[Footnote 13: The messages of February 1 and February 6, 1860, are
pocket vetoes.]
WASHINGTON CITY, _February 1, 1860_.
_To the Senate of the United States_:
On the last day of the last Congress a bill, which had passed both
Houses, entitled "An act making an appropriation for deepening the
channel over the St. Clair flats, in the State of Michigan," was
presented to me for approval.
It is scarcely necessary to observe that during the closing hours of a
session it is impossible for the President on the instant to examine
into the merits or demerits of an important bill, involving, as this
does, grave questions both of expediency and of constitutional power,
with that care and deliberation demanded by his public duty as well as
by the best interests of the country. For this reason the Constitution
has in all cases allowed him ten days for deliberation, because if a
bill be presented to him within the last ten days of the session he is
not required to return it, either with an approval or a veto, but may
retain it, "in which case it shall not be a law." Whilst an occasion can
rarely occur when so long a period as ten days would be required to
enable the President to decide whether he should approve or veto a
bill, yet to deny him even two days on important questions before the
adjournment of each session for this purpose, as recommended by a former
annual message, would not only be unjust to him, but a violation of the
spirit of the Constitution. To require him to approve a bill when it is
impossible he could examine into its merits would be to deprive him of
the exercise of his constitutional discretion and convert him into
a mere register of the decrees of Congress. I therefore deem it a
sufficient reason for having retained the bill in question that it
was not presented to me until the last day of the session.
Since the termination of the last Congress I have made a thorough
examination of the questions involved in the bill to deepen the channel
over the St. Clair flats, and now proceed to express the opinions which I
have formed upon the subject; and
1. Even if this had been a mere question of expediency, it was, to say
the least, extremely doubtful whether the bill ought to have been
approved, because the object which Congress intended to accomplish
by the appropriation which it contains of $55,000 had been already
substantially accomplished. I do not mean to allege that the work had
been completed in the best manner, but it was sufficient for all
practical purposes.
The St. Clair flats are formed by the St. Clair River, which empties
into the lake of that name by several mouths, and which forms a bar or
shoal on which in its natural state there is not more than 6 or 7 feet
of water. This shoal is interposed between the mouth of the river and
the deep water of the lake, a distance of 6,000 feet, and in its natural
condition was a serious obstruction to navigation. The obvious remedy
for this was to deepen a channel through these flats by dredging, so
as to enable vessels which could navigate the lake and the river to
pass through this intermediate channel. This object had been already
accomplished by previous appropriations, but without my knowledge, when
the bill was presented to me. Captain Whipple, of the Topographical
Engineers, to whom the expenditure of the last appropriation of $45,000
for this purpose in 1856 was intrusted, in his annual report of the 1st
October, 1858, stated that the dredging was discontinued on the 26th
August, 1858, when a channel had been cut averaging 275 feet wide, with
a depth varying from 12 to 15-1/2 feet. He says:
So long as the lake retains its present height we may assume that the
depth in the channel will be at least 13-1/2 feet.
With this result, highly creditable to Captain Whipple, he observes
that if he has been correctly informed "all the lake navigators are
gratified." Besides, afterwards, and during the autumn of 1858, the
Canadian Government expended $20,000 in deepening and widening the inner
end of the channel excavated by the United States. No complaint had been
made previous to the passage of the bill of obstructions to the commerce
and navigation across the St. Clair flats. What, then, was the object of
the appropriation proposed by the bill?
It appears that the surface of the water in Lake St. Clair has been
gradually rising, until in 1858 it had attained an elevation of 4 feet
above what had been its level in 1841. It is inferred, whether correctly
or not it is not for me to say, that the surface of the water may
gradually sink to the level of 1841, and in that event the water, which
was, when the bill passed, 13-1/2 feet deep in the channel, might sink
to 9-1/2 feet, and thus obstruct the passage.
To provide for this contingency, Captain Whipple suggested "the
propriety of placing the subject before Congress, with an estimate for
excavating a cut through the center of the new channel 150 feet in width
and 4-1/2 feet deep, so as to obtain from the river to the lake a depth
of 18 feet during seasons of extreme high water and 12 feet at periods
of extreme low water." It was not alleged that any present necessity
existed for this narrower cut in the bottom of the present channel,
but it is inferred that for the reason stated it may hereafter become
necessary. Captain Whipple's estimate amounted to $50,000, but Congress
by the bill have granted $55,000. Now, if no other objection existed
against this measure, it would not seem necessary that the appropriation
should have been made for the purpose indicated. The channel was
sufficiently deep for all practical purposes; but from natural causes
constantly operating in the lake, which I need not explain, this channel
is peculiarly liable to fill up. What is really required is that it
should at intervals be dredged out, so as to preserve its present depth;
and surely the comparatively trifling expense necessary for this purpose
ought not to be borne by the United States. After an improvement has
been once constructed by appropriations from the Treasury it is not too
much to expect that it should be kept in repair by that portion of the
commercial and navigating interests which enjoys its peculiar benefits.
The last report made by Captain Whipple, dated on the 13th September
last, has been submitted to Congress by the Secretary of War, and to
this I would refer for information, which is, upon the whole, favorable,
in relation to the present condition of the channel through the St.
Clair flats.
2. But the far more important question is, Does Congress possess the
power under the Constitution to deepen the channels of rivers and to
create and improve harbors for purposes of commerce?
The question of the constitutional power of Congress to construct
internal improvements within the States has been so frequently and
so elaborately discussed that it would seem useless on this occasion
to repeat or to refute at length arguments which have been so often
advanced. For my own opinions on this subject I might refer to President
Polk's carefully considered message of the 15th December, 1847,
addressed to the House of Representatives whilst I was a member of
his Cabinet.
The power to pass the bill in question, if it exist at all, must be
derived from the power "to regulate commerce with foreign nations and
among the several States and with the Indian tribes."
The power "to regulate:" Does this ever embrace the power to create or
to construct? To say that it does is to confound the meaning of words
of well-known signification. The word "regulate" has several shades of
meaning, according to its application to different subjects, but never
does it approach the signification of creative power. The regulating
power necessarily presupposes the existence of something to be
regulated. As applied to commerce, it signifies, according to the
lexicographers, "to subject to rules or restrictions, as to regulate
trade," etc. The Constitution itself is its own best expounder of the
meaning of words employed by its framers. Thus, Congress have the power
"to coin money." This is the creative power. Then immediately follows
the power "to regulate the value thereof "--that is, of the coined money
thus brought into existence. The words "regulate," "regulation," and
"regulations" occur several times in the Constitution, but always with
this subordinate meaning. Thus, after the creative power "to raise and
support armies" and "to provide and maintain a navy" had been conferred
upon Congress, then follows the power "to make rules for the government
and regulation of the land and naval forces" thus called into being. So
the Constitution, acting upon the self-evident fact that "commerce with
foreign nations and among the several States and with the Indian tribes"
already existed, conferred upon Congress the power "to regulate" this
commerce. Thus, according to Chief Justice Marshall, the power to
regulate commerce "is the power to prescribe the rule by which commerce
is to be governed." And Mr. Madison, in his veto message of the 3d
March, 1817, declares that--
"The power to regulate commerce among the several States" can not
include a power to construct roads and canals and to improve the
navigation of water courses, in order to facilitate, promote, and
secure such commerce, without a latitude of construction departing
from the ordinary import of the terms, strengthened by the known
inconveniences which doubtless led to the grant of this remedial
power to Congress.
We know from the history of the Constitution what these inconveniences
were. Different States admitted foreign imports at different rates of
duty. Those which had prescribed a higher rate of duty for the purpose
of increasing their revenue were defeated in this object by the
legislation of neighboring States admitting the same foreign articles
at lower rates. Hence jealousies and dangerous rivalries had sprung up
between the different States. It was chiefly in the desire to provide
a remedy for these evils that the Federal Convention originated. The
Constitution, for this purpose, conferred upon Congress the power to
regulate commerce in such a manner that duties should be uniform in all
the States composing the Confederacy, and, moreover, expressly provided
that "no preference shall be given by any regulation of commerce or
revenue to the ports of one State over those of another." If the
construction of a harbor or deepening the channel of a river be a
regulation of commerce, as the advocates of this power contend, this
would give the ports of the State within which these improvements were
made a preference over the ports of other States, and thus be a
violation of the Constitution.
It is not too much to assert that no human being in existence when the
Constitution was framed entertained the idea or the apprehension that
by conferring upon Congress the power to regulate commerce its framers
intended to embrace the power of constructing roads and canals and of
creating and improving harbors and deepening the channels of rivers
throughout our extensive Confederacy. Indeed, one important branch of
this very power had been denied to Congress in express terms by the
Convention. A proposition was made in the Convention to confer on
Congress the power "to provide for the cutting of canals when deemed
necessary." This was rejected by the strong majority of eight States to
three. Among the reasons given for this rejection was that "the expense
in such cases will fall on the United States and the benefits accrue
to the places where the canals may be cut."
To say that the simple power of regulating commerce embraces within
itself that of constructing harbors, of deepening the channels of
rivers--in short, of creating a system of internal improvements for the
purpose of facilitating the operations of commerce--would be to adopt
a latitude of construction under which all political power might be
usurped by the Federal Government. Such a construction would be in
conflict with the well-known jealousy against Federal power which
actuated the framers of the Constitution. It is certain that the power
in question is not enumerated among the express grants to Congress
contained in the instrument. In construing the Constitution we must then
next inquire, Is its exercise "necessary and proper"?--not whether it
may be convenient or useful "for carrying into execution" the power
to regulate commerce among the States. But the jealous patriots of
that day were not content even with this strict rule of construction.
Apprehending that a dangerous latitude of interpretation might be
applied in future times to the enumerated grants of power, they procured
an amendment to be made to the original instrument, which declares that
"the powers not delegated to the United States by the Constitution nor
prohibited by it to the States are reserved to the States respectively
or to the people."
The distinctive spirit and character which pervades the Constitution is
that the powers of the General Government are confined chiefly to our
intercourse with foreign nations, to questions of peace and war, and to
subjects of common interest to all the States, carefully leaving the
internal and domestic concerns of each individual State to be controlled
by its own people and legislature. Without specifically enumerating
these powers, it must be admitted that this well-marked distinction runs
through the whole instrument. In nothing does the wisdom of its framers
appear more conspicuously than in the care with which they sought to
avoid the danger to our institutions which must necessarily result from
the interference of the Federal Government with the local concerns
of the States. The jarring and collision which would occur from the
exercise by two separate governments of jurisdiction over the same
subjects could not fail to produce disastrous consequences. Besides,
the corrupting and seducing money influence exerted by the General
Government in carrying into effect a system of internal improvements
might be perverted to increase and consolidate its own power to the
detriment of the rights of the States.
If the power existed in Congress to pass the present bill, then taxes
must be imposed and money borrowed to an unlimited extent to carry such
a system into execution. Equality among the States is equity. This
equality is the very essence of the Constitution. No preference can
justly be given to one of the sovereign States over another. According
to the best estimate, our immense coast on the Atlantic, the Gulf of
Mexico, the Pacific, and the Ivakes embraces more than 9,500 miles,
and, measuring by its indentations and to the head of tide water on
the rivers, the distance is believed to be more than 33,000 miles.
This everywhere throughout its vast extent contains numerous rivers
and harbors, all of which may become the objects of Congressional
appropriation. You can not deny to one State what you have granted to
another. Such injustice would produce strife, jealousy, and alarming
dissensions among them. Even within the same State improvements may be
made in one river or harbor which would essentially injure the commerce
and industry of another river or harbor. The truth is that most of these
improvements are in a great degree local in their character and for
the especial benefit of corporations or individuals in their vicinity,
though they may have an odor of nationality on the principle that
whatever benefits any part indirectly benefits the whole.
From our past history we may have a small foretaste of the cost of
reviving the system of internal improvements.
For more than thirty years after the adoption of the Federal
Constitution the power to appropriate money for the construction of
internal improvements was neither claimed nor exercised by Congress.
After its commencement, in 1820 and 1821, by very small and modest
appropriations for surveys, it advanced with such rapid strides that
within the brief period of ten years, according to President Polk, "the
sum asked for from the Treasury for various projects amounted to more
than $200,000,000." The vetoes of General Jackson and several of his
successors have impeded the progress of the system and limited its
extent, but have not altogether destroyed it. The time has now arrived
for a final decision of the question. If the power exists, a general
system should be adopted which would make some approach to justice
among all the States, if this be possible.
What a vast field would the exercise of this power open for jobbing and
corruption! Members of Congress, from an honest desire to promote the
interest of their constituents, would struggle for improvements within
their own districts, and the body itself must necessarily be converted
into an arena where each would endeavor to obtain from the Treasury as
much money as possible for his own locality. The temptation would prove
irresistible. A system of "_logrolling_" (I know no word so expressive)
would be inaugurated, under which the Treasury would be exhausted and
the Federal Government be deprived of the means necessary to execute
those great powers clearly confided to it by the Constitution for the
purpose of promoting the interests and vindicating the honor of the
country.
Whilst the power over internal improvements, it is believed, was
"reserved to the States respectively," the framers of the Constitution
were not unmindful that it might be proper for the State legislatures to
possess the power to impose tonnage duties for the improvement of rivers
and harbors within their limits. The self-interest of the different
localities would prevent this from being done to such an extent as to
injure their trade. The Constitution, therefore, which had in a previous
clause provided that all duties should be uniform throughout the United
States, subsequently modified the general rule so far as to declare
that "no State shall without the consent of Congress levy any duty of
tonnage." The inference is therefore irresistible that with the consent
of Congress such a duty may be imposed by the States. Thus those
directly interested in the improvement may lay a tonnage duty for its
construction without imposing a tax for this purpose upon all the people
of the United States.
To this provision several of the States resorted until the period when
they began to look to the Federal Treasury instead of depending upon
their own exertions. Massachusetts, Rhode Island, Pennsylvania,
Maryland, Virginia, North Carolina, South Carolina, and Georgia, with
the consent of Congress, imposed small tonnage duties on vessels at
different periods for clearing and deepening the channels of rivers
and improving harbors where such vessels entered. The last of these
legislative acts believed to exist is that of Virginia, passed on the
22d February, 1826, levying a tonnage duty on vessels for "improving
the navigation of James River from Warwick to Rocketts Landing." The
latest act of Congress on this subject was passed on the 24th of
February, 1843, giving its consent to the law of the legislature of
Maryland laying a tonnage duty on vessels for the improvement of the
harbor of Baltimore, and continuing it in force until 1st June, 1850.
Thus a clear constitutional mode exists by which the legislature of
Michigan may, in its discretion, raise money to preserve the channel
of the St. Clair River at its present depth or to render it deeper.
A very insignificant tonnage duty on American vessels using this channel
would be sufficient for the purpose; and as the St. Clair River is
the boundary line between the United States and the Province of Upper
Canada, the provincial British authorities would doubtless be willing
to impose a similar tonnage duty on British vessels to aid in the
accomplishment of this object. Indeed, the legislature of that Province
have already evinced their interest on this subject by having but
recently expended $20,000 on the improvement of the St. Clair flats.
Even if the Constitution of the United States had conferred upon
Congress the power of deepening the channel of the St. Clair River,
it would be unjust to impose upon the people of the United States the
entire burden, which ought to be borne jointly by the two parties having
an equal interest in the work. Whenever the State of Michigan shall
cease to depend on the Treasury of the United States, I doubt not that
she, in conjunction with Upper Canada, will provide the necessary means
for keeping this work in repair in the least expensive and most
effective manner and without being burdensome to any interest.
It has been contended in favor of the existence of the power to
construct internal improvements that Congress have from the beginning
made appropriations for light-houses, and that upon the same principle
of construction they possess the power of improving harbors and
deepening the channels of rivers. As an original question the authority
to erect light-houses under the commercial power might be considered
doubtful; but even were it more doubtful than it is I should regard
it as settled after an uninterrupted exercise of the power for
seventy years. Such a long and uniform practical construction of
the Constitution is entitled to the highest respect, and has finally
determined the question.