Thus, in formal words, has New Jersey actually anticipated the very measure under consideration. All that is now proposed, so far as concerns New Jersey, is simply to recognize other railroads for the transportation of passengers and property between New York and Philadelphia across this State.
Such is the argument in brief for the constitutionality of the present bill, whether regarded as a general measure applicable to all railroads, or only applicable to the railroads of New Jersey. The case is so plain and absolutely unassailable that I should leave it on this simple exhibition, if the Senator from Maryland [Mr. Reverdy Johnson], who always brings to these questions the authority of professional reputation, had not most zealously argued the other way. According to him the bill is unconstitutional. Let me say, however, that the conclusion of the learned Senator is only slightly sustained by the reasons he assigns. Indeed, his whole elaborate argument, if brought to the touchstone, is found inconclusive and unsatisfactory.
The Senator opened with the proposition, that the internal commerce of a State is within the exclusive jurisdiction of the State, and from this he argued that the present bill is unconstitutional. But the Senator will allow me to say that his proposition is not sufficiently broad for his conclusion. The present bill does not touch the internal commerce of a State, except so far as it is a link in the chain of “commerce among States,” committed by the Constitution to the jurisdiction of Congress. This distinction must be made; for it is essential to a right understanding of the case.
From this inapplicable proposition the Senator passed to another equally inapplicable. He asserted that the jurisdiction of a State over all territory within its limits was exclusive, so that the United States cannot obtain jurisdiction over any portion thereof, except by assent of the State; and from this again he argued the unconstitutionality of the present bill. But this very illustration seems to have been anticipated by Mr. Justice Story in his excellent Commentaries, where he shows conclusively, first, that it is inapplicable, and, secondly, that, if it were applicable, it would be favorable to the power. Here are his words:—
“The clause respecting cessions of territory for the seat of Government, and for forts, arsenals, dock-yards, &c., has nothing to do with the point. But if it had, it is favorable to the power.… But surely it will not be pretended that Congress could not erect a fort or magazine in a place within a State, unless the State should cede the territory. The only effect would be that the jurisdiction in such a case would not be exclusive. Suppose a State should prohibit a sale of any of the lands within its boundaries by its own citizens, for any public purposes indispensable for the Union, either military or civil; would not Congress possess a constitutional right to demand and appropriate land within the State for such purposes, making a just compensation? Exclusive jurisdiction over a road is one thing; the right to make it is quite another. A turnpike company may be authorized to make a road, and yet may have no jurisdiction, or at least no exclusive jurisdiction, over it.”[78]
Had the distinguished Commentator anticipated the argument of the Senator, he could not have answered it more completely.
Passing from these constitutional generalities, the Senator came at once to an assumption, which, if sustained, would limit essentially the national power with regard to post-roads. According to him, the words of the Constitution authorizing Congress “to establish post-roads” mean only that it shall “designate roads already existing”; and in support of this assumption he relied upon the message of Mr. Monroe, in 1822, on the Cumberland Road. The learned Senator adds, that this is “the received opinion, uniformly acted upon, and since recognized as the correct opinion by the judiciary.” Of course his testimony on this head is important; but it is overruled at once by the authority I have already cited, which says that “the power to establish post-offices and post-roads has never been understood to include no more than the power to point out and designate post-offices and post-roads.”[79] In the face of Mr. Justice Story’s dissent, expressed in his authoritative Commentaries, it is impossible to say that it is “the received opinion,” as asserted by the Senator. But the much quoted Commentator insists that “the Constitution itself uniformly uses the word ‘established’ in the general sense, and never in this peculiar and narrow sense,” and, after enumerating various places where it occurs, says, “It is plain that to construe the word in any of these cases as equivalent to designate or point out would be absolutely absurd. The clear import of the word is to create, and form, and fix in a settled manner.… To establish post-offices and post-roads is to frame and pass laws to erect, make, form, regulate, and preserve them. Whatever is necessary, whatever is appropriate to this purpose, is within the power.”[80] I might quote other words from the same authority; but this is enough to vindicate the power the Senator has denied.