It is scarcely necessary to observe that during the closing hours of a session it is impossible for the President on the instant to examine into the merits or demerits of an important bill, involving, as this does, grave questions both of expediency and of constitutional power, with that care and deliberation demanded by his public duty as well as by the best interests of the country. For this reason the Constitution has in all cases allowed him ten days for deliberation, because if a bill be presented to him within the last ten days of the session he is not required to return it, either with an approval or a veto, but may retain it, "in which case it shall not be a law." Whilst an occasion can rarely occur when so long a period as ten days would be required to enable the President to decide whether he should approve or veto a bill, yet to deny him even two days on important questions before the adjournment of each session for this purpose, as recommended by a former annual message, would not only be unjust to him, but a violation of the spirit of the Constitution. To require him to approve a bill when it is impossible he could examine into its merits would be to deprive him of the exercise of his constitutional discretion and convert him into a mere register of the decrees of Congress. I therefore deem it a sufficient reason for having retained the bill in question that it was not presented to me until the last day of the session.
Since the termination of the last Congress I have made a thorough examination of the questions involved in the bill to deepen the channel over the St. Clair flats, and now proceed to express the opinions which I have formed upon the subject; and
1. Even if this had been a mere question of expediency, it was, to say the least, extremely doubtful whether the bill ought to have been approved, because the object which Congress intended to accomplish by the appropriation which it contains of $55,000 had been already substantially accomplished. I do not mean to allege that the work had been completed in the best manner, but it was sufficient for all practical purposes.
The St. Clair flats are formed by the St. Clair River, which empties into the lake of that name by several mouths, and which forms a bar or shoal on which in its natural state there is not more than 6 or 7 feet of water. This shoal is interposed between the mouth of the river and the deep water of the lake, a distance of 6,000 feet, and in its natural condition was a serious obstruction to navigation. The obvious remedy for this was to deepen a channel through these flats by dredging, so as to enable vessels which could navigate the lake and the river to pass through this intermediate channel. This object had been already accomplished by previous appropriations, but without my knowledge, when the bill was presented to me. Captain Whipple, of the Topographical Engineers, to whom the expenditure of the last appropriation of $45,000 for this purpose in 1856 was intrusted, in his annual report of the 1st October, 1858, stated that the dredging was discontinued on the 26th August, 1858, when a channel had been cut averaging 275 feet wide, with a depth varying from 12 to 15-1/2 feet. He says:
So long as the lake retains its present height we may assume that the depth in the channel will be at least 13-1/2 feet.
With this result, highly creditable to Captain Whipple, he observes that if he has been correctly informed "all the lake navigators are gratified." Besides, afterwards, and during the autumn of 1858, the Canadian Government expended $20,000 in deepening and widening the inner end of the channel excavated by the United States. No complaint had been made previous to the passage of the bill of obstructions to the commerce and navigation across the St. Clair flats. What, then, was the object of the appropriation proposed by the bill?
It appears that the surface of the water in Lake St. Clair has been gradually rising, until in 1858 it had attained an elevation of 4 feet above what had been its level in 1841. It is inferred, whether correctly or not it is not for me to say, that the surface of the water may gradually sink to the level of 1841, and in that event the water, which was, when the bill passed, 13-1/2 feet deep in the channel, might sink to 9-1/2 feet, and thus obstruct the passage.
To provide for this contingency, Captain Whipple suggested "the propriety of placing the subject before Congress, with an estimate for excavating a cut through the center of the new channel 150 feet in width and 4-1/2 feet deep, so as to obtain from the river to the lake a depth of 18 feet during seasons of extreme high water and 12 feet at periods of extreme low water." It was not alleged that any present necessity existed for this narrower cut in the bottom of the present channel, but it is inferred that for the reason stated it may hereafter become necessary. Captain Whipple's estimate amounted to $50,000, but Congress by the bill have granted $55,000. Now, if no other objection existed against this measure, it would not seem necessary that the appropriation should have been made for the purpose indicated. The channel was sufficiently deep for all practical purposes; but from natural causes constantly operating in the lake, which I need not explain, this channel is peculiarly liable to fill up. What is really required is that it should at intervals be dredged out, so as to preserve its present depth; and surely the comparatively trifling expense necessary for this purpose ought not to be borne by the United States. After an improvement has been once constructed by appropriations from the Treasury it is not too much to expect that it should be kept in repair by that portion of the commercial and navigating interests which enjoys its peculiar benefits.
The last report made by Captain Whipple, dated on the 13th September last, has been submitted to Congress by the Secretary of War, and to this I would refer for information, which is, upon the whole, favorable, in relation to the present condition of the channel through the St. Clair flats.
2. But the far more important question is, Does Congress possess the power under the Constitution to deepen the channels of rivers and to create and improve harbors for purposes of commerce?