[Footnote 20: Pocket veto.]
WASHINGTON, _December 15, 1847_.
_To the House of Representatives_:
On the last day of the last session of Congress a bill entitled "An act
to provide for continuing certain works in the Territory of Wisconsin,
and for other purposes," which had passed both Houses, was presented to
me for my approval. I entertained insuperable objections to its becoming
a law, but the short period of the session which remained afforded me no
sufficient opportunity to prepare my objections and communicate them
with the bill to the House of Representatives, in which it originated.
For this reason the bill was retained, and I deem it proper now to state
my objections to it.
Although from the title of the bill it would seem that its main object
was to make provision for continuing certain works already commenced in
the Territory of Wisconsin, it appears on examination of its provisions
that it contains only a single appropriation of $6,000 to be applied
within that Territory, while it appropriates more than half a million of
dollars for the improvement of numerous harbors and rivers lying within,
the limits and jurisdiction of several of the States of the Union.
At the preceding session of Congress it became my duty to return with my
objections to the House in which it originated a bill making similar
appropriations and involving like principles, and the views then
expressed remain unchanged.
The circumstances under which this heavy expenditure of public money was
proposed were of imposing weight in determining upon its expediency.
Congress had recognized the existence of war with Mexico, and to
prosecute it to "a speedy and successful termination" had made
appropriations exceeding our ordinary revenues. To meet the emergency
and provide for the expenses of the Government, a loan of $23,000,000
was authorized at the same session, which has since been negotiated. The
practical effect of this bill, had it become a law, would have been to
add the whole amount appropriated by it to the national debt. It would,
in fact, have made necessary an additional loan to that amount as
effectually as if in terms it had required the Secretary of the Treasury
to borrow the money therein appropriated. The main question in that
aspect is whether it is wise, while all the means and credit of the
Government are needed to bring the existing war to an honorable close,
to impair the one and endanger the other by borrowing money to be
expended in a system of internal improvements capable of an expansion
sufficient to swallow up the revenues not only of our own country, but
of the civilized world? It is to be apprehended that by entering upon
such a career at this moment confidence at home and abroad in the wisdom
and prudence of the Government would be so far impaired as to make it
difficult, without an immediate resort to heavy taxation, to maintain
the public credit and to preserve the honor of the nation and the glory
of our arms in prosecuting the existing war to a successful conclusion.
Had this bill become a law, it is easy to foresee that largely increased
demands upon the Treasury would have been made at each succeeding
session of Congress for the improvements of numerous other harbors,
bays, inlets, and rivers of equal importance with those embraced by its
provisions. Many millions would probably have been added to the
necessary amount of the war debt, the annual interest on which must also
have been borrowed, and finally a permanent national debt been fastened
on the country and entailed on posterity.
The policy of embarking the Federal Government in a general system of
internal improvements had its origin but little more than twenty years
ago. In a very few years the applications to Congress for appropriations
in furtherance of such objects exceeded $200,000,000. In this alarming
crisis President Jackson refused to approve and sign the Maysville road
bill, the Wabash River bill, and other bills of similar character. His
interposition put a check upon the new policy of throwing the cost of
local improvements upon the National Treasury, preserved the revenues of
the nation for their legitimate objects, by which he was enabled to
extinguish the then existing public debt and to present to an admiring
world the unprecedented spectacle in modern times of a nation free from
debt and advancing to greatness with unequaled strides under a
Government which was content to act within its appropriate sphere in
protecting the States and individuals in their own chosen career of
improvement and of enterprise. Although the bill under consideration
proposes no appropriation ior a road or canal, it is not easy to
perceive the difference in principle or mischievous tendency between
appropriations for making roads and digging canals and appropriations to
deepen rivers and improve harbors. All are alike within the limits and
jurisdiction of the States, and rivers and harbors alone open an abyss
of expenditure sufficient to swallow up the wealth of the nation and
load it with a debt which may fetter its energies and tax its industry
for ages to come.
The experience of several of the States, as well as that of the United
States, during the period that Congress exercised the power of
appropriating the public money for internal improvements is full of
eloquent warnings. It seems impossible, in the nature of the subject, as
connected with local representation, that the several objects presented
for improvement shall be weighed according to their respective merits
and appropriations confined to those whose importance would justify a
tax on the whole community to effect their accomplishment.
In some of the States systems of internal improvements have been
projected, consisting of roads and canals, many of which, taken
separately, were not of sufficient public importance to justify a tax on
the entire population of the State to effect their construction, and yet
by a combination of local interests, operating on a majority of the
legislature, the whole have been authorized and the States plunged into
heavy debts. To an extent so ruinous has this system of legislation been
carried in some portions of the Union that the people have found it
necessary to their own safety and prosperity to forbid their
legislatures, by constitutional restrictions, to contract public debts
for such purposes without their immediate consent.
If the abuse of power has been so fatal in the States, where the systems
of taxation are direct and the representatives responsible at short
periods to small masses of constituents, how much greater danger of
abuse is to be apprehended in the General Government, whose revenues are
raised by indirect taxation and whose functionaries are responsible to
the people in larger masses and for longer terms.
Regarding only objects of improvement of the nature of those embraced in
this bill, how inexhaustible we shall find them. Let the imagination run
along our coast from the river St. Croix to the Rio Grande and trace
every river emptying into the Atlantic and Gulf of Mexico to its source;
let it coast along our lakes and ascend all their tributaries; let it
pass to Oregon and explore all its bays, inlets, and streams; and then
let it raise the curtain of the future and contemplate the extent of
this Republic and the objects of improvement it will embrace as it
advances to its high destiny, and the mind will be startled at the
immensity and danger of the power which the principle of this bill
involves.
Already our Confederacy consists of twenty-nine States. Other States may
at no distant period be expected to be formed on the west of our present
settlements. We own an extensive country in Oregon, stretching many
hundreds of miles from east to west and seven degrees of latitude from
south to north. By the admission of Texas into the Union we have
recently added many hundreds of miles to our seacoast. In all this vast
country, bordering on the Atlantic and Pacific, there are many thousands
of bays, inlets, and rivers equally entitled to appropriations for their
improvement with the objects embraced in this bill.
We have seen in our States that the interests of individuals or
neighborhoods, combining against the general interest, have involved
their governments in debts and bankruptcy; and when the system prevailed
in the General Government, and was checked by President Jackson, it had
begun to be considered the highest merit in a member of Congress to be
able to procure appropriations of public money to be expended within his
district or State, whatever might be the object. We should be blind to
the experience of the past if we did not see abundant evidences that if
this system of expenditure is to be indulged in combinations of
individual and local interests will be found strong enough to control
legislation, absorb the revenues of the country, and plunge the
Government into a hopeless indebtedness.
What is denominated a harbor by this system does not necessarily mean a
bay, inlet, or arm of the sea on the ocean or on our lake shores, on the
margin of which may exist a commercial city or town engaged in foreign
or domestic trade, but is made to embrace waters, where there is not
only no such city or town, but no commerce of any kind. By it a bay or
sheet of shoal water is called a _harbor_, and appropriations demanded
from Congress to deepen it with a View to draw commerce to it or to
enable individuals to build up a town or city on its margin upon
speculation and for their own private advantage.
What is denominated a river which may be improved in the system is
equally undefined in its meaning. It may be the Mississippi or it may be
the smallest and most obscure and unimportant stream bearing the name of
river which is to be found in any State in the Union.
Such a system is subject, moreover, to be perverted to the
accomplishment of the worst of political purposes. During the few years
it was in full operation, and which immediately preceded the veto of
President Jackson of the Maysville road bill, instances were numerous of
public men seeking to gain popular favor by holding out to the people
interested in particular localities the promise of large disbursements
of public money. Numerous reconnoissances and surveys were made during
that period for roads and canals through many parts of the Union, and
the people in the vicinity of each were led to believe that their
property would be enhanced in value and they themselves be enriched by
the large expenditures which they were promised by the advocates of the
system should be made from the Federal Treasury in their neighborhood.
Whole sections of the country were thus sought to be influenced, and the
system was fast becoming one not only of profuse and wasteful
expenditure, but a potent political engine.
If the power to improve a harbor be admitted, it is not easy to perceive
how the power to deepen every inlet on the ocean or the lakes and make
harbors where there are none can be denied. If the power to clear out or
deepen the channel of rivers near their mouths be admitted, it is not
easy to perceive how the power to improve them to their fountain head
and make them navigable to their sources can be denied. Where shall the
exercise of the power, if it be assumed, stop? Has Congress the power
when an inlet is deep enough to admit a schooner to deepen it still
more, so that it will admit ships of heavy burden, and has it not the
power when an inlet will admit a boat to make it deep enough to admit a
schooner? May it improve rivers deep enough already to float ships and
steamboats, and has it no power to improve those which are navigable
only for flatboats and barges? May the General Government exercise power
and jurisdiction over the soil of a State consisting of rocks and sand
bars in the beds of its rivers, and may it not excavate a canal around
its waterfalls or across its lands for precisely the same object?
Giving to the subject the most serious and candid consideration of which
my mind is capable, I can not perceive any intermediate grounds. The
power to improve harbors and rivers for purposes of navigation, by
deepening or clearing out, by dams and sluices, by locking or canalling,
must be admitted without any other limitation than the discretion of
Congress, or it must be denied altogether. If it be admitted, how broad
and how susceptible of enormous abuses is the power thus vested in the
General Government! There is not an inlet of the ocean or the Lakes, not
a river, creek, or streamlet within the States, which is not brought for
this purpose within the power and jurisdiction of the General
Government.
Speculation, disguised under the cloak of public good, will call on
Congress to deepen shallow inlets, that it may build up new cities on
their shores, or to make streams navigable which nature has closed by
bars and rapids, that it may sell at a profit its lands upon their
banks. To enrich neighborhoods by spending within them the moneys of the
nation will be the aim and boast of those who prize their local
interests above the good of the nation, and millions upon millions will
be abstracted by tariffs and taxes from the earnings of the whole people
to foster speculation and subserve the objects of private ambition.
Such a system could not be administered with any approach to equality
among the several States and sections of the Union. There is no equality
among them in the objects of expenditure, and if the funds were
distributed according to the merits of those objects some would be
enriched at the expense of their neighbors. But a greater practical evil
would be found in the art and industry by which appropriations would be
sought and obtained. The most artful and industrious would be the most
successful. The true interests of the country would be lost sight of in
an annual scramble for the contents of the Treasury, and the Member of
Congress who could procure the largest appropriations to be expended in
his district would claim the reward of victory from his enriched
constituents. The necessary consequence would be sectional discontents
and heartburnings, increased taxation, and a national debt never to be
extinguished.
In view of these portentous consequences, I can not but think that this
course of legislation should be arrested, even were there nothing to
forbid it in the fundamental laws of our Union. This conclusion is
fortified by the fact that the Constitution itself indicates a process
by which harbors and rivers within the States may be improved--a process
not susceptible of the abuses necessarily to flow from the assumption of
the power to improve them by the General Government, just in its
operation, and actually practiced upon, without complaint or
interruption, during more than thirty years from the organization of the
present Government.
The Constitution provides that "no State shall, without the consent of
Congress, lay any duty of tonnage." With the "consent" of Congress, such
duties may be levied, collected, and expended by the States. We are not
left in the dark as to the objects of this reservation of power to the
States. The subject was fully considered by the Convention that framed
the Constitution. It appears in Mr. Madison's report of the proceedings
of that body that one object of the reservation was that the States
should not be restrained from laying duties of tonnage for the purpose
of clearing harbors. Other objects were named in the debates, and among
them the support of seamen. Mr. Madison, treating on this subject in the
Federalist, declares that--
The restraint on the power of the States over imports and exports is
enforced by all the arguments which prove the necessity of submitting
the regulation of trade to the Federal councils. It is needless,
therefore, to remark further on this head than that the manner in which
the restraint is qualified seems well calculated at once to secure to
the States a reasonable discretion in providing for the conveniency of
their imports and exports, and to the United States a reasonable check
against the abuse of this discretion.
The States may lay tonnage duties for clearing harbors, improving
rivers, or for other purposes, but are restrained from abusing the
power, because before such duties can take effect the "consent" of
Congress must be obtained. Here is a safe provision for the improvement
of harbors and rivers in the reserved powers of the States and in the
aid they may derive from duties of tonnage levied with the consent of
Congress. Its safeguards are, that both the State legislatures and
Congress have to concur in the act of raising the funds; that they are
in every instance to be levied upon the commerce of those ports which
are to profit by the proposed improvement; that no question of
conflicting power or jurisdiction is involved; that the expenditure,
being in the hands of those who are to pay the money and be immediately
benefited, will be more carefully managed and more productive of good
than if the funds were drawn from the National Treasury and disbursed by
the officers of the General Government; that such a system will carry
with it no enlargement of Federal power and patronage, and leave the
States to be the sole judges of their own wants and interests, with only
a conservative negative in Congress upon any abuse of the power which
the States may attempt.
Under this wise system the improvement of harbors and rivers was
commenced, or rather continued, from the organization of the Government
under the present Constitution. Many acts were passed by the several
States levying duties of tonnage, and many were passed by Congress
giving their consent to those acts. Such acts have been passed by
Massachusetts, Rhode Island, Pennsylvania, Maryland, Virginia, North
Carolina, South Carolina, and Georgia, and have been sanctioned by the
consent of Congress. Without enumerating them all, it may be instructive
to refer to some of them, as illustrative of the mode of improving
harbors and rivers in the early periods of our Government, as to the
constitutionality of which there can be no doubt.
In January, 1790, the State of Rhode Island passed a law levying a
tonnage duty on vessels arriving in the port of Providence, "for the
purpose of clearing and deepening the channel of Providence River and
making the same more navigable."
On the 2d of February, 1798, the State of Massachusetts passed a law
levying a tonnage duty on all vessels, whether employed in the foreign
or coasting trade, which might enter into the Kennebunk River, for the
improvement of the same by "rendering the passage in and out of said
river less difficult and dangerous."
On the 1st of April, 1805, the State of Pennsylvania passed a law
levying a tonnage duty on vessels, "to remove the obstructions to the
navigation of the river Delaware below the city of Philadelphia."
On the 23d of January, 1804, the State of Virginia passed a law levying
a tonnage duty on vessels, "for improving the navigation of James
River."
On the 22d of February, 1826, the State of Virginia passed a law levying
a tonnage duty on vessels, "for improving the navigation of James River
from Warwick to Rocketts landing."
On the 8th of December, 1824, the State of Virginia passed a law levying
a tonnage duty on vessels, "for improving the navigation of Appomattox
River from Pocahontas Bridge to Broadway."
In November, 1821, the State of North Carolina passed a law levying a
tonnage duty on vessels, "for the purpose of opening an inlet at the
lower end of Albemarle Sound, near a place called Nags Head, and
improving the navigation of said sound, with its branches;" and in
November, 1828, an amendatory law was passed.
On the 21st of December, 1804, the State of South Carolina passed a law
levying a tonnage duty, for the purpose of "building a marine hospital
in the vicinity of Charleston," and on the 17th of December, 1816,
another law was passed by the legislature of that State for the
"maintenance of a marine hospital."
On the 10th of February, 1787, the State of Georgia passed a law levying
a tonnage duty on all vessels entering into the port of Savannah, for
the purpose of "clearing" the Savannah River of "wrecks and other
obstructions" to the navigation.
On the 12th of December, 1804, the State of Georgia passed a law levying
a tonnage duty on vessels, "to be applied to the payment of the fees of
the harbor master and health officer of the ports of Savannah and St.
Marys."
In April, 1783, the State of Maryland passed a law laying a tonnage duty
on vessels, for the improvement of the "basin" and "harbor" of Baltimore
and the "river Patapsco."
On the 26th of December, 1791, the State of Maryland passed a law
levying a tonnage duty on vessels, for the improvement of the "harbor
and port of Baltimore."
On the 28th of December, 1793, the State of Maryland passed a law
authorizing the appointment of a health officer for the port of
Baltimore, and laying a tonnage duty on vessels to defray the expenses.
Congress has passed many acts giving its "consent" to these and other
State laws, the first of which is dated in 1790 and the last in 1843. By
the latter act the "consent" of Congress was given to the law of the
legislature of the State of Maryland laying a tonnage duty on vessels
for the improvement of the harbor of Baltimore, and continuing it in
force until the 1st day of June, 1850. I transmit herewith copies of
such of the acts of the legislatures of the States on the subject, and
also the acts of Congress giving its "consent" thereto, as have been
collated.
That the power was constitutionally and rightfully exercised in these
cases does not admit of a doubt.
The injustice and inequality resulting from conceding the power to both
Governments is illustrated by several of the acts enumerated. Take that
for the improvement of the harbor of Baltimore. That improvement is paid
for exclusively by a tax on the commerce of that city, but if an
appropriation be made from the National Treasury for the improvement of
the harbor of Boston it must be paid in part out of taxes levied on the
commerce of Baltimore. The result is that the commerce of Baltimore pays
the full cost of the harbor improvement designed for its own benefit,
and in addition contributes to the cost of all other harbor and river
improvements in the Union. The facts need but be stated to prove the
inequality and injustice which can not but flow from the practice
embodied in this bill. Either the subject should be left as it was
during the first third of a century, or the practice of levying tonnage
duties by the States should be abandoned altogether and all harbor and
river improvements made under the authority of the United States, and by
means of direct appropriations. In view not only of the constitutional
difficulty, but as a question of policy, I am clearly of opinion that
the whole subject should be left to the States, aided by such tonnage
duties on vessels navigating their waters as their respective
legislatures may think proper to propose and Congress see fit to
sanction. This "consent" of Congress would never be refused in any case
where the duty proposed to be levied by the State was reasonable and
where the object of improvement was one of importance. The funds
required for the improvement of harbors and rivers may be raised in this
mode, as was done in the earlier periods of the Government, and thus
avoid a resort to a strained construction of the Constitution not
warranted by its letter. If direct appropriations be made of the money
in the Federal Treasury for such purposes, the expenditures will be
unequal and unjust. The money in the Federal Treasury is paid by a tax
on the whole people of the United States, and if applied to the purposes
of improving harbors and rivers it will be partially distributed and be
expended for the advantage of particular States, sections, or localities
at the expense of others.
By returning to the early and approved construction of the Constitution
and to the practice under it this inequality and injustice will be
avoided and at the same time all the really important improvements be
made, and, as our experience has proved, be better made and at less cost
than they would be by the agency of officers of the United States. The
interests benefited by these improvements, too, would bear the cost
of making them, upon the same principle that the expenses of the
Post-Office establishment have always been defrayed by those who derive
benefits from it. The power of appropriating money from the Treasury for
such improvements was not claimed or exercised for more than thirty
years after the organization of the Government in 1789, when a more
latitudinous construction was indicated, though it was not broadly
asserted and exercised until 1825. Small appropriations were first made
in 1820 and 1821 for surveys. An act was passed on the 3d of March,
1823, authorizing the President to "cause an examination and survey to
be made of the obstructions between the harbor of Gloucester and the
harbor of Squam, in the State of Massachusetts," and of "the entrance of
the harbor of the port of Presque Isle, in Pennsylvania," with a view to
their removal, and a small appropriation was made to pay the necessary
expenses. This appears to have been the commencement of harbor
improvements by Congress, thirty-four years after the Government went
into operation under the present Constitution. On the 30th of April,
1824, an act was passed making an appropriation of $30,000, and
directing "surveys and estimates to be made of the routes of such roads
and canals" as the President "may deem of national importance in a
commercial or military point of view or necessary for the transportation
of the mails." This act evidently looked to the adoption of a general
system of internal improvements, to embrace roads and canals as well
as harbors and rivers. On the 26th May, 1824, an act was passed making
appropriations for "deepening the channel leading into the harbor of
Presque Isle, in the State of Pennsylvania," and to "repair Plymouth
Beach, in the State of Massachusetts, and thereby prevent the harbor
at that place from being destroyed."
President Monroe yielded his approval to these measures, though he
entertained, and had, in a message to the House of Representatives on
the 4th of May, 1822, expressed, the opinion that the Constitution had
not conferred upon Congress the power to "adopt and execute a system of
internal improvements." He placed his approval upon the ground, not that
Congress possessed the power to "adopt and execute" such a system by
virtue of any or all of the enumerated grants of power in the
Constitution, but upon the assumption that the power to make
appropriations of the public money was limited and restrained only by
the discretion of Congress. In coming to this conclusion he avowed that
"in the more early stage of the Government" he had entertained a
different opinion. He avowed that his first opinion had been that "as
the National Government is a Government of limited powers, it has no
right to expend money except in the performance of acts authorized by
the other specific grants, according to a strict construction of their
powers," and that the power to make appropriations gave to Congress no
discretionary authority to apply the public money to any other purposes
or objects except to "carry into effect the powers contained in the
other grants." These sound views, which Mr. Monroe entertained "in the
early stage of the Government," he gave up in 1822, and declared that--
The right of appropriation is nothing more than a right to apply the
public money to this or that purpose. It has no incidental power, nor
does it draw after it any consequences of that kind. All that Congress
could do under it in the case of internal improvements would be to
appropriate the money necessary to make them. For every act requiring
legislative sanction or support the State authority must be relied on.
The condemnation of the land, if the proprietors should refuse to sell
it, the establishment of tumpikes and tolls, and the protection of the
work when finished must be done by the State. To these purposes the
powers of the General Government are believed to be utterly incompetent.
But it is impossible to conceive on what principle the power of
appropriating public money when in the Treasury can be construed to
extend to objects for which the Constitution does not authorize Congress
to levy taxes or imposts to raise money. The power of appropriation is
but the consequence of the power to raise money; and the true inquiry is
whether Congress has the right to levy taxes for the object over which
power is claimed.
During the four succeeding years embraced by the Administration of
President Adams the power not only to appropriate money, but to apply
it, under the direction and authority of the General Government, as well
to the construction of roads as to the improvement of harbors and
rivers, was fully asserted and exercised.
Among other acts assuming the power was one passed on the 20th of May,
1826, entitled "An act for improving certain harbors and the navigation
of certain rivers and creeks, and for authorizing surveys to be made of
certain bays, sounds, and rivers therein mentioned." By that act large
appropriations were made, which were to be "applied, under the direction
of the President of the United States," to numerous improvements
in ten of the States. This act, passed thirty-seven years after
the organisation of the present Government, contained the first
appropriation ever made for the improvement of a navigable river,
unless it be small appropriations for examinations and surveys in 1820.
During the residue of that Administration many other appropriations of
a similar character were made, embracing roads, rivers, harbors, and
canals, and objects claiming the aid of Congress multiplied without
number.
This was the first breach effected in the barrier which the universal
opinion of the framers of the Constitution had for more than thirty
years thrown in the way of the assumption of this power by Congress.
The general mind of Congress and the country did not appreciate the
distinction taken by President Monroe between the right to appropriate
money for an object and the right to apply and expend it without the
embarrassment and delay of applications to the State governments.
Probably no instance occurred in which such an application was made, and
the flood gates being thus hoisted the principle laid down by him was
disregarded, and applications for aid from the Treasury, virtually to
make harbors as well as improve them, clear out rivers, cut canals, and
construct roads, poured into Congress in torrents until arrested by the
veto of President Jackson. His veto of the Maysville road bill was
followed up by his refusal to sign the "Act making appropriations for
building light-houses, light-boats, beacons, and monuments, placing
buoys, improving harbors, and directing surveys;" "An act authorizing
subscriptions for stock in the Louisville and Portland Canal Company;"
"An act for the improvement of certain harbors and the navigation of
certain rivers;" and, finally, "An act to improve the navigation of
the Wabash River." In his objections to the act last named he says:
The desire to embark the Federal Government in works of internal
improvement prevailed in the highest degree during the first session of
the first Congress that I had the honor to meet in my present situation.
When the bill authorizing a subscription on the part of the United
States for stock in the Maysville and Lexington Tumpike Company passed
the two Houses, there had been reported by the Committees of Internal
Improvements bills containing appropriations for such objects, inclusive
of those for the Cumberland road and for harbors and light-houses, to
the amount of $106,000,000. In this amount was included authority to
the Secretary of the Treasury to subscribe for the stock of different
companies to a great extent, and the residue was principally for the
direct construction of roads by this Government, in addition to these
projects, which had been presented to the two Houses under the sanction
and recommendation of their respective Committees on Internal
Improvements, there were then still pending before the committees and in
memorials to Congress presented but not referred different projects for
works of a similar character, the expense of which can not be estimated
with certainty, but must have exceeded $100,000,000.
Thus, within the brief period of less than ten years after the
commencement of internal improvements by the General Government the sum
asked for from the Treasury for various projects amounted to more than
$200,000,000. President Jackson's powerful and disinterested appeals to
his country appear to have put down forever the assumption of power to
make roads and cut canals, and to have checked the prevalent disposition
to bring all rivers in any degree navigable within the control of the
General Government. But an immense field for expending the public money
and increasing the power and patronage of this Government was left open
in the concession of even a limited power of Congress to improve harbors
and rivers--a field which millions will not fertilize to the
satisfaction of those local and speculating interests by which these
projects are in general gotten up. There can not be a just and equal
distribution of public burdens and benefits under such a system, nor can
the States be relieved from the danger of fatal encroachment, nor the
United States from the equal danger of consolidation, otherwise than by
an arrest of the system and a return to the doctrines and practices
which prevailed during the first thirty years of the Government.
How forcibly does the history of this subject illustrate the tendency of
power to concentration in the hands of the General Government. The power
to improve their own harbors and rivers was clearly reserved to the
States, who were to be aided by tonnage duties levied and collected by
themselves, with the consent of Congress. For thirty-four years
improvements were carried on under that system, and so careful was
Congress not to interfere, under any implied power, with the soil or
jurisdiction of the States that they did not even assume the power to
erect lighthouses or build piers without first purchasing the ground,
with the consent of the States, and obtaining jurisdiction over it.
At length, after the lapse of thirty-three years, an act is passed
providing for the examination of certain obstructions at the mouth of
one or two harbors almost unknown. It is followed by acts making small
appropriations for the removal of those obstructions. The obstacles
interposed by President Monroe, after conceding the power to
appropriate, were soon swept away. Congress virtually assumed
jurisdiction of the soil and waters of the States, without their
consent, for the purposes of internal improvement, and the eyes of eager
millions were turned from the State governments to Congress as the
fountain whose golden streams were to deepen their harbors and rivers,
level their mountains, and fill their valleys with canals. To what
consequences this assumption of power was rapidly leading is shown by
the veto messages of President Jackson, and to what end it is again
tending is witnessed by the provisions of this bill and bills of similar
character.
In the proceedings and debates of the General Convention which formed
the Constitution and of the State conventions which adopted it nothing
is found to countenance the idea that the one intended to propose or the
others to concede such a grant of power to the General Government as the
building up and maintaining of a system of internal improvements within
the States necessarily implies. Whatever the General Government may
constitutionally create, it may lawfully protect. If it may make a road
upon the soil of the States, it may protect it from destruction or
injury by penal laws. So of canals, rivers, and harbors. If it may put
a dam in a river, it may protect that dam from removal or injury, in
direct opposition to the laws, authorities, and people of the State in
which it is situated. If it may deepen a harbor, it may by its own laws
protect its agents, and contractors from being driven from their work
even by the laws and authorities of the State. The power to make a road
or canal or to dig up the bottom of a harbor or river implies a right in
the soil of the State and a jurisdiction over it, for which it would be
impossible to find any warrant.
The States were particularly jealous of conceding to the General
Government any right of jurisdiction over their soil, and in the
Constitution restricted the exclusive legislation of Congress to such
places as might be "purchased with the consent of the States in which
the same shall be, for the erection of forts, magazines, dockyards, and
other needful buildings." That the United States should be prohibited
from purchasing lands within the States without their consent, even for
the most essential purposes of national defense, while left at liberty
to purchase or seize them for roads, canals, and other improvements of
immeasurably less importance, is not to be conceived.
A proposition was made in the Convention to provide for the appointment
of a "Secretary of Domestic Affairs," and make it his duty, among other
things, "to attend to the opening of roads and navigation and the
facilitating communications through the United States." It was referred
to a committee, and that appears to have been the last of it. On a
subsequent occasion a proposition was made to confer on Congress the
power to "provide for the cutting of canals when deemed necessary,"
which was rejected by the strong majority of eight States to three.
Among the reasons given for the rejection of this proposition, it was
urged 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."
During the consideration of this proposition a motion was made to
enlarge the proposed power for "cutting canals" into a power "to grant
charters of incorporation when the interest of the United States might
require and the legislative provisions of the individual States may be
incompetent;" and the reason assigned by Mr. Madison for the proposed
enlargement of the power was that it would "secure an easy communication
between the States, which the free intercourse now to be opened seemed
to call for. The political obstacles being removed, a removal of the
natural ones, as far as possible, ought to follow."
The original proposition and all the amendments were rejected, after
deliberate discussion, not on the ground, as so much of that discussion
as has been preserved indicates, that no direct grant was necessary,
but because it was deemed inexpedient to grant it at all. When it is
considered that some of the members of the Convention, who afterwards
participated in the organization and administration of the Government,
advocated and practiced upon a very liberal construction of the
Constitution, grasping at many high powers as implied in its various
provisions, not one of them, it is believed, at that day claimed the
power to make roads and canals, or improve rivers and harbors, or
appropriate money for that purpose. Among our early statesmen of the
strict-construction class the opinion was universal, when the subject
was first broached, that Congress did not possess the power, although
some of them thought it desirable.
President Jefferson, in his message to Congress in 1806, recommended an
amendment of the Constitution, with a view to apply an anticipated
surplus in the Treasury "to the great purposes of the public education,
roads, rivers, canals, and such other objects of public improvement as
it may be thought proper to add to the constitutional enumeration of
Federal powers." And he adds:
I suppose an amendment to the Constitution, by consent of the States,
necessary, because the objects now recommended are not among those
enumerated in the Constitution, and to which it permits the public
moneys to be applied.
In 1825 he repeated, in his published letters, the opinion that no such
power has been conferred upon Congress.
President Madison, in a message to the House of Representatives of the
3d of March, 1817, assigning his objections to a bill entitled "An act
to set apart and pledge certain funds for internal improvements,"
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 a 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.
President Monroe, in a message to the House of Representatives of the
4th of May, 1822, containing his objections to a bill entitled "An act
for the preservation and repair of the Cumberland road," declares:
Commerce between independent powers or communities is universally
regulated by duties and imposts. It was so regulated by the States
before the adoption of this Constitution, equally in respect to each
other and to foreign powers. The goods and vessels employed in the trade
are the only subjects of regulation. It can act on none other. A power,
then, to impose such duties and imposts in regard to foreign nations
and to prevent any on the trade between the States was the only power
granted.
If we recur to the causes which produced the adoption of this
Constitution, we shall find that injuries resulting from the regulation
of trade by the States respectively and the advantages anticipated from
the transfer of the power to Congress were among those which had the
most weight. Instead of acting as a nation in regard to foreign powers,
the States individually had commenced a system of restraint on each
other whereby the interests of foreign powers were promoted at their
expense. If one State imposed high duties on the goods or vessels of a
foreign power to countervail the regulations of such power, the next
adjoining States imposed lighter duties to invite those articles into
their ports, that they might be transferred thence into the other
States, securing the duties to themselves. This contracted policy in
some of the States was soon counteracted by others. Restraints were
immediately laid on such commerce by the suffering States; and thus had
grown up a state of affairs disorderly and unnatural, the tendency of
which was to destroy the Union itself and with it all hope of realizing
those blessings which we had anticipated from the glorious Revolution
which had been so recently achieved. From this deplorable dilemma, or,
rather, certain ruin, we were happily rescued by the adoption of the
Constitution.
Among the first and most important effects of this great Revolution
was the complete abolition of this pernicious policy. The States
were brought together by the Constitution, as to commerce, into one
community, equally in regard to foreign nations and each other. The
regulations that were adopted regarded us in both respects as one
people. The duties and imposts that were laid on the vessels and
merchandise of foreign nations were all uniform throughout the United
States, and in the intercourse between the States themselves no duties
of any kind were imposed other than between different ports and
counties within the same State.
This view is supported by a series of measures, all of a marked
character, preceding the adoption of the Constitution. As early as the
year 1781 Congress recommended it to the States to vest in the United
States a power to levy a duty of 5 per cent on all goods imported from
foreign countries into the United States for the term of fifteen years.
In 1783 this recommendation, with alterations as to the kind of duties
and an extension of this term to twenty-five years, was repeated and
more earnestly urged. In 1784 it was recommended to the States to
authorize Congress to prohibit, under certain modifications, the
importation of goods from foreign powers into the United States for
fifteen years. In 1785 the consideration of the subject was resumed,
and a proposition presented in a new form, with an address to the
States explaining fully the principles on which a grant of the power to
regulate trade was deemed indispensable. In 1786 a meeting took place
at Annapolis of delegates from several of the States on this subject,
and on their report a convention was formed at Philadelphia the ensuing
year from all the States, to whose deliberations we are indebted for
the present Constitution.
In none of these measures was the subject of internal improvement
mentioned or even glanced at. Those of 1784, 1785, 1786, and 1787,
leading step by step to the adoption of the Constitution, had in view
only the obtaining of a power to enable Congress to regulate trade with
foreign powers. It is manifest that the regulation of trade with the
several States was altogether a secondary object, suggested by and
adopted in connection with the other. If the power necessary to this
system of improvement is included under either branch of this grant,
I should suppose that it was the first rather than the second. The
pretension to it, however, under that branch has never been set up.
In support of the claim under the second no reason has been assigned
which appears to have the least weight.
Such is a brief history of the origin, progress, and consequences of
a system which for more than thirty years after the adoption of the
Constitution was unknown. The greatest embarrassment upon the subject
consists in the departure which has taken place from the early
construction of the Constitution and the precedents which are found in
the legislation of Congress in later years. President Jackson, in his
veto of the Wabash River bill, declares that "to inherent embarrassments
have been added others resulting from the course of our legislation
concerning it." In his vetoes on the Maysville road bill, the Rockville
road bill, the Wabash River bill, and other bills of like character he
reversed the precedents which existed prior to that time on the subject
of internal improvements. When our experience, observation, and
reflection have convinced us that a legislative precedent is either
unwise or unconstitutional, it should not be followed.
No express grant of this power is found in the Constitution. Its
advocates have differed among themselves as to the source from which it
is derived as an incident. In the progress of the discussions upon this
subject the power to regulate commerce seems now to be chiefly relied
upon, especially in reference to the improvement of harbors and rivers.
In relation to the regulation of commerce, the language of the grant in
the Constitution is:
Congress shall have power to regulate commerce with foreign nations,
and among the several States, and with the Indian tribes.
That to "regulate commerce" does not mean to make a road, or dig a
canal, or clear out a river, or deepen a harbor would seem to be obvious
to the common understanding. To "regulate" admits or affirms the
preexistence of the thing to be regulated. In this case it presupposes
the existence of commerce, and, of course, the means by which and the
channels through which commerce is carried on. It confers no creative
power; it only assumes control over that which may have been brought
into existence through other agencies, such as State legislation and the
industry and enterprise of individuals. If the definition of the word
"regulate" is to include the provision of means to carry on commerce,
then have Congress not only power to deepen harbors, clear out rivers,
dig canals, and make roads, but also to build ships, railroad cars, and
other vehicles, all of which are necessary to commerce. There is no
middle ground. If the power to regulate can be legitimately construed
into a power to create or facilitate, then not only the bays and
harbors, but the roads and canals and all the means of transporting
merchandise among the several States, are put at the disposition of
Congress. This power to regulate commerce was construed and exercised
immediately after the adoption of the Constitution, and has been
exercised to the present day, by prescribing general rules by which
commerce should be conducted. With foreign nations it has been regulated
by treaties defining the rights of citizens and subjects, as well as by
acts of Congress imposing duties and restrictions embracing vessels,
seamen, cargoes, and passengers. It has been regulated among the States
by acts of Congress relating to the coasting trade and the vessels
employed therein, and for the better security of passengers in vessels
propelled by steam, and by the removal of all restrictions upon internal
trade. It has been regulated, with the Indian tribes by our intercourse
laws, prescribing the manner in which it shall be carried on. Thus each
branch of this grant of power was exercised soon after the adoption of
the Constitution, and has continued to be exercised to the present day.
If a more extended construction be adopted, it is impossible for the
human mind to fix on a limit to the exercise of the power other than the
will and discretion of Congress. It sweeps into the vortex of national
power and jurisdiction not only harbors and inlets, rivers and little
streams, but canals, turnpikes, and railroads--every species of
improvement which can facilitate or create trade and intercourse "with
foreign nations, and among the several States, and with the Indian
tribes."
Should any great object of improvement exist in our widely extended
country which can not be effected by means of tonnage duties levied by
the States with the concurrence of Congress, it is safer and wiser to
apply to the States in the mode prescribed by the Constitution for an
amendment of that instrument whereby the powers of the General
Government may be enlarged, with such limitations and restrictions as
experience has shown to be proper, than to assume and exercise a power
which has not been granted, or which may be regarded as doubtful in the
opinion of a large portion of our constituents. This course has been
recommended successively by Presidents Jefferson, Madison, Monroe, and
Jackson, and I fully concur with them in opinion. If an enlargement of
power should be deemed proper, it will unquestionably be granted by the
States; if otherwise, it will be withheld; and in either case their
decision should be final. In the meantime I deem it proper to add that
the investigation of this subject has impressed me more strongly than
ever with the solemn conviction that the usefulness and permanency of
this Government and the happiness of the millions over whom it spreads
its protection will be best promoted by carefully abstaining from the
exercise of all powers not clearly granted by the Constitution.