Alfred Pembroke Thom.

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OF Waskington, D. C.



JUNE 25. 1915







OF Washington, D. C.


ON June 25, 1915, at Chattanooga

Mr. President and- Gentlemen of the Tennessee Ba/r Asso-

One hundred and twenty-six years ago the United States
became a nation. On the 4th of March, 1789, they joined
in putting into effect the Constitution which formed them
into "a, more perfect union" and organized them to take their
place as a unit among the nations of the earth.

Only recently they had been separate and distinct colonies
of Great Britain, legally foreign to each other, and were
bound together by no ties except a sense, common to them
all, of oppression and discontent and a common aspiration
and purpose of liberty. They combined to declare and to
fight for their independence, and to assert that, as free and
individual States, they had "full power to levy war, conclude
peace, contract alliances, establish commerce, and to do all
other acts and things which independent States may of right


During the succeeding epoch-making struggle, which
marked the birth of a new nation, they souglit to bind them-
selves together by something more enduring than the sym-
pathies and exigencies of the existing war, and, to this end,
adopted as their bond, of union the Articles of Confederation.
Jealous, however, of their separate and distinct autonomies,
they were miserly in tlieir grant of power to the central au-
thority which they created. Wanting it to be efficient, but
determined that it should possess none of their cherished
sovereignty, they withheld from it the power to provide,
through its own agencies, a national revenue. It could not
levy taxes, but was made dependent upon the States for their
respective contributions. It, therefore, could not build or
equip a navy, nor raise or arm or pay an army. Thus it
had no effective power to provide for the common defense,
to protect any national right, or to command the respect or
the fair treatment of foreign nations. Likewise, it had no
power to control or regulate trade, either foreign or domestic.
That power was carefully reserved by the States to themselves

The Articles of Confederation were, therefore, soon found
to be utterly inadequate to a national existence. It is true
that they remained untouched during the continuance of the
war. This, however, was not because they were satisfactory,
but because every public energy, to the exclusion of all ques-
tions of domestic organization, was devoted to the achieve-
ment of independence.

A government without a purse, and hence without power
to provide for the common defense, or to insure domestic
tranquillity, was a mere "rope of sand" and could not long
endure. From the standpoint of mere national existence, it
was found utterly inadequate.

But there was another cause for dissatisfaction, which, in
the condition of the public mind, temporarily freed from
the fear of foreign invasion and insistently turning to the
necessity of rebuilding domestic prosperity after the waste of
war, was hardly of less importance than a provision for the
common defense and for the preservation of the national ex-
istence. The needs of trade were becoming more and more
apparent and its just regulation the subject of greater and
more universal public concern.

In considering the causes which brought our Federal Con-
stitution into existence, it is of peculiar interest at this time
to study the influence which the desire for a uniform regula-
tion of commerce had upon its adoption and upon its char-

When the war ended and independence was an accom-
plished fact, each State possessed a sovereignty which was
practically unlimited over its foreign commerce and over its
commerce with the other States. Between many of them
there was a race of greed and selfishness for commercial ad-
vantage and supremacy.

It will be noted that each State possessed the power of im-
posing export taxes and could thus keep its products at home,
excluding them from the use and enjoyment of the people of
the other States; that each State possessed the power of im-
posing import duties and thus could exclude people of the
other States from its markets; and that each State retained
complete control over its own ports, and thus, by its com-
mercial policy, could, through the competition of ports, regu-
late or break down the commercial policy of another State
in regard to its own ports and in regard to its own com-

These powers were large enough, not only to create State
rivalries and State enmities, but to elevate the States of great-
est commercial power into complete commercial, and finally
into complete political, ascendancy over their weaker sister

Nor were these powers merely theoretical. They were
brought into active and oppressive operation. They were
made the means of commercial war by one State upon

For example:

Virginia, by her export duties and inspection laws, with
the incidental tax, sought to keep her tobacco at home.

Maryland, by her inspection laws and taxes, sought to do
the same with regard to her potash and pearlash.

Massachusetts prohibited the exportation of grain or un-
manufactured calfskins and imposed an onerous inspection
tax on exports to other States of tobacco, butter, and other
products, while North Carolina laid, for a limited time, an
embargo on the exportation to other States of com, wheat
flour, beef, bacon, and other necessaries of life.

Turning to imports:

New York, by imposing an import duty, sought to exclude
from its markets the butter, milk, and other dairy products
of New Jersey and the firewood of Connecticut.

Rhode Island imposed an ad valorem tax of five per cent
on all articles imported into that State from the other States
as well as from foreign countries, with a proviso for recip-
rocal relief. And so with other States.

In regard to the commercial rivalry and war of ports, it
was customary for States having available ports to impose
an unlimited tax on all goods reaching this continent

through their ports, and thus subjecting, for the benefit of
themselves, the people of the other States to a substantial
burden of taxation.

For example, the ports of Boston and New York were at
one time far behind Newport in the value of their imports,
and Rhode Island, according to the Supreme Court of the
United States, paid all the expenses of her government by
duties on goods landed at her principal ports.

The condition at that time of commercial selfishness and
greed between the States is thus described by Fiske in his
work on the "Critical Period of American History, 1783-
1789," at page 144:

"Meanwhile, the different States, with their differ-
ent tariff and tonnage acts, began to make commer-
cial war upon one another. No sooner had the other
three New England States virtually closed their ports
to British shipping, than Connecticut threw hers wide
open, an act which she followed by laying duties upon
imports from Massachusetts.

"Pennsylvania discriminated against Delaware;
and New Jersey, pillaged at once by both her greater
neighbors, was compared to a cask tapped at both
ends. The conduct of New York became especially
selfish and blameworthy. That rapid growth which
was soon to carry the city and State to a position of
primacy in the Union had already begun. After the
departure of the British the revival of business went
on with leaps and bounds. The feeling of local
patriotism waxed strong, and in no one was it more
completely manifested than in George Clinton, the
Revolutionary general, whom the people elected Gov-
ernor for nine successive terms. * * * j^ ^gg \^[^
first article of faith that New York must be the great-
est State in the Union. But his conceptions of states-

manship were extremely narrow. In his mind, the
welfare of New York meant the pulling down and
thrusting aside of all her neighbors and rivals.
* * * Under his guidance, the history of New
York, during the five years following the peace of
1783, was a shameful story of greedy monopoly and
sectional hate. Of all the thirteen States none be-
haved worse except Rhode Island.

"A single instance, which occurred early in 1787,
may serve as an illustration. The city of New York,,
with its population of thirty thousand souls, had long
been supplied with firewood from Connecticut, and
with butter and cheese, chickens and garden vegeta-
bles, from the thrifty farms of New Jersey. This
trade, it was observed, carried thousands of dollars out
of the city and into the pockets of detested Yankees
and despised Jersey men. It was ruinous to domestic
industry, said the men of New York. It must be
stopped by those effective remedies of the Sangrado
school of economic doctors, a navigation act and a
protective tariff.

"Acts were accordingly passed obliging every
Yankee sloop which came down through Hell Gate,
and every Jersey market boat which was rowed across
from Paulus Hook to Cortlandt street, to pay entrance
fees and obtain clearances at the custom-house, just as
was done by ships from London or Hamburg ; and not
a cart-load of Connecticut firewood could be delivered
at the back-door of a country-house in Beekman street
until it should have paid a heavy duty. Great and
just was the wrath of the farmers and lumbermen.
The New Jersey legislature made up its mind to re-
taliate. ♦ * * Connecticut was equally prompt.
At a great meeting of business men, held at New Lon-
don, it was unanimously agreed to suspend all com-
mercial intercourse with New York. Every mer-

chant signed an agreement, under penalty of two
hundred and fifty dollars for the first offense, not to
send any goods whatever into the hated State for a
period of twelve months. By such retaliatory meas-
ures, it was hoped that New York might be compelled
to rescind her odious enactment. But such meetings
and such resolves bore an ominous likeness to the
meetings and resolves which in the years before 1775
had heralded a state of war; and but for the good
work done by the Federal convention another five
years would scarcely have elapsed before shots would
have been fired and seeds of perennial hatred sown
on the shores that looked toward Manhattan Island."

But these discriminations and exactions of one State as
against the trade of another, this fierce commercial rivalry,
this internecine warfare which threatened the commercial
destruction of some States and the undue elevation, pros-
perity and dominance of others, were not the only reasons for
the insistent demand, which preceded and finally controlled
the Constitutional Convention of 1787, in regard to the estab-
lishment of a system of just and equitable regulation of com-
merce between the States by an authority fairly representing
them all.

The question of commercial regulation, in addition to its
commercial relation to the trade between the existing States,
possessed also a most important and commanding political
aspect. The development of the great West was then going
on and had been stimulated by the emigration thither from
the older States incident to the readjustments after the war,
and the settlement of the whole western region was proceed-
ing with great rapidity. The West was spoken of by George
Washington as a "rising world," and signified particularly,


in the minds of the statesmen of that day, the territory now
constituting the States of Tennessee and Kentucky and the
States afterwards carved out of the territory northwest of the
Ohio and east of the Mississippi rivers. The question of the
future poHtical aifiUations of this large and important terri-
tory was a question of prime and of vast importance to the
then existing States. Great Britain was on the northern
boundary with its Dominion of Canada, and Spain on the
south commanded the mouth, and hence commanded the
navigation, of the Mississippi River. The course of trade is
determined by the inducements that are offered and the
facilities it can command. And political relationships are
strongly influenced by commercial ties and interests. It was
therefore one of the most important problems of that day to
bind this great and developing western country to the east-
em States by the ties of intimate commercial intercourse.
This could not be done if the eastern States could enrich
themselves by imposts upon the commerce paid for by the
people of the West or by excluding the competitive products
of the West from the eastern markets.

Great Britain or Spain, close neighbors on the north and
south, could easily outbid such a policy of narrowness and
greed as the people of the West saw already in operation in
many of the most important eastern States, and it was appar-
ent that, whether or not such a policy should be adopted,
could not be safely left to the individual States.

George Washington, in speaking of the future political
affiliations of these pioneer western people, said :

"If we cannot bind these people to us by interest,
and it is not otherwise to be effected but by a commer-
cial knot, we shall be no more to them after a while
than Great Britain or Spain, and they may be as

closely linked with one of those powers as we wish
them to be with us, and, in that event, they may be
a severe thorn in our side."

It thus became politically, as well as economically, neces-
sary to find a way of fairly regulating commerce in the inter-
est of all, free from the narrowness, the greed and the selfish-
ness of particular States.

The only way of remedying these commercial evils, which
were flagrant and were universally recognized, and of meet-
ing the political exigencies of the situation, was, according to
the practically universal belief of the day, to exclude the
States from the power to regulate commerce among the States
and with foreign nations, and to confer that power upon a
central authority which should fairly and equitably represent
them all.

The public consciousness on this subject was, prior to the
convention, indicated in a great variety of ways and from a
great variety of sources.

Alexander Hamilton declared for a central government
with "complete sovereignty over all that relates to war,
peace, trade, and finance."

James Monroe, as chairman of a committee of Congress,
in 1785 submitted a report declaring that:

"The United States in Congress assembled shall
have the sole and exclusive right and power of deter-
mining on peace and war, except in the cases men-
tioned in the sixth article, * * * and of regulat-
ing the trade of the States, as well with foreign
nations as with each other." * * *

James Madison moved in the General Assembly of Vir-
ginia a resolution for a convention of delegates of all the


States "to take into consideration the trade of the United
States; to examine the relative situation and trade of the said
States; to consider how far a uniform system in theircommer-
cial regulations be necessary to their common interest and
permanent harmony," etc.

There were similar expressions of view in the legislatures
of Rhode Island, of Connecticut, of New Jersey, in resolutions
of town meetings and in reports of committees of Congress.

The Madison resolution resulted in the assembling of the
Annapolis Convention in 1786 and in a recommendation,
by the delegates there assembled to consider the regulation of
commerce, that Congress should call a general convention of
all the States to meet in Philadelphia on the second Monday
in May, 1787, "to devise such further provisions as shall ap-
pear to be necessary to render the Constitution of the Federal
Government adequate to the exigencies of the Union."

This was the convention which framed the Constitution,
and the declaration of the Supreme Court of the United
States in the case of Cook vs. Pennsylvania, 97 United States,
574, is amply justified, to the effect that:

"A careful reader of the history of the times which
immediately preceded the assembling of the conven-
tion which framed the American Constitution cannot
fail to discover that the need of some equitable and
just regulation of commerce was among the most in-
fluential causes which led to its meeting."

The result of its deliberations on the four large subjects
of national concern enumerated by Alexander Hamilton —
which are the four fundamental essentials of national exist-
ence and efficiency — and as to which Hamilton declared that
the Federal Government should possess complete sovereignty,


namely, the purse, war, peace, and commerce, is exhibited in
the following clauses of the Constitution :

"The Congress shall have power:

"To lay and collect taxes, duties, imposts and ex-
cises, to pay debts and provide for the common de-
fense and general welfare. * * *

"To borrow money on the credit of the United

"To regulate commerce with foreign nations and
among the several States, and with the Indian tribes.

"To declare war. * * *

"To raise and support armies.

"To provide and maintain a navy."

The fullness, the competency and the completeness of no
one of these powers has ever been questioned, except of the
power to regulate commerce.

It is universally recognized that it is a right of each State
that the Federal Government shall provide for the common
defense; that the Federal Government shall determine as
between peace and war ; that it shall raise and support armies
and shall equip and maintain a navy.

But there are other rights of the States not less important
and not less sacred. These include the right to avail them-
selves, separately and individually, of the protection guar-
anteed to them and to their people by the Federal Constitu-
tion against the selfishness in trade of their sister States.

In adopting the Commerce Clause of the Constitution they
intended to secure protection against this very thing. In the
light of the history of its adoption, is it not, since the Con-
stitution, a right of New Jersey that New York shall not
regulate the trade between them as it did when it excluded
the products of New Jersey industry from the New York


markets ; is it not a right of the State of Connecticut, since the
Constitution, that its products shall not be excluded from the
markets of New York and Boston by State action, and is it
not since the Constitution, a right of each of the States that
Virginia and North Carolina and Tennessee and the great
food-producing States of the West shall not be able, as Vir-
ginia and North Carolina once did, to put an embargo upon
the shipments of their products beyond their respective
borders, and shall not be able to exclude the people of the
other States from the riches of their farms, of their forests,
of their mines, and of their factories? Is it not a right of
each State that Congress alone, which represents all, shall be
the exclusive arbiter of what is right and just in interstate
and foreign trade, and that no State shall be permitted to ad-
vance itself at the expense, and to the disadvantage of the
others, perchance by its narrowness, its greed, and its selfish-
ness in trade?

The existence of this exclusive power in Congress to regTi-
late interstate and foreign commerce is of no less impor-
tance — is in fact of far larger importance — as a State's right
now, than it was when the Constitution was adopted.

Commerce itself in these one hundred and twenty-six years
has assumed a far greater consequence in the affairs and des-
tinies of men and of nations, than it had in those early days.
Steam and electricity have come with their mighty revolu-
tionizing influence and have brought all the States and all
the nations into close and intimate commercial relationships.
Men no longer deal in trade most largely with their imme-
diate neighbors, but find it essential to their success to have
free and unimpeded and adequate access to the markets of
the world.


The interests of the producing States — particularly the
States of the South and West where there are no markets of
the first importance — imperatively require easy and quick
transportation to the world's great market cities, such as New
York, Philadelphia, Boston, and Chicago in this country,
and. Liverpool, London, Paris, and Berlin abroad.

It may be safely stated that at least eighty-five per cent of
the trade of Tennessee, and of the United States generally,
moves in interstate and foreign commerce. It traverses vast
distances ; it must pay low mileage rates to reach and to com-
pete in these distant markets ; it cannot, because of the value
of time and the small margins of profit, permit frequent
handlings or breakings of bulk.

To meet these economic conditions — to satisfy the essential
needs and to accommodate the movement of this great
traffic — it has become necessary to create long and con-
tinuous lines of railroad in the place of the short and discon-
nected lines which were once adequate to the requirements of
trade. These large systems of railroad, which have come
in obedience to the economic law which demands continu-
ous, rapid, and unbroken transportation, necessarily extend
across, and are, under existing law, in many respects subject
to the varying policies of many States.

The problem of greatest magnitude which concerns the
country in regard to them, is how their continuity of service
shall be preserved unimpeded and what shall be the quality
of adequacy and efficiency which their transportation facili-
ties shall possess.

It must be remembered that the transportation capacity of
the carriers marks the maximum limit of the trade, and
hence of the producing capacity, of the people whom they


serve. No more will be — no more can be — produced than
can be carried to market. Therefore, each State, being de-
pendent for its prosperity upon the producing capacity of its
people, is deeply concerned that the transportation capacity
of the carriers which serve it shall be adequate and shall not
be crippled or impaired.

A broad and wise policy in dealing with the instrumen-
talities of commerce is, therefore, a matter of supreme interest
to all the States, A narrow, or niggardly, or selfish policy,
if adopted by any one of the States through which a railroad
passes, may seriously cripple and depress the commerce of
every other State which the railroad serves.

No adequate conception of the railroad problem, as it
affects the development of the country and the growth of its
commerce, can ignore the necessity that transportation facili-
ties must be all the time growing and improving to keep pace
with the growth and expansion of commerce — otherwise
there will be no growth or expansion of commerce.

Such an increase in railroad facilities involves the constant
input of new capital, for no railroad is ever finished except
in a dead country. It is a mere platitude to say that new
capital can only be attracted by credit. While no one State
through which a railroad passes can alone establish its credit,
a single State can impair or destroy it.

If a railroad runs through and serves eleven States, ten of
them may be guided by broad and liberal views and may he
controlled by the policy of encouraging the establishment
and maintenance of adequate transportation facilities. The
eleventh may, however, have no adequate commercial out-
look or may be temporarily under the domination of small
and time-serving politicians. It may reduce rates on State


traffic so as to barely escape the line of confiscation. It may
be unwilling that its State traffic shall contribute anything to
the liberal program, favored by the other ten, which would
build for the future and insure the present and continuing
adequacy of the transportation facilities on which all are
equally dependent.

In such a case, what shall be done? Shall the ten States
bow to the will or caprice of the one and allow it to control?
Shall they permit the narrow views of the one State to limit
the standard or the character or the quality of facilities
which their people shall enjoy?

If, on the other hand, the standard of facilities is not
brought down to this low level and is to be made adequate
to the needs of all, then the commerce of the other ten
States, or interstate commerce, or both, must bear the burden,


Online LibraryAlfred Pembroke ThomA right of the states; → online text (page 1 of 2)