WASHINGTON CITY, _February 24, 1859_.
_To the House of Representatives of the United States_:
I return with my objections to the House of Representatives, in which
it originated, the bill entitled "An act donating public lands to the
several States and Territories which may provide colleges for the
benefit of agriculture and the mechanic arts," presented to me on the
18th instant.
This bill makes a donation to the several States of 20,000 acres of
the public lands for each Senator and Representative in the present
Congress, and also an additional donation of 20,000 acres for each
additional Representative to which any State may be entitled under
the census of 1860.
According to a report from the Interior Department, based upon the
present number of Senators and Representatives, the lands given to the
States amount to 6,060,000 acres, and their value, at the minimum
Government price of $1.25 per acre, to $7,575,000.
The object of this gift, as stated by the bill, is "the endowment,
support, and maintenance of at least one college [in each State] where
the leading object shall be, without excluding other scientific or
classical studies, to teach such branches of learning as are related to
agriculture and the mechanic arts, as the legislatures of the States may
respectively prescribe, in order to promote the liberal and practical
education of the industrial classes in the several pursuits and
professions in life."
As there does not appear from the bill to be any beneficiaries in
existence to which this endowment can be applied, each State is required
"to provide, within five years at least, not less than one college, or
the grant to said State shall cease." In that event the "said State
shall be bound to pay the United States the amount received of any lands
previously sold, and that the title to purchasers under the State shall
be valid."
The grant in land itself is confined to such States as have public lands
within their limits worth $1.25 per acre in the opinion of the governor.
For the remaining States the Secretary of the Interior is directed to
issue "land scrip to the amount of their distributive shares in acres
under the provisions of this act, said scrip to be sold by said States,
and the proceeds thereof applied to the uses and purposes prescribed in
this act, and for no other use or purpose whatsoever." The lands are
granted and the scrip is to be issued "in sections or subdivisions of
sections of not less than one-quarter of a section."
According to an estimate from the Interior Department, the number of
acres which will probably be accepted by States having public lands
within their own limits will not exceed 580,000 acres (and it may be
much less), leaving a balance of 5,480,000 acres to be provided for by
scrip. These grants of land and land scrip to each of the thirty-three
States are made upon certain conditions, the principal of which is that
if the fund shall be lost or diminished on account of unfortunate
investments or otherwise the deficiency shall be replaced and made good
by the respective States.
I shall now proceed to state my objections to this bill. I deem it to be
both inexpedient and unconstitutional.
1. This bill has been passed at a period when we can with great
difficulty raise sufficient revenue to sustain the expenses of the
Government. Should it become a law the Treasury will be deprived of the
whole, or nearly the whole, of our income from the sale of public lands,
which for the next fiscal year has been estimated at $5,000,000.
A bare statement of the case will make this evident. The minimum price
at which we dispose of our lands is $1.25 per acre. At the present
moment, however, the price has been reduced to those who purchase the
bounty-land warrants of the old soldiers to 85 cents per acre, and of
these warrants there are still outstanding and unlocated, as appears by
a report (February 12, 1859) from the General Land Office, the amount
of 11,990,391 acres. This has already greatly reduced the current sales
by the Government and diminished the revenue from this source. If in
addition thirty-three States shall enter the market with their land
scrip, the price must be greatly reduced below even 85 cents per acre,
as much to the prejudice of the old soldiers who have not already parted
with their land warrants as to Government. It is easy to perceive that
with this glut of the market Government can sell little or no lands at
$1.25 per acre, when the price of bounty-land warrants and scrip shall
be reduced to half this sum. This source of revenue will be almost
entirely dried up. Under the bill the States may sell their land scrip
at any price it may bring. There is no limitation whatever in this
respect. Indeed, they must sell for what the scrip will bring, for
without this fund they can not proceed to establish their colleges
within the five years to which they are limited. It is manifest,
therefore, that to the extent to which this bill will prevent the sale
of public lands at $1.25 per acre, to that amount it will have precisely
the same effect upon the Treasury as if we should impose a tax to create
a loan to endow these State colleges.
Surely the present is the most unpropitious moment which could have been
selected for the passage of this bill.
2. Waiving for the present the question of constitutional power,
what effect will this bill have on the relations established between
the Federal and State Governments? The Constitution is a grant to
Congress of a few enumerated but most important powers, relating chiefly
to war, peace, foreign and domestic commerce, negotiation, and other
subjects which can be best or alone exercised beneficially by the common
Government. All other powers are reserved to the States and to the
people. For the efficient and harmonious working of both, it is
necessary that their several spheres of action should be kept distinct
from each other. This alone can prevent conflict and mutual injury.
Should the time ever arrive when the State governments shall look to the
Federal Treasury for the means of supporting themselves and maintaining
their systems of education and internal policy, the character of both
Governments will be greatly deteriorated. The representatives of the
States and of the people, feeling a more immediate interest in obtaining
money to lighten the burdens of their constituents than for the
promotion of the more distant objects intrusted to the Federal
Government, will naturally incline to obtain means from the Federal
Government for State purposes. If a question shall arise between an
appropriation of land or money to carry into effect the objects of the
Federal Government and those of the States, their feelings will be
enlisted in favor of the latter. This is human nature; and hence the
necessity of keeping the two Governments entirely distinct. The
preponderance of this home feeling has been manifested by the passage of
the present bill. The establishment of these colleges has prevailed over
the pressing wants of the common Treasury. No nation ever had such an
inheritance as we possess in the public lands. These ought to be managed
with the utmost care, but at the same time with a liberal spirit toward
actual settlers.
In the first year of a war with a powerful naval nation the revenue from
customs must in a great degree cease. A resort to loans will then become
necessary, and these can always be obtained, as our fathers obtained
them, on advantageous terms by pledging the public lands as security.
In this view of the subject it would be wiser to grant money to the
States for domestic purposes than to squander away the public lands
and transfer them in large bodies into the hands of speculators.
A successful struggle on the part of the State governments with the
General Government for the public lands would deprive the latter of
the means of performing its high duties, especially at critical and
dangerous periods. Besides, it would operate with equal detriment to the
best interests of the States. It would remove the most wholesome of all
restraints on legislative bodies--that of being obliged to raise money
by taxation from their constituents--and would lead to extravagance, if
not to corruption. What is obtained easily and without responsibility
will be lavishly expended.
3. This bill, should it become a law, will operate greatly to the injury
of the new States. The progress of settlements and the increase of an
industrious population owning an interest in the soil they cultivate
are the causes which will build them up into great and flourishing
commonwealths. Nothing could be more prejudicial to their interests than
for wealthy individuals to acquire large tracts of the public land and
hold them for speculative purposes. The low price to which this land
scrip will probably be reduced will tempt speculators to buy it in large
amounts and locate it on the best lands belonging to the Government. The
eventual consequence must be that the men who desire to cultivate the
soil will be compelled to purchase these very lands at rates much higher
than the price at which they could be obtained from the Government.
4. It is extremely doubtful, to say the least, whether this bill
would contribute to the advancement of agriculture and the mechanic
arts--objects the dignity and value of which can not be too highly
appreciated.
The Federal Government, which makes the donation, has confessedly no
constitutional power to follow it into the States and enforce the
application of the fund to the intended objects. As donors we shall
possess no control over our own gift after it shall have passed from
our hands. It is true that the State legislatures are required to
stipulate that they will faithfully execute the trust in the manner
prescribed by the bill. But should they fail to do this, what would be
the consequence? The Federal Government has no power, and ought to have
no power, to compel the execution of the trust. It would be in as
helpless a condition as if, even in this, the time of great need, we
were to demand any portion of the many millions of surplus revenue
deposited with the States for safekeeping under the act of 1836.
5. This bill will injuriously interfere with existing colleges in the
different States, in many of which agriculture is taught as a science
and in all of which it ought to be so taught. These institutions of
learning have grown up with the growth of the country, under the
fostering care of the States and the munificence of individuals, to meet
the advancing demands for education. They have proved great blessings to
the people. Many, indeed most, of them are poor and sustain themselves
with difficulty. What the effect will be on these institutions of
creating an indefinite number of rival colleges sustained by the
endowment of the Federal Government it is not difficult to determine.
Under this bill it is provided that scientific and classical studies
shall not be excluded from them. Indeed, it would be almost impossible
to sustain them without such a provision, for no father would incur the
expense of sending a son to one of these institutions for the sole
purpose of making him a scientific farmer or mechanic. The bill itself
negatives this idea, and declares that their object is "to promote the
liberal and practical education of the industrial classes in the several
pursuits and professions of life." This certainly ought to be the
case. In this view of the subject it would be far better, if such an
appropriation of land must be made to institutions of learning in
the several States, to apply it directly to the establishment of
professorships of agriculture and the mechanic arts in existing
colleges, without the intervention of the State legislatures. It would
be difficult to foresee how these legislatures will manage this fund.
Each Representative in Congress for whose district the proportion of
20,000 acres has been granted will probably insist that the proceeds
shall be expended within its limits. There will undoubtedly be a
struggle between different localities in each State concerning the
division of the gift, which may end in disappointing the hopes of the
true friends of agriculture. For this state of things we are without
remedy. Not so in regard to State colleges. We might grant land to these
corporations to establish agricultural and mechanical professorships,
and should they fail to comply with the conditions on which they
accepted the grant we might enforce specific performance of these
before the ordinary courts of justice.
6. But does Congress possess the power under the Constitution to make a
donation of public lands to the different States of the Union to provide
colleges for the purpose of educating their own people?
I presume the general proposition is undeniable that Congress does not
possess the power to appropriate money in the Treasury, raised by taxes
on the people of the United States, for the purpose of educating the
people of the respective States. It will not be pretended that any such
power is to be found among the specific powers granted to Congress nor
that "it is necessary and proper for carrying into execution" any one of
these powers. Should Congress exercise such a power, this would be to
break down the barriers which have been so carefully constructed in the
Constitution to separate Federal from State authority. We should then
not only "lay and collect taxes, duties, imposts, and excises" for
Federal purposes, but for every State purpose which Congress might deem
expedient or useful. This would be an actual consolidation of the
Federal and State Governments so far as the great taxing and money power
is concerned, and constitute a sort of partnership between the two in
the Treasury of the United States, equally ruinous to both.
But it is contended that the public lands are placed upon a different
footing from money raised by taxation and that the proceeds arising from
their sale are not subject to the limitations of the Constitution, but
may be appropriated or given away by Congress, at its own discretion,
to States, corporations, or individuals for any purpose they may deem
expedient.
The advocates of this bill attempt to sustain their position upon the
language of the second clause of the third section of the fourth article
of the Constitution, which declares that "the Congress shall have power
to dispose of and make all needful rules and regulations respecting
the territory or other property belonging to the United States." They
contend that by a fair interpretation of the words "dispose of" in this
clause Congress possesses the power to make this gift of public lands
to the States for purposes of education.
It would require clear and strong evidence to induce the belief that the
framers of the Constitution, after having limited the powers of Congress
to certain precise and specific objects, intended by employing the words
"dispose of" to give that body unlimited power over the vast public
domain. It would be a strange anomaly, indeed, to have created two
funds--the one by taxation, confined to the execution of the enumerated
powers delegated to Congress, and the other from the public lands,
applicable to all subjects, foreign and domestic, which Congress might
designate; that this fund should be "disposed of," not to pay the debts
of the United States, nor "to raise and support armies," nor "to provide
and maintain a navy," nor to accomplish any one of the other great
objects enumerated in the Constitution, but be diverted from them to
pay the debts of the States, to educate their people, and to carry into
effect any other measure of their domestic policy. This would be to
confer upon Congress a vast and irresponsible authority, utterly at war
with the well-known jealousy of Federal power which prevailed at the
formation of the Constitution. The natural intendment would be that as
the Constitution confined Congress to well-defined specific powers, the
funds placed at their command, whether in land or money, should be
appropriated to the performance of the duties corresponding with these
powers. If not, a Government has been created with all its other powers
carefully limited, but without any limitation in respect to the public
lands.
But I can not so read the words "dispose of" as to make them embrace
the idea of "giving away." The true meaning of words is always to be
ascertained by the subject to which they are applied and the known
general intent of the lawgiver. Congress is a trustee under the
Constitution for the people of the United States to "dispose of" their
public lands, and I think I may venture to assert with confidence that
no case can be found in which a trustee in the position of Congress has
been authorized to "_dispose of_" property by its owner where it has
been held that these words authorized such trustee to give away the fund
intrusted to his care. No trustee, when called upon to account for the
disposition of the property placed under his management before any
judicial tribunal, would venture to present such a plea in his defense.
The true meaning of these words is clearly stated by Chief Justice Taney
in delivering the opinion of the court (19 Howard, p. 436). He says in
reference to this clause of the Constitution:
It begins its enumeration of powers by that of disposing; in other
words, making sale of the lands or raising money from them, which, as we
have already said, was the main object of the cession (from the States),
and which is the first thing provided for in the article.
It is unnecessary to refer to the history of the times to establish the
known fact that this statement of the Chief Justice is perfectly well
founded. That it never was intended by the framers of the Constitution
that these lands should be given away by Congress is manifest from the
concluding portion of the same clause. By it Congress has power not only
"to dispose of" the territory, but of the "other property of the United
States." In the language of the Chief Justice (p. 437):
And the same power of making needful rules respecting the territory is
in precisely the same language applied to the other property of the
United States, associating the power over the territory in this respect
with the power over movable or personal property; that is, the ships,
arms, or munitions of war which then belonged in common to the State
sovereignties.
The question is still clearer in regard to the public lands in the
States and Territories within the Louisiana and Florida purchases.
These lands were paid for out of the public Treasury from money raised
by taxation. Now if Congress had no power to appropriate the money with
which these lands were purchased, is it not clear that the power over
the lands is equally limited? The mere conversion of this money into
land could not confer upon Congress new power over the disposition of
land which they had not possessed over money. If it could, then a
trustee, by changing the character of the fund intrusted to his care for
special objects from money into land, might give the land away or devote
it to any purpose he thought proper, however foreign from the trust.
The inference is irresistible that this land partakes of the very same
character with the money paid for it, and can be devoted to no objects
different from those to which the money could have been devoted. If this
were not the case, then by the purchase of a new territory from a
foreign government out of the public Treasury Congress could enlarge
their own powers and appropriate the proceeds of the sales of the land
thus purchased, at their own discretion, to other and far different
objects from what they could have applied the purchase money which had
been raised by taxation.
It has been asserted truly that Congress in numerous instances have
granted lands for the purposes of education. These grants have been
chiefly, if not exclusively, made to the new States as they successively
entered the Union, and consisted at the first of one section and
afterwards of two sections of the public land in each township for
the use of schools, as well as of additional sections for a State
university. Such grants are not, in my opinion, a violation of the
Constitution. The United States is a great landed proprietor, and from
the very nature of this relation it is both the right and the duty of
Congress as their trustee to manage these lands as any other prudent
proprietor would manage them for his own best advantage. Now no
consideration could be presented of a stronger character to induce the
American people to brave the difficulties and hardships of frontier life
and to settle upon these lands and to purchase them at a fair price
than to give to them and to their children an assurance of the means of
education. If any prudent individual had held these lands, he could not
have adopted a wiser course to bring them into market and enhance their
value than to give a portion of them for purposes of education. As a
mere speculation he would pursue this course. No person will contend
that donations of land to all the States of the Union for the erection
of colleges within the limits of each can be embraced by this principle.
It can not be pretended that an agricultural college in New York or
Virginia would aid the settlement or facilitate the sale of public lands
in Minnesota or California. This can not possibly be embraced within the
authority which a prudent proprietor of land would exercise over his own
possessions. I purposely avoid any attempt to define what portions of
land may be granted, and for what purposes, to improve the value and
promote the settlement and sale of the remainder without violating the
Constitution. In this case I adopt the rule that "sufficient unto the
day is the evil thereof."