perversion of the remedy itself. This being legitimate, then all the conditions and qualifications, found in extradition treaties, sink into absolute insignificance, and become the sheerest surplusage imagina ble. The extradition treaties of the United States would not, upon this construction, be respectable, even as literary documents. RUFUS CHOATE. XI. ПOR annexed letter we are indebted to the Hon. blandishments and friendly alliances. President Brown was young and enthusiastic, and desirous not only that the students should acquit themselves well as scholars, but that they should be kindly received and should make friends for themselves and the institution in the village, and so carry with them to their homes good accounts of the college and the people. Mr. Choate found an old and valuable friend in Dr. Mussey, the head of the medical school. Dr. Mussey had practiced in Essex during the childhood of Mr. Choate, and had boarded in his father's family. Upon being appointed to a professorship he had given up his practice to Dr. Sewell, who afterward married Mr. Choate's sister and first taught Latin to Rufus. Fathan Crosby, one of Mr. Choate's friends, Halo was, fortunate, fortunate in his eagerness to learn He therefore, in his surroundings at now of over thirty years' judicial service. The reader will think it quite natural that old college friends of Mr. Choate in writing about him should recur to those early days; also that this letter, in connection with the letters already published, does ample justice to that portion of Mr. Choate's life. and his aptitude for study. His ambition, which we saw in his acts and habits, appears now, by confession as it were, in the letters of his college life, recently furnished by your correspondent, the Rev. Dr. Putnam. The amenities of the people and the absence of rowdyism on the part of the students were alike notable during President Brown's administration, and many who were there at this period, besides Mr. Choate, owe much to the graceful influences of the A short time before the death of the Rev. Joseph Tracy, D. D., he had written an article on the religious character of Mr. Choate, intended for pub-cultured ladies of their early acquaintance. lication in some religious magazine. But it would seem that, for some reason, the article was not given to the public. Judge Crosby has been kind enough to obtain it from the family or representatives of the writer and send it to us. After stating the fact that much had been written about Mr. Choate, and suggesting that much yet remained to be written, Dr. Tracy asks: "But what have we orthodox reviewers to do with Rufus Choate?" and answers, "Much, on many accounts. In all the religious or ecclesiastical relations which he sustained he was one of us. He was educated from his earliest infancy in our faith. He studied it, understood it, was convinced of its truth, avowed and defended it on what he deemed proper occasions, public or private, to the end of his life.' He proceeds to illustrate that view by references to Mr. Choate's example, opinions and addresses, making special use of his remarks on the occasion of the twenty-fifth anniversary of Dr. Adams' pastorate of the Essex street church, in which - the last public address ever made by Mr. Choate — he avowed his faith in the doctrines there taught. We may refer gratefully to this article hereafter. J. N. LOWELL, February 26th, 1878. MY DEAR JUDGE. - Mr. Choate was one year before me in college. When I entered he had already acquired the reputation of leader of his class. My earliest personal knowledge of him was obtained through two of his rivaling classmates, Heydock and Tracy, who had been with me in Salisbury Academy. Mr. Choate came to Hanover at an opportune period, as in fact we all did. The college difficulties had just divided the old residents into two partisan, though quite unequal bodies, both of which changed the former limited courtesies extended to students into open Mr. Choate was sociable as well as studious, but did not care for play. He found exercise in walks over the hills around the college, and up and down his room while pursuing his studies. His most frequent outdoor companion was his classmate, Tenney, who furnished a ready laugh to Choate's equally ready wit. Tenney was a jolly, light-hearted youth, well suited to clear the cobwebs from an overworked brain, and as such doubtless he ministered, perhaps unconsciously, but none the less beneficently, to his friend. Choate's room was of ready access to his mates and was a sort of center of mirth and wit, but when sport was over he turned to his studies with avidity. He possessed a wonderful power of concentration of his mental faculties, and studied with great intensity. I roomed near him for a year, and could appreciate this somewhat, as he studied very much aloud, making his voice and ear, and his gestures too probably, contribute each its power of impression upon the memory. He dropped into study readily, as a habit, and thus, at brief intervals, doubtless, through life added much to his stores of knowledge. We boarded together for a while at Prof. Adams' and when in the dining room before the bell called us to take our seats at the table, Mr. Choate would stand at the sideboard where lay a large reference Bible, and turn over the leaves from place to place, as if tracing out some chain of theological inquiry. Mr. Choate by ardent, if frequently interrupted labor, became the ideal scholar and the pride of the college. No one had ever so completely won the admiration of the faculty, of his fellow students, and of the people of Hanover. Not a lisp of irregularity, of incivility, or neglect was heard against him from any quarter. But toward the close of his college life he became an invalid, was emaciated, walked feebly, his place in the recitation room was often vacant, his condition a source of anxiety and alarm. Dr. Mussey took him to his house and watched over him by day and by night. At length the appointments for commencement were made, and Mr. Choate was set down for the valedictory. Great fears were entertained that he might be unable to participate in the exercises. As the day drew near the leading topic of inquiry and discussion was his condition: the last report from his chamber the most important news; and old graduates, as they arrived from day to day to participate in the proceedings, came to share in the anxiety and feared that they might not hear him whom they perceived to be so universally admired and beloved. The day came at length and with it uncertain reports intensifying the anxiety, and casting doubt not only on the probability of his appearance on the platform, but as to the duration of his life. The procession was formed without him and moved to the church, amid general gloom, for the public exercises. The place was crowded; the graduating class responded to the orders of the day down to the valedictory. Then a few moments of hushed suspense and Mr. Choate was called. He advanced slowly and feebly, as if struggling to live and to perform this as a last scholarly duty. Tall and emaciated, closely wrapped in his black gown, with his black curly hair overshadowing his sallow features, he tremblingly saluted the trustees and officers of the college and proceeded in tremulous and subdued tones with his address, which was full of beautiful thoughts couched in chaste and elegant language. When he came to say the words of parting to his classmates his heart poured forth treasures of affectionate remembrance, and closing with swelling fervor and inimitable power as he exhorted them not to slacken or misapply their intellectual energies and tastes, but to press on the highest attainments in the domain of learning: "the world from this day and place opens wide before you. You are here and now to drop the power and aid of the association and emulation of our happy days, and strike single-handed and alone into the manly struggles of life. You may sow and reap in whatever field or realm you choose and gather the glorious rewards of intellectual culture of pure minds and diligent hands. Go, go forward, my classmates with all your honors and all your hopes. You will leave me behind, lingering or cut short in my way, but I shall carry to my grave however, wherever, whenever I shall be called hence, the delightful remembrance of our joys and of our love." I can only give a faint and imperfect impression of his loving words, but my memory of the scene is fresh and vivid. The great congregation, from admiration, excitement and grief, found relief in a flood of tears. As was said of Mr. Webster's closing appeal in the United States court in the Dartmouth College case, there was not one among the strong-minded men of that assembly who would think it unmanly to weep." to Mr. Choate remained in Hanover one year as tutor, and was the central figure of a set of linguists then connected with the college. James Marsh and George Bush, distinguished scholars, just before him, George P. Marsh and Folsom, of my class, and Washington Choate, brother of Rufus, Perley and Williston, two classes next after mine, gave an impulse to the study and love of classical literature, unknown before or since in that college. Friendly emulation and student pride led to the daily canvassing of books published, authors read and works studied. Folsom, W. Choate and Williston, died early; the other scholars named became eminent men. Washington Choate was regarded as equal to his brother in scholarship, and was eminent for his piety. I allude to this era of classical study as an exhibition of Mr. Choate's literary influ ence. Mr. Choate had great respect and love for his Alma Mater, and contributed from his early professional income toward her support as well as to influence her advancing curriculum, but was greatly disquieted, and even vexed, when declared rank in scholarship was abolished. He believed in laudable ambition and honorable competition. The old Puritan school-house system of rising from the foot to the head of the class stirred the little scholar with an ambition which grew with his years, and which he thought should not be ignored or repudiated in higher fields of study. He held that a great principle of human action was invaded by neglecting to rank scholarship, that life is largely made up of struggles for superiority in mental and physical efforts; that its rewards are won by merit; that the diligent, exact scholar should receive his merited honors, and the idle or stupid should not be protected from the exposure of misspent time, opportunity and money. His own life was spent in incessant, honorable competition and legitimate reward. From 1826 for several years I practiced law in Essex county at the same courts with Mr. Choate, and from 1838 for a few years I lived in Boston, kept up my acquaintance with him, and knew quite well his habits. He died daily, retiring to bed exhausted, under great nervous prostration, with headache. Yet he would rise early, often long before daylight, and take a literary breakfast before his family or business claimed his attention. His clients, the courts, and classics compelled long days and short nights. I called upon him once in the afternoon and asked him how early the next morning I could confer with him upon a matter I wished to investigate during the evening. As early as you please, sir; I shall be up." Do you mean before breakfast, Mr. Choate?" "Before light if you wish." I called at the earliest dawn and found him at his standing table with a shade over his eyes under a brilliant light, pressing forward some treatise upon Greek literature, which he said he hoped to live long enough to give to the public. The night had restored his wearied powers; he was elastic, as cheery and brilliant as the stars I had left shining above me. 66 Seeing and hearing Mr. Choate in the trial of causes was a perpetual surprise and pleasure. It seemed to make little difference with him whether his cause was of great or small importance; he tried to win it if possible and ceased not to contest it until every consideration favorable to his own side, and every one inimical to his adversary had been presented. It has already been mentioned by one of your correspondents that Mr. Choate was offered a seat upon the bench of the Supreme Court of Massachusetts, but declined. It may be proper for me to add that in view of his health, and the arduous nature of his professional exertions, I pressed him to seek the higher honor of a seat upon the bench of the United States Supreme Court, and so escape the waste of his powers in the excitements of the advocate, and attain the more quiet and dignified life of the Bench. Judge Woodbury's seat was at the time vacant, and Mr. Webster was Secretary of State, and I believed he could secure the appointment. He was then fifty years of age, and in the highest sense eligible. "But," said he, I am too poor. I must remain as I am, live or die. I know my power and reputation in my profession and I love it, but I do not know what the change would bring upon me, or whether I should like it. I cannot leave my profession." He only survived eight years. He spent his money well for his family and his library; gave freely to the necessitous, and gave up liberally of his well-earned fees when full payment might have embarrassed his client. On one occasion I was in his office when a client asked for his bill for a written opinion upon a question of importance. Said Mr. Choate, "Hand me one hundred dollars and I will give you a receipt in full; if you go to my partner in the other room who keeps the books he will make you pay one hundred and fifty, sure. Mr. Choate, like Webster and Everett, was an old Whig, politically, and " to the manner born," but, toward the close of his life, party lines underwent rapid changes, and men were very unceremoniously laid upon the shelf who were not thought to keep up with the "march of improvement." Mr. Webster lost the nomination for the Presidency, and soon after died at Marshfield, and although the nation honored his obsequies with every token of mourning, Mr. Choate could not smother his indignation toward the rising elements of power. He regarded Mr. Webster's death as a political murder. The great expounder and statesman had been rejected through unworthy combinations, his chief, worthy of all homage and confidence, leader of the Whig party, and the supporter of its glory for twenty years, had been slaughtered in the house of his friends, sacrificed to the cry of "availability!" and the tomb only saved him from further ingratitude. It is impossible to appreciate the depth of Mr. Choate's sorrow. He had been at the deathbed, and could perhaps have derived some formal comfort in the commonplace reflection that his friend had lived his three score years and ten, and that great men die like other men, but the poignancy of his grief came from the undeserved obloquy heaped upon him after his 7th of March speech. He knew the fervor and intensity of Mr. Webster's love of the Union, and his forebodings of civil war, and believed in the wisdom and justice of his efforts to compromise, and that he should go to his tomb under the impeachment of old friends, filled Mr. Choate with inexpressible anguish. He rebelled against pacification; the wound would not heal, nor could he afterward hold fellowship with the party which had rejected the great statesman of the age. His horror of new combinations and platforms drove him to Buchanan. "I can go nowhere else," said Mr. Choate to me when I had a long interview with him in regard to his purpose. "But, Mr. Choate, what becomes of your long cherished Whig principles?" "Whig principles! I go to the Democrats to find them. They have assumed our principles, one after another, till there is little difference between us." Here he traced them one after another as they had found adoption. "And what becomes of your Whig anti-slavery opinions?" "I have settled that matter," said he; "I am bound to seek the greatest amount of moral good for the human race. I am to take things as I find them, and work according to my best judgment for the greatest good of the greatest number, and I do not believe it is the greatest good to the slave or the free that four million of slaves should be turned loose in all their ignorance, poverty and degradation, to trust to luck for a home and a living." He amplified somewhat this statement, but the above represents fairly the conclusions of his argument. Mr. Choate's problem, how to ac complish the greatest good for the greatest number, has been worked out on a different plan from that which he wished to see adopted. The war, the death lists, pollution of morals, destruction of prosperity, national debt, present condition and future destiny of the colored race, and sectional discords, are present elements in the scales testing Mr. Choate's sagacity. Happy for us if we can find advantages to counterbalance them! Yours truly, NATHAN CROSBY. GOVERNMENT CONTROL OVER TELEGRAPHS. SUPREME COURT OF THE UNITED STATES, OCTOBER TERM, 1877. PENSACOLA TELEGRAPH Co. v. WESTERN UNION TELEGRAPH Co. Under the power given to Congress to regulate commerce among the several States control may be exercised over telegraphs, and laws of States in conflict with congressional legislation on the subject are invalid. Accordingly a law of Florida giving an exclusive right to a company to maintain a telegraph line in a portion of that State, held inoperative against a company entitled to the privileges of the act of July 24, 1866, in relation to telegraphs. A PPEAL from the Circuit Court of the United States for the Northern District of Florida. The opinion states the case. Mr. Chief Justice WAITE delivered the opinion of the court. In 1859 an association of persons, known as the Pensacola Telegraph Company, erected a line of electric telegraph upon the right-of-way of the Alabama and Florida Railroad from Pensacola, in Florida, to Pollard, in Alabama, about six miles north of the Florida line. The company operated the whole line until 1862, when, upon the evacuation of Pensacola by the Confederate forces, the wire was taken down for twenty-three miles, and Cooper's station made the southern terminus. In 1864 the whole was abandoned, as the section of the country in which it was situated had fallen into the possession of the United States troops. On the 1st December, 1865, the stockholders met, and it appearing that the assets of the company were insufficient to rebuild the line, a new association was formed for that purpose with the old name, and new stock to the amount of five thousand dollars subscribed. A resolution was adopted by the new company to purchase the property of the old at a valuation put upon it in a report submitted to the meeting, and a new board of directors was elected. A meeting of the directors was held on the 2d January, 1866, at which the president reported the completion of the line to Pensacola, and a resolution was adopted authorizing the purchase of wire for its extension to the navy yard. The attorneys of the company were also instructed to prepare a draft of a charter to be presented to the legislature for enactment. On the 24th July, 1866, Congress passed the following act: "AN ACT to aid in the construction of telegraph lines, and to secure to the government the use of the same for postal, military, and other purposes. "Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That any telegraph company now organ ized, or which may hereafter be organized under the laws of any State in this Union, shall have the right to construct, maintain, and operate lines of telegraph through and over any portion of the public domain of the United States, over and along any of the military or post-roads of the United States which have been or may hereafter be declared such by act of Congress, and over, under, or across the navigable streams or waters of the United States: Provided, That such lines of telegraph shall be so constructed and maintained as not to obstruct the navigation of such streams and waters, or interfere with the ordinary travel on such military or post-roads. And any of said companies shall have the right to take and use from such public lands the necessary stone, timber, and other materials for its posts, piers, stations, and other needful uses in the construction, maintenance, and operation of said lines of telegraph, and may pre-empt and use such portion of the unoccupied public lands subject to preemption through which its said lines of telegraph may be located as may be necessary for its stations, not exceeding forty acres for each station; but such stations shall not be within fifteen miles of each other. "SEC. 2. And be it further enacted, That telegraphic communications between the several departments of the government of the United States and their officers and agents shall, in their transmission over the lines of any of said companies, have priority over all other business, and shall be sent at rates to be annually fixed by the Postmaster-General. "SEC. 3. And be it further enacted, That the rights and privileges hereby granted shall not be transferred by any company acting under this act to any other corporation, association, or person: Provided, however, that the United States may at any time after the expiration of five years from the date of the passage of this act, for postal, military, or other purposes, purchase all the telegraph lines, property, and effects of any or all of said companies at an appraised value, to be ascertained by five competent disinterested persons, two of whom shall be selected by the Postmaster-General of the United States, two by the company interested, and one by the four so previously selected. SEC. 4. And be it further enacted, That before any telegraph company shall exercise any of the powers or privileges conferred by this act, such company shall file their written acceptance with the PostmasterGeneral, of the restrictions and obligations required by this act." 14 Stat. 221; Rev. Stat., § 5263 et seq. All railroads in the United States are by law postroads. Rev. Stat., § 3964; 17 Stat. 308, § 201. On the 11th December, 1866, the legislature of Florida passed an act incorporating the Pensacola Telegraph Company and granting it "the sole and exclusive privilege and right of establishing and maintaining lines of electric telegraph in the counties of Escambia and Santa Rosa, either from different points within said counties or connecting with lines coming into said counties, or either of them, from any point in this (Florida) or any other State." The capital stock was fixed at five thousand dollars, with privilege of increase to such an amount as might be considered necessary. The company was authorized to locate and construct its lines within the counties named "along and upon any public road or highway, or across any water, or upon any railroad or private property for which permission shall first have been obtained from the proprietors thereof." In this act of incorporation On the 5th June, 1867, the directors of the Western Union Telegraph Company, the defendant and a New York corporation, passed the following resolution, which was duly filed with the Postmaster-General: "Resolved, That this company does hereby accept the provisions of the act of Congress entitled 'An act to aid in the construction of telegraph lines, and to secure to the government the use of the same for postal, military, and other purposes,' approved July 24, 1866, with all the powers, privileges, restrictions, and obligatious conferred and required thereby; and that the secretary be, and he is hereby, authorized and directed to file this resolution with the PostmasterGeneral of the United States, duly attested by the signature of the acting president of the company and the seal of the corporation, in compliance with the fourth section of said act of Congress." In 1872 the property of the Alabama and Florida Railroad Company, including its right-of-way and railroad, was transferred to the Pensacola and Louisville Railroad Company, and on the 18th February, 1873, the legislature of Florida passed an act which, as amended February 18, 1874, authorized the last-named company to construct, maintain, and operate a telegraph line from the Bay of Pensacola along the line of the said (its) road as now located, or as it may hereafter be located, and along connecting roads in said county to the boundary lines of the State of Alabama, and the said lines may connect and be consolidated with other telegraph companies within or without the State, and said company may pledge, mortgage, lease, sell, assign, and convey the property appertaining to the said telegraph lines, and the rights, privileges, and franchises conferred by this act, with full power in such assignees to construct, own, and operate such telegraph lines and enjoy all the privileges, rights, and franchises conferred by this act, but in such case the said railroad company shall be responsible for the proper performance of the duties and obligations imposed by this act." This was within the territory embraced by the exclusive grant to the Pensacola Telegraph Company. On the 24th June, 1874, the railroad company granted to the Western Union Telegraph Company the right to erect a telegraph line upon its right-of-way, and also the rights and privileges conferred by the acts of February, 1873 and 1874. The Western Union Company immediately commenced the erection of the line, but before its completion, to wit, July 27, 1874, the bill in this case was filed by the Pensacola Telegraph Company to enjoin the work and the use of the line on account of the alleged exclusive right of that company under its charter. Upon the hearing in the Circuit Court the bill was dismissed and this appeal was taken from that decree. Congress has power "to regulate commerce with foreign Nations and among the several States " (Art. I, § 8, par. 3), and “to establish post-offices and postroads." Id., par. 7. The Constitution of the United States, and the laws made in pursuance thereof, are the supreme law of the land. Art. VI, par. 2. A law of Congress made in pursuance of the Constitution sus pends or overrides all State statutes with which it is in conflict. Since the case of Gibbons v. Ogden, 9 Wheat. 1, it has never been doubted that commercial intercourse is an element of commerce which comes within the regulating power of Congress. Post-offices and postroads are established to facilitate the transmission of intelligence. Both commerce and the postal service are placed within the power of Congress, because being National in their operations they should be under the protecting care of the National government. The powers thus granted are not confined to the instrumentalities of commerce or the postal service known or in use when the Constitution was adopted, but they keep pace with the progress of the country and adapt themselves to the new developments of time and circumstances. They extend from the horse with its rider to the stage coach, from the sailing vessel to the steamboat, from the coach and the steamboat to the railroad, and from the railroad to the telegraph as these new agencies are successively brought into use to meet the demands of increasing population and wealth. They were intended for the government of the business to which they relate at all times and under all circumstances. As they were intrusted to the general government for the good of the Nation, it is not only the right but the duty of Congress to see to it that intercourse among the States and the transmission of intelligence are not obstructed or unnecessarily incumbered by State legislation. The electric telegraph marks an epoch in the progress of time. In a little more than a quarter of a century it has changed the habits of business and become one of the necessities of commerce. It is indispensable as a means of inter-communication, but especially is it so in commercial transactions. The statistics of the business before the recent reduction in rates show that more than eighty per cent of all the messages sent by telegraph related to commerce. Goods are sold and money paid upon telegraphic orders. Contracts are made by telegraphic correspondence; cargoes secured and the movement of ships directed. The telegraphic announcement of the markets abroad regulates prices at home, and a prudent merchant rarely enters upon an important transaction without using the telegraph freely to secure information. It is not only important to the people, but to the government. By means of it the heads of the departments in Washington are kept in close communication with all their various agencies at home and abroad, and can know at almost any hour by inquiry what is transpiring anywhere that affects the interest they have in charge. Under such circumstances it cannot for a moment be doubted that this powerful agency of commerce and inter-communication comes within the controlling power of Congress, certainly as against hostile State legislation. In fact, from the beginning it seems to have been assumed that Congress might aid in developing the system, for the first telegraph line of any considerable extent ever erected was built between Washington and Baltimore, only a little more than thirty years ago, with money appropriated by Congress for that purpose (5 Stat. 618), and large donations of land and money have since been made to aid in the construction of other lines. 12 Stat. 489, 772; 13 id. 365; 14 id. 292. It is not necessary now to inquire whether Congress may assume the telegraph as part of the postal service and exclude all others from its use. The present case is satisfied if we find that Congress has power, by appropriate legislation, to prevent the States from placing obstructions in the way of its usefulness. The government of the United States, within the scope of its powers, operates upon every foot of territory under its jurisdiction. It legislates for the whole Nation, and is not embarrassed by State lines. Its peculiar duty is to protect one part of the country from encroachments by another upon the National rights which belong to all. The State of Florida has attempted to confer upon a single corporation the exclusive right of transmitting intelligence by telegraph over a certain portion of its territory. This embraces the two westernmost counties of the State, and extends from Alabama to the gulf. No telegraph line can cross the State from east to west, or from north to south within these counties, except it passes over this territory. Within it is situated an important sea-port, at which business centers, and with which those engaged in commercial pursuits have occasion more or less to communicate. The United States have there also the necessary machinery of the National government. They have a navy yard, forts, custom-houses, courts, post-offices, and the appropriate officers for the enforcement of the laws. The legislation of Florida, if sustained, excludes all commercial intercourse by telegraph between the citizens of the other States and those residing upon this territory except by the employment of this corporation. The United States cannot communicate with their own officers by telegraph except in the same way. The State, therefore, clearly has attempted to regulate commercial intercourse between its citizens and those of other States, and to control the transmission of all telegraphic correspondence within its own jurisdiction. It is unnecessary to decide how far this might have been done if Congress had not acted upon the same subject, for it has acted. The statute of July 24, 1866, in effect, amounts to a prohibition of all State monopolies in this particular. It substantially declares, in the interest of commerce and the convenient transmission of intelligence from place to place, by the government of the United States and its citizens, that the erection of telegraph lines shall, so far as State interference is concerned, be free to all who will submit to the conditions imposed by Congress, and that corporations organized under the laws of one State for constructing and operating telegraph lines, shall not be excluded by another from prosecuting their business within its jurisdiction if they accept the terms proposed by the National government for this National privilege. To this extent certainly the statute is a legitimato regulation of commercial intercourse among the States, and appropriate legislation to carry into execution the powers of Congress over the postal service. It gives no foreign corporation the right to enter upon private property without the consent of the owner and erect the necessary structures for its business, but it does provide that whenever the consent of the owner is obtained no State legislation shall prevent the occupation of post-roads for telegraph purposes by such corporations as are willing to avail themselves of its privileges. It is insisted, however, that the statute extends only to such military and post-roads as are upon the public domain; but this, we think, is not so. The language is, "through and over any portion of the public do |