trict of Columbia and Territories and common carriers engaged in commerce between the States and between the States and foreign nations to their employees." This recent and most important legislation is popularly known as the "Employer's Liability Act." The language of that act material for our consideration is as follows: "That every common carrier engaged in trade or commerce in the District of Columbia, or- in any Territory of the United States, or between the several States, or between any Territory and another or between any Territory or Territories and any State or States, or the District of Columbia, or with foreign nations or between the District of Columbia and any State or States or foreign nations, shall be liable to any of its employees, or, in the case of his death, to his personal representative for the benefit of his widow and children, if any; if none, then for his parents; if none, then for his next of kin dependent upon him, for all damages which may result from the negligence of any of its officers, agents or employees, or by reason of any defect, or insufficiency due to its negligence in its cars, engines, appliances, machinery, track, roadbed, ways, or works. "Sec. 2. That in all actions hereafter brought against any common carriers to recover damages for personal injuries to an employee, or where such injuries have resulted in his death the fact that the employee may have been guilty of contributory negligence shall not bar a recovery where his contributory negligence was slight and that of the employer was gross in comparison, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee. All questions of negligence and contributory negligence shall be for the jury. "Sec. 3. That no contract of employement, insurance, relief benefit, or indemnity for injury or death entered into by or on behalf of any employee, nor the acceptance of any such insurance, relief benefit, or indemnity by the person entitled thereto, shall constitute any bar or defense to any action brought to recover damages for personal injuries to or death of such employee: Provided, however, that upon the trial of such action against any common carrier the defendant may set off therein any sum it has contributed toward any such insurance, relief benefit, or indemnity that may have been paid to the injured employee or, in case of his death, to his personal representative." Second, because said act, if it be a regulation of commerce, is not limited to commerce with foreign nations, or among the several States or with the Indian tribes, but extends as well to intrastate com merce. Third, because interstate and intrastate employees are so commingled by this act that it is impossible to make it apply only to interstate employees, unless the court reads into the act something which Congress has not put there, and this the court may not do. Fourth, because it is a violation of the fifth amend ment to the Constitution, which provides that "no person shall be deprived of life, liberty, or property, without due process of law. This demurrer draws in question the power and authority of the National Congress to enact a law, which in the minds of the plaintiff and her counsel has justified her action. It is perhaps difficult to magnify unduly the significant and consequential import of the question thus presented. Every corporation and person in the States and Territories, engaged in commerce between the States, or between the States and foreign nations, may be profoundly concerned. More immediate perhaps is the interest of more than a million of our countrymen, the employees of the railway and other corporations who serve the public and their employers in the mightiest, and—after ag riculture the most indispensable among the physical labors of civilized men. The settled policy of a great nation of this stupendous topic is at stake; the validity of a deliberate enactment of the National Legislature is drawn in question for determination by the final arbiter of the American system of government. Where reposes the august power of such final arbitrament? On a previous occasion I have attempted to answer. "Whenever the rights of the citizen may be affected by a particular governmental act, whether it be an act of Congress or of the State Legislature, or of an executive or judicial functionary, either of the State or of the United States, if it be capable of submission to a court having jurisdiction, the final and common arbiter of the constitutional question is the supreme judicial authority of the courts of the United States. In such cases the final decision of that authority is binding upon all the people, all the States, and all the departments of the general gov ernment. It is this magnificent significance of judicial power and usefulness which dignifies our gov ernment over that of every other nation. Lord Chatham declared of the British Constitution: "The To the declaration of the plaintiff the defendant poorest man may in his cottage bid defiance to all the has demurred upon several grounds. First, because the act is not a regulation of commerce within the meaning of the commerce clause of the Constitution. forces of the crown; it may be frail, its roof may shake, the wind may blow through it, the storm may enter, but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tene ment." But not so of the legislative power, for, said Mr. Phelps, in his eulogy of our Supreme Court: "The great orator could go no further; he could not say the British Parliament might not enter the home of the subject, for all the judges of England are powerless in the face of an act of Parliament, whatever it may be. It was reserved for the American Constitution to extend the judicial protection of personal rights, not only against the rulers of the people, but against the representatives of the people. And," continued that great American lawyer, "judges will be appointed and will pass away. One generation rapidly succeeding another. But whoever comes, and whoever goes, the court remains. Strong in its traditions, consecrated by its memories, fortified with the steadfast purpose of the profession that surrounds it, anchored in the abiding trust of its countrymen, the great court will go on-and still go on. Keeping alive through many a century, that we shall not see the light that burns with constant radiance upon the high altar of American constitutional justice." (Lectures on the Constitution, Speer-J. W. Burke Co., Macon, Ga., pp. 101-103). While this is true, and while it is also true, as De Tocqueville declared, that " a more imposing judicial power was never constituted by any people," in all our history the occasions when the action of Congress or of the executive have been declared unconstitutional are singularly and happily infrequent. This is indeed inevitable from the division and co-ordination of our governmental power. There is a settled presumption in favor of the validity of every legislative act. This perhaps was originally ascribable to the lofty and even plane of intelligence, patriotism, and statesmanship discoverable from the earliest period of our his tory in the National Legislature. It is probable that in other times, a few great men of distinguishing individuality were more conspicuous in that body than at present. It is also probable that at no other period has there been an average plane of intelligence, of careful education, of knowledge of historical information, or familiarity with present conditions, and of keen perspicacity of those meas ures essential for the welfare of the people than that which exists to-day in our Congress. Nor is it less persuasive of the validity of National Legislation that the executive and his constitutional advisers are regarded as worthy prescient co-laborers with Congress in the recommendation and approval of such measures. Whatever the reason, certain it is that the rule exists that courts will not adjudge an act of Congress invalid, unless in their judgment its violation of the Constitution is clear, complete and unmistakable. Every reasonable judicial doubt must be resolved in favor of the law. Even where the legislation is annulled, the Supreme Court has given un equivocal expression to this doctrine. In the TradeMark Cases, 100 U. S. 96, Associate Justice MILLER, rendering the opinion, observed: "When this court is called on in the course of the administration of the law to consider whether an act of Congress or of any other department of the Government is within the constitutional authority of that department, a due respect for the co-ordinate branch of the government requires that we shall decide it has transcended its powers only when that is so plain that we cannot avoid the duty." Justice MILLER further observed that one "Will count, as he may do on his fingers, the instances in which this court has declared an act of Congress void for want of constitutional power.”` And again, in case of the United States v. Harris, 116 U. S. 635, Mr. Justice WOOD said: "Proper respect for a co-ordinate branch of the government requires the courts of the United States to give effect to the presumption that Congress will pass no act not within its constitutional power. This presumption should prevail unless the lack of constitutional authority to pass an act in question is clearly demonstrated.” The principle is otherwise expressed in the famous case of the Northern Securities Co. v. United States, 193 U. S. 350. There Mr. Justice HARLAN declares: "No higher duty rests upon this court than to enforce, by its decrees, the will of the legislative department of the government, as expressed in a statute, unless such statute be plainly and unmistakably in violation of the Constitution. It is obvious that these cardinal principles of constitutional determination must be steadily held in mind while the question here involved is under consideration. The impeachment of this legislation is based upon the followng material contentions: First, because the subject-matter sought to be regulated is not commerce, or the law a proper regulation of such commerce; and second, because it involves an unwarrantable effort to regulate intrastate commerce, over which Congress has no power. A superficial conception of the term commerce " may lead to conclusions as fallacious as they are inimical to the proper solution of these great questions, about which the country is now concerned. The term, as used in the Constitution, has been repeatedly interpreted by the courts. Said Chief Justice MARSHALL, in Gibbons V. Ogden, 9 Wheat. 1: "Commerce, undoubtedly, is traffic, but it is something more; it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse." More detail is afforded by the definition of Mr. Jus-mate or inanimate, cannot be moved for the trade of tice JOHNSON in his concurring opinion in the same case (p. 229): “Commerce, in its simplest signification, means an exchange of goods; but in the advancement of society, labor, transportation, intelligence, care, and various mediums of exchange become commodities, and enter into commerce; the subject, the vehicle, the agent, and the various operations become the objects of commercial regulation." the world without men. To direct and to protect such men, is within the domain of legislative regulation. The employees of those persons or corporations which are engaged in interstate or foreign commerce are then within the regulative power of Congress, and that power, said Chief Justice MARSHALL, "is to prescribe the rule by which commerce is to be governed and like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than those prescribed in the Constitution." In behalf of such employees the law under consideration was enacted. 66 'The power to regulate prescribe the rules by which commerce shall be gov erned, that is the conditions upon which it shall be conducted; to determine when it shall be free; and when subject to duties or other exactions. The power also embraces within its control all the instrumentalities by which that commerce may be carried on, and the means by which it may be aided and encouraged." "Commerce," declared Mr. Justice FIELD, in Welton v. State of Missouri, 91 U. S. 280, "is a term of the largest import. It comprehends intercourse for the purposes of trade in any and all its forms, including the transportation, purchase, sale, and ex- It should be noted, also, that the courts have unichange of commodities ..." Additional defini-versally held that the power to regulate embraces all tions may be found in Smith v. Turner, 7 How. 401; the instrumentalities by which commerce may be conState Freight Tax Case, 15 Wall. 275; Chicago R. Co. | ducted. Welton v. Missouri, supra; Pacific Coast S. v. Fuller, 17 Wall. 568; Pensacola Tel. Co. v. West- S. Co. v. Board of R. R. Com'rs., 18 Fed. 11; Sherern Union Tel. Co., 96 U. S. 9; Mobile Co. v. Kim- lock v. Alling, 93 U. S. 104; U. S. v. Joint Traffic ball, 102 U. S. 702; Gloucester Ferry Co. v. Pennsyl- Ass'n, 171 U. S. 569; Hopkins v. U. S., 171 U. S. vania, 114 U. S. 204; Addyston Pipe Co. v. U. S., 175 597. Said Mr. Justice FIELD, in Gloucester Ferry U. S. 241. It follows that from Chief Justice MAR- Co. v. Pennsylvania, supra, p. 203: SHALL we learn that it means commercial intercourse is the power to in all its branches, and that it is regulated by prescribing rules for carrying on that intercourse. It is very clear that such rules can be corrective in a restricted sense only, if confined to the material commodities transported, sold or exchanged. This is not enough. They must operate on men. That they affect passengers can scarcely be denied. This has been established by legislation and by the courts, but the great Chief Justice extends the meaning of the word to all its branches. How futile and unworthy the attention of government would be this provision of the organic law did it fail to affect the individuals for whom, by whom, and at whose instance, commercial intercourse is carried on. The persons who are concerned or affected by commerce may be classified as follows: (1) Persons as commodities of commerce, such as passengers and immigrants; (2) persons who are the instrumentalities of commerce, such as pilots, engineers, and mariners on vessels, railway operatives on land, and others whose business is interstate or foreign commerce; (3) persons who thus employ, and set commerce in motion. These are the men who create and continue to operate the great lines or channels of commercial intercourse. It is then wholly impossible in a constitutional sense, or in legislative contemplation, to separate the men who are the instrumentalities and active agents of that commerce which the National Government may control, from the restrictive or benevolent regulation within the purview of that power which the framers of the Constitution conferred upon Congress. In a word, the commodities of commerce, whether ani The power to regulate applies as well to traffic on water as to traffic on land, and while some regulations have been ascribed to the law of the admiralty, which is of full force not only upon the seas, but on the interior lakes and navigable waterways of the United States, it is yet clear that much legislation for the direction and protection of the instrumentalities of this maritime trade finds its authority in the commerce clause which we are discussing. Said Mr. Justice CLIFFORD, in State Tonnage Tax Cases, 12 Wall. 216: "Unquestionably, the power to regulate commerce includes navigation as well as traffic in its ordinary signification, and embraces ships and vessels as the instruments of intercourse and trade, as well as the officers and seamen employed in their navigation." This language is reiterated in Hall v. De Cuir, 95 U. S. 494, and in other cases. The officers and seamen then are deemed and held to be as much the instruments of such intercourse and trade as the ships and vessels. It is also established that the powers thus granted are not confined to the instrumentalities of commerce as they were known or in use when the Constitution was adopted. In the Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U. S. p. 9, it was said by Chief Justice WAITE: "They extend from the horse with its rider to the stage-coach, from the sailing vessel to the steamboat, from the coach and steamboat to the railroad, from the railroad to the telegraph, as these new agencies are successively brought into use to meet the demands of increasing population and wealth. They were intended for the government of the business to which they relate at all times and under all circumstances." And said Mr. Justice BREWER in the famous case In re Debs, 158 U. S. 591: “Constitutional provisions do not change, but their operation extends to new matters as the modes of business and the habits of life of the people vary with each succeeding generation. The law of the common carrier is the same to-day as when transportation on land was by coach and wagon and on water by canal boat and sailing vessel, yet in its actual operation it touches and regulates transportation by modes then unknown, the railroad train and the steamship. The Constitution has not, changed. The power is the same, but it operates to-day upon modes of interstate commerce unknown to the fathers and it will operate with equal force upon any new modes of such commerce which the future may develop." It is true that the extension of the elastic but indestructible powers to regulate interstate and foreign commerce has been slow and gradual. It has, however, kept pace with the evolution of the great force of civilization it was designed to control. It has been as steadily resisted by that school of constructionists who believe, as stated by Justice MILLER in Ex parte Yarborough, 110 U. S., page 658, "in the old argument, often heard, often repeated, but in this court never assented to, that when the question of the power of Congress arises the advocate of the power must be able to place his finger upon words which expressly grant it." It is equally true that the conservative efforts of the skillful logicians of this school have been of undoubted service to the country. They have obliged the most careful contemplation of the legality and the wisdom of every advancing step. To change the metaphor the vis inertia they have exerted has performed the salutary functions of a brake upon the car of progress. On occasion, possibly, the brake has been applied when the car was heavily freighted with the hopes of the nation and toiling painfully up hill, but its progression has been found irresistible. An illustration may be found in the gradual but expanding utilization of the commerce clause in its application to the instrumentalities of navigation. In the Lottawanna, 21 Wall. 558, on this topic it was held: 46 commercial power, if no other, to introduce such changes as are likely to be needed. The scope of the maritime law and that of commercial regulation are not coterminous, it is true, but the latter embraces much the largest portion of ground covered by the former. Under it Congress has regulated the registry, enrollment, license and nationality of ships and vessels the method of recording bills of sales and mortgages thereon; the rights and duties of seamen; the limitations of the responsibility of ship owners for the negligence and misconduct of their captains and crews, and many other things of a character truly maritime." Here, also, Mr. Justice BRADLEY delivered the opinion of the court. On page 575 this great jurist speaks of the "uniformity and consistency at which the Constitution aims on all subjects of a commercial character affecting the intercourse of the States with each other or with foreign states." Pursuant to this power the Congress, therefore, has prescribed rules which include the control of vessels engaged in commerce and these are as well applicable to vessels engaged only in intrastate commerce as to those engaged in interstate traffic, in the case of steamboats, the inspection of their hulls and boilers, the licensing of their officers, the carrying of prescribed lights and giving and answering prearranged signals, the maintenance of means for the preservation of life, life preservers, life rafts and the like. In the Hazel Kirke, 25 Fed. Rep. 607, the necessity of this unlimited control is stated: 66 'Manifestly it is not possible for Congress to fully control and adequately protect the commerce with foreign nations and among the several States when that commerce is pursued by means of vessels navigating the public waters of the United States without controlling the navigation of all vessels navigating such waters, not only those engaged in commerce with foreign nations and among the several States, but those engaged in domestic commerce and those engaged in no commerce at all like the yachts. Accordingly Congress has undertaken to regulate the lights to be carried by all vessels navigating such waters and the courses to be pursued by all vessels meeting upon such waters, and these regulations are supreme and binding upon all vessels. They are necessary because only by controlling in those ports the navigation of all vessels navigating such waters can the safe navigation of vessels engaged in interstate and foreign commerce upon such waters be secured.” This control also extends to the control of persons transported in interstate and foreign commerce. That it relates to passengers thus transported will not be denied. It has been held that an act to regulate immigration, which levied a duty for every passenger Congress undoubtedly has authority under the coming from a foreign port to this country, is proper under the commerce clause. The Head Money Cases, 18 Fed. Rep. 135. It has established qualifications and conditions for masters, engineers, pilots of vessels, it has enacted categorical rules comprehending the rights and duties of seamen and owners of vessels, it has regulated shipping articles, the method of their treatment, and the protection of their health while on board ship. This is established by numerous authorities. The barque Chusan, second story 455, 5 Fed. Cas. 20717; the Katie, 40 Fed. 492, 7 Cyc. 461; In re Vessels Owners Towing Company, 26 Fed. Rep. 170. Said the Supreme Court in Cooley v. Board of Wardens, 12th Howard, 315: rivers and harbors has been opened and improved, and we have no doubt that canals and waterways may be opened to connect navigable bays, harbors and rivers with each other, or with the interior of the country. Nor have we any doubt that, under the same power, the means of commercial communication by land as well as by water may be opened up by Congress between the different States whenever it shall seem fit to do so through the failure of the States to provide such communication or whenever in the opinion of Congress increased facilities of communication ought to exist.” In the presence of such tremendous physical demon"When we look to the nature of the service per- stration of this truth as the transcontinental railformed by pilots, to the relations which that service, ways, builded largely from the public resources and and its associations bear to navigation between the chartered by Congress, and the work of constructing several States and between the ports of the United the Isthmian Canal, the soundness of the views of States and foreign countries, we are brought to the that great jurist will scarcely be questioned. conclusion that the regulation of the qualification of In the subsequent case of California v. Pacific Railpilots, of the modes and times of offering and render-road Company, 127 U. S. 39, Justice BRADLEY further ing their services, and of the penalties by which their rights and duties may be enforced, does constitute regulation of navigation, and consequently of commerce within the just meaning of this clause of the Constitution." For authorities on this subject, see 8 Fed. Stat. Ann., page 408. If, then, Congress has the established right to control the relative duties of the ship owners and the seamen, both of whom are instrumentalities of commerce, both absolutely essential to its proper and effective conduct, or any conduct, upon what sound reasoning can its control of the rights and liabilities of other men engaged in the transportation by land of the same commerce be denied. The employees of a railroad company are essential instruments to the existence under modern conditions of interstate traffic on land. The locomotive engineers, firemen, the train hands, the track hands, the conductors, and all the rest are as essential to this traffic as are the masters, pilots, engineers and sailors to navigation. The power to regulate as we have heretofore seen is unlimited in its application to such traffic. How narrow, then, is the contention that this regulation may be extended to the inanimate machinery and commodities engaged, and not to the men without whose services not a wheel would revolve and not an ounce of freight would be transported. Said Mr. Justice BRADLEY, in Stockton v. Baltimore & N. Y. R. Co., 32 Fed. p. 9: "With regard to commerce, it has been expressly held that it is not confined to commercial transactions, but extends to seamen, ships, navigation, and the appliances and facilities of commerce, and it must extend to this or it would not embrace the whole subject. Under this power the navigation of observes: "The power to construct or to authorize individuals or corporations to construct national highways and bridges from State to State, is essential to the complete control and regulation of interstate commerce. Without authority in Congress to establish and maintain such highways and bridges, it would be without authority to regulate one of the most important adjuncts to commerce. Of course the authority of Congress over the Territories of the United States and its power to grant franchises exercisable therein are and ever have been undoubted, but the wider power was very freely exercised and much to the general satisfaction in the creation of the vast system of railroads connecting the East with the Pacific, traversing States as well as Terrotiries and employing the agency of State as well as Federal corporations." This language is approved without reservation and applied to railroads by the Supreme Court in the case of Cherokee Nation v. Kansas Railroad, 135 U. S. 658. There the court was unanimous, and, said Justice HARLAN, as its mouthpiece: "The question is no longer an open one as to whether a railroad is a public highway established primarily for the conve nience of the people and to subserve public ends, and therefore subject to governmental control and regu lation." Congress, then, may not only create railroads, pay for their construction and maintenance, but it may control those which are chartered by the States and which engage in the commerce over which the national authority is paramount. Congress alone, by legislation, may occupy the whole field of interstate commerce. The Lottery Cases, 188 U. S. 321. It is true that the States may charter corporations to en |