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the other hand, who will say that it would be of utility enough to justify a disregard of the constitution if that distinctly opposes such projects? Does it distinctly oppose them? We cannot but think that the clause which empowers Congress to regulate commerce, whatever was originally intended by it, may fairly be taken as meaning that Congress may provide for, care for, and promote the commerce between States, and the instruments of that commerce. Whether these be canals or railroads, we should say that Congress may construct them, provided always that the only object in constructing them is to provide for, promote, and facilitate the commerce between the States.
CAN CONGRESS REGULATE THE FREIGHTS ON RAILROADS?
This question has recently become one of much importance, and of no less difficulty. That Congress may regulate the freights on railroads which it charters, and that it can affix what terms it will on any subsidies or grants it offers to railroads, is certain. The true question is this: What right has it, under its power to regulate the commerce between the States, to interfere with the charges of railroads for carrying produce from one State to another?
The importance of the question lies in this. Railroads have become perfectly indispensable instruments for this internal commerce. Without them it would have been impossible for our surplus produce to have found its way to the seaboard, at a cost which would have permitted merchants in the Atlantic cities to buy it and ship it abroad. Therefore the interior of the country undoubtedly owes its rapid growth in population and wealth to these railroads But, on the other hand, it is alleged that the railroad companies charge excessive freights; that they have in many instances “ watered” their stock, – that is, they have greatly increased its par value beyond what it actually cost, and then they charge freights which shall pay them satisfactory dividends on this nominal value, thus laying an intolerable burden on the transport of produce. The States which chartered them cannot, or, under the influence of the railroad companies, will not, interfere. Can Congress help the producers, by requiring the companies to carry their produce at a cheaper rate? Certainly not, unless they may do this under the clause giving them power to regulate the commerce between the States.
In the first place, this is certainly a commerce between the States. Illinois sends her wheat to New York or Boston, sells it there, and buys goods there manufactured or imported, which are brought to Illinois; and the price to the consumers is increased by the high cost of freight. This commerce Congress can regulate." But does that mean that it can interfere between producers and carriers, and determine what the one shall pay to the other?
There are two objections to this. One is, that this kind of “regulation” would seem to interfere too much with private and personal business. If the merchants of New York engaged in shipping goods to and from Europe complained that the ship-owners asked such excessive freight that they could no longer export goods to foreign countries, or import them thence, and therefore called on Congress to remedy the wrong, and regulate” this commerce by compelling the ships to lower their freights, Congress would probably answer, No, we cannot “regulate commerce” in that way. How, then, can they be called on to do the same thing as to our internal commerce?
To this objection this answer might be made: The ocean is the great highway of nations, open and free to all; and competition is abundantly able to settle the question between shippers and freighters in the right way. If freights are so high as to make the shipping business unusually profitable, more ships will be put on, until freights are reduced within reasonable limits. And if they are reduced beyond such limits, ships will be taken off, until they rise again. The mere course of trade, if left in freedom, being sure to adjust these profits, on one side and the other. But it is not so with railroads. They are monopolies; for the immense expenditure of money which they require, and the political power they can exert if disposed to, make them monopolies in fact. If left in freedom to work their pleasure, there is no actual competition sufficient to counteract their power of directing matters solely with a view to their own profit. The power of government must interfere, for the plain reason that nothing else will restrain them.
The other objection to asking Congress for this relief is, that it will interfere directly with State rights and privileges and interests; and perhaps violate a provision in the ninth section of the first article, “that no preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another.” It will be exerting a power not expressly given to Congress, and therefore reserved to the States themselves, by a provision in the constitution itself; and this provision should be made effectual, by observing it not in its letter merely, but in its spirit and principle. Now, railroads are chartered by the States; they are the creatures of the States; and to the States alone must belong the power of determining what shall be paid to them by those who make use of the facilities they offer.
To these objections the answer might be made, that the power to regulate the commerce between the States is expressly given, and also the power to make all laws necessary and proper for carrying into execution all powers given. The railroads are often chartered by different States for the express purpose of making a continuous railroad crossing many States, each State covering its own territory by the charter it gives. It is a very common thing, also, for rail. roads which were independently chartered to combine together so as to make in fact, and for some purposes in the view of the law, but one railroad. These long and continuous railroads are more than indispensable instruments of our internal commerce: they are its only instruments. They created it; they alone carry it on; and without them much the largest part of it would have no existence, and would not be possible. What doubt can there be that Congress may regulate this commerce? Then comes the difficult question,- In what way can they regulate it, except by fixing reasonable terms on which it can be carried on? If, as is alleged, injustice and oppression now exist, they cannot, in this country, be patiently or permanently endured. It is better that the remedy should be applied in some orderly, legal, and rational way, - by the States, if they will and can; by Congress, if the States will not or cannot, rather than by an uprising of the people, which might give rise to measures that would be neither orderly, legal, nor rational. And as to a preference of the ports of one State over those of another, no man would defend or propose any measure for the sake of such preference. But if some advantage to one over another seemed likely to arise indirectly from a measure adopted for the general benefit, this could not be deemed a decisive objection to it.
Such, as well as we can present them in a few words, are these questions, and the arguments which may be urged on either side. How the questions will be finally decided, it is impossible to predict. When this clause was inserted in the constitution, it was undoubtedly intended to prevent a State from laying a tax or excise on the productions of any other State, or, by other harassing impediments, obstructing the commercial intercourse between them. But whatever was intended, there stands the clause, to be fairly and rationally interpreted. If, in its original intent, it did not embrace circumstances which could not have been at that time anticipated, it may, nevertheless, have manifested a spirit or established a principle which may be rationally applied to these new circumstances; and, if so, they should be applied to them.
Perhaps the just conclusion is, that while Congress must hesitate before it undertakes to build railroads, or to prescribe the fares and charges on railroads which it did not charter, it may, by encouraging the building of railroads by wise and timely assistance, by provisions directed against frauds and abuses, and by a system of prohibitions carefully adjusted to circumstances, exert its power to regulate commerce between the States in no unconstitutional way, and yet do justice to all parties, while it gives to that commerce facilities and safeguards which will greatly promote its growth and prosperity.
It may be another difficult question, how far Congress may go in improving our water-ways by removing obstructions, constructing harbors, and by similar measures. But the prevailing tendency of public opinion is towards a liberal construction of the clause in this respect. If we go one step further, and ask whether Congress can create new water-ways, by building canals by which goods may be borne from State to State, and through intermediate States, the answer may
be still more difficult. Here local interests may come into full play. Why should a canal be made from funds which belong to the whole nation, when it can benefit only one part, at the cost of all the rest ? One answer is, that by these and similar means, all parts may
be benefited in turn. Another and a better answer is, that the gain of any one part of the nation is the gain of the whole; for the whole can be enriched and strengthened only as its various parts are not all at once, but successively, as opportunity occurs for each. It is only local selfishness which can refuse to be glad when the people of another region are benefited. It becomes a different question when the objection to a measure is, that it will not promote our internal commerce as a whole, but draw away from one part what it gives to another. It is, however, obvi. ous that all arguments of this kind mainly refer to the expediency of the proposed measure, leaving the question whether Congress has the right to pass it, aside. So it may be; but unfortunately, while human nature remains what it is now, those who look upon a measure as expedient, especially if it be expedient for them, will favor the most liberal construction which brings it within the power of Congress ; while those whom it hurts will be sure that a just construction of the constitution would prevent it. It may be said, bowever, on the whole, that with the prodigious growth of the country and of all its various interests, and the springing into existence of new interests never dreamed of when the constitution was made and adopted, the conviction has forced itself upon the people that, while a loose and unwarranted construction, which would pervert the meaning of words and invalidate the limitations of the constitution must be avoided, a rational but liberal construction should be adopted.
The first words of the eighth section of the first article of the constitution, which section enumerates the powers of Congress, are: “ To lay and collect taxes, duties, imports, and excises.” This means that Congress may lay all manner of taxes. The most general division of taxes is into direct taxes, and indirect taxes. A direct tax is taken immediately from income or property. It includes a capitation tax, or, as it is more commonly called, a polltax, and an income tax. An indirect tax makes the owners of the articles on which it is laid, pay the tax, without reference to any thing but the value or quantity of the article. When these taxes are laid on exported or imported goods, they are called duties, or customs-duties; and are regulated by a tariff. An indirect tax may also be laid upon those who exercise certain trades or occupations, and it is then called a license. If it is laid upon certain wares or products, as tobacco, spirits, beer, and the like, it is an excise.
All these taxes Congress may lay, and at different times have laid. Certain general principles have been deduced from the long and wide experience of nations, as those which should govern all taxation. They may be stated thus, on high authority.
1. The subjects or citizens of every State ought to contribute towards the support of the government, as nearly as possible in proportion to their respective abilities.
2. The tax which each individual is bound to pay, ought to be certain and not arbitrary. The amount, the time, and the manner of payment, ought all to be clear and certain to the contributor and to everybody.
3. Every tax ought to be levied at the time and in the manner in which it is most likely to be convenient for the contributor.
The second section of the first article provides that "representatives and direct taxes shall be apportioned among the several States according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons.” “All other persons” meant slaves, a word nowhere appearing in the constitution. This provision was perhaps as wise and fair a compromise of existing views and claims, as could then be made. To say that they were piersons as much as other persons, would have required that they should all be counted in among those to be represented. This was