in every case must encroach on this State jurisdiction to the extent that they control the transit of articles of commerce within a State.

It may be assumed, without any irreverence or any n glect of filial duty, that it is just as wrong for Congress to interfere with commerce in the States as it is for any State to interfere with the commerce between it and any other State. We ought, if we can, to find some proper and useful field of operation for the power of Congress to regulate commerce between the States that will not bring Congress and the State governments into constant and irreconcileable controversy over these delicate and important subjects.

In the case I have mentioned, of the transportation of goods 400 miles, from Alexandria, Va., to the Tennessee line and 20 feet across that line to the point of delivery, it is a patent absurdity to say that a law of the United States that controls the price of the freight through Virginia is not a law that controls and regulates commerce within Virginia. Such an act of Congress is quite as open to question upon constitutional grounds as a law of Virginia would be that provided a fixed rate per ton per mile on freight for the whole distance it is carried within that State.

But under this bill the national character imparted to the freight by consigning it to Bristol in Tennessee rides down and defies the power of Virginia over her own people, her railroads that the State may own, and over commerce and trade in articles grown on her soil, and relegates the entire control of all these to Congress on a margin of ten feet of Tennessee soil included in the designated line of transit. The supremacy of the laws of Congress over those of Virginia in such a case ought to have a more rational basis. On this basis, no matter which of these laws gives the greatest security, justice, equality, and freedom to commerce, the supremacy is accorded to geography. Congress can not create nor can it prohibit commerce between the States in time of peace.

It can not repress commerce between the States by embargo, nor by

any other means, except to prevent or repress crime. Its duty is to foster commerce, and to this end it may regulate it by the prevention and surpression of all improper obstructions by State laws that abridge its freedom.

It was the preservation of the freedom of commerce that caused the framers of the Constitution to give to Congress the power to regulate it among the States. The freedom of commerce between the States is as sacred in American policy and constitutional law as the freedom of speech, and, for a better reason, it should not be controlled by statutes, except to prevent the growth of abuses which will in the end destroy its freedom.

These are personal rights which the law may regulate, so as to preserve them and protect their proper enjoyment; but none of them has been placed under the power of any Government, State or Federal, to be admeasured to the people by statutes, or to be clipped and curtailed, from time to time, so as to conform the freedom of their enjoyment to the legislative will.

All our personal liberties came to us under the sheltering wing of the common law, which was wide enough to protect them in the courts without the aid of statutes. But, in forming our more perfect Government, the liberty of unrestricted trade among the States needed to be guarded by special provisions in the Constitution, which gave to them a more cautious security and a plainer recognition than our other personal rights, for the following reasons:

When the States were colonies they had the right, as the dominion of Canada now has, to levy duties on all goods coming into or passing through their respective borders. As to each other they were foreign countries in this respect. After their independence was achieved, when they met in the confederacy, they expressly reserved to each of the States this same power, in the following language, found in the "Articles of Confederation:"

ARTICLE III. The said States hereby severally enter into a firm league of friendship with each other for their common defense, the security of their liberties, and their mutual and general welfare; binding themselves to assist each other a.ainst all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever.

ARTICLE IV. The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhab itants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions, as the inhabitants thereof respectively: Provided. That such restrictions shall not extend so far as to prevent the removal of property imported into any State to any other State, of which the owner is an inhabitant: Provided, That no imposition, duties, or restriction shall be laid by any State on the property of the United States or either of them.

The next reference to this general topic in the articles of confederation is found in Article IX:

ARTICLE IX. The United States in Congress assembled shall have the sole and exclusive right and power of determining on peace and war, except in the cases mentioned in the sixth article; of sending and receiving embassadors ; entering into treaties and alliances: Provided, That no treaty of commerce shall be made whereby the legislative power of the respective States shall be restrained from imposing such imposts and duties on foreigners as their own people are subjected to, or from prohibiting the exportation or importation of any species of goods or commodities whatsoever, &c.

The next reference I find is in the same article further on:

The United States in Congress assembled shall also have the sole and exclusive right and power of regulating the alloy and value of coin struck by their own authority, or by that of the respective States; fixing the standard of

weights and measures throughout the United States; regulating the trade and managing all affairs with the Indians, not members of any of the States: Provided, That the legislative right of any State within its own limits be not infringed or violated.

The powers thus reserved to the States in the articles of confederation were sovereign attributes, inherent in every independent State. They were the chief barriers to the formation of the ".. more perfect union;" and the change of these powers and the relations between the States that they created was the chief purpose of the constitutional convention. The subject was considered with the most careful attention. Three most important matters were to be cared for:

1. The privileges and immunities of citizens in each of the States. 2. The powers to be reserved to the States in respect of commerce. 3. The powers to be conferred on Congress over the States and their citizens.

As to the privileges and immunities of citizens in the several States, they were preserved in the Constitution as they were declared in the articles of confederation, and almost in the same words.

As to the powers reserved to the States in respect of commerce, their general designation was declared in the tenth amendment of the Constitution, which was only an expression of the true meaning of that instrument, as it was understood by its framers, namely:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

There were reserved to the people in the articles of confederation the following distinct rights:

The people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively.

Under the tenth amendment, which I have just quoted, it is not possible to argue, logically, that the power of Congress "to regulate commerce among the several States "includes this right of the people as to the freedom and privileges of trade and commerce within the States. These rights were reserved to the people, and their protection was left to the States, as they were under the articles of confederation. They were not conferred upon Congress, nor were they destroyed. They remain, with many others of like kind, under the guardianship of the States. In construing, therefore, the nature and extent of the power conferred upon Congress "to regulate commerce among the several States," we are not permitted to disregard the history of its origin, nor to assume that it was intended to include within its scope the regulation of every right of the citizen connected with or relating to interstate commerce.

While it is admitted by the Supreme Court and by everybody that commerce within a State is a matter over which Congress has no power to legislate, it is not conceded by many that Congress has an equally exclusive right to regulate commerce between the people of the several States.

The instance I have just cited from the Articles of Confederation presents in distinct form a great right of the people that was never given up to the power of Congress, a right so important that the States placed it in their first solemn compact of union as one that should be inviolable. That right survived the formation of the more perfect Union, was

placed under the shelter of the tenth amendment, and still exists as strong and distinct as it did when it was guaranteed to the people in express terms in the Articles of Confederation.

If this is a right of the people that we are still bound to respect, while we are regulating commerce among the States it is worth our while to examine it and to see whether Congress is about to ignore or to destroy it.

What is it worth to the people of Minnesota that they shall enjoy in the State of New York "all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants of" New York? The value of the freedom to commerce of the Erie Canal is one significant answer to that question.

A low rate of freight fixed by a law of New York on wheat conveyed on cars from Buffalo to New York city would be an important matter to the people of Minnesota.

If Congress, in fixing or limiting or controlling or regulating the rates of freight from Saint Paul to New York city, should take the whole subject out of the legislative control of the State of New York because commerce between those cities is interstate commerce, and should give to the canals and railroads in that State the right to charge higher rates on such commerce than they could on commerce that is local, within the State, would not the people of Minnesota he thereby made subject to different "duties, impositions, and restrictions" within the State of New York from those that the people of the latter State would suffer in respect of their local traffic?

The people of Minnesota have the right to every advantage and facility given to commerce by the laws of New York when they are transporting their property through that State or into it, that the people of New York enjoy when transporting their property from place to place within that State.

Congress can neither depreciate nor destroy any right gained by any man under any State law relating to interstate commerce that does not discriminate against the people of another State, or, in some way, injuriously affect their business.

It must be remembered that neither Indian tribes nor foreign nations have the same rights and privileges that our Constitution secures to our own people, and in regulating commerce among our States we must look to the powers of the States and the rights of our people as so many checks and limitations upon the powers of Congress. A commercial regulation of the United States in respect of foreign people or governments can not raise a question in their behalf as to the power of the Government to make it, but the States and the citizens of the United States have a basis of solid rights on which to stand and question the powers of Congress.

These rights are what every power of the Federal Government was intended to secure, and all its powers of legislation are made subordinate to them.

What, then, is included within the power of Congress to "regulate commerce among the several States?" The answer is, whatever is done under color of authority of the laws of any State that taxes, or impedes, or restricts, or in any way discriminates to the disadvantage of the commerce coming from, or through, another State, or that is entering another State, Congress has the right to prohibit and to punish by statute.

The rights of a citizen to the freedom of the markets in other States, and to transport his property into, or through, another State, must be

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