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

by Unknown

It is not to be supposed that in no conceivable case shall there be doubt as to whether a given object be or not a necessary incident of the military, naval, or any other power. As man is imperfect, so are his methods of uttering his thoughts. Human language, save in expressions for the exact sciences, must always fail to preclude all possibility of controversy. Hence it is that in one branch of the subject—the question of the power of Congress to make appropriations in aid of navigation—there is less of positive conviction than in regard to the general subject; and it therefore seems proper in this respect to revert to the history of the practice of the Government.

Among the very earliest acts of the first session of Congress was that for the establishment and support of light-houses, approved by President Washington on the 7th of August, 1789, which contains the following provisions:

That all expenses which shall accrue from and after the 15th day of August, 1789, in the necessary support, maintenance, and repairs of all light-houses, beacons, buoys, and public piers erected, placed, or sunk before the passing of this act at the entrance of or within any bay, inlet, harbor, or port of the United States, for rendering the navigation thereof easy and safe, shall be defrayed out of the Treasury of the United States: Provided, nevertheless, That none of the said expenses shall continue to be so defrayed after the expiration of one year from the day aforesaid unless such light-houses, beacons, buoys, and public piers shall in the meantime be ceded to and vested in the United States by the State or States, respectively, in which the same may be, together with the lands and tenements thereunto belonging and together with the jurisdiction of the same.

Acts containing appropriations for this class of public works were passed in 1791, 1792, 1793, and so on from year to year down to the present time; and the tenor of these acts, when examined with reference to other parts of the subject, is worthy of special consideration.

It is a remarkable fact that for a period of more than thirty years after the adoption of the Constitution all appropriations of this class were confined, with scarcely an apparent exception, to the construction of light-houses, beacons, buoys, and public piers and the stakage of channels; to render navigation "safe and easy," it is true, but only by indicating to the navigator obstacles in his way, not by removing those obstacles nor in any other respect changing, artificially, the preexisting natural condition of the earth and sea. It is obvious, however, that works of art for the removal of natural impediments to navigation, or to prevent their formation, or for supplying harbors where these do not exist, are also means of rendering navigation safe and easy, and may in supposable cases be the most efficient, as well as the most economical, of such means. Nevertheless, it is not until the year 1824 that in an act to improve the navigation of the rivers Ohio and Mississippi and in another act making appropriations for deepening the channel leading into the harbor of Presque Isle, on Lake Erie, and for repairing Plymouth Beach, in Massachusetts Bay, we have any example of an appropriation for the improvement of harbors in the nature of those provided for in the bill returned by me to the House of Representatives.

It appears not probable that the abstinence of Congress in this respect is attributable altogether to considerations of economy or to any failure to perceive that the removal of an obstacle to navigation might be not less useful than the indication of it for avoidance, and it may be well assumed that the course of legislation so long pursued was induced, in whole or in part, by solicitous consideration in regard to the constitutional power over such matters vested in Congress.

One other peculiarity in this course of legislation is not less remarkable. It is that when the General Government first took charge of lighthouses and beacons it required the works themselves and the lands on which they were situated to be ceded to the United States. And although for a time this precaution was neglected in the case of new works, in the sequel it was provided by general laws that no light-house should be constructed on any site previous to the jurisdiction over the same being ceded to the United States.

Constitutional authority for the construction and support of many of the public works of this nature, it is certain, may be found in the power of Congress to maintain a navy and provide for the general defense; but their number, and in many instances their location, preclude the idea of their being fully justified as necessary and proper incidents of that power. And they do not seem susceptible of being referred to any other of the specific powers vested in Congress by the Constitution, unless it be that to raise revenue in so far as this relates to navigation. The practice under all my predecessors in office, the express admissions of some of them, and absence of denial by any sufficiently manifest their belief that the power to erect light-houses, beacons, and piers is possessed by the General Government. In the acts of Congress, as we have already seen, the inducement and object of the appropriations are expressly declared, those appropriations being for "light-houses, beacons, buoys, and public piers" erected or placed "within any bay, inlet, harbor, or port of the United States for rendering the navigation thereof easy and safe."

If it be contended that this review of the history of appropriations of this class leads to the inference that, beyond the purposes of national defense and maintenance of a navy, there is authority in the Constitution to construct certain works in aid of navigation, it is at the same time to be remembered that the conclusions thus deduced from cotemporaneous construction and long-continued acquiescence are themselves directly suggestive of limitations of constitutionality, as well as expediency, regarding the nature and the description of those aids to navigation which Congress may provide as incident to the revenue power; for at this point controversy begins, not so much as to the principle as to its application.

In accordance with long-established legislative usage, Congress may construct light-houses and beacons and provide, as it does, other means to prevent shipwrecks on the coasts of the United States. But the General Government can not go beyond this and make improvements of rivers and harbors of the nature and to the degree of all the provisions of the bill of the last session of Congress.