The Reconstruction of Federalism: Foreign Submarine Telegraph Cables and American Law, 1868–78
Keywords:
Federalism Reconstruction International telegraphy Submarine cables Federal authorityAbstract
AbstractIn the wake of the Civil War, Americans contested the relationship between the federal government and states. Conflict over federal authority played out in concrete and surprising terms in a controversy that erupted in 1868 surrounding regulation of international telegraphy. The debate, which has remained largely unexamined, centered on whether a state could authorize a foreign company to land a submarine telegraph cable on American shores without Congress’s permission. Scholars have scrutinized consequences of the revision of federalism for individuals’ rights but have devoted less attention to implications for the nation’s international relations and commerce. The regulation of foreign cables, however, proved a key testing ground for the federal government’s efforts to assert sovereignty before both state authorities and other nations during Reconstruction. The episode revealed varied alliances and sources of opposition that emerged amid attempts to project federal power. It also reflected many Americans’ growing expectations of an expanded role for the national government in commerce and the international sphere—a position the federal government realized only haltingly. Intractable problems of federalism contributed to congressional inaction. While undertaking the formidable work of reconstructing the Union, the United States government struggled to delineate the physical boundaries of its authority.
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New York Sun, June 30, 1869, 2. “The Franco-Rebel Telegraph Company,” New York Sun, July 16, 1869, 2.
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Fish to Count Faverney and Thornton, July 10, 1869; Fish to William Claflin (governor of Massachusetts), July 14, 1869; L.G. Watson (agent of the French Atlantic Cable Company) to Fish, July 16, 1869, in “Papers Relating,” Message of the President, XLII–XLV.
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79
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80
“The French Cable,” New-York Tribune, July 28, 1869, 1.
81
“The French Atlantic Cable,” The Observer, July 4, 1869, 5. Müller, Wiring the World, 51.
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The American minister in France simultaneously sought to negotiate with the French government to establish terms more favorable to United States companies. C.G., 41st Congress, 2nd Session, December 6, 1869, 6; December 10, 1869, 64; December 17, 1869, 198. Washburne to Fish, September 18, 1869, in “Papers Relating,” Message of the President, LI.
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C.G., 41st Congress, 2nd Session, December 17, 1869, 201–5. 16 Stat. 59 (December 22, 1869). Drago, Edmund L., Black Politicians and Reconstruction in Georgia: A Splendid Failure (Baton Rouge: Louisiana State University Press, 1982), 48–56Google Scholar.
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C.G., 41st Congress, 2nd Session, December 17, 1869, 198–200. S. 115, 41st Congress, 1st Session. This bill was nearly identical to that which the Senate had passed the previous spring (S. 863, 40th Congress, 3rd Session).
88
Among earlier arguments centered on the Commerce Clause, see C.G., 39th Congress, 1st Session, March 20, 1866, 1519; and “The French Cable,” The World, January 9, 1869, 1.
89
C.G., 41st Congress, 2nd Session, December 17, 1869, 200; December 21, 1869, 268–69.
90
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C.G., 41st Congress, 3rd Session, January 12, 1871, 450.
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C.G., 41st Congress, 2nd Session, December 21, 1869, 270.
93
C.G., 41st Congress, 2nd Session, December 21, 1869, 268–73. Committee on Foreign Affairs, “Telegraph with Foreign Countries,” to accompany bill H.R. No. 1263, 41st Congress, 2nd Session, Report No. 35, March 3, 1870, 9.
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Committee on Foreign Affairs, “Telegraph Between United States and Foreign Countries,” to accompany bill H.R. No. 2591, 41st Congress, 3rd Session, Report No. 1, December 21, 1870, 6–7. John, Richard R., Spreading the News: The American Postal System from Franklin to Morse (Cambridge, MA: Harvard University Press, 1995), 42–44Google Scholar, 257–80. Antebellum suppression of abolitionist mailings, although not backed by congressional legislation, was a key exception to the absence of surveillance in American postal history.
95
Thurman ultimately advocated treaty making. C.G., 41st Congress, 2nd Session, December 21, 1869, 273; 41st Congress, 3rd Session, January 12, 1871, 450.
96
Jules Berthemy (French minister to the United States) to Fish, April 8, 1870, in “Message from the President of the United States transmitting in response to the Senate resolution of May 2, 1884, a report of the Secretary of State in relation to the landing of foreign telegraph cables on the shores of the United States,” 48th Congress, 2nd Session, Ex. Doc. No. 51, January 27, 1885, 6–7.
97
Berthemy to Fish, June 15, 1870; Fish to Berthemy, June 18, 1870, in “Message from the President,” 48th Congress, 2nd Session, Ex. Doc. No. 51, January 27, 1885, 8.
98
Griset and Headrick, “Submarine Telegraph Cables,” 554–55.
99
“Pocket Veto of the Ocean Telegraph Bill,” New York Times, March 7, 1871, 1. C.G., 42nd Congress, 2nd Session, May 22, 1872, 3667.
100
C.G., 41st Congress, 3rd Session, January 12, 1871, 450–52; January 13, 1871, 478.
101
C.R., 44th Congress, 1st Session, December 7, 1875, 177–78.
102
19 Stat. 201 (August 15, 1876). 19 Stat. 232 (February 20, 1877). Earlier bills these measures echoed included H.R. 2591, 41st Congress, 3rd Session; H.R. 2853, 42nd Congress, 2nd Session; and H.R. 3535, 43rd Congress, 1st Session.
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Quoted in Foner, The Second Founding, 17.
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15 Stat. 223 (July 27, 1868). Lucy E. Salyer, Under the Starry Flag: How a Band of Irish Americans Joined the Fenian Revolt and Sparked a Crisis over Citizenship (Cambridge, MA: The Belknap Press of Harvard University Press, 2018), 170–73.
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C.G., 41st Congress, 3rd Session, February 14, 1871, 1219. Griset and Headrick, “Submarine Telegraph Cables,” 544, 550–57, 559–62. The federal government's longstanding direction of the postal system offered a precedent for such an expansive role. See John, Spreading the News.
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David Paul Hochfelder, “A Comparison of the Postal Telegraph Movement in Great Britain and the United States, 1866–1900,” Enterprise and Society 1 (2000): 742, quotation at 747.
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C.G., 41st Congress, 2nd Session, July 5, 1870, 5178. Headrick, The Invisible Weapon, 33. Wolff, Western Union, 16–17, 153, 155–56. Richard R. John, “The Politics of Innovation,” Daedalus 127 (1998): 195–200. John, Network Nation, 24–64, 170–99. Hochfelder, “A Comparison,” 739–61.
108
44A–H12.1, Committee on the Post Office and Post Roads, National Archives and Records Administration (hereafter NARA) I, Washington, DC, includes hundreds of such petitions. See also 44A–H3.1, Committee on Commerce: cheap telegraphy, NARA I. On petitioning for cheap telegraphy, see John, Network Nation, 58, 132–33. On the threat to the free press posed by private telegraph monopolies, see Hochfelder, “A Comparison,” 751–52; John, Network Nation, 145–49; and Wolff, Western Union, 121–22.
109
For a famous early articulation of the “right to privacy” in response to technological advancement, see Warren, Samuel D. and Brandeis, Louis D., “The Right to Privacy,” Harvard Law Review IV (1890): 193–220Google Scholar. Griswold v. Connecticut, 381 U.S. 479 (1965).
110
For examples, see C.R., 45th Congress, 2nd Session, May 1, 1878, 2991; May 6, 1878, 3184, 3224; May 7, 1878, 3225; June 4, 1878, 4117. See also C.R., 45th Congress, 2nd Session, May 9, 1878, 3348; and 45A–H6.10, Committee on Commerce: free competition in the construction and operation of telegraphic cables, NARA I.
111
S. 861, 45th Congress, 2nd Session. The provisions regarding privacy of communication and protection of the cables resembled those of the bill that Grant had pocket-vetoed (H.R. 2591, 41st Congress, 3rd Session).
112
Foner, Reconstruction, 575–87.
113
Foner, The Second Founding, 126.
114
Pensacola Telegraph Company v. Western Union Telegraph Company, 96 U.S. 1 (1878). For examples of the Supreme Court's decisions limiting states’ power in light of the Commerce Clause in the years leading up to Pensacola, see Steamship Co. v. Portwardens, 73 U.S. 31 (1867); Case of State Freight Tax, 82 U.S. 232 (1873); Henderson v. Mayor of New York, 92 U.S. 259 (1876); and Sholley, “The Negative Implications,” 577–83, 585 (FN 145). See also Barry Cushman, “Formalism and Realism in Commerce Clause Jurisprudence,” The University of Chicago Law Review 67 (2000): 1101–10. For an alternative interpretation, emphasizing certain areas in which the court upheld state regulation, see Michael Les Benedict, “Preserving Federalism: Reconstruction and the Waite Court,” The Supreme Court Review 1978 (1978): 55–56.
115
C.R., 45th Congress, 2nd Session, June 5, 1878, 4118; June 6, 1878, 4175. On Edmunds, see John, Network Nation, 172–73; and Benedict, A Compromise of Principle, quotation (“constitutional conservatism”) at 40.
116
C.R., 45th Congress, 2nd Session, June 6, 1878, 4175–76. For Matthews's later role on the Supreme Court in the adjudication of Congress's dormant power under the Commerce Clause, see Bowman v. Chi. & N. Ry., 125 U.S. 465 (1888); and Sholley, “The Negative Implications,” 584–86.
117
C.R., 45th Congress, 2nd Session, June 6, 1878, 4176.
118
C.G., 41st Congress, 2nd Session, December 21, 1869, 273.
119
On continued limitations of the federal government's functions and administrative capacity through the end of the nineteenth century even amid new demands for its intervention, see Skowronek, Stephen, Building a New American State: The Expansion of National Administrative Capacities, 1877–1920 (New York: Cambridge University Press, 1982), especially 23CrossRefGoogle Scholar and 29–35. For overviews of debate about the extent of the nineteenth-century federal state, see Rao, Gautham, “William J. Novak's The People's Welfare and the New Historiography of the Early Federal State,” American Journal of Legal History 57 (2017): 226–31CrossRefGoogle Scholar; and Ron, Ariel and Rao, Gautham, “Introduction: Taking Stock of the State in Nineteenth-Century America,” Journal of the Early Republic 38 (2018): 61–66CrossRefGoogle Scholar.
120
The Supreme Court eventually resolved the issue by ruling that the land stretching from low-water mark to 3 miles offshore falls under federal authority. The court declined to apply to oceans the reasoning from Pollard about inland waters. United States v. California, 332 U.S. 19 (1947), 29–31. For the subsequent legislative history regarding submerged coastal lands, see Parker Drilling Management v. Newton, 139 S. Ct. 1881 (2019), 1887.
121
Augustin Pouyer-Quertier to William Evarts, August 12, 1879, February 9, [1880], in “Cable-Landing Licenses: Hearings Before a Subcommittee of the Committee on Interstate Commerce,” U.S. Senate, 66th Congress, Third Session on S. 4301 (Washington, DC: Government Printing Office, 1921), 436–37, 439. Headrick, The Invisible Weapon, 35.
122
John K. Richards (acting attorney general) to John Sherman (secretary of state), January 18, 1898, in Moore, John Bassett, A Digest of International Law 2 (Washington, DC: Government Printing Office, 1906), 452–66Google Scholar. “Cable-Landing Licenses,” 6.
123
“Letter from the Secretary of State, transmitting correspondence and information concerning permission to land cable on United States coast since March 1, 1893,” 53rd Congress, 2nd Session, Ex. Doc. No. 14, 1–5. Richards to Sherman, January 18, 1898, in Moore, A Digest of International Law 2, 457–61.
124
42 Stat. 8 (May 27, 1921). “Senate Passes Bill to Prevent Unauthorized Landing of Cables in United States,” The Commercial & Financial Chronicle, May 28, 1921, 2265–66.
125
Edmund Hammond to Thornton, February 5, 1870, Add MS 81081, B.L.
