Part 24

The constitutionality of these provisions of statute has been called in question. Their constitutionality has been maintained, however, by repeated decisions of the Supreme Court of the United States, and they are therefore the law of the land by the concurrent act of the legislative, the executive, and the judicial departments of the Government. Regarded as affording a criterion of what is navigable water, and as such subject to the maritime jurisdiction of the Supreme Court and of Congress, these acts are objectionable in this, that the rule of navigability is an arbitrary one, that Congress may repeal the present rule and adopt a new one, and that thus a legislative definition will be able to restrict or enlarge the limits of constitutional power. Yet this variableness of standard seems inherent in the nature of things. At any rate, neither the First Congress, composed of the statesmen of the era when the Constitution was adopted, nor any subsequent Congress has afforded us the means of attaining greater precision of construction as to this part of the Constitution.

This reflection may serve to relieve from undeserved reproach an idea of one of the greatest men of the Republic--President Jackson. He, seeking amid all the difficulties of the subject for some practical rule of action in regard to appropriations for the improvement of rivers and harbors, prescribed for his own official conduct the rule of confining such appropriations to "places below the ports of entry or delivery established by law." He saw clearly, as the authors of the above-mentioned acts of 1789 and 1845 did, that there is no inflexible natural line of discrimination between what is national and what local by means of which to determine absolutely and unerringly at what point on a river the jurisdiction of the United States shall end. He perceived, and of course admitted, that the Constitution, while conferring on the General Government some power of action to render navigation safe and easy, had of necessity left to Congress much of discretion in this matter. He confided in the patriotism of Congress to exercise that discretion wisely, not permitting himself to suppose it possible that a port of entry or delivery would ever be established by law for the express and only purpose of evading the Constitution.

It remains, therefore, to consider the question of the measure of discretion in the exercise by Congress of the power to provide for the improvement of rivers and harbors, and also that of the legitimate responsibility of the Executive in the same relation.

In matters of legislation of the most unquestionable constitutionality it is always material to consider what amount of public money shall be appropriated for any particular object. The same consideration applies with augmented force to a class of appropriations which are in their nature peculiarly prone to run to excess, and which, being made in the exercise of incidental powers, have intrinsic tendency to overstep the bounds of constitutionality.

If an appropriation for improving the navigability of a river or deepening or protecting a harbor have reference to military or naval purposes, then its rightfulness, whether in amount or in the objects to which it is applied, depends, manifestly, on the military or naval exigency; and the subject-matter affords its own measure of legislative discretion. But if the appropriation for such an object have no distinct relation to the military or naval wants of the country, and is wholly, or even mainly, intended to promote the revenue from commerce, then the very vagueness of the proposed purpose of the expenditure constitutes a perpetual admonition of reserve and caution. Through disregard of this it is undeniable that in many cases appropriations of this nature have been made unwisely, without accomplishing beneficial results commensurate with the cost, and sometimes for evil rather than good, independently of their dubious relation to the Constitution.

Among the radical changes of the course of legislation in these matters which, in my judgment, the public interest demands, one is a return to the primitive idea of Congress, which required in this class of public works, as in all others, a conveyance of the soil and a cession of the jurisdiction to the United States. I think this condition ought never to have been waived in the case of any harbor improvement of a permanent nature, as where piers, jetties, sea walls, and other like works are to be constructed and maintained. It would powerfully tend to counteract endeavors to obtain appropriations of a local character and chiefly calculated to promote individual interests. The want of such a provision is the occasion of abuses in regard to existing works, exposing them to private encroachment without sufficient means of redress by law. Indeed, the absence in such cases of a cession of jurisdiction has constituted one of the constitutional objections to appropriations of this class. It is not easy to perceive any sufficient reason for requiring it in the case of arsenals or forts which does not equally apply to all other public works. If to be constructed and maintained by Congress in the exercise of a constitutional power of appropriation, they should be brought within the jurisdiction of the United States.

There is another measure of precaution in regard to such appropriations which seems to me to be worthy of the consideration of Congress. It is to make appropriation for every work in a separate bill, so that each one shall stand on its own independent merits, and if it pass shall do so under circumstances of legislative scrutiny entitling it to be regarded as of general interest and a proper subject of charge on the Treasury of the Union.

During that period of time in which the country had not come to look to Congress for appropriations of this nature several of the States whose productions or geographical position invited foreign commerce had entered upon plans for the improvement of their harbors by themselves and through means of support drawn directly from that commerce, in virtue of an express constitutional power, needing for its exercise only the permission of Congress. Harbor improvements thus constructed and maintained, the expenditures upon them being defrayed by the very facilities they afford, are a voluntary charge on those only who see fit to avail themselves of such facilities, and can be justly complained of by none. On the other hand, so long as these improvements are carried on by appropriations from the Treasury the benefits will continue to inure to those alone who enjoy the facilities afforded, while the expenditure will be a burden upon the whole country and the discrimination a double injury to places equally requiring improvement, but not equally favored by appropriations.

These considerations, added to the embarrassments of the whole question, amply suffice to suggest the policy of confining appropriations by the General Government to works necessary to the execution of its undoubted powers and of leaving all others to individual enterprise or to the separate States, to be provided for out of their own resources or by recurrence to the provision of the Constitution which authorizes the States to lay duties of tonnage with the consent of Congress.

FRANKLIN PIERCE.

PROCLAMATIONS.

BY THE PRESIDENT OF THE UNITED STATES.

A PROCLAMATION.

Whereas information has been received by me that an unlawful expedition has been fitted out in the State of California with a view to invade Mexico, a nation maintaining friendly relations with the United States, and that other expeditions are organizing within the United States for the same unlawful purpose; and

Whereas certain citizens and inhabitants of this country, unmindful of their obligations and duties and of the rights of a friendly power, have participated and are about to participate in these enterprises, so derogatory to our national character and so threatening to our tranquillity, and are thereby incurring the severe penalties imposed by law against such offenders:

Now, therefore, I, Franklin Pierce, President of the United States, have issued this my proclamation, warning all persons who shall connect themselves with any such enterprise or expedition that the penalties of the law denounced against such criminal conduct will be rigidly enforced; and I exhort all good citizens, as they regard our national character, as they respect our laws or the law of nations, as they value the blessings of peace and the welfare of their country, to discountenance and by all lawful means prevent such criminal enterprises; and I call upon all officers of this Government, civil and military, to use any efforts which may be in their power to arrest for trial and punishment every such offender.

Given under my hand and the seal of the United States, at Washington, this 18th day of January, A.D. 1854, and the seventy-eighth of the Independence of the United States.

FRANKLIN PIERCE.

By the President: W.L. MARCY, Secretary of State.

BY THE PRESIDENT OF THE UNITED STATES.

A PROCLAMATION.

Whereas information has been received that sundry persons, citizens of the United States and others residing therein, are engaged in organizing and fitting out a military expedition for the invasion of the island of Cuba; and

Whereas the said undertaking is contrary to the spirit and express stipulations of treaties between the United States and Spain, derogatory to the character of this nation, and in violation of the obvious duties and obligations of faithful and patriotic citizens; and

Whereas it is the duty of the constituted authorities of the United States to hold and maintain the control of the great question of peace or war, and not suffer the same to be lawlessly complicated under any pretense whatever; and

Whereas to that end all private enterprises of a hostile character within the United States against any foreign power with which the United States are at peace are forbidden and declared to be a high misdemeanor by an express act of Congress:

Now, therefore, in virtue of the authority vested by the Constitution in the President of the United States, I do issue this proclamation to warn all persons that the General Government claims it as a right and duty to interpose itself for the honor of its flag, the rights of its citizens, the national security, and the preservation of the public tranquillity, from whatever quarter menaced, and it will not fail to prosecute with due energy all those who, unmindful of their own and their country's fame, presume thus to disregard the laws of the land and our treaty obligations.

I earnestly exhort all good citizens to discountenance and prevent any movement in conflict with law and national faith, especially charging the several district attorneys, collectors, and other officers of the United States, civil or military, having lawful power in the premises, to exert the same for the purpose of maintaining the authority and preserving the peace of the United States.

Given under my hand and the seal of the United States, at Washington, the 31st day of May, A.D. 1854, and the seventy-eighth of the Independence Of the United States.