Part 22

2. But the far more important question is, Does Congress possess the power under the Constitution to deepen the channels of rivers and to create and improve harbors for purposes of commerce?

The question of the constitutional power of Congress to construct internal improvements within the States has been so frequently and so elaborately discussed that it would seem useless on this occasion to repeat or to refute at length arguments which have been so often advanced. For my own opinions on this subject I might refer to President Polk's carefully considered message of the 15th December, 1847, addressed to the House of Representatives whilst I was a member of his Cabinet.

The power to pass the bill in question, if it exist at all, must be derived from the power "to regulate commerce with foreign nations and among the several States and with the Indian tribes."

The power "to regulate:" Does this ever embrace the power to create or to construct? To say that it does is to confound the meaning of words of well-known signification. The word "regulate" has several shades of meaning, according to its application to different subjects, but never does it approach the signification of creative power. The regulating power necessarily presupposes the existence of something to be regulated. As applied to commerce, it signifies, according to the lexicographers, "to subject to rules or restrictions, as to regulate trade," etc. The Constitution itself is its own best expounder of the meaning of words employed by its framers. Thus, Congress have the power "to coin money." This is the creative power. Then immediately follows the power "to regulate the value thereof "--that is, of the coined money thus brought into existence. The words "regulate," "regulation," and "regulations" occur several times in the Constitution, but always with this subordinate meaning. Thus, after the creative power "to raise and support armies" and "to provide and maintain a navy" had been conferred upon Congress, then follows the power "to make rules for the government and regulation of the land and naval forces" thus called into being. So the Constitution, acting upon the self-evident fact that "commerce with foreign nations and among the several States and with the Indian tribes" already existed, conferred upon Congress the power "to regulate" this commerce. Thus, according to Chief Justice Marshall, the power to regulate commerce "is the power to prescribe the rule by which commerce is to be governed." And Mr. Madison, in his veto message of the 3d March, 1817, declares that--

"The power to regulate commerce among the several States" can not include a power to construct roads and canals and to improve the navigation of water courses, in order to facilitate, promote, and secure such commerce, without a latitude of construction departing from the ordinary import of the terms, strengthened by the known inconveniences which doubtless led to the grant of this remedial power to Congress.

We know from the history of the Constitution what these inconveniences were. Different States admitted foreign imports at different rates of duty. Those which had prescribed a higher rate of duty for the purpose of increasing their revenue were defeated in this object by the legislation of neighboring States admitting the same foreign articles at lower rates. Hence jealousies and dangerous rivalries had sprung up between the different States. It was chiefly in the desire to provide a remedy for these evils that the Federal Convention originated. The Constitution, for this purpose, conferred upon Congress the power to regulate commerce in such a manner that duties should be uniform in all the States composing the Confederacy, and, moreover, expressly provided that "no preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another." If the construction of a harbor or deepening the channel of a river be a regulation of commerce, as the advocates of this power contend, this would give the ports of the State within which these improvements were made a preference over the ports of other States, and thus be a violation of the Constitution.

It is not too much to assert that no human being in existence when the Constitution was framed entertained the idea or the apprehension that by conferring upon Congress the power to regulate commerce its framers intended to embrace the power of constructing roads and canals and of creating and improving harbors and deepening the channels of rivers throughout our extensive Confederacy. Indeed, one important branch of this very power had been denied to Congress in express terms by the Convention. A proposition was made in the Convention to confer on Congress the power "to provide for the cutting of canals when deemed necessary." This was rejected by the strong majority of eight States to three. Among the reasons given for this rejection was that "the expense in such cases will fall on the United States and the benefits accrue to the places where the canals may be cut."

To say that the simple power of regulating commerce embraces within itself that of constructing harbors, of deepening the channels of rivers--in short, of creating a system of internal improvements for the purpose of facilitating the operations of commerce--would be to adopt a latitude of construction under which all political power might be usurped by the Federal Government. Such a construction would be in conflict with the well-known jealousy against Federal power which actuated the framers of the Constitution. It is certain that the power in question is not enumerated among the express grants to Congress contained in the instrument. In construing the Constitution we must then next inquire, Is its exercise "necessary and proper"?--not whether it may be convenient or useful "for carrying into execution" the power to regulate commerce among the States. But the jealous patriots of that day were not content even with this strict rule of construction. Apprehending that a dangerous latitude of interpretation might be applied in future times to the enumerated grants of power, they procured an amendment to be made to the original instrument, which declares that "the powers not delegated to the United States by the Constitution nor prohibited by it to the States are reserved to the States respectively or to the people."

The distinctive spirit and character which pervades the Constitution is that the powers of the General Government are confined chiefly to our intercourse with foreign nations, to questions of peace and war, and to subjects of common interest to all the States, carefully leaving the internal and domestic concerns of each individual State to be controlled by its own people and legislature. Without specifically enumerating these powers, it must be admitted that this well-marked distinction runs through the whole instrument. In nothing does the wisdom of its framers appear more conspicuously than in the care with which they sought to avoid the danger to our institutions which must necessarily result from the interference of the Federal Government with the local concerns of the States. The jarring and collision which would occur from the exercise by two separate governments of jurisdiction over the same subjects could not fail to produce disastrous consequences. Besides, the corrupting and seducing money influence exerted by the General Government in carrying into effect a system of internal improvements might be perverted to increase and consolidate its own power to the detriment of the rights of the States.

If the power existed in Congress to pass the present bill, then taxes must be imposed and money borrowed to an unlimited extent to carry such a system into execution. Equality among the States is equity. This equality is the very essence of the Constitution. No preference can justly be given to one of the sovereign States over another. According to the best estimate, our immense coast on the Atlantic, the Gulf of Mexico, the Pacific, and the Ivakes embraces more than 9,500 miles, and, measuring by its indentations and to the head of tide water on the rivers, the distance is believed to be more than 33,000 miles. This everywhere throughout its vast extent contains numerous rivers and harbors, all of which may become the objects of Congressional appropriation. You can not deny to one State what you have granted to another. Such injustice would produce strife, jealousy, and alarming dissensions among them. Even within the same State improvements may be made in one river or harbor which would essentially injure the commerce and industry of another river or harbor. The truth is that most of these improvements are in a great degree local in their character and for the especial benefit of corporations or individuals in their vicinity, though they may have an odor of nationality on the principle that whatever benefits any part indirectly benefits the whole.

From our past history we may have a small foretaste of the cost of reviving the system of internal improvements.

For more than thirty years after the adoption of the Federal Constitution the power to appropriate money for the construction of internal improvements was neither claimed nor exercised by Congress. After its commencement, in 1820 and 1821, by very small and modest appropriations for surveys, it advanced with such rapid strides that within the brief period of ten years, according to President Polk, "the sum asked for from the Treasury for various projects amounted to more than $200,000,000." The vetoes of General Jackson and several of his successors have impeded the progress of the system and limited its extent, but have not altogether destroyed it. The time has now arrived for a final decision of the question. If the power exists, a general system should be adopted which would make some approach to justice among all the States, if this be possible.

What a vast field would the exercise of this power open for jobbing and corruption! Members of Congress, from an honest desire to promote the interest of their constituents, would struggle for improvements within their own districts, and the body itself must necessarily be converted into an arena where each would endeavor to obtain from the Treasury as much money as possible for his own locality. The temptation would prove irresistible. A system of "_logrolling_" (I know no word so expressive) would be inaugurated, under which the Treasury would be exhausted and the Federal Government be deprived of the means necessary to execute those great powers clearly confided to it by the Constitution for the purpose of promoting the interests and vindicating the honor of the country.

Whilst the power over internal improvements, it is believed, was "reserved to the States respectively," the framers of the Constitution were not unmindful that it might be proper for the State legislatures to possess the power to impose tonnage duties for the improvement of rivers and harbors within their limits. The self-interest of the different localities would prevent this from being done to such an extent as to injure their trade. The Constitution, therefore, which had in a previous clause provided that all duties should be uniform throughout the United States, subsequently modified the general rule so far as to declare that "no State shall without the consent of Congress levy any duty of tonnage." The inference is therefore irresistible that with the consent of Congress such a duty may be imposed by the States. Thus those directly interested in the improvement may lay a tonnage duty for its construction without imposing a tax for this purpose upon all the people of the United States.

To this provision several of the States resorted until the period when they began to look to the Federal Treasury instead of depending upon their own exertions. Massachusetts, Rhode Island, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina, and Georgia, with the consent of Congress, imposed small tonnage duties on vessels at different periods for clearing and deepening the channels of rivers and improving harbors where such vessels entered. The last of these legislative acts believed to exist is that of Virginia, passed on the 22d February, 1826, levying a tonnage duty on vessels for "improving the navigation of James River from Warwick to Rocketts Landing." The latest act of Congress on this subject was passed on the 24th of February, 1843, giving its consent to the law of the legislature of Maryland laying a tonnage duty on vessels for the improvement of the harbor of Baltimore, and continuing it in force until 1st June, 1850.

Thus a clear constitutional mode exists by which the legislature of Michigan may, in its discretion, raise money to preserve the channel of the St. Clair River at its present depth or to render it deeper. A very insignificant tonnage duty on American vessels using this channel would be sufficient for the purpose; and as the St. Clair River is the boundary line between the United States and the Province of Upper Canada, the provincial British authorities would doubtless be willing to impose a similar tonnage duty on British vessels to aid in the accomplishment of this object. Indeed, the legislature of that Province have already evinced their interest on this subject by having but recently expended $20,000 on the improvement of the St. Clair flats. Even if the Constitution of the United States had conferred upon Congress the power of deepening the channel of the St. Clair River, it would be unjust to impose upon the people of the United States the entire burden, which ought to be borne jointly by the two parties having an equal interest in the work. Whenever the State of Michigan shall cease to depend on the Treasury of the United States, I doubt not that she, in conjunction with Upper Canada, will provide the necessary means for keeping this work in repair in the least expensive and most effective manner and without being burdensome to any interest.

It has been contended in favor of the existence of the power to construct internal improvements that Congress have from the beginning made appropriations for light-houses, and that upon the same principle of construction they possess the power of improving harbors and deepening the channels of rivers. As an original question the authority to erect light-houses under the commercial power might be considered doubtful; but even were it more doubtful than it is I should regard it as settled after an uninterrupted exercise of the power for seventy years. Such a long and uniform practical construction of the Constitution is entitled to the highest respect, and has finally determined the question.

Among the first acts which passed Congress after the Federal

Government went into effect was that of August 7, 1789, providing "for the establishment and support of light-houses, beacons, buoys, and public piers." Under this act the expenses for the maintenance of all such erections then in existence were to be paid by the Federal Government and provision was made for the cession of jurisdiction over them by the respective States to the United States. In every case since before a light-house could be built a previous cession of jurisdiction has been required. This practice doubtless originated from that clause of the Constitution authorizing Congress "to exercise exclusive legislation ... over all places purchased by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other _needful buildings_." Among these "_needful buildings_" light-houses must in fact have been included.

The bare statement of these facts is sufficient to prove that no analogy exists between the power to erect a light-house as a "needful building" and that to deepen the channel of a river.

In what I have said I do not mean to intimate a doubt of the power of Congress to construct such internal improvements as may be essentially necessary for defense and protection against the invasion of a foreign enemy. The power to declare war and, the obligation to protect each State against invasion clearly cover such cases. It will scarcely be claimed, however, that the improvement of the St. Clair River is within this category. This river is the boundary line between the United States and the British Province of Upper Canada. Any improvement of its navigation, therefore, which we could make for purposes of war would equally inure to the benefit of Great Britain, the only enemy which could possibly confront us in that quarter. War would be a sad calamity for both nations, but should it ever, unhappily, exist, the battles will not be fought on the St. Clair River or on the lakes with which it communicates.

JAMES BUCHANAN.

WASHINGTON, _February 6, 1860_.

_To the Senate of the United States_:

On the last day of the last session of Congress a resolution, which had passed both Houses, "in relation to removal of obstructions to navigation in the mouth of the Mississippi River" was presented to me for approval. I have retained this resolution because it was presented to me at a period when it was impossible to give the subject that examination to which it appeared to be entitled. I need not repeat the views on this point presented in the introductory portion of my message to the Senate of the 2d [1st] instant.

In addition I would merely observe that although at different periods sums, amounting in the aggregate to $690,000, have been appropriated by Congress for the purpose of removing the bar and obstructions at the mouth of the Mississippi, yet it is now acknowledged that this money has been expended with but little, if any, practical benefit to its navigation.

JAMES BUCHANAN.

WASHINGTON, _April 17, 1860_.

_To the Senate of the United States_:

I return with my objections to the Senate, for their reconsideration, the bill entitled "An act for the relief of Arthur Edwards and his associates," presented to me on the 10th instant.

This bill directs the Postmaster-General "to audit and settle the accounts of Arthur Edwards and his associates for transporting the United States through mail on their steamers during the years 1849 and 1853 and intervening years" between Cleveland and Detroit, between Sandusky and Detroit, and between Toledo and Detroit, and "to allow and pay them not less than $28.60 for each and every passage of said steamers between said places during the aforementioned time when the mails were on board."

I have caused a statement to be made at the Post-Office Department of the least sum which can be paid to Mr. Edwards and his associates under the bill should it become a law, and from this it appears the amount will be $80,405.23.

Mr. Edwards and his associates, in 1854, a short time after the alleged services had been rendered, presented a claim to the Postmaster-General for $25,180 as compensation for these services. This claim consisted of nine items, setting forth specifically all the services embraced by the present bill. It is fair to presume that the parties best knew the value of their own services and that they would not by an underestimate do themselves injustice. The whole claim of $25,180 was rejected by the Postmaster-General for reasons which it is no part of my present purpose to discuss.

The claimants next presented a petition to the Court of Claims in June, 1855, "for a reasonable compensation" for these services, and "pray the judgment of your honorable court for the actual value of the service rendered by them and received by the United States, which amounts to the sum of $50,000." Thus the estimate which they placed upon their services had nearly doubled between 1854 and 1855--had risen from $25,180 to $50,000. On the ------, after a full hearing, the court decided against the claim, and delivered an opinion in support of this decision which can not, I think, be contested on legal principles. But they state in the conclusion of the opinion that "for any compensation for their services beyond what they have received they must depend upon the discretion of Congress."

This decision of the Court of Claims was reported to Congress on the 1st of April, 1858, and from it the present bill has originated. The amount granted by it is more by upward of $55,000 than the parties themselves demanded from the Postmaster-General in 1854, and is more by upward of $30,000 than they demanded when before the Court of Claims. The enormous difference in their favor between their own original demand and the amount granted by the present bill constitutes my chief objection to it. In presenting this objection I do not propose to enter into the question whether the claimants are entitled in equity to any compensation for their services beyond that which it is alleged they have already received, or, if so, what would be "a reasonable and fair compensation." My sole purpose is to afford Congress an opportunity of reconsidering this case on account of its peculiar circumstances. I transmit to the Senate the reports of Horatio King, Acting Postmaster-General, and of A.N. Zevely, Third Assistant Postmaster-General, both dated on the 14th of April, 1860, on the subject of this claim.

JAMES BUCHANAN.

WASHINGTON, _June 22, 1860_.

_To the Senate of the United States_:

I return with my objections to the Senate, in which it originated, the bill entitled "An act to secure homesteads to actual settlers on the public domain, and for other purposes," presented to me on the 20th instant.

This bill gives to every citizen of the United States "who is the head of a family," and to every person of foreign birth residing in the country who has declared his intention to become a citizen, though he may not be the head of a family, the privilege of appropriating to himself 160 acres of Government land, of settling and residing upon it for five years; and should his residence continue until the end of this period, he shall then receive a patent on the payment of 25 cents per acre, or one-fifth of the present Government price. During this period the land is protected from all the debts of the settler.

This bill also contains a cession to the States of all the public lands within their respective limits "which have been subject to sale at private entry, and which remain unsold after the lapse of thirty years." This provision embraces a present donation to the States of 12,229,731 acres, and will from time to time transfer to them large bodies of such lands which from peculiar circumstances may not be absorbed by private purchase and settlement.

To the actual settler this bill does not make an absolute donation, but the price is so small that it can scarcely be called a sale. It is nominally 25 cents per acre, but considering this is not to be paid until the end of five years, it is in fact reduced to about 18 cents per acre, or one-seventh of the present minimum price of the public lands. In regard to the States, it is an absolute and unqualified gift.

1. This state of the facts raises the question whether Congress, under the Constitution, has the power to give away the public lands either to States or individuals. On this question I expressed a decided opinion in my message to the House of Representatives of the 24th February, 1859, returning the agricultural-college bill. This opinion remains unchanged. The argument then used applies as a constitutional objection with greater force to the present bill. _There_ it had the plea of consideration, growing out of a specific beneficial purpose; _here_ it is an absolute gratuity to the States, without the pretext of consideration. I am compelled for want of time in these the last hours of the session to quote largely from this message.