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 for 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 turnpikes 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 organization 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 Turnpike 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 importer 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 ejected 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 dearly granted by the Constitution.
JAMES K. POLK.
James K. Polk, Veto Message Online by Gerhard Peters and John T. Woolley, The American Presidency Project https://www.presidency.ucsb.edu/node/201288