protected by laws that operate among the States to prevent any State from interfering with them. Laws of Congress are needed to protect these rights because the Constitution is not, in these respects, self-executing; and not because the Constitution created the rights, nor because an act of Congress can create them, for it can not create them.

The rights of the people as to the freedom and security of commerce are so important to each individual and to every community, that the framers of our Constitution had the strongest reason to expect that the States, having formerly enjoyed the privilege of regulating commerce with other States, would continue to discriminate in their laws and commercial regulations in favor of their own people. They had to yield the power thus to make discriminations in favor of their own people in respect of duties, charges, and restrictions upon trade, in order to form the more perfect union under the Constitution. They did this reluctantly, and are not yet quite satisfied about it. Continual efforts are now being made by State Legislatures to tax commercial agents, insurance companies, and other commercial agencies of other States. It was the intention of the framers of the Constitution to prevent any such exercise of power by the States, and to aid them in securing to commerce among the States absolute equality and freedom. To accomplish this it was not necessary that Congress should take hold of the regulation of commerce between man and man, and enact laws to define and settle the infinite variety of questions that arise between common-carriers and the persons who employ them. The States were perfectly competent to do this, as far as the law-making power can do such things, and they never yielded to Congress this wide range of powers. They did yield to Congress as to interstate commerce the full power to regulate it, so as to prevent the States from discriminating in their laws against the people of other States.

In this view of the powers of Congress they are national; in the view that includes within those powers the control of all articles of commerce, all vehicles of commerce, and all persons engaged in commerce or travel that pass from State to State, they become local and lose their national character. Congress should never assume to itself under such a grant of power the right to regulate the charges of warehousemen, commission merchants, wagoners, and draymen, or water-craft that haul or store or sell goods brought from Jersey City to New York, when it is admitted that no such power exists as to goods brought from Brooklyn to New York.

This absurd category was never necessary. The common law covered our whole country, as the air does, and regulated these matters alike in every State. It was never intended to supersede this splendid system of law with all its principles rooted in the experience of our race, and with its intricate adaptation to the protection of every personal and property right connected with commerce by substituting in its place acts of Congress for the regulation of men in their infinitely varied relations to the conduct of commercial affairs. The rights of men, connected with commerce, were as well understood and were as distinct when our Constitution was adopted as they are now. We shall never make them plainer to the courts than they are now. The principles on which they are founded have not been changed or enlarged by the construction of railroads and telegraphs. Neither has the Constitution of the United States been amended by the invention of all these new vehicles of commerce.

The power of Congress to regulate commerce was opposed, in the Constitution, to the selfish greed of the States, and was not given to Con

gress to aid the citizen in compelling other citizens engaged in commercial pursuits, such as carriers, commission merchants, or bankers, to haul his freights at a rate fixed by law, or to sell them for a commission fixed by law, or to discount his bills drawn against the cargo at a rate fixed by law. If the power to regulate commerce implies, as it must of necessity, the power to regulate all its proximate incidents, we shall find our task, that we are now beginning, endless in its labors, with no stopping place or place of rest short of commercial anarchy.

As we progress with our work of legislating upon the personal rights and duties of men engaged in commerce we shall amend and repeal the common law until our system will be entirely artificial, awaiting every change of competitive railroad lines for the enactment of a new law to meet a new emergency, not of natural trade, but of trade that we have forced into new and unexpected channels. Every new law will be, as this one is, a merely tentative experiment, enacted to find some hopedfor relief from the confusion and trouble we are now about to inflict upon the whole people of the country. We will deprive every shipper of goods, every creator of values in articles of commerce, of the personal right to make a fair contract with a carrier for a fair rate of transportation.

We will substitute commissions, deriving their powers and instructions from the legislative and executive branches of the Government, for the courts, which are the constitutional tribunals for the settlement of the private rights and the redress of wrongs of the citizen.

It seems to me that this bill makes a distinct inroad upon a field that is forbidden to Congress, which will lead to other and further invasions, until the management of railroads must become one of the most absorbing labors of Congress. I dread to enter this field, and will not do it voluntarily.

The States have enough of power, and they have the will, as appears in many instances in their legislation, to handle the railroads, which owe to them their existence and their continued life, so that they shall not abuse the people with extortion, cheat them with unjust discriminations, and bribe their patronage and favor with rebates and other favoritism. I know that it is held by the Supreme Court that their powers are limited to State commerce as distinguished from interstate commerce. I bow to the decision as a citizen. As a legislator I question it with a sense of duty that will not permit me to adopt it as the guide to my vote.

I admit that Congress can overcome all State laws and all the agents empowered to enforce them, and all claiming rights under them, that aid a common carrier to inflict injustice on the people of another State. I go further, and declare that it is the duty of every State to repress and prevent by law within its borders all such wrongs to the people of other States.

The States, almost all of them, have done this; and none of them give the shelter of their laws to any wrong or extortion, discrimination or favoritism, as against their own people, or the people of any other State, in favor of railroad or river carriers.

Laws exist in all the principal railroad States that deal with these wrongs with wise precaution and merited severity of punishments. If these laws were permitted to operate as they are entitled to do the evil we use now trying to suppress would not have appeared.

The States can not deal with commerce within their own borders carried upon railroads or rivers that reach them, without affecting in some important way interstate commerce. Neither can Congress

deal with interstate commerce so as to avoid touching, in a material way, State commerce.

Friction and conflict will occur in a large percentage of the cases, involving at once the grave questions of power and jurisdiction that often arise in our dual system of government. If this can be avoided by a reasonable construction of the Constitution, I earnestly plead that Congress will adopt it, and so declare. This is a political question, involving the right of Congress to refuse to go beyond the limits of its legislative power, and if Congress, following the broad road of construction, now become a highway for the guidance of the States and the people, will plant their decision firmly on that, and deny to themselves a power that is doubtful, obscure, and ill-defined, dangerous, and leading to licentious abuses, rather than adopt a construction of the Constitution that is technical and is confined to the letter of the text, to the destruction of its spirit, its right to declare this to be a political question will be conceded; and the States will be free in their efforts to throttle the railroads in their persecutions of the people.

Congress has power to pass uniform laws of bankruptcy, yet such laws may be enacted by the States to operate upon their own citizens, or upon non-residents when they appear in the proceedings, without any grant of power for that purpose in the Constitution. If the United States occupy the field, however, with a general bankrupt law, while it is so occupied the States can not act in this matter.

Congress can improve the bay of Mobile, but when no law of the United States for that purpose is in operation, though such laws existed before and after the State began a work of like improvement, the State law authorizing such work in that bay is valid, and such a law was enforced by the Supreme Court of the United States in Kimball vs. The City of Mobile.

Why the States may not, in the absence of laws enacted by Congress, pass laws to facilitate all commerce, State and interstate, by repressing all extortionate and discriminative conduct of public carriers, when they can facilitate commerce by deepening bays and channels, I can not understand. Counterfeiting the coins, money, bonds, and other securities of the United States may be punished by the States although they are prohibited from coining money or emitting bills of credit. In every crime against the Federal Government, and in every impediment to its lawful authority, the people of the States are deeply concerned, and the States may aid in the duty of removing the one and punishing the other.

Their laws, adapted to these ends, may have extra-territorial effect in the consequences resulting from their enforcement, but they do not operate, as laws, beyond the boundaries of the States enacting them. Their effect, if they aid the common law in repressing wrongs done to the people, are precisely in line with the purposes of legislation that are at the foundation of this bill. If the effect is otherwise, they are in restraint of free commerce, and Congress can annul them by its powers of legislation rightfully included in the power to regulate commerce among the several States.

I can not subscribe to the doctrine that interstate commerce can only receive protection against the wrongful acts of private persons, or public and private corporations, through the action of Congress in providing laws and tribunals for their regulation or punishment.

This bill is based solely on that false premise. It opens the door to the interference of Congress with every regulation of trade and commerce, whether sanctioned by universal custom or by express or im

plied agreements between the parties concerned. It exposes the charter rights of every railroad company, given by the States, to modification and repeal by acts of Congress.

It multiplies indefinitely the list of crimes punishable by statute in the Federal courts, and correspondingly narrows the power of the States to punish their own citizens for crimes committed within their borders, because the commerce against which the crime is directed is interstate commerce, and is therefore within the exclusive jurisdiction of Congress.

This claim of the exclusive power of Congress to legislate, whether for the freedom of commerce or against it, is made in this bill to depend on the interstate character of the traffic, and that is made to depend on the will of the shipper. The States can make no regulations touching the subject, or objects of interstate commerce, according to the theory of this bill and of the Supreme Court. If they should enact statutes for the punishment of crimes against interstate commerce committed by their own people, in the very language of this bill their laws would fall to the ground because, as this bill assumes, they could not touch the subject.

The States, it appears, can take an officer from the Army or Navy or from one of the civil Departments of the United States and hang him for murder; but they can not, on the theory of this bill, punish a man for killing an engine or kidnapping an engineer who is about to cross the line of a State and enter another State if he is engaged in interstate commerce, and is for that reason under the sole jurisdiction of the United States.

Congress has power to regulate interstate commerce, but there is a limit to this power, and it is not so far an exclusive power as to annul all acts of the State Legislature, as well in the absence as in the presence of laws of Congress, through which this power may be exerted.

For a hundred years the States have assisted and protected interstate commerce by their many statutes and by many hundreds of judgments · in their courts. Congress, doubting the extent of its powers, has permitted this assistance and protection on the part of the States, and, in doing so, has blessed the country by its silence and inaction. In that time commerce has hewn its own highways through the mountains and built its grand structures across great rivers and chasms; the arid deserts have bloomed under its footsteps, the wilderness has bowed a welcome to its coming, and every river and bay opening into lakes or oceans has floated the burden of its wealth out among the nations of the earth.

The States have done all this, so far as legislation has been required to assist commerce in its wonderful struggle for freedom and expansion. They granted the charters to the railroads; they protected the railroads and those who dealt with them by State laws; they did it all, knowing that the purpose of all these great enterprises was to create and conduct interstate commerce.

The States consented to the consolidation of railroad lines leading into other States, and so made of them lines for interstate commerce. Without that consent, Congress could have had no jurisdiction over a foot of these lines according to the theory of the Supreme Court; with it, Congress claims exclusive jurisdiction over the entire lines of railway thus consolidated and the power to repeal every State law existing when the consolidation was made that was intended to protect commerce over them.

When these laws were enacted they were valid, because the com

merce over these lines was, as to the railroads, necessarily commerce within the States; when the lines of railway were extended by consolidation the laws became invalid according to the theory of this bill, because they then applied to interstate commerce. Thus, if the theory of this bill is true the States, by consenting to such consolidation, gave new powers to Congress and made sudden havoc of all laws enacted by them for the protection of their railways and the commercial traffic they were engaged in. I do not accept the verity of this legislative

romance.

In legislating to regulate commerce it is impossible to follow a line that will truly demark the limits of the power to regulate it so as to distinguish between the subject and the object, the traffic and the things that are transported, bought, or sold; or between the traffic and the persons engaged in it. The power to regulate commerce includes the regulation of all of these.

If there is any limit upon the power of Congress to regulate commerce among the States, it is not to be found in the nature of the commerce, the points of shipment and destination, or the special character of the business in which the carrier is engaged; for every regulation by Congress based on these circumstances detracts from the power of the States reserved to them in the Constitution, as I think I have shown, over their own people and over their commerce, while they are yet within their own limits.

But there is a limit to this power of Congress, and it is found in the purpose for which the power was given. That purpose, I repeat, was to protect interstate commerce in absolute freedom from the power of the States to control it within their own limits by any law or regulation that would operate to the detriment of the people of other States. A State law that imposed no such restraints or burdens on interstate commerce, but increased its freedom and security, is a valid law; but a State law that does impose any such burdens or restraints upon interstate commerce would fall under the denunciation of the Constitution: and Congress would have the power, as well as the courts, to annul the law and free commerce from its burdens.

The power of Congress under such limitations is benign and useful. Without such limitations it is dangerous, and will become aggressive and uncontrollable. It will end in making merchandise of politics, while it rules and ruins the commerce of trade.

I dread to set in motion a doubtful and dangerous power which will soon become a factor of immense influence in the party politics of this Republic. It is urged that the railroads will absorb and corrupt the State Legislatures if we leave to them the duty of checking their enormous powers. The thirty-eight Legislatures number more than four

thousand men.

Is it easier to corrupt four thousand men, scattered through thirtyeight States, than it is to corrupt four hundred who are assembled in Washington? Or, is it easier to corrupt these four hundred representatives than it is to corrupt five commissioners intrusted with very broad discretionary powers? I believe it is not.

It is urged that the States are too weak to encounter these railroad barons and their retainers-these vast corporations and their employés. The States, I think, can be safely trusted to take care of their own people. If they ever exhibit any weakness, it will not be the weakness of indifference to the rights, or wrongs, of their people.

The same sentiment that will influence one State will impel all of them to use their full powers to protect their people against extortion,