The sun. [volume] (New York [N.Y.]) 1833-1916, 1877-08-28

everywhere the same question, namely,
whether Congress has any constitutional
authority ~ dictate to the owners of private
property ON what terms they are 10 allow
people t. use It.
1t will be quite In vain for those who
mWln to Insist ON u just and true con
structiOn Of the Constitution, to look to
any other member of the Cabinet to oppose
this hobby Of SuERMANs If Mr.. EvARrs
were man who could be depended on TO
guide the Administration " sound cunstitu-
tional views ON such IA question ~ this,
there might be some expectation that Mr..
HAYEs's message ut the opening OF Congress
In October would rcpudiate SHERMAN
doctrine. But Mr.. EvARrs IL neither n sound
constitutional lawyer nor n high princplcd
politician. without being either, he Is in
tcnscly ambitious; and as he wants to he
the successor Of HAYES, he will not tell
HAYES that he ought to let the country
know that his Administration IL opposed To
any such Interference by Congress with the
business of the railroads ~ JONI SHERMAN
recommends and openly advocates. This
issue will consequently bc upon the coun-
try. and the Administration will bc on the
Communistic aide Of It,
Now. wi ut IL this power Of regulation Of
commerce which tho Constitution has grant
ed 10 Congress- That II Is Of the same kind
and extent in respect to the commerce.
among the States as it is in respect to the
commerce with foreign nations, is indsput-
able. Both are granted in the same clause
and by the very same terms. The one is no
broader than the other. Commerce. whcth-
exchange Of commoditics: and a power to
regulate commerce is the power to prescribe
the rule by which It is to hc governed But
that this power Is not without necessary
limitations Is apparent both from the nature
Of the power itself and from the cunstriIc-
tion that has always been given to II from
the time when the Constitution was first put
in operation.
That branch OF the power that relates
To foreign commerce has been exercised
To its full extent from the beginning :
that branch of it which relates TO commerce.
among the States has hitherto lain almost
wholly dormant. But the extent Of the for
mcr. as il has been exercised, is perfectly
proper measure of the extent of the latter.
which has not been exercised Under the
course of legislation, il has been the practice
tomakc laws for the protection OF property
and persons engaged in foreign commerce.
To provide for the registration of vessels 10
prescribe the evidence by which mariners
contracts ara to hc proved, and for a va
rcty OF kindred purposes.
But no one has ever dreamed that Con-
gross can dictate ON what terms property
or persons shall bc carried on the ocean. or
what wages the owners of vessels shall pay
To their hired men. The reason for the alb
sencc of such legislation. through u period
of eighty years and more, is that the power
to regulate commerce does not extend Ia
control of mems contracts or to the terms
ON which they may permit others To use
their property. The property in the vehicles
of commerce is private property; and it is
no more in the power of Government To reg
ulaic the price that shall Ice paid for its use
than it Is To regulate the rent of houses or
lands. II will never do to say that rail
road il built for public use. and that there
fore tn" legislative power may dictdt" ON
what terms the public may use il. 1t l. no
more built for public use than n ship Both
are useful to the public in this sense that
both Accommodate u great many individu-
ais Of the public. But the property. wheth-
or II h,lnn,E- to a corporation 80 an inii
Nidual, Is private property aud IL is for the
owner alone 10 say on what terms its use
shall be allowed to those who wish To USE it,
II will be, therefore, for those who propose
such legisation to show some ground on
which Congress can do that In the rcgula-
ton Of Interstate commerce which il cannot