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 tumpikes 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 organisation 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 Tumpike 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.