Part 46

Had this appropriation been made in the usual form, no difficulty could have arisen upon it. This bill, however, annexes a declaration to the appropriation that the money is to be expended under the superintendence of Captain Meigs.

The first aspect in which this clause presented itself to my mind was that it interfered with the right of the President to be "Commander in Chief of the Army and Navy of the United States." If this had really been the case, there would have been an end to the question. Upon further examination I deemed it impossible that Congress could have intended to interfere with the clear right of the President to command the Army and to order its officers to any duty he might deem most expedient for the public interest. If they could withdraw an officer from the command of the President and select him for the performance of an executive duty, they might upon the same principle annex to an appropriation to carry on a war a condition requiring it not to be used for the defense of the country unless a particular person of its own selection should command the Army. It was impossible that Congress could have had such an intention, and therefore, according to my construction of the clause in question, it merely designated Captain Meigs as its preference for the work, without intending to deprive the President of the power to order him to any other army duty for the performance of which he might consider him better adapted. Still, whilst this clause may not be, and I believe is not, a violation of the Constitution, yet how destructive it would be to all proper subordination and how demoralizing its effect upon the morale of the Army if it should become a precedent for future legislation! Officers might then be found, instead of performing their appropriate duties, besieging the halls of Congress for the purpose of obtaining special favors and choice places by legislative enactment. Under these circumstances I have deemed it but fair to inform Congress that whilst I do not consider the bill unconstitutional, this is only because, in my opinion, Congress did not intend by the language which they have employed to interfere with my absolute authority to order Captain Meigs to any other service I might deem expedient. My perfect right still remains, notwithstanding the clause, to send him away from Washington to any part of the Union to superintend the erection of a fortification or on any other appropriate duty.

It has been alleged, I think without sufficient cause, that this clause is unconstitutional because it has created a new office and has appointed Captain Meigs to perform its duties. If it had done this, it would have been a clear question, because Congress have no right to appoint to any office, this being specially conferred upon the President and Senate. It is evident that Congress intended nothing more by this clause than to express a decided opinion that Captain Meigs should be continued in the employment to which he had been previously assigned by competent authority.

It is not improbable that another question of grave importance may arise out of this clause. Is the appropriation conditional and will it fall provided I do not deem it proper that it shall be expended under the superintendence of Captain Meigs? This is a question which shall receive serious consideration, because upon its decision may depend whether the completion of the waterworks shall be arrested for another season. It is not probable that Congress could have intended that this great and important work should depend upon the various casualties and vicissitudes incident to the natural or official life of a single officer of the Army. This would be to make the work subordinate to the man, and not the man to the work, and to reverse our great axiomatic rule of "principles, not men." I desire to express no opinion upon the subject. Should the question ever arise, it shall have my serious consideration.

JAMES BUCHANAN.

VETO MESSAGES.

WASHINGTON CITY, February 1, 1860.

To the Senate of the United States:

On the last day of the last Congress a bill, which had passed both Houses, entitled "An act making an appropriation for deepening the channel over the St. Clair flats, in the State of Michigan," was presented to me for approval.

It is scarcely necessary to observe that during the closing hours of a session it is impossible for the President on the instant to examine into the merits or demerits of an important bill, involving, as this does, grave questions both of expediency and of constitutional power, with that care and deliberation demanded by his public duty as well as by the best interests of the country. For this reason the Constitution has in all cases allowed him ten days for deliberation, because if a bill be presented to him within the last ten days of the session he is not required to return it, either with an approval or a veto, but may retain it, "in which case it shall not be a law." Whilst an occasion can rarely occur when so long a period as ten days would be required to enable the President to decide whether he should approve or veto a bill, yet to deny him even two days on important questions before the adjournment of each session for this purpose, as recommended by a former annual message, would not only be unjust to him, but a violation of the spirit of the Constitution. To require him to approve a bill when it is impossible he could examine into its merits would be to deprive him of the exercise of his constitutional discretion and convert him into a mere register of the decrees of Congress. I therefore deem it a sufficient reason for having retained the bill in question that it was not presented to me until the last day of the session.

Since the termination of the last Congress I have made a thorough examination of the questions involved in the bill to deepen the channel over the St. Clair flats, and now proceed to express the opinions which I have formed upon the subject; and

1. Even if this had been a mere question of expediency, it was, to say the least, extremely doubtful whether the bill ought to have been approved, because the object which Congress intended to accomplish by the appropriation which it contains of $55,000 had been already substantially accomplished. I do not mean to allege that the work had been completed in the best manner, but it was sufficient for all practical purposes.

The St. Clair flats are formed by the St. Clair River, which empties into the lake of that name by several mouths, and which forms a bar or shoal on which in its natural state there is not more than 6 or 7 feet of water. This shoal is interposed between the mouth of the river and the deep water of the lake, a distance of 6,000 feet, and in its natural condition was a serious obstruction to navigation. The obvious remedy for this was to deepen a channel through these flats by dredging, so as to enable vessels which could navigate the lake and the river to pass through this intermediate channel. This object had been already accomplished by previous appropriations, but without my knowledge, when the bill was presented to me. Captain Whipple, of the Topographical Engineers, to whom the expenditure of the last appropriation of $45,000 for this purpose in 1856 was intrusted, in his annual report of the 1st October, 1858, stated that the dredging was discontinued on the 26th August, 1858, when a channel had been cut averaging 275 feet wide, with a depth varying from 12 to 15-1/2 feet. He says:

So long as the lake retains its present height we may assume that the depth in the channel will be at least 13-1/2 feet.

With this result, highly creditable to Captain Whipple, he observes that if he has been correctly informed "all the lake navigators are gratified." Besides, afterwards, and during the autumn of 1858, the Canadian Government expended $20,000 in deepening and widening the inner end of the channel excavated by the United States. No complaint had been made previous to the passage of the bill of obstructions to the commerce and navigation across the St. Clair flats. What, then, was the object of the appropriation proposed by the bill?

It appears that the surface of the water in Lake St. Clair has been gradually rising, until in 1858 it had attained an elevation of 4 feet above what had been its level in 1841. It is inferred, whether correctly or not it is not for me to say, that the surface of the water may gradually sink to the level of 1841, and in that event the water, which was, when the bill passed, 13-1/2 feet deep in the channel, might sink to 9-1/2 feet, and thus obstruct the passage.

To provide for this contingency, Captain Whipple suggested "the propriety of placing the subject before Congress, with an estimate for excavating a cut through the center of the new channel 150 feet in width and 4-1/2 feet deep, so as to obtain from the river to the lake a depth of 18 feet during seasons of extreme high water and 12 feet at periods of extreme low water." It was not alleged that any present necessity existed for this narrower cut in the bottom of the present channel, but it is inferred that for the reason stated it may hereafter become necessary. Captain Whipple's estimate amounted to $50,000, but Congress by the bill have granted $55,000. Now, if no other objection existed against this measure, it would not seem necessary that the appropriation should have been made for the purpose indicated. The channel was sufficiently deep for all practical purposes; but from natural causes constantly operating in the lake, which I need not explain, this channel is peculiarly liable to fill up. What is really required is that it should at intervals be dredged out, so as to preserve its present depth; and surely the comparatively trifling expense necessary for this purpose ought not to be borne by the United States. After an improvement has been once constructed by appropriations from the Treasury it is not too much to expect that it should be kept in repair by that portion of the commercial and navigating interests which enjoys its peculiar benefits.

The last report made by Captain Whipple, dated on the 13th September last, has been submitted to Congress by the Secretary of War, and to this I would refer for information, which is, upon the whole, favorable, in relation to the present condition of the channel through the St. Clair flats.

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

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

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

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

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

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

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

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

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

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