207 U.S. Argument of Attorney General. that State; Pittsburgh &c. Railway v. Montgomery, 152 Indiana, 1, sustaining act of that State. And see also Baltimore &c. Railroad v. Little, 149 Indiana, 167; Baltimore &c. Railroad v. Peterson, 156 Indiana, 1; Indianapolis &c. Railroad v. Houlehan, 157 Indiana, 494; and Tullis v. Lake Erie & Western, 175 U. S. 348. The Georgia fellow-servant act has been held to be constitutional. Railroad Co. v. Thompson, 54 Georgia, 509; Georgia Railroad v. Ivey, 73 Georgia, 499; Georgia Railroad v. Brown, 86 Georgia, 320; Georgia Railroad v. Miller, 90 Georgia, 574. As to labor statute of Missouri, see St. Louis &c. Railway v. Matthews, 165 U. S. 1, 25; of Utah, Holden v. Hardy, 169 U. S. 366, 391, 397; of Arkansas, St. Louis & Iron Mountain R. R. Co. v. Paul, 173 U. S. 404. See also Atchison &c. Railroad v. Matthews, 174 U. S. 96. The liability of common carriers for injuries to their employés is a proper subject of governmental regulation, and a State in the exercise of its police powers may make such reasonable regulations on the subject with respect to all carriers operating within its limits as the legislature thereof may deem necessary. Being a proper subject of governmental regulation, Congress, in the exercise of its constitutional power to regulate interstate and foreign commerce, may regulate the liability of such common carriers as are engaged in that com merce. See the definition of the power of Congress over interstate and foreign commerce given in Gibbons v. Ogden, 9 Wheat. 1 (p. 197). From the foundation of the Government the power of Congress to regulate interstate and foreign commerce has been construed to extend to the regulation of the instrumentalities by which such commerce is conducted, and the regulation of such instrumentalities to include control over the person operating the same. Concurring opinion in Gibbons v. Ogden, of Johnson, J., 9 Wheat. 229; Sherlock v. Alling, 93 U. S. 99, 103; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 203; Pomeroy on Const. Law, §§ 379 et seq.; Patterson v. Bark Eudora, 190 U. S. 169, 179, upholding the power Argument of Attorney General. 207 U. S. of Congress to legislate for protection of seamen by act of December 21, 1898, 30 Stat. 755, 763. See also Pensacola Telegraph Co. v. West. Un. Tel. Co., 96 U. S. 1, 9; Bowman v. Chicago &c. Railway, 125 U. S. 465; Crutcher v. Kentucky, 141 U. S. 47, 58; Pittsburg Coal Co. v. Bates, 156 U. S. 577., 587; Stockton v. Baltimore &c. Railroad, 32 Fed. Rep. 9. In California v. Pacific Railroad, 127 U. S. 1, 39, the power of Congress to provide for interstate roads was sustained; as to the Panama Canal see Wilson v. Shaw, 204 U. S. 24; for a review of legislation in regard to interstate commerce and regulations see In re Debs, 158 U. S. 564, 578; The Lottery Case, 188 U. S. 321, 352; United States v. Joint Traffic Assn., 171 U. S. 505, 569. As to the claim that if this commerce is subject to regulation at all it can only be by the States, the answer is that the regulation of interstate commerce has been committed by the Constitution to Congress; and while state legislation, passed in the exercise of its police power, may control the liability of common carriers within their limits, even though they be engaged in interstate commerce, yet such legislation must yield to the plenary and paramount authority of Congress over interstate commerce whenever it chooses to exercise it. Gibbons v. Ogden, 9 Wheat. 1, 210; Cooley v. Board of Wardens, 12 How. 299, 320; Morgan v. Louisiana, 118 U. S. 455, 463; Smith v. Alabama, 124 U. S. 465; Nashville, Chattanooga & St. Louis Ry. v. Alabama, 128 U. S. 96, 100; Western Union Telegraph Co. v. James, 162 U. S. 650, 662; Hennington v. Georgia, 163 U. S. 299, 317; New York, New Haven & Hartford Railroad v. New York, 165 U. S. 628, 631; Missouri, Kansas & Texas Railway v. Haber, 169 U. S. 613, 626; Rasmussen v. Idaho, 181 U. S. 198, 200; Reid v. Colorado, 187 U. S. 137. The power of Congress to regulate the liability of common carriers and others engaged in interstate commerce for injuries to persons or property having been distinctly recognized, it is difficult to see why it may not regulate their liability to their 207 U. S. Argument of Attorney General. employés, the protection of interstate commerce being as much involved in the one case as in the other. Mo. Pac. Railway v. Mackey, supra; Pierce v. Van Dusen, 78 Fed. Rep. 693, 698. The liability of common carriers engaged in interstate commerce for injuries to their employés occasioned by their negligence is a matter that vitally enters into and affects such commerce. Baltimore and Ohio Railroad v. Baugh, 149 U. S. 368. No one can successfully question the correctness of the court's statement that the liability of a common carrier engaged in interstate commerce for injuries to its employés is a question in which the whole country is interested, and should be governed by a uniform rule. But simply holding that the question is one of general law, which a Federal court may determine for itself in the absence of a state statute on the subject, does not tend to secure the desired uniformity, but only causes greater complexity of decision. Besides, most of the States have legislated on the subject and their statutes are conflicting. Uniformity of decision, it is manifest, can only be secured by National legislation. As to power of Congress to provide this uniformity see Pennsylvania Railroad v. Hughes, 191 U. S. 477; Martin v. Pittsburg &c. Railroad, 203 U. S. 284 and cases cited supra. The acts of Congress limiting liability of shipowners, §§ 4283, 4289, Rev. Stat., rest on the power of Congress to regulate interstate and foreign commerce. Lord v. Steamship Co., 102 U. S. 541; The Katie, 40 Fed. Rep. 480; In re Garnett, 141 U. S. 1; The Lottawanna, 21 Wall. 558, 576; Butler v. Steamship Co., 130 U. S. 527. The Limited Liability Act was passed by Congress for the purpose of fostering and encouraging the American merchant marine and the American foreign carrying trade. Such also was undoubtedly the purpose of the Harter Act, approved February 13, 1893, 27 Stat. 445, which has been liberally construed and applied by this court in a number of cases. Calderon v. Atlas Steamship Co., 170 U. S Argument of Attorney General. 207 TJ. S. 272; The Carib Prince, 170 U. S. 655; The Silvia, 171 U. S. 462; Knott v. Botany Mills, 179 U. S. 69; International Nav. Co. v. Farr &c. Mfg. Co., 181 U. S. 218. It is for Congress to determine what public policy requires with respect to common carriers engaged in interstate commerce by land or water. Possibly the rule established by Congress is unwise, possibly it is extreme, but neither of these considerations justifies the interference of the judiciary or is an argument against the existence of the power. United States v. Joint Traffic Association, 171 U. S. 569, 571, 573; Gibbons v. Ogden, 9 Wheat. 1; The Lottery Case, 188 U. S. 363; McCray v. United States, 195 U. S. 27, 55. The power of Congress to regulate instrumentalities of interstate commerce is not dependent upon their mode of creation. It is not limited to corporations created by Congress itself. While a corporation may get from a State its franchise to engage in interstate commerce, it can only exercise that franchise subject to the regulations which Congress may make for the protection of interstate commerce. Hale v. Henkel, 201 U. S. 43, 75; Northern Securities Case, 193 U.,S. 197; New York & New Haven Railroad v. Interstate Commerce Commission, 200 U. S. 361. The situation is similar to that with respect to the power of Congress to regulate bridges across the navigable waters constructed under the authority of the States. The franchise granted by the State is held subject to the paramount authority of Congress to regulate interstate commerce. Willamette Iron Bridge Co. v. Hatch, 125 U. S. 1; West Chicago Street Railroad Co. v. Chicago, 201 U. S. 506, 524; Union Bridge Co. v. United States, 204 U. S. 364. Congress by this act has established a rule or conduct and the statute imposes exactly the same rule of conduct upon carriers with respect to employés as is to be imposed by the common law with respect to passengers and strangers. Congress has the same power to alter the common law rule as to non-survivorship in cases affecting interstate commerce of 207 U. S. Argument of Attorney General. actions ex delicto as a State has to change the rule of nonsurvivorship of such actions. In this respect the act of Congress creates no innovation, as such statutes exist in most, if not all, of the States. And see Sherlock v. Alling, 93 U. S. 99, as to power of State. So also Congress has power to alter rule as to effect of contributory negligence. While there is no question of contributory negligence in this case it is proper to refer to it in connection. with the act. The common law rule that contributory negligence bars a recovery, like the fellow-servant doctrine, is founded upon the supposed interests of public policy, and it is for Congress to determine in regulating this subject whether public policy requires the modification of both rules. The rule which Congress has adopted in the present statute is, theoretically at least, ideal. If it should operate harshly or unjustly, the parties concerned must apply to Congress and not to the courts for relief. The statute simply provides that contributory negligence on the part of an employé shall not bar a recovery where it was slight and that of the employer gross in comparison; but it also provides that the damages shall be diminished in proportion to the amount of negligence attributable to the employé. The aim of Congress was to do exact justice. The wisdom of such a rule as applied to marine torts was recognized in The Max Morris, 137 U. S. 1. The same doctrine was applied to The Mystic, 44 Fed. Rep. 399; The Frank & Willie, 45 Fed. Rep. 405, 497; The Nathan Hale, 48 Fed. Rep. 700; The Julia Fowler, 49 Fed. Rep. 279; The Serapis, 49 Fed. Rep. 396, 397; The J. & J. McCarthy, 55 Fed. Rep. 86; The Cyprus, 55 Fed. Rep. 333; Wm. Johnson & Co. v. Johnson, 86 Fed. Rep. 888. All except the first were cases in which an injured employé, himself at fault, was allowed to recover divided or partial damages for injuries received through the negligence of his employer. For modifications of the strict rule of contributory negligence |