James D. Richardson.

A Compilation of the Messages and Papers of the Presidents Volume 5, part 3: Franklin Pierce online

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constitutional to appropriate money for the purpose of pointing out,
by the construction of light-houses or beacons, where an obstacle to
navigation exists, it is equally so to remove such obstacle or to avoid
it by the creation of an artificial channel; that if the object be
lawful, then the means adopted solely with reference to the end must
be lawful, and that therefore it is not material, constitutionally
speaking, whether a given obstruction to navigation be indicated for
avoidance or be actually avoided by excavating a new channel; that if
it be a legitimate object of expenditure to preserve a ship from wreck
by means of a beacon or of revenue cutters, it must be not less so
to provide places of safety by the improvement of harbors, or, where
none exist, by their artificial construction; and thence the argument
naturally passes to the propriety of improving rivers for the benefit
of internal navigation, because all these objects are of more or less
importance to the commercial as well as the naval interests of the
United States.

The answer to all this is that the question of opening speedy and easy
communication to and through all parts of the country is substantially
the same, whether done by land or water; that the uses of roads and
canals in facilitating commercial intercourse and uniting by community
of interests the most remote quarters of the country by land
communication are the same in their nature as the uses of navigable
waters; and that therefore the question of the facilities and aids to
be provided to navigation, by whatsoever means, is but a subdivision of
the great question of the constitutionality and expediency of internal
improvements by the General Government. In confirmation of this it is to
be remarked that one of the most important acts of appropriation of this
class, that of the year 1833, under the Administration of President
Jackson, by including together and providing for in one bill as well
river and harbor works as road works, impliedly recognizes the fact that
they are alike branches of the same great subject of internal
improvements.

As the population, territory, and wealth of the country increased and
settlements extended into remote regions, the necessity for additional
means of communication impressed itself upon all minds with a force
which had not been experienced at the date of the formation of the
Constitution, and more and more embarrassed those who were most anxious
to abstain scrupulously from any exercise of doubtful power. Hence the
recognition in the messages of Presidents Jefferson, Madison, and Monroe
of the eminent desirableness of such works, with admission that some of
them could lawfully and should be conducted by the General Government,
but with obvious uncertainty of opinion as to the line between such
as are constitutional and such as are not, such as ought to receive
appropriations from Congress and such as ought to be consigned to
private enterprise or the legislation of the several States.

This uncertainty has not been removed by the practical working of our
institutions in later times; for although the acquisition of additional
territory and the application of steam to the propulsion of vessels have
greatly magnified the importance of internal commerce, this fact has at
the same time complicated the question of the power of the General
Government over the present subject.

In fine, a careful review of the opinions of all my predecessors and of
the legislative history of the country does not indicate any fixed rule
by which to decide what, of the infinite variety of possible river and
harbor improvements, are within the scope of the power delegated by
the Constitution; and the question still remains unsettled. President
Jackson conceded the constitutionality, under suitable circumstances, of
the improvement of rivers and harbors through the agency of Congress,
and President Polk admitted the propriety of the establishment and
support by appropriations from the Treasury of light-houses, beacons,
buoys, and other improvements within the bays, inlets, and harbors of
the ocean and lake coasts immediately connected with foreign commerce.

But if the distinction thus made rests upon the differences between
foreign and domestic commerce it can not be restricted thereby to the
bays, inlets, and harbors of the oceans and lakes, because foreign
commerce has already penetrated thousands of miles into the interior
of the continent by means of our great rivers, and will continue so to
extend itself with the progress of settlement until it reaches the limit
of navigability.

At the time of the adoption of the Constitution the vast Valley of the
Mississippi, now teeming with population and supplying almost boundless
resources, was literally an unexplored wilderness. Our advancement has
outstripped even the most sanguine anticipations of the fathers of
the Republic, and it illustrates the fact that no rule is admissible
which undertakes to discriminate, so far as regards river and harbor
improvements, between the Atlantic or Pacific coasts and the great lakes
and rivers of the interior regions of North America. Indeed, it is quite
erroneous to suppose that any such discrimination has ever existed
in the practice of the Government. To the contrary of which is the
significant fact, before stated, that when, after abstaining from all
such appropriations for more than thirty years, Congress entered upon
the policy of improving the navigation of rivers and harbors, it
commenced with the rivers Mississippi and Ohio.

The Congress of the Union, adopting in this respect one of the ideas of
that of the Confederation, has taken heed to declare from time to time,
as occasion required, either in acts for disposing of the public lands
in the Territories or in acts for admitting new States, that all
navigable rivers within the same "shall be deemed to be and remain
public highways."

Out of this condition of things arose a question which at successive
periods of our public annals has occupied the attention of the best
minds in the Union. This question is, What waters are public navigable
waters, so as not to be of State character and jurisdiction, but of
Federal jurisdiction and character, in the intent of the Constitution
and of Congress? A proximate, but imperfect, answer to this important
question is furnished by the acts of Congress and the decisions of the
Supreme Court of the United States defining the constitutional limits of
the maritime jurisdiction of the General Government. That jurisdiction
is entirely independent of the revenue power. It is not derived from
that, nor is it measured thereby.

In that act of Congress which, in the first year of the Government,
organized our judicial system, and which, whether we look to the
subject, the comprehensive wisdom with which it was treated, or the
deference with which its provisions have come to be regarded, is only
second to the Constitution itself, there is a section in which the
statesmen who framed the Constitution have placed on record their
construction of it in this matter. It enacts that the district courts of
the United States "shall have exclusive cognizance of all civil cases
of admiralty and maritime jurisdiction, including all seizures under
the law of impost, navigation, or trade of the United States, when the
seizures are made on waters which are navigable from the sea by vessels
of 10 or more tons burden, within their respective districts, as well
as upon the high seas." In this cotemporaneous exposition of the
Constitution there is no trace or suggestion that nationality of
jurisdiction is limited to the sea, or even to tide waters. The law is
marked by a sagacious apprehension of the fact that the Great Lakes
and the Mississippi were navigable waters of the United States even
then, before the acquisition of Louisiana had made wholly our own the
territorial greatness of the West. It repudiates unequivocally the rule
of the common law, according to which the question of whether a water
is public navigable water or not depends on whether it is salt or not,
and therefore, in a river, confines that quality to tide water - a rule
resulting from the geographical condition of England and applicable to
an island, with small and narrow streams, the only navigable portion of
which, for ships, is in immediate contact with the ocean, but wholly
inapplicable to the great inland fresh-water seas of America and its
mighty rivers, with secondary branches exceeding in magnitude the
largest rivers of Great Britain.

At a later period it is true that, in disregard of the more
comprehensive definition of navigability afforded by that act of
Congress, it was for a time held by many that the rule established for
England was to be received in the United States, the effect of which was
to exclude from the jurisdiction of the General Government not only the
waters of the Mississippi, but also those of the Great Lakes. To this
construction it was with truth objected that, in so far as concerns the
lakes, they are in fact seas, although of freshwater; that they are the
natural marine communications between a series of populous States and
between them and the possessions of a foreign nation; that they are
actually navigated by ships of commerce of the largest capacity; that
they had once been and might again be the scene of foreign war; and that
therefore it was doing violence to all reason to undertake by means of
an arbitrary doctrine of technical foreign law to exclude such waters
from the jurisdiction of the General Government. In regard to the river
Mississippi, it was objected that to draw a line across that river at
the point of ebb and flood of tide, and say that the part below was
public navigable water and the part above not, while in the latter the
water was at least equally deep and navigable and its commerce as rich
as in the former, with numerous ports of foreign entry and delivery, was
to sanction a distinction artificial and unjust, because regardless of
the real fact of navigability.

We may conceive that some such considerations led to the enactment in
the year 1845 of an act in addition to that of 1789, declaring that -


The district courts of the United States shall have, possess, and
exercise the same jurisdiction in matters of contract and tort arising
in, upon, or concerning steamboats and other vessels of 20 tons burden
and upward, enrolled and licensed for the coasting trade and at the time
employed in business of commerce and navigation between ports and places
in different States and Territories upon the lakes and navigable waters
connecting said lakes, as is now possessed and exercised by the said
courts in cases of the like steamboats and other vessels employed in
navigation and commerce upon the high seas or tide waters within the
admiralty and maritime jurisdiction of the United States.


It is observable that the act of 1789 applies the jurisdiction of the
United States to all "waters which are navigable from the sea" for
vessels of 10 tons burden, and that of 1845 extends the jurisdiction to
enrolled vessels of 20 tons burden, on the lakes and navigable waters
connecting said lakes, though not waters navigable from the sea,
provided such vessels be employed between places in different States and
Territories.

Thus it appears that these provisions of law in effect prescribe
conditions by which to determine whether any waters are public navigable
waters, subject to the authority of the Federal Government. The
conditions include all waters, whether salt or fresh, and whether of
sea, lake, or river, provided they be capable of navigation by vessels
of a certain tonnage, and for commerce either between the United States
and foreign countries or between any two or more of the States or
Territories of the Union. This excludes water wholly within any
particular State, and not used as the means of commercial communication
with any other State, and subject to be improved or obstructed at will
by the State within which it may happen to be.

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.

[SEAL.]

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.

[SEAL.]

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.

FRANKLIN PIERCE.

By the President:
W.L. MARCY,
_Secretary of State_.




SECOND ANNUAL MESSAGE.


WASHINGTON, _December 4_, _1854_.

_Fellow-Citizens of the Senate and of the House of Representatives_:

The past has been an eventful year, and will be hereafter referred to as
a marked epoch in the history of the world. While we have been happily
preserved from the calamities of war, our domestic prosperity has not
been entirely uninterrupted. The crops in portions of the country have
been nearly cut off. Disease has prevailed to a greater extent than
usual, and the sacrifice of human life through casualties by sea and
land is without parallel. But the pestilence has swept by, and restored
salubrity invites the absent to their homes and the return of business
to its ordinary channels. If the earth has rewarded the labor of the
husbandman less bountifully than in preceding seasons, it has left him
with abundance for domestic wants and a large surplus for exportation.
In the present, therefore, as in the past, we find ample grounds for
reverent thankfulness to the God of grace and providence for His
protecting care and merciful dealings with us as a people.



Online LibraryJames D. RichardsonA Compilation of the Messages and Papers of the Presidents Volume 5, part 3: Franklin Pierce → online text (page 9 of 27)