PUBLIC DOCUMENTS. 



715 



threshold of their inquiry they wore confronted by 

 .jiu".ti..iK, ti.u.-liiii!,' tii.' nature, extent, and applica- 

 tin ni'tlu- n. iti. -mil power to regulate commerce among 

 I, Miid as to the practicability of so 

 exorcising it us to etTeot the desired object. 



In th< .t.rtcuasion of that power they have inten- 

 tionally omitted all considerations of the danp-r "I iti 

 exercise. Whatever those dangers may bo, they ad- 

 dress themselves to the sound discretion of Congress, 

 in view of its responsibility to the people, but do not 

 in the slightest degree affect tho inquiry as to the ex- 

 istence of the power itself. To argue that because a 

 governmental power may be abused it therefore does 

 not exist, is to contradict facts patent in the constitu- 

 tion . if o very civilised nation. It would in fact be irn- 

 lo to construct a government that could main- 

 fxistence, without giving it powers \\ Inch 

 n used to the injury of the people, and even to 

 its own ruin. Take, for instance, tho war powers of 

 our own Government. Congress may to- morrow j 

 without any cause whatever, declare war against all 

 tho nations of tho earth, and yet no one will argue 

 that, because of this liability to abuse, the power to 

 declare wur does not exist. 



The power to lay and collect taxes may bo used to 

 the injury of the people in many ways, but no one 

 doubta its existence. So of many 01 the other ac- 

 knowledged powers of the Government. The wise 

 iind illustrious men who embodied in our Constitu- 

 ti->n tho element of free government were careful to 

 delegate to Congress all powers essential to the exist- 

 ence and progress of a great nation ; but at the same 

 time they provided an ample safeguard against the 

 abuse of such powers by making those to whom they 

 were intrusted directly responsible to the people. 

 1 n fact, the theory upon which they constructed our 

 Government was that the people themselves exercise 

 the powers granted, through their special agents ap- 

 pointed for that purpose ; and this being not only the 

 theory but practical effect of the Constitution, there 

 was less danger in conferring power on Congress than 

 upon the legislative department of any other nation. 



" Where there is a doubt as to whether a certain 

 power has been granted, the inquiry very naturally 

 and properly arises, is it unusual in its character and 

 unknown in other governments I " If so, the keenest 

 scrutiny will be invited and the most satisfactory 

 demonstration of its existence will be required. " But 

 if, on the contrary, it bo a power which every gov- 

 ernment in Christendom is admitted to possess, which 

 has always been exercised by every government hith- 

 erto existing, a power essential to the progress of 

 civilization, without which agriculture must be de- 

 pressed and commerce and trade must be impeded 

 and intercourse obstructed, then the inquirer will 

 approach the investigation in a different spirit. While 

 he will still require satisfactory evidence, he will be 

 prepared to give a favorable ear to what may be ad- 

 ducod to establish the fact of such a power having 

 been granted." There can bo no doubt to which class 

 of powers the one under discussion belongs. 



It being conceded that certain powers over inter- 

 state commerce arc delegated to Congress by the Con- 

 stitution, the inquiry is not what powers ougld to 

 have been granted, but what are the nature, extent, and, 

 application of the powers actually delegated t 



In the discussion of this question the report main- 

 tains the following propositions : 



1. That the powers of Congress, whatever they 

 may be, are derived directly from the people of the 

 several States, and not from the States themselves. 



2. That prior to the adoption of the Constitution 

 the powers now possessed by the General Govern- 

 ment constituted a part of tho supreme sovereignty 

 which resided in the people of the several States ; and 

 that tho sovereignty of the people of tho States over 

 commerce was absolute, excepting only as it was 

 limited by the Articles of Conlcderution. 



8. That whatever elements and attributes of sover- 

 eiffnty appertained to theso powers when they exist- 



tA in the people of the several States were transferred to 

 the General (lovei-unu-nt wit h the powers themeelvee'by 

 the Constitution, and that they now exist in CongreM 

 as fully and completely as they formerly did in tho 

 people of the States, subject only to the express limita- 

 tions of the Constitution. 



4. That the grant of powers to CongreM is an in- 

 vestment of power for the general advantage, in the 

 hands of agents selected for that purpose, and hence 

 they ore not to be construed strictly und against the 

 grantee, but according to tho natural and < 

 meaning of tho language of the Constitution, taken 

 in connection with the purposes for which they were 

 conferred. 



6. That every important word in tho clauses which 

 confer tho "power to regulate commerce among the sev- 

 eral Statts," and to " make all laws, which shall bo 

 necessary and proper for carrying it into execution," 

 has received legislative, executive, and judicial con- 

 struction, and that under such construction the power 

 of Congress to regulate interstate transportation by 

 railroads, and to aid and facilitate commerce, is clearly 

 established. 



6. That, in the exercise of its specific powers, Con- 

 gress is authorized under the grant of auxiliary powers, 

 to employ such means as are appropriate and plainly 

 adapted to their execution, and is not confined to 

 means which &ro indispensably necessary : and that the 

 courts will not inquire into the degree of necessity of 

 any particular means that mav be adopted. 



7. In the selection of means by which interstate com- 

 merce shall be regulated, Congress, in its discretion 

 and under its responsibility to the people 1. May 

 prescribe the rules by which the instrument, vehicles, 

 and agents engaged in transporting commodities from 

 one State into or through another shall be governed, 

 whether such transportation is by land or by water ; 

 2. It may appropriate money for the construction of 

 railways or canals, when the same shall be necessary 

 for the regulation of commerce ; 3. It may incorporate 

 a company with authority to construct them ; 4. It 

 may exercise the right of eminent domain within a 

 State in order to provide for the construction of such 

 railways or canals ; or, 5. It may, in the exercise of 

 the right of eminent domain, take for the public use, 

 paying just compensation therefor, any existing rail- 

 way or canal owned by private persons or corpora- 

 tions. 



These propositions are discussed at length in tho 

 report <>t the committee, and the decisions of the 

 courts from which they are deduced are there cited. 

 I will, therefore, content myself for the present with 

 the statement of conclusions, deferring until some 

 future occasion the discussion of constitutional ques- 

 tions. Believing that the powers of the General Gov- 

 ernment are ample to provide any or all of the meas- 

 ures of relief indicated in the four general divisions 

 of remedies just mentioned, I proceed to consider the 

 practicability and probable results attainable by each. 



1. COMPETITION BETWEEN RAILWAYS, AJTO ITS PROMO- 

 TION BY ADDITIONAL LINKS. 



In order to understand the nature, extent, and 

 value of unregulated railway competition, I have 

 carefully studied the history of railway combinations 

 and consolidations in other countries, and find that 

 however diverse the principles of government under 

 which their systems have grown up, or the regulations 

 which have been imposed oy law, actual and effective 

 competition between railways is unknown. Combina- 

 tion is the natural law of their development. Com- 

 petition, which is so powerful a regulator in other 

 commercial affairs^ will not suffice to regulate railways 

 unless it be itsell regulated by some power higher 

 than the motives of self-interest which govern rail- 

 way managers. 



In Groat Britain. Parliament, with unlimited pow- 

 ers, having struggled in vain for forty years against 

 amalgamation, has ceased to look for relief in volun- 

 tary competition. The actual effects of railway com- 



