to 
 
 V 
 
 THE 
 
 I SHERMAN RAILROAD BILL 
 
 The Powers of Congress in Relation Thereto. 
 
 WASHINGTON. 
 
 1869. 
 

 
 
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 THE SHERMAN RAILROAD BILL AND KINDRED 
 BILLS, AND THE POWERS OF CONGRESS IN 
 RELATION THERETO. 
 
 Mr. Sherman has opened the debate in the Senate upon the 
 Bill reported by the special committee of which he is the 
 chairman. He states the whole case of those who favor such 
 legislation. It is proper, therefore, to review such portions of 
 his argument as relate to this question. 
 
 Mr. Sherman, in the first place, asserts that the Act, which 
 he proposes, ought to he passed because “the only access from 
 the North, East or West to Washington is by one railroad, 
 and that a feeder or branch of the Baltimore and Ohio Bail- 
 road/ ’ 
 
 I might comment on the logic of the argument, which main¬ 
 tains the necessity of new lines of railway from Washington to 
 New York , to Cleveland , and to Pittsburg , because there is now 
 only one road between Baltimore and Washington , and because 
 that one road is a branch of the Baltimore and Ohio Bailroad. 
 I will not, however, pause to make such criticism. 
 
 Mr. Sherman further says that “Congress has exclusive 
 jurisdiction over all matters in this District, and this authority 
 involves the duty to secure them modes of transit equal to those 
 enjoyed by other cities within the jurisdiction of a State. Has 
 this duty been performed? Is the access to Washington such 
 as is commensurate with the importance of this city as the 
 home of one hundred thousand persons or as the political capi¬ 
 tal of the United States? Is the branch of the Baltimore and 
 Ohio Railroad a reasonably sufficient agency to transport all 
 those whose business or pleasure calls them here, and the 
 supplies necessary for their maintenance?” 
 
 The authority of Congress to deal with railroad facilities 
 within the District of Columbia is fully conceded. Mr. Slier 
 man will, however, scarcely deny that the Washington Branch 
 
4 
 
 of the Baltimore and Ohio Railroad is sufficient to transport 
 through the District all persons, from the East, West and 
 North, who seek the Capital either on pleasure or business, and 
 all supplies from those points intended for the use of the 
 inhabitants of Washington, and of the strangers temporarily 
 sojourning there. 
 
 If, however, the Washington Branch of the Baltimore and 
 Ohio Railroad was not sufficient for these purposes, would Mr. 
 Sherman he justified, for this reason , in providing for the 
 building of other railroads in States and localities in which 
 the needs of the traveling public were fully supplied? 
 
 Nor will I discuss the tax imposed by the State of Maryland 
 on travel over.the Baltimore and Ohio Railroad. If that State 
 has the constitutional power to impose such a tax, it is abun¬ 
 dantly justified both in imposing and collecting it. 
 
 It has invested more than fifteen millions of dollars, in prin¬ 
 cipal and interest, in the Chesapeake and Ohio Canal, which 
 carries the wealth of the mineral and agricultural sections of 
 Maryland into the markets of the District of Columbia, but 
 yields not one cent of revenue to the State which bore the 
 burden of the outlay. 
 
 It has been urged, I am aware, that the opinion of the 
 Supreme Court of the United States in the case of Crandall vs. 
 The State of Nevada , reported in 6 Wallace S. C. R., p. 39, is 
 in direct opposition to the constitutionality of the tax. 
 
 Opinions, however, may differ on this point. If the tax to 
 which objection is made is legal , it can be supported on every 
 moral ground ; and Mr. Sherman has no right to denounce 
 it, until the question of law is decided. 
 
 If, in his judgment, it is not a constitutional tax, why is not 
 this question tested directly in the courts ? 
 
 Must three colossal lines of railway be built, extending over 
 many States, because there is, as Mr. Sherman charges, an 
 unconstitutional law among the statutes of one State, imposing 
 a tax on passengers through that State? 
 
 The right of the State to impose the tax, if it has such a 
 right, will not be evaded by granting charters to new roads 
 passing through that State, even if such charters contain an 
 
5 
 
 inhibition of the taxing power by the States, through which 
 the proposed railways may pass. The State may proceed to 
 tax the gross receipts of such roads from passengers notwith¬ 
 standing ; and the question will then he precisely where it is 
 to-day—it must he litigated in the courts. 
 
 If, then, the alleged unconstitutional tax, levied by the 
 State of Maryland, he the evil which makes the proposed legis¬ 
 lation necessary, why not manfully provide for making a case 
 to test this legal question, instead of chartering three railroad 
 companies, which may increase the evil, but cannot prevent it ? 
 
 It is difficult to suppose that Mr. Sherman is serious when 
 he urges, as his chief argument for the three great trunk lines 
 provided for in his bill, the following points founded, exclusively , 
 on the case of the Washington Branch Railroad. 
 
 u 1. That the profit of the Washington Branch is grossly 
 out of proportion to the cost of the branch. 
 
 “ 2. That it is not a direct route except to Baltimore. 
 
 “ 3. That it is not a convenient route, but denies the usual 
 facilities of travel except to Baltimore. 
 
 u 4. That it is not a cheap route, but, though very profitable, 
 is more expensive than any similar short line, and is used to 
 levy for the State of Maryland an unconstitutional tax.” 
 
 For does it not appear from this statement that, in the judg¬ 
 ment of Mr. Sherman, Congress may authorize a railroad to be 
 built whenever the profits 1 of existing roads are, in its judg¬ 
 ment, too great; 
 
 Or whenever the existing road is not, in its judgment, a 
 direct route ; 
 
 Or whenever the existing route is inconvenient or uncomfort¬ 
 able f 
 
 And does it not further appear that the only way which 
 occurs to him of avoiding the payment of an unconstitutional 
 tax on an existing road is to build a new road f 
 
 I submit that every reason, given by Mr. Sherman in support 
 of his bill would authorize Congress in undertaking the cus¬ 
 tody of the hotels and markets of the chief city of the District 
 of Columbia, and of all the cities on the routes of travel to the 
 Capital. 
 
 Their profits are out of all proportion to the cost of provi¬ 
 sions. 
 
6 
 
 They are not in general conveniently located. 
 
 They make very few people comfortable. 
 
 They are not cheap, but, though very profitable, are more 
 expensive, than those in other localities. 
 
 If the Baltimore and Ohio Bailroad Company has ever 
 exceeded its chartered powers, as to rates within the District of 
 Columbia, or elsewhere, the courts of the land afford the means 
 of redress. 
 
 It is denied that it has so offended. 
 
 Would it not be well for Senator Sherman to see that his 
 charges are capable of proof, before he urges them before the 
 Senate of the United States ? 
 
 But the question is not only whether Congress ought to pass 
 this Bill. It is whether Congress has the power to pass this 
 Bill. 
 
 We do earnestly believe that the proposed exercise of power 
 is unconstitutional. 
 
 The earliest record of the history of the Constitution of the 
 United States is at variance with the existence of the power 
 claimed to be exercised by this Bill. 
 
 When the provisions of the Federal Constitution were under 
 debate in the Convention which formed that instrument, on 
 September 14, 1787, it was proposed to add to the powers of 
 Congress a power to cut canals. 
 
 The whole debate on the subject is full of interest, and we 
 beg leave to quote it, as reported by Madison : 
 
 “ Dr. Franklin moved to add after the words ‘ post roads/ 
 Art. 1, sec. 8, a power ‘ to provide for cutting canals where 
 deemed necessary.’ 
 
 “ Mr. Wilson seconded the motion. 
 
 “Mr. Sherman objected. The expense in such cases will 
 fall on the United States, and the benefit accrue to the places 
 where the canals may be cut.” 
 
 “Mr. Wilson. Instead of being an expense to the United 
 States, they may be made a source of revenue. 
 
 “ Mr. Madison suggested an enlargement of the motion into 
 a power c to grant charters of incorporation where the interests 
 of the United States might require and the legislative pro¬ 
 visions of individual States may be incompetent.’ His primary 
 object was, however, to secure an easy communication between 
 the States, which the free intercourse now to be opened seemed 
 
7 
 
 to call for. The political obstacles being removed, a removal 
 of the natural ones, as far as possible, ought to follow. 
 
 “ Mr. Randolph seconded the proposition. 
 
 “ Mr. King thought the power unnecessary. 
 
 “ Mr. Wilson. It is necessary to prevent a State from ob¬ 
 structing the general welfare. 
 
 “ Mr. King. The States will be prejudiced and divided into 
 parties by it. In Philadelphia and New York it will be 
 referred to the establishment of a bank, which has been a sub¬ 
 ject of contention in those cities. In other places it will be 
 referred to mercantile monopolies. 
 
 “Mr. Wilson mentioned the importance of facilitating by 
 canals the communication with the western settlements. 
 
 “ The motion being so modified as to admit a distinct ques¬ 
 tion, specified and limited to the case of canals, Pennsylvania, 
 Virginia and Georgia voted for the proposition ; New Hamp¬ 
 shire, Massachusetts, Connecticut, New Jersey, Delaware, 
 Maryland, North Carolina and South Carolina voted 4 No.’ ” 
 
 The refusal by the Convention to give to Congress .the 
 power to grant charters of incorporation for such canals as might 
 be deemed necessary, at a period when canals were relied on as 
 the great means of developing the resources of the country, 
 must be taken as an answer to any claim for the constitution¬ 
 ality of such Bills. 
 
 James Madison, Alexander Hamilton, Albert Gallatin, and 
 Thomas Jefferson, each and all, have clearly stated that Con¬ 
 gress, under the Constitution, did not possess the power to 
 create a corporation capable of making a canal within a State 
 without its consent; and it cannot be supposed that they would 
 have entertained any different theory in relation to the con¬ 
 struction of a railroad. 
 
 Such being the express action of the Convention which framed 
 the Constitution, and such the opinions of its framers and chief 
 expounders, it is sufficiently evident why no appropriation ever 
 was made for any internal improvement by the General 
 Government for many years after the adoption of the Federal 
 Constitution. 
 
 The legislation of Congress in reference to the Cumberland 
 Road cannot be drawn into a precedent for the Bill creating 
 a corporation and vesting it with powers of eminent domain. 
 
 It is perfectly well known that by the Act of April 30, 1802, 
 Congress proposed to the convention which formed the Consti- 
 
8 
 
 tution of Ohio to grant to the new State five per cent, of the 
 net proceeds of the future sales of public lands within its 
 boundaries, to be applied to the purpose of making public roads, 
 leading from the navigable waters emptying into the Atlantic, 
 to the said State and through the same. 
 
 But it was expressly provided in the Act that such roads 
 should be laid out under the authority of Congress, “ with the 
 consent of the several States through which the road shall pass.” 
 
 This power, which Congress proposed to exercise only with 
 the consent of the States within which it was to be employed, 
 was, moreover, avowedly assumed in consideration of an agree¬ 
 ment to be entered into by the State of Ohio to exempt the land 
 sold by the United States, within her territory, from taxation 
 for five years from the date of such sale. 
 
 The State of Ohio formally accepted this proposition; and it 
 remained an operative agreement until, by the Act of March 3, 
 1803, at the request of Ohio , three of the five per cent, already 
 referred to was appropriated to the construction of roads within 
 that State. 
 
 This act left two per cent, only of the net proceeds of the 
 sales of the public lands applicable to the construction of roads 
 leading from the Atlantic to the State of Ohio. 
 
 By the act of March 29, 1806, Congress, in pursuance of this 
 agreement with the State of Ohio, directed the laying out of a 
 road from Cumberland to the State of Ohio, the expense of ivliich 
 was to be paid out of the fund of two per cent . already ref erred to. 
 But it was expressly provided, in this last-mentioned act, that 
 before the said road was made the consent of the State , or States, 
 through which it would pass , should be obtained. 
 
 The State of Maryland, by the act of January 4, 1807, gave 
 the required assent; and the State of Pennsylvania, in April, 
 1807, and the State of Virginia, near the same period of time, 
 also gave their assent. 
 
 So far as this precedent is concerned, it cannot in any way 
 avail the advocates of this Bill. 
 
 Nor is the legislative history of the country less explicit when 
 we seek its aid in discovering the constitutional powers of 
 Congress. 
 
9 
 
 We learn from the veto message of President Madison, trans¬ 
 mitted to Congress on March 3, 1817, that this eminent states¬ 
 man was not able to derive a power to construct roads and 
 canals either from the power “ to regulate commerce among the 
 several States/’ or from the power Cc to provide for the common 
 defence and general welfare.” 
 
 President Monroe, though strongly convinced of the advan¬ 
 tage of such improvements, as is testified by his inaugural 
 address on the 5th of March, 1817, was yet satisfied as he clearly 
 disclosed in his message of December 2, 1817, that Congress 
 did not possess the right to authorize such works. In his 
 special message of May 4, 1822, returning with his objections 
 to the House of Representatives the Bill for the preservation 
 and repair of the Cumberland Road, he stated the constitutional 
 difficulties, opposing the exercise of such a power by Congress, 
 in so clear and definite a form, that it would be superflous to 
 repeat here his reasoning. It belongs to the Constitutional 
 History of the Government, and is familiar to the country. 
 
 President Jackson in the Maysville Road veto of May 27, 
 1830, followed substantially the reasoning of President Monroe. 
 
 It will not he pretended that any higher authority than is 
 contained in these references can be brought to hear on this 
 question. 
 
 I do not profess to know what the Supreme Court will 
 decide when a case is properly brought before it. 
 
 In the case of Gray vs. Clinton Bridge , decided in Iowa in 
 1867, Justice Miller, one of the judges of that court, has taken 
 the trouble to travel beyond the record of the case before 
 him, and to give his individual opinion , as a citizen , that 
 Congress has the right to prescribe all needful regulations for 
 the conduct of railroad trafic over any railroad forming a part 
 of the lines of inter-State communication, and may also author¬ 
 ize the creation of such roads , when the purposes of inter-State 
 transportation of persons and property justify , or require it. 
 Judge Redfield has, in the law periodical under his control, 
 advocated the same doctrine. It will be law when the Supreme 
 Court so holds; until then, it is a mischievous constitutional 
 heresy. The dictum of Justice Miller in support of the power 
 2 
 
10 
 
 is more than balanced by the dictum of Justice McLean against 
 the power in the Kock Island Bridge case. (6 McLean, 525.) 
 
 If Contress has the power to provide, by direct enactment, 
 for the construction of railways within the States, and to 
 employ the agents of the United States in such works, it does not 
 follow that it can delegate , irrevocably , this power to private per¬ 
 sons , by erecting them into corporations , and making an irrevocable 
 contract with them. The grantees in such a contract are not agents , 
 whose appointment may be revoked , or whose authority may be 
 modified. They are principals and contracting parties , who are , 
 thereafter , if they adhere to the terms of their contract , inde¬ 
 pendent of the control of the Federal or State Government, if 
 the legislation creating them be valid. If such a doctrine, as 
 Justice Miller contends for, is true, the Congress of to-day 
 might create what corporations it pleased, and donate to them 
 in perpetuity, and to the destruction of many States, every 
 available route of railway travel. 
 
 It may be true—though I deny it—that Congress may pro¬ 
 vide by direct enactment for the construction of a Government 
 railway within a State; but it cannot make a provision for such 
 a work, which would prevent any subsequent Congress from 
 abandoning that route and adopting another. The power of 
 eminent domain within a State must be exercised directly by the 
 principal in such case. It cannot be exercised by a contracting 
 party. It cannot be granted by the Federal Government to 
 corporations acting within territories in which the authority of 
 the State is concurrent, even if it be not exclusive. 
 
 The question here is not the right of the Federal Govern¬ 
 ment to appropriate money to internal improvements, but it is 
 as to the right of the Federal Government to exercise within a 
 State not only all the power which the State can exercise in 
 relation to, or over a railroad, if it had authorized it, but also to 
 exclude the very courts of the State in which the proposed railroad 
 is located from taking cognizance of acts done, or omitted to be 
 done, within the State, by the railroad corporation thus created 
 by Federal authority, or by the individuals employed by it. 
 For it cannot be denied that Mr. Sherman’s bill, by providing 
 for the right to remove all such cases from the State to the 
 
11 
 
 Federal Courts, practically vests an exclusive jurisdiction over 
 such corporations in the Federal courts. 
 
 Federal doctrine was never before pushed to such extremes 
 of practice. 
 
 The Supreme Court will never sanction such theories. It 
 will not hold that Congress may, without the consent of a 
 State, confer the power of eminent domain within the limits of 
 that State on any corporation. It will not hold that Congress 
 can exclude, by the contrivance of the removal of causes, the 
 jurisdiction of the State courts from attaching to persons and 
 property within the boundaries of the State. It will recognize 
 the plain truth that if, under the Constitution, the United 
 States itself could not acquire land for a fort even, or exercise 
 jurisdiction over the very limits of that fort, without the assent 
 of the State in which it was located, it could not, certainly, 
 provide by law for vesting title to land in a private corporation, 
 and for excluding the jurisdiction of the State in any way from 
 persons or property, without the consent of the State affected 
 by the legislation. 
 
 The internal improvements of the country, properly so called, 
 owe their origin to the munificence of separate States, or to the 
 enterprise of individuals. 
 
 This munificence and this enterprise have been directed to 
 fostering certain natural growths of commerce and industry; 
 to the establishment of certain natural centres of trade, and to 
 the creation of means of communication between them. 
 
 No man need be informed how wonderfully this system has 
 prospered, and how certainly this State system of internal 
 improvement has served to diffuse, over the whole land, to 
 almost an equal degree, the advantage of our increasing wealth 
 and population. The burden of bringing the people _of one 
 State into communication with the people of another State, has 
 not been assumed by Congress. Each State, and the people of 
 each State, have been left to devise and form channels of inter¬ 
 course for themselves. 
 
 Instead of the experience of the Roman Empire, possessed of 
 grand highways, constructed by the Government througli the 
 Territories under its control, which had no other object than to 
 
12 
 
 develop the greatness of the one city, which was the terminal 
 point of these many routes, our established system has as many 
 objects as our States have commercial centres ; and what our 
 works may lose in length and in grandeur they make up in 
 practical utility, and in the contentment and prosperity of our 
 people. 
 
 Therefore, independently of all constitutional objections to 
 the system proposed to be inaugurated by the Bill in question, 
 its operation would he both unjust and dangerous. 
 
 For forty years the Congress of the United States has stood 
 a spectator of the enterprises commenced and carried on under 
 the State system, until these have reached their present great 
 extent and perfection. To the energy with which these under¬ 
 takings have been conducted and managed, is owing the rapid 
 success of the Government in the late rebellion. The central¬ 
 ized railway systems of France, Austria and Bussia never 
 accomplished as much for these Governments in time of war as 
 our local systems of railways achieved for us in the same season 
 of strife. Why is it, when we have reaped such advantage 
 from these local systems in time of war, that we are, when 
 peace has returned, seeking to impair, by national legislation, 
 all confidence in their stability by this novel mode of subordi¬ 
 nating them to the influence and combination of political 
 corporations ? 
 
 The Congress of the United States has claimed and exercised 
 the power of authorizing and aiding railroads which were to be 
 built through its Territories. These Territories are under its 
 peculiar legislative control, and constitute a common property 
 within which such authority may be exercised. But never¬ 
 theless it may be asked whether Congress is so well satisfied 
 with the wisdom and economy of its railroad legislation for the 
 Territories that it desires to repeat the experiment. The 
 extraordinary and prodigal nature of its grants in aid of these 
 territorial railways may serve to explain the reason why other 
 applicants are crowding in battalions to share in the expenditure, 
 but they scarcely serve to justify the experiment of a repetition 
 of such legislation for railways within the States. 
 
 What necessity exists for vesting in incorporators, as yet 
 
13 
 
 unknoivn to the country , the enormous powers which are pro¬ 
 posed to he delegated by these Bills? What claim have these 
 unknown corporators ( for the names men tioned in the Bill may 
 not he descriptive of one individual engage d in the undertaking 
 hereafter) to privileges never before conferred upon any corpo¬ 
 ration in the history of this Government ? What reason is there 
 for clothing these with the power of the United States—for 
 placing a Justice of the Supreme Court at their command, as 
 if he were the sheriff of a county—for exempting these corpo¬ 
 rators from the process of the State courts, and holding them 
 and their servants amenable only to the jurisdiction of the 
 Federal Courts? Why subordinate, practically, works already 
 in being to their enormous power ? 
 
 Is this to be a Government work ? Not so. They are cor¬ 
 porations as strictly and essentially private in character and 
 interest as any now chartered by a State. From the moment that 
 their existence is authorized by law, they are as independent 
 of Congress as any State corporation possibly could be. If the 
 public complain of the defaults, of the delays and discomforts 
 of existing roads—that its mails are not delivered in time— 
 that passengers fail to pass by rapid connections over existing 
 routes—how would the public be bettered by this Bill if it 
 became a law ? 
 
 If the lines which the new companies shall locate or adopt 
 be circuitous routes—if they never make proper schedule time 
 —if their rails are what they please—their outfit, fixtures, 
 structure, and cars for first-class passengers be not what they 
 should be—how will that affect the charters which Congress is 
 called upon to grant? 
 
 These charters will remain operative and in force, enriching 
 their proprietors by means of the extraordinary powers vested in 
 them by a law of the United States , whether they sell their grant 
 or keep it—whether their action be in accordance with the 
 terms of their grant—or whether it be worse even than the 
 conduct of any railroad corporation which has hitherto been 
 assailed by the friends of the monopolies authorized by this 
 Bill. 
 
The Bills before Congress are manifestly charters seeking 
 subscribers, not subscribers seeking charters. One of the pro¬ 
 posed lines is for the benefit of the Pennsylvania Railroad? 
 which, itself, has opposed and protested against its passage. 
 The needed purchaser does not want the dangerous commodity. 
 
 But Mr. Sherman is asked, especially,why new roads are neces¬ 
 sary in every State named in his Bill, except in the State of 
 Ohio . In that State alone , the new railroad lines are authorized 
 to use existing lines. Everywhere else such use, coalition, or 
 consolidation is impossible, unless the consent of Congress is 
 hereafter given. 
 
 VINDEX. 
 
 Washington, January , 1869.