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

by Unknown

To justify such extended power, it has been urged that if it be 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.