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terests of the country would be lost sight of in an annual scramble for the contents of the treasury; and the member of Congress who could procure the largest appropriations to be expended in his district would claim the rewards of victory from his enriched constituents. The necessary consequence would be sectional discontents and heartburnings, increased taxation and a national debt, never to be extinguished.
In view of these portentous consequences, I cannot but think that this course of legislation should be arrested, even were there nothing to forbid it in the fundamental laws of our Union. This conclusion is fortified by the fact that the constitution itself indicates a process by which harbors and rivers within the States may be improved; a process, not susceptible of the abuses necessarily to flow from the assumption of the power to improve them by the general government, just in its operation, and actually practised upon, without complaint or interruption, during more than thirty years from the organization of the present government.
The constitution provides that "no State shall, without the consent of Congress, lay any duty of tonnage." With the "consent" of Congress, such duties may be levied, collected, and expended by the States. We are not left in the dark as to the objects of this reservation of power to the States. The subject was fully considered by the convention that framed the constitution. It appears in Mr. Madison's report of the proceedings of that body that one object of the reservation was, that the States should not be rerestrained from laying duties of tonnage for the purpose of clearing harbors. Other objects were named in the debates, and among them the support of seamen. Mr. Madison, treating on this subject in the Federalist, declares that "the restraint on the power of the States over imports and exports, is enforced by all the arguments which prove the necessity of submitting the regulation of trade to the federal councils. It is needless, therefore, to remark further on this head, than that the manner in which the restraint is qualified, seems well calculated at once to secure to the States a reasonable discretion in providing for the conveniency of their imports and exports, and to the United States a reasonable check against the abuse of this discretion." The States may lay tonnage duties for clearing harbors, improving rivers, or for other purposes, but are restrained from abusing the power; because, before such duties can take effect, the "consent" of Congress must be obtained.
Here is a safe provision for the improvement of harbors and rivers in the reserved powers of the States, and in the aid they may derive from duties of tonnage levied with the consent of Congress. Its safeguards are, that both the State legislatures and Congress have to concur in the act of raising the funds; that they are in every instance to be levied upon the commerce of those ports which are to profit by the proposed improvement; that no question of conflicting power or jurisdiction is involved; that the expenditure being in the hands of those who are to pay the money, and be immediately benefitted, will be more carefully managed, and
more productive of good, than if the funds were drawn from the national treasury and disbursed by the officers of the general government; that. such a system will carry with it no enlargement of federal power and patronage, and leave the States to be the sole judges of their own wants and interests, with only a conservative negative in Congress upon any abuse of the power which the States may attempt.
Under this wise system the improvement of harbors and rivers was commenced, or rather continued from the organization of the government under the present constitution. Many acts were passed by the several States levying duties of tonnage, and many were passed by Congress giving their consent to those acts. Such acts have been passed by Massachusetts, Rhode Island, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina, and Georgia, and have been sanctioned by the consent of Congress. Without enumerating them all, it may be instructive to refer to some of them as illustrative of the mode of improving harbors and rivers in the early periods of our government, as to the constitutionality of which there can be no doubt.
In January, 1790, the State of Rhode Island passed a law levying a tonnage duty on vessels arriving in the port of Providence, "for the purpose of clearing and deepening the channel of Providence river, and making the same more navigable."
On the second of February, 1798, the State of Massachusetts passed a law levying a tonnage duty on vessels, whether employed in the foreign or coasting trade, which might enter into the Kennebunk river, for the improvement of the same, by "rendering the passage in and out of said river less difficult and dangerous."
On the first of April, 1805, the State of Pennsylvania passed a law levying a tonnage duty on vessels, "to remove the obstructions to the navigation of the river Delaware, below the city of Philadelphia."
On the twenty-third of January, 1804, the State of Virginia passed a law levying a tonnage duty on vessels, for "improving the navigation of James river."
On the twenty-second of February, 1816, the State of Virginia. passed a law levying a tonnage duty on vessels, for "improving the navigation of James river, from Warwick to Rocketts landing."
On the eighth of December, 1824, the State of Virginia passed a law levying a tonnage duty on vessels, for "improving the navigation of Appomatox river, from Pocahontas bridge to Broadway." In November, 1821, the State of North Carolina passed a law levying a tonnage duty on vessels, "for the purpose of opening an inlet at the lower end of Albemarle sound, near a place called Nog's Head, and improving the navigation of said sound with its branches," and in November, 1828, an amendatory law was passed.
On the twenty-first of December, 1804, the State of South Carolina passed a law levying a tonnage duty, for the purpose of "building a marine hospital, in the vicinity of Charleston," and on the seventeenth of December, 1816, another law was passed by
the legislature of that State, for the "maintenance of a marine hospital."
On the tenth of February, 1787, the State of Georgia passed a law levying a tonnage duty on all vessels entering into the port of Savannah, for the purpose of "clearing" the Savannah river of "wrecks and other obstructions" to the navigation.
On the twelfth of December, 1804, the State of Georgia passed a law levying a tonnage duty on vessels, "to be applied to the payment of the fees of the harbor master and health officer of the ports of Savannah and St. Mary's."
In April, 1783, the State of Maryland passed a law laying a tonnage duty on vessels, for the improvement of the "basin" and "harbor" of Baltimore, and the "river Patapsco."
On the twenty-sixth of December, 1791, the State of Maryland passed a law levying a tonnage duty on vessels, for the improvement of the "harbor and port of Baltimore."
On the twenty-eighth of December, 1793, the State of Maryland passed a law authorizing the appointment of a health officer for the port of Baltimore, and laying a tonnage duty on vessels to defray the expenses.
Congress have passed many acts giving its "consent" to these and other State laws, the first of which is dated in 1790, and the last in 1843. By the latter act, the "consent" of Congress was given to the law of the legislature of the State of Maryland, laying a tonnage duty on vessels, for the improvement of the harbor of Baltimore, and continuing it in force until the first day of June, 1850.
I transmit, herewith, copies of such of the acts of the legislatures of the States on the subject, and also the acts of Congress giving its "consent" thereto, as have been collated.
That the power was constitutionally and rightfully exercised in hese cases, does not admit of a doubt.
The injustice and inequality resulting from conceding the power to both governments is illustrated by several of the acts enumerated. Take that for the improvement of the harbor of Baltimore. That improvement is paid for exclusively by a tax on the commerce of that city; but if an appropriation be made from the national treastry for the improvement of the harbor of Boston, it must be paid, in part, out of taxes levied on the commerce of Baltimore. The result is that the commerce of Baltimore pays the full cost of the narbor improvement designed for its own benefit, and, in addition, contributes to the cost of all other harbor and river improvements in the Union. The facts need but be stated to prove the inequality and injustice which cannot but flow from the practice embodied in this bill. Either the subject should be left as it was during the first third of a century, or the practice of levying tonnage duties by the States should be abandoned altogether, and all harbor and river improvements made under the authority of the United States, and by means of direct appropriations. In view, not only of the constitutional difficulty, but as a question of policy, I am clearly of opinion that the whole subject should be left to the States, aided by such tonnage duties on vessels navigating their waters as their
respective legislatures may think proper to propose and Congress see fit to sanction.
This "consent" of Congress would never be refused in any case where the duty proposed to be levied by the State was reasonable, and where the object of improvement was one of importance. The funds required for the improvement of harbors and rivers may be raised in this mode, as was done in the earlier periods of the government, and thus avoid a resort to a strained construction of the constitution not warranted by its letter.
If direct appropriations be made of the money in the federal treasury for such purposes, the expenditures will be unequal and unjust. The money in the federal treasury is paid by a tax on the whole people of the United States; and, if applied to the purposes of improving harbors and rivers, it will be partially distributed, and be expended for the advantage of particular States, sections, or localities, at the expense of others.
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 cst, than they would be by the agency of officers of the United States. The interests benefitted 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 third 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 April, 1824, an act was passed making an appropriation of thirty thousand dollars, 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 apppropriations 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 any act requiring legislative sanction or support, the State authority must be relied on. The condemnation of the land, if the proprietors should refuse to se it, the establishment of turnpikes 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 twentieth 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