[The following message is inserted here because it is an exposition of
the reasons of the President for the veto of August 4, 1854, immediately
preceding.]
WASHINGTON, _December 30, 1854_.
_To the Senate and House of Representatives_:
In returning to the House of Representatives, in which it originated,
a bill entitled "An act making appropriations for the repair,
preservation, and completion of certain public works heretofore
commenced under the authority of law," it became necessary for me, owing
to the late day at which the bill was passed, to state my objections
to it very briefly, announcing at the same time a purpose to resume
the subject for more deliberate discussion at the present session of
Congress; for, while by no means insensible of the arduousness of the
task thus undertaken by me, I conceived that the two Houses were
entitled to an exposition of the considerations which had induced
dissent on my part from their conclusions in this instance.
The great constitutional question of the power of the General Government
in relation to internal improvements has been the subject of earnest
difference of opinion at every period of the history of the United
States. Annual and special messages of successive Presidents have been
occupied with it, sometimes in remarks on the general topic and
frequently in objection to particular bills. The conflicting sentiments
of eminent statesmen, expressed in Congress or in conventions called
expressly to devise, if possible, some plan calculated to relieve the
subject of the embarrassments with which it is environed, while they
have directed public attention strongly to the magnitude of the
interests involved, have yet left unsettled the limits, not merely of
expediency, but of constitutional power, in relation to works of this
class by the General Government.
What is intended by the phrase "internal improvements"? What does it
embrace and what exclude? No such language is found in the Constitution.
Not only is it not an expression of ascertainable constitutional power,
but it has no sufficient exactness of meaning to be of any value as the
basis of a safe conclusion either of constitutional law or of practical
statesmanship.
President John Quincy Adams, in claiming on one occasion, after his
retirement from office, the authorship of the idea of introducing into
the administration of the affairs of the General Government "a permanent
and regular system" of internal improvements, speaks of it as a system
by which "the whole Union would have been checkered over with railroads
and canals," affording "high wages and constant employment to hundreds
of thousands of laborers;" and he places it in express contrast with the
construction of such works by the legislation of the States and by
private enterprise.
It is quite obvious that if there be any constitutional power which
authorizes the construction of "railroads and canals" by Congress, the
same power must comprehend turnpikes and ordinary carriage roads; nay, it
must extend to the construction of bridges, to the draining of marshes,
to the erection of levees, to the construction of canals of irrigation;
in a word, to all the possible means of the material improvement of the
earth, by developing its natural resources anywhere and everywhere, even
within the proper jurisdiction of the several States. But if there be
any constitutional power thus comprehensive in its nature, must not the
same power embrace within its scope other kinds of improvement of equal
utility in themselves and equally important to the welfare of the whole
country? President Jefferson, while intimating the expediency of so
amending the Constitution as to comprise objects of physical progress
and well-being, does not fail to perceive that "other objects of public
improvement," including "public education" by name, belong to the same
class of powers. In fact, not only public instruction, but hospitals,
establishments of science and art, libraries, and, indeed, everything
appertaining to the internal welfare of the country, are just as much
objects of internal improvement, or, in other words, of internal
utility, as canals and railways.
The admission of the power in either of its senses implies its existence
in the other; and since if it exists at all it involves dangerous
augmentation of the political functions and of the patronage of the
Federal Government, we ought to see clearly by what clause or clauses of
the Constitution it is conferred.
I have had occasion more than once to express, and deem it proper now
to repeat, that it is, in my judgment, to be taken for granted, as a
fundamental proposition not requiring elucidation, that the Federal
Government is the creature of the individual States and of the people
of the States severally; that the sovereign power was in them alone;
that all the powers of the Federal Government are derivative ones, the
enumeration and limitations of which are contained in the instrument
which organized it; and by express terms "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."
Starting from this foundation of our constitutional faith and proceeding
to inquire in what part of the Constitution the power of making
appropriations for internal improvements is found, it is necessary to
reject all idea of there being any grant of power in the preamble.
When that instrument says, "We, the people of the United States, in
order to form a more perfect union, establish justice, insure domestic
tranquillity, provide for the common defense, promote the general
welfare, and secure the blessings of liberty to ourselves and our
posterity," it only declares the inducements and the anticipated results
of the things ordained and established by it. To assume that anything
more can be designed by the language of the preamble would be to
convert all the body of the Constitution, with its carefully weighed
enumerations and limitations, into mere surplusage. The same may be said
of the phrase in the grant of the power to Congress "to pay the debts
and provide for the common defense and general welfare of the United
States;" or, to construe the words more exactly, they are not
significant of grant or concession, but of restriction of the specific
grants, having the effect of saying that in laying and collecting
taxes for each of the precise objects of power granted to the General
Government Congress must exercise any such definite and undoubted power
in strict subordination to the purpose of the common defense and general
welfare of all the States.
There being no specific grant in the Constitution of a power to sanction
appropriations for internal improvements, and no general provision broad
enough to cover any such indefinite object, it becomes necessary to look
for particular powers to which one or another of the things included in
the phrase "internal improvements" may be referred.
In the discussions of this question by the advocates of the organization
of a "general system of internal improvements" under the auspices of the
Federal Government, reliance is had for the justification of the measure
on several of the powers expressly granted to Congress, such as to
establish post-offices and post-roads, to declare war, to provide and
maintain a navy, to raise and support armies, to regulate commerce, and
to dispose of the territory and other public property of the United
States,
As to the last of these sources of power, that of disposing of the
territory and other public property of the United States, it may be
conceded that it authorizes Congress, in the management of the public
property, to make improvements essential to the successful execution of
the trust; but this must be the primary object of any such improvement,
and it would be an abuse of the trust to sacrifice the interest of the
property to incidental purposes.
As to the other assumed sources of a general power over internal
improvements, they being specific powers of which this is supposed to be
the incident, if the framers of the Constitution, wise and thoughtful
men as they were, intended to confer on Congress the power over a
subject so wide as the whole field of internal improvements, it is
remarkable that they did not use language clearly to express it, or, in
other words, that they did not give it as a distinct and substantive
power instead of making it the implied incident of some other one; for
such is the magnitude of the supposed incidental power and its capacity
of expansion that any system established under it would exceed each of
the others in the amount of expenditure and number of the persons
employed, which would thus be thrown upon the General Government.
This position may be illustrated by taking as a single example one of
the many things comprehended clearly in the idea of "a general system of
internal improvements," namely, roads. Let it be supposed that the power
to construct roads over the whole Union, according to the suggestion of
President J.Q. Adams in 1807, whilst a member of the Senate of the
United States, had been conceded. Congress would have begun, in
pursuance of the state of knowledge at the time, by constructing
turnpikes; then, as knowledge advanced, it would have constructed
canals, and at the present time it would have been embarked in an almost
limitless scheme of railroads.
Now there are in the United States, the results of State or private
enterprise, upward of 17,000 miles of railroads and 5,000 miles of
canals; in all, 22,000 miles, the total cost of which may be estimated
at little short of $600,000,000; and if the same works had been
constructed by the Federal Government, supposing the thing to have
been practicable, the cost would have probably been not less than
$900,000,000. The number of persons employed in superintending,
managing, and keeping up these canals and railroads may be stated at
126,000 or thereabouts, to which are to be added 70,000 or 80,000
employed on the railroads in construction, making a total of at least
200,000 persons, representing in families nearly 1,000,000 souls,
employed on or maintained by this one class of public works in the
United States.
In view of all this, it is not easy to estimate the disastrous
consequences which must have resulted from such extended local
improvements being undertaken by the General Government. State
legislation upon this subject would have been suspended and private
enterprise paralyzed, while applications for appropriations would have
perverted the legislation of Congress, exhausted the National Treasury,
and left the people burdened with a heavy public debt, beyond the
capacity of generations to discharge.
Is it conceivable that the framers of the Constitution intended that
authority drawing after it such immense consequences should be inferred
by implication as the incident of enumerated powers? I can not think
this, and the impossibility of supposing it would be still more glaring
if similar calculations were carried out in regard to the numerous
objects of material, moral, and political usefulness of which the idea
of internal improvement admits. It may be safely inferred that if the
framers of the Constitution had intended to confer the power to make
appropriations for the objects indicated, it would have been enumerated
among the grants expressly made to Congress.. When, therefore, any one
of the powers actually enumerated is adduced or referred to as the
ground of an assumption to warrant the incidental or implied power of
"internal improvement," that hypothesis must be rejected, or at least
can be no further admitted than as the particular act of internal
improvement may happen to be necessary to the exercise of the granted
power. Thus, when the object of a given road, the clearing of a
particular channel, or the construction of a particular harbor of refuge
is manifestly required by the exigencies of the naval or military
service of the country, then it seems to me undeniable that it may be
constitutionally comprehended in the powers to declare war, to provide
and maintain a navy, and to raise and support armies. At the same time,
it would be a misuse of these powers and a violation of the Constitution
to undertake to build upon them a great system of internal improvements.
And similar reasoning applies to the assumption of any such power as
is involved in that to establish post-roads and to regulate commerce.
If the particular improvement, whether by land or sea, be necessary to
the execution of the enumerated powers, then, but not otherwise, it
falls within the jurisdiction of Congress. To this extent only can
the power be claimed as the incident of any express grant to the
Federal Government.
But there is one clause of the Constitution in which it has been
suggested that express authority to construct works of internal
improvement has been conferred on Congress, namely, that which empowers
it "to exercise exclusive legislation in all cases whatsoever over such
district (not exceeding 10 miles square) as may by cession of particular
States and the acceptance of Congress become the seat of the Government
of the United States, and to exercise like authority over all places
purchased by the consent of the legislature of the State in which the
same shall be for the erection of forts, magazines, arsenals, dockyards,
and _other needful buildings_..." But any such supposition will be seen
to be groundless when this provision is carefully examined and compared
with other parts of the Constitution.
It is undoubtedly true that "like authority" refers back to "exclusive
legislation in all cases whatsoever" as applied to the District of
Columbia, and there is in the District no division of powers as between
the General and the State Governments.
In those places which the United States has purchased or retains within
any of the States--sites for dockyards or forts, for example--legal
process of the given State is still permitted to run for some purposes,
and therefore the jurisdiction of the United States is not absolutely
perfect. But let us assume for the argument's sake that the jurisdiction
of the United States in a tract of land ceded to it for the purpose of a
dockyard or fort by Virginia or Maryland is as complete as in that ceded
by them for the seat of Government, and then proceed to analyze this
clause of the Constitution.
It provides that Congress shall have certain legislative authority over
all places purchased by the United States for certain purposes. It
implies that Congress has otherwise the power to purchase. But where
does Congress get the power to purchase? Manifestly it must be from some
other clause of the Constitution, for it is not conferred by this one.
Now, as it is a fundamental principle that the Constitution is one of
limited powers, the authority to purchase must be conferred in one of
the enumerations of legislative power; so that the power to purchase is
itself not an unlimited one, but is limited by the objects in regard to
which legislative authority is directly conferred.
The other expressions of the clause in question confirm this
conclusion, since the jurisdiction is given as to places purchased
for certain enumerated objects or purposes. Of these the first great
division--forts, magazines, arsenals, and dockyards--is obviously
referable to recognized heads of specific constitutional power. There
remains only the phrase "and other _needful_ buildings." Wherefore
needful? Needful for any possible purpose within the whole range of
the business of society and of Government? Clearly not; but only such
"buildings" as are "needful" to the United States in the exercise of
any of the powers conferred on Congress.
Thus the United States need, in the exercise of admitted powers, not
only forts, magazines, arsenals, and dockyards, but also court-houses,
prisons, custom-houses, and post-offices within the respective States.
Places for the erection of such buildings the General Government may
constitutionally purchase, and, having purchased them, the jurisdiction
over them belongs to the United States. So if the General Government has
the power to build a light-house or a beacon, it may purchase a place
for that object; and having purchased it, then this clause of the
Constitution gives jurisdiction over it. Still, the power to purchase
for the purpose of erecting a light-house or beacon must depend on the
existence of the power to erect, and if that power exists it must be
sought after in some other clause of the Constitution.
From whatever point of view, therefore, the subject is regarded, whether
as a question of express or implied power, the conclusion is the same,
that Congress has no constitutional authority to carry on a system of
internal improvements; and in this conviction the system has been
steadily opposed by the soundest expositors of the functions of the
Government.
It is not to be supposed that in no conceivable case shall there be
doubt as to whether a given object be or not a necessary incident
of the military, naval, or any other power. As man is imperfect, so
are his methods of uttering his thoughts. Human language, save in
expressions for the exact sciences, must always fail to preclude all
possibility of controversy. Hence it is that in one branch of the
subject--the question of the power of Congress to make appropriations
in aid of navigation--there is less of positive conviction than in
regard to the general subject; and it therefore seems proper in this
respect to revert to the history of the practice of the Government.
Among the very earliest acts of the first session of Congress was that
for the establishment and support of light-houses, approved by President
Washington on the 7th of August, 1789, which contains the following
provisions:
That all expenses which shall accrue from and after the 15th day of
August, 1789, in the necessary support, maintenance, and repairs of
all light-houses, beacons, buoys, and public piers erected, placed, or
sunk before the passing of this act at the entrance of or within any
bay, inlet, harbor, or port of the United States, for rendering the
navigation thereof easy and safe, shall be defrayed out of the Treasury
of the United States: _Provided, nevertheless_, That none of the said
expenses shall continue to be so defrayed after the expiration of one
year from the day aforesaid unless such light-houses, beacons, buoys,
and public piers shall in the meantime be ceded to and vested in the
United States by the State or States, respectively, in which the same
may be, together with the lands and tenements thereunto belonging and
together with the jurisdiction of the same.
Acts containing appropriations for this class of public works were
passed in 1791, 1792, 1793, and so on from year to year down to the
present time; and the tenor of these acts, when examined with reference
to other parts of the subject, is worthy of special consideration.
It is a remarkable fact that for a period of more than thirty years
after the adoption of the Constitution all appropriations of this class
were confined, with scarcely an apparent exception, to the construction
of light-houses, beacons, buoys, and public piers and the stakage of
channels; to render navigation "safe and easy," it is true, but only
by indicating to the navigator obstacles in his way, not by removing
those obstacles nor in any other respect changing, artificially, the
preexisting natural condition of the earth and sea. It is obvious,
however, that works of art for the removal of natural impediments to
navigation, or to prevent their formation, or for supplying harbors
where these do not exist, are also means of rendering navigation safe
and easy, and may in supposable cases be the most efficient, as well as
the most economical, of such means. Nevertheless, it is not until the
year 1824 that in an act to improve the navigation of the rivers Ohio
and Mississippi and in another act making appropriations for deepening
the channel leading into the harbor of Presque Isle, on Lake Erie, and
for repairing Plymouth Beach, in Massachusetts Bay, we have any example
of an appropriation for the improvement of harbors in the nature of
those provided for in the bill returned by me to the House of
Representatives.
It appears not probable that the abstinence of Congress in this respect
is attributable altogether to considerations of economy or to any
failure to perceive that the removal of an obstacle to navigation might
be not less useful than the indication of it for avoidance, and it may
be well assumed that the course of legislation so long pursued was
induced, in whole or in part, by solicitous consideration in regard to
the constitutional power over such matters vested in Congress.
One other peculiarity in this course of legislation is not less
remarkable. It is that when the General Government first took charge of
lighthouses and beacons it required the works themselves and the lands
on which they were situated to be ceded to the United States. And
although for a time this precaution was neglected in the case of new
works, in the sequel it was provided by general laws that no light-house
should be constructed on any site previous to the jurisdiction over the
same being ceded to the United States.
Constitutional authority for the construction and support of many of the
public works of this nature, it is certain, may be found in the power
of Congress to maintain a navy and provide for the general defense; but
their number, and in many instances their location, preclude the idea of
their being fully justified as necessary and proper incidents of that
power. And they do not seem susceptible of being referred to any other
of the specific powers vested in Congress by the Constitution, unless it
be that to raise revenue in so far as this relates to navigation. The
practice under all my predecessors in office, the express admissions of
some of them, and absence of denial by any sufficiently manifest their
belief that the power to erect light-houses, beacons, and piers is
possessed by the General Government. In the acts of Congress, as we
have already seen, the inducement and object of the appropriations
are expressly declared, those appropriations being for "light-houses,
beacons, buoys, and public piers" erected or placed "within any bay,
inlet, harbor, or port of the United States for rendering the navigation
thereof easy and safe."
If it be contended that this review of the history of appropriations
of this class leads to the inference that, beyond the purposes of
national defense and maintenance of a navy, there is authority in the
Constitution to construct certain works in aid of navigation, it is
at the same time to be remembered that the conclusions thus deduced
from cotemporaneous construction and long-continued acquiescence are
themselves directly suggestive of limitations of constitutionality, as
well as expediency, regarding the nature and the description of those
aids to navigation which Congress may provide as incident to the revenue
power; for at this point controversy begins, not so much as to the
principle as to its application.
In accordance with long-established legislative usage, Congress may
construct light-houses and beacons and provide, as it does, other means
to prevent shipwrecks on the coasts of the United States. But the
General Government can not go beyond this and make improvements of
rivers and harbors of the nature and to the degree of all the provisions
of the bill of the last session of Congress.
To justify such extended power, it has been urged that if it be
constitutional to appropriate money for the purpose of pointing out,
by the construction of light-houses or beacons, where an obstacle to
navigation exists, it is equally so to remove such obstacle or to avoid
it by the creation of an artificial channel; that if the object be
lawful, then the means adopted solely with reference to the end must
be lawful, and that therefore it is not material, constitutionally
speaking, whether a given obstruction to navigation be indicated for
avoidance or be actually avoided by excavating a new channel; that if
it be a legitimate object of expenditure to preserve a ship from wreck
by means of a beacon or of revenue cutters, it must be not less so
to provide places of safety by the improvement of harbors, or, where
none exist, by their artificial construction; and thence the argument
naturally passes to the propriety of improving rivers for the benefit
of internal navigation, because all these objects are of more or less
importance to the commercial as well as the naval interests of the
United States.
The answer to all this is that the question of opening speedy and easy
communication to and through all parts of the country is substantially
the same, whether done by land or water; that the uses of roads and
canals in facilitating commercial intercourse and uniting by community
of interests the most remote quarters of the country by land
communication are the same in their nature as the uses of navigable
waters; and that therefore the question of the facilities and aids to
be provided to navigation, by whatsoever means, is but a subdivision of
the great question of the constitutionality and expediency of internal
improvements by the General Government. In confirmation of this it is to
be remarked that one of the most important acts of appropriation of this
class, that of the year 1833, under the Administration of President
Jackson, by including together and providing for in one bill as well
river and harbor works as road works, impliedly recognizes the fact that
they are alike branches of the same great subject of internal
improvements.
As the population, territory, and wealth of the country increased and
settlements extended into remote regions, the necessity for additional
means of communication impressed itself upon all minds with a force
which had not been experienced at the date of the formation of the
Constitution, and more and more embarrassed those who were most anxious
to abstain scrupulously from any exercise of doubtful power. Hence the
recognition in the messages of Presidents Jefferson, Madison, and Monroe
of the eminent desirableness of such works, with admission that some of
them could lawfully and should be conducted by the General Government,
but with obvious uncertainty of opinion as to the line between such
as are constitutional and such as are not, such as ought to receive
appropriations from Congress and such as ought to be consigned to
private enterprise or the legislation of the several States.
This uncertainty has not been removed by the practical working of our
institutions in later times; for although the acquisition of additional
territory and the application of steam to the propulsion of vessels have
greatly magnified the importance of internal commerce, this fact has at
the same time complicated the question of the power of the General
Government over the present subject.
In fine, a careful review of the opinions of all my predecessors and of
the legislative history of the country does not indicate any fixed rule
by which to decide what, of the infinite variety of possible river and
harbor improvements, are within the scope of the power delegated by
the Constitution; and the question still remains unsettled. President
Jackson conceded the constitutionality, under suitable circumstances, of
the improvement of rivers and harbors through the agency of Congress,
and President Polk admitted the propriety of the establishment and
support by appropriations from the Treasury of light-houses, beacons,
buoys, and other improvements within the bays, inlets, and harbors of
the ocean and lake coasts immediately connected with foreign commerce.
But if the distinction thus made rests upon the differences between
foreign and domestic commerce it can not be restricted thereby to the
bays, inlets, and harbors of the oceans and lakes, because foreign
commerce has already penetrated thousands of miles into the interior
of the continent by means of our great rivers, and will continue so to
extend itself with the progress of settlement until it reaches the limit
of navigability.
At the time of the adoption of the Constitution the vast Valley of the
Mississippi, now teeming with population and supplying almost boundless
resources, was literally an unexplored wilderness. Our advancement has
outstripped even the most sanguine anticipations of the fathers of
the Republic, and it illustrates the fact that no rule is admissible
which undertakes to discriminate, so far as regards river and harbor
improvements, between the Atlantic or Pacific coasts and the great lakes
and rivers of the interior regions of North America. Indeed, it is quite
erroneous to suppose that any such discrimination has ever existed
in the practice of the Government. To the contrary of which is the
significant fact, before stated, that when, after abstaining from all
such appropriations for more than thirty years, Congress entered upon
the policy of improving the navigation of rivers and harbors, it
commenced with the rivers Mississippi and Ohio.
The Congress of the Union, adopting in this respect one of the ideas of
that of the Confederation, has taken heed to declare from time to time,
as occasion required, either in acts for disposing of the public lands
in the Territories or in acts for admitting new States, that all
navigable rivers within the same "shall be deemed to be and remain
public highways."
Out of this condition of things arose a question which at successive
periods of our public annals has occupied the attention of the best
minds in the Union. This question is, What waters are public navigable
waters, so as not to be of State character and jurisdiction, but of
Federal jurisdiction and character, in the intent of the Constitution
and of Congress? A proximate, but imperfect, answer to this important
question is furnished by the acts of Congress and the decisions of the
Supreme Court of the United States defining the constitutional limits of
the maritime jurisdiction of the General Government. That jurisdiction
is entirely independent of the revenue power. It is not derived from
that, nor is it measured thereby.
In that act of Congress which, in the first year of the Government,
organized our judicial system, and which, whether we look to the
subject, the comprehensive wisdom with which it was treated, or the
deference with which its provisions have come to be regarded, is only
second to the Constitution itself, there is a section in which the
statesmen who framed the Constitution have placed on record their
construction of it in this matter. It enacts that the district courts of
the United States "shall have exclusive cognizance of all civil cases
of admiralty and maritime jurisdiction, including all seizures under
the law of impost, navigation, or trade of the United States, when the
seizures are made on waters which are navigable from the sea by vessels
of 10 or more tons burden, within their respective districts, as well
as upon the high seas." In this cotemporaneous exposition of the
Constitution there is no trace or suggestion that nationality of
jurisdiction is limited to the sea, or even to tide waters. The law is
marked by a sagacious apprehension of the fact that the Great Lakes
and the Mississippi were navigable waters of the United States even
then, before the acquisition of Louisiana had made wholly our own the
territorial greatness of the West. It repudiates unequivocally the rule
of the common law, according to which the question of whether a water
is public navigable water or not depends on whether it is salt or not,
and therefore, in a river, confines that quality to tide water--a rule
resulting from the geographical condition of England and applicable to
an island, with small and narrow streams, the only navigable portion of
which, for ships, is in immediate contact with the ocean, but wholly
inapplicable to the great inland fresh-water seas of America and its
mighty rivers, with secondary branches exceeding in magnitude the
largest rivers of Great Britain.
At a later period it is true that, in disregard of the more
comprehensive definition of navigability afforded by that act of
Congress, it was for a time held by many that the rule established for
England was to be received in the United States, the effect of which was
to exclude from the jurisdiction of the General Government not only the
waters of the Mississippi, but also those of the Great Lakes. To this
construction it was with truth objected that, in so far as concerns the
lakes, they are in fact seas, although of freshwater; that they are the
natural marine communications between a series of populous States and
between them and the possessions of a foreign nation; that they are
actually navigated by ships of commerce of the largest capacity; that
they had once been and might again be the scene of foreign war; and that
therefore it was doing violence to all reason to undertake by means of
an arbitrary doctrine of technical foreign law to exclude such waters
from the jurisdiction of the General Government. In regard to the river
Mississippi, it was objected that to draw a line across that river at
the point of ebb and flood of tide, and say that the part below was
public navigable water and the part above not, while in the latter the
water was at least equally deep and navigable and its commerce as rich
as in the former, with numerous ports of foreign entry and delivery, was
to sanction a distinction artificial and unjust, because regardless of
the real fact of navigability.
We may conceive that some such considerations led to the enactment in
the year 1845 of an act in addition to that of 1789, declaring that--
The district courts of the United States shall have, possess, and
exercise the same jurisdiction in matters of contract and tort arising
in, upon, or concerning steamboats and other vessels of 20 tons burden
and upward, enrolled and licensed for the coasting trade and at the time
employed in business of commerce and navigation between ports and places
in different States and Territories upon the lakes and navigable waters
connecting said lakes, as is now possessed and exercised by the said
courts in cases of the like steamboats and other vessels employed in
navigation and commerce upon the high seas or tide waters within the
admiralty and maritime jurisdiction of the United States.
It is observable that the act of 1789 applies the jurisdiction of the
United States to all "waters which are navigable from the sea" for
vessels of 10 tons burden, and that of 1845 extends the jurisdiction to
enrolled vessels of 20 tons burden, on the lakes and navigable waters
connecting said lakes, though not waters navigable from the sea,
provided such vessels be employed between places in different States and
Territories.
Thus it appears that these provisions of law in effect prescribe
conditions by which to determine whether any waters are public navigable
waters, subject to the authority of the Federal Government. The
conditions include all waters, whether salt or fresh, and whether of
sea, lake, or river, provided they be capable of navigation by vessels
of a certain tonnage, and for commerce either between the United States
and foreign countries or between any two or more of the States or
Territories of the Union. This excludes water wholly within any
particular State, and not used as the means of commercial communication
with any other State, and subject to be improved or obstructed at will
by the State within which it may happen to be.
The constitutionality of these provisions of statute has been called
in question. Their constitutionality has been maintained, however,
by repeated decisions of the Supreme Court of the United States, and
they are therefore the law of the land by the concurrent act of the
legislative, the executive, and the judicial departments of the
Government. Regarded as affording a criterion of what is navigable
water, and as such subject to the maritime jurisdiction of the Supreme
Court and of Congress, these acts are objectionable in this, that the
rule of navigability is an arbitrary one, that Congress may repeal
the present rule and adopt a new one, and that thus a legislative
definition will be able to restrict or enlarge the limits of
constitutional power. Yet this variableness of standard seems inherent
in the nature of things. At any rate, neither the First Congress,
composed of the statesmen of the era when the Constitution was adopted,
nor any subsequent Congress has afforded us the means of attaining
greater precision of construction as to this part of the Constitution.
This reflection may serve to relieve from undeserved reproach an
idea of one of the greatest men of the Republic--President Jackson.
He, seeking amid all the difficulties of the subject for some practical
rule of action in regard to appropriations for the improvement of rivers
and harbors, prescribed for his own official conduct the rule of
confining such appropriations to "places below the ports of entry or
delivery established by law." He saw clearly, as the authors of the
above-mentioned acts of 1789 and 1845 did, that there is no inflexible
natural line of discrimination between what is national and what local
by means of which to determine absolutely and unerringly at what point
on a river the jurisdiction of the United States shall end. He
perceived, and of course admitted, that the Constitution, while
conferring on the General Government some power of action to render
navigation safe and easy, had of necessity left to Congress much of
discretion in this matter. He confided in the patriotism of Congress to
exercise that discretion wisely, not permitting himself to suppose it
possible that a port of entry or delivery would ever be established by
law for the express and only purpose of evading the Constitution.
It remains, therefore, to consider the question of the measure of
discretion in the exercise by Congress of the power to provide for the
improvement of rivers and harbors, and also that of the legitimate
responsibility of the Executive in the same relation.
In matters of legislation of the most unquestionable constitutionality
it is always material to consider what amount of public money shall be
appropriated for any particular object. The same consideration applies
with augmented force to a class of appropriations which are in their
nature peculiarly prone to run to excess, and which, being made in the
exercise of incidental powers, have intrinsic tendency to overstep the
bounds of constitutionality.
If an appropriation for improving the navigability of a river or
deepening or protecting a harbor have reference to military or naval
purposes, then its rightfulness, whether in amount or in the objects
to which it is applied, depends, manifestly, on the military or naval
exigency; and the subject-matter affords its own measure of legislative
discretion. But if the appropriation for such an object have no distinct
relation to the military or naval wants of the country, and is wholly,
or even mainly, intended to promote the revenue from commerce, then the
very vagueness of the proposed purpose of the expenditure constitutes
a perpetual admonition of reserve and caution. Through disregard of
this it is undeniable that in many cases appropriations of this nature
have been made unwisely, without accomplishing beneficial results
commensurate with the cost, and sometimes for evil rather than good,
independently of their dubious relation to the Constitution.
Among the radical changes of the course of legislation in these matters
which, in my judgment, the public interest demands, one is a return to
the primitive idea of Congress, which required in this class of public
works, as in all others, a conveyance of the soil and a cession of the
jurisdiction to the United States. I think this condition ought never to
have been waived in the case of any harbor improvement of a permanent
nature, as where piers, jetties, sea walls, and other like works are to
be constructed and maintained. It would powerfully tend to counteract
endeavors to obtain appropriations of a local character and chiefly
calculated to promote individual interests. The want of such a provision
is the occasion of abuses in regard to existing works, exposing them to
private encroachment without sufficient means of redress by law. Indeed,
the absence in such cases of a cession of jurisdiction has constituted
one of the constitutional objections to appropriations of this class.
It is not easy to perceive any sufficient reason for requiring it in
the case of arsenals or forts which does not equally apply to all other
public works. If to be constructed and maintained by Congress in the
exercise of a constitutional power of appropriation, they should be
brought within the jurisdiction of the United States.
There is another measure of precaution in regard to such appropriations
which seems to me to be worthy of the consideration of Congress. It is
to make appropriation for every work in a separate bill, so that each
one shall stand on its own independent merits, and if it pass shall
do so under circumstances of legislative scrutiny entitling it to be
regarded as of general interest and a proper subject of charge on the
Treasury of the Union.
During that period of time in which the country had not come to look to
Congress for appropriations of this nature several of the States whose
productions or geographical position invited foreign commerce had
entered upon plans for the improvement of their harbors by themselves
and through means of support drawn directly from that commerce, in
virtue of an express constitutional power, needing for its exercise
only the permission of Congress. Harbor improvements thus constructed
and maintained, the expenditures upon them being defrayed by the very
facilities they afford, are a voluntary charge on those only who see fit
to avail themselves of such facilities, and can be justly complained of
by none. On the other hand, so long as these improvements are carried on
by appropriations from the Treasury the benefits will continue to inure
to those alone who enjoy the facilities afforded, while the expenditure
will be a burden upon the whole country and the discrimination a double
injury to places equally requiring improvement, but not equally favored
by appropriations.
These considerations, added to the embarrassments of the whole question,
amply suffice to suggest the policy of confining appropriations by the
General Government to works necessary to the execution of its undoubted
powers and of leaving all others to individual enterprise or to the
separate States, to be provided for out of their own resources or by
recurrence to the provision of the Constitution which authorizes the
States to lay duties of tonnage with the consent of Congress.