use of them for the benefit of the whole people. The first step in this direction is to withdraw from entry the water power sites on the public domain, and to a large extent this has already been done during the past few years. The Geological Survey is making an investigation of the water resources, and more sites will be withdrawn as the information is being gathered. The next step is to provide for the proper use of the water power, and within recent years a strong demand has arisen that the government should cease to grant water rights in perpetuity, and should reserve title to the lands and merely grant the right to develop and use the power for a term of years, charging a proper fee for the privilege. Because of its power over navigation, Congress has a certain amount of control over water power sites in all navigable rivers. Up to a few years ago rights to erect dams were being granted by Congress at random and in perpetuity, but President Roosevelt checked this policy to some extent, and laid down the doctrine that such rights should be granted only for a term of years at rentals proportioned to their true values. The national government can also do much for the actual development of water power. Thus the conservation of forests will even the flow of rivers in wet and dry seasons, and thereby enlarge the possibilities of using the streams. The state governments have great opportunities for helping in the preservation and development of water power, but they are only beginning to take advantage of them. In New York, the State Water Supply Commission has made a critical investigation of the water powers of the state and a careful study of the possibilities of utilizing them. It has recommended the construction of reservoirs for the storage of water, and the state is to enter upon the work as soon as the requisite authorization for the issue of bonds can be secured. The state is to own the reservoirs and lease the power to the highest bidder.' Wisconsin has also undertaken similar work. In that state, however, the construction is being conducted by a private company under state supervision.2 The government is much better qualified to develop our power 1 Review of Reviews, Vol. XLI, pp. 77 ff. resources than any private individual or corporation. It can provide for comprehensive and coördinated action, having as its aim ultimate development rather than immediate profits. By doing the work it will confer upon the people many benefits besides the mitigation of floods and the deepening of navigable channels. Properly managed they should yield great revenues to be employed for social purposes. Waterways During the early period of our history, previous to the development of railroads, water transportation was of special importance. This led to the construction of numerous canals by the state governments and private companies. But after 1850 water routes fell into disuse, and transportation by rail supplanted transportation by water. During the last decade, however, the problem of transportation has taken on a new aspect. At the present time our commerce is developing at a much greater rate than our railroad facilities, so that the proper care and utilization of our water routes has become a pressing need. Moreover, the presence of navigable rivers and canals acts as a regulator of railroad freight rates through competition. Finally water carriage is much cheaper than transportation by rail. The waterways of the United States have an aggregate length of between 55,000 and 60,000 miles, but only about half of the mileage is at present used for navigation. It is now proposed to render available new routes and to improve the old ones. Congress has done much in the past in deepening rivers and harbors, but its work has been desultory and unsystematic, largely with a view to local and selfish interests.' Thus far there has been a lack of any definite and continuous plan; many separate projects have been undertaken and never carried to completion and vast sums have been spent on projects purely local in character, which are of but little value to the nation at large. The total amount appropriated by Congress for harbors and waterways from 1802, the date of the earliest appropriation, up to and including 1890 was $214,039,886. During the sixteen years from 1891 to 1906 the amount was $301,447,046. 'This has been a great source of jobbery and log-rolling. During the last few years it has become recognized that comparatively little of lasting value can be accomplished unless a permanent plan is formulated, and purely local projects are disregarded. No policy has as yet been finally determined upon. Several gigantic works are being urged. One of these is an inland waterway along the Atlantic from Boston to Jacksonville, Florida, and then across Florida into the Gulf of Mexico, so that ships can avoid all dangers of the open ocean. Another scheme is that of a Lakes-to-the-Gulf Deep Waterway. It is proposed to link Lake Michigan with the Gulf of Mexico by a deep channel. The scheme consists of connecting the Lake with the Mississippi River by means of a canal and then deepening the river. It is also proposed to deepen the Missouri River and make it navigable to the three forks. The deepening of the Columbia River and many other smaller projects are being urged.' In order to finance the enterprises it has been suggested that a permanent fund be created by the sale of bonds, so that the work may not be dependent on the will of each Congress. Because of the enormous cost involved, President Roosevelt has proposed that where the immediately abutting land is markedly benefited, the beneficiaries should pay a portion of the expenses. Unless the projects are properly safeguarded, the government will do the work, and a relatively few private parties will, as is too often the case, derive the benefits. 1 Some work on waterways has been done by the states. The most important of the state canals is the Erie Canal in New York, which is the connecting link between the Great Lakes and the Atlantic Ocean. The state is at present engaged in deepening the canal. CHAPTER XXI THE GOVERNMENT OF TERRITORIES The Power of the Federal Government THE Constitution of the United States makes no express provision for the acquisition of territory, and at the time of the Louisiana purchase the question was raised whether the federal government had the power to buy that domain. President Jefferson at first doubted the constitutionality of the purchase, and in the summer of 1803 he wrote to Mr. John C. Breckenridge concerning the subject: "The executive in seizing the fugitive occurrence which so much advances the good of their country have done an act beyond the Constitution. The legislature, in casting behind them metaphysical subtleties and risking themselves like faithful servants, must ratify and pay for it, and throw themselves on their country for doing for them unauthorized what we know they would have done for themselves had they been in a situation to do it."1 However, men who took a broader view of the matter claimed that there was full constitutional warrant for the action, inasmuch as the federal government enjoyed the undoubted right to acquire territory under the treaty-making power. Even Jefferson finally gave up the idea that it was necessary to amend the Constitution in order to acquire Louisiana, and later the Supreme Court held that, "the Constitution confers absolutely on the government of the Union the power of making war and of making treaties; consequently that the government possesses the power of acquiring territory by conquest or by treaty."" Congress governs federal territory under that clause of the Constitution giving it power to dispose of and make all needful rules and regulations respecting the territory or other property 2 E 1 Works (Ford ed.), Vol. IV, p. 500. 2 American Insurance Co. v. Canter, 1 Peters, 511. 417 belonging to the United States. The conflict over the powers of Congress under this provision furnishes a long and stirring chapter in the constitutional history of the United States. During the first half of the nineteenth century, this conflict was waged over the question as to whether Congress could prohibit slavery in the territories. The pro-slavery wing of the Democratic party contended that the national legislature had no such power, and radical Republicans, on the other hand, maintained that it even had no right to permit slavery in the territories. The whole matter of the power of Congress over territories was reopened in 1898, with the acquisition of our insular possessions, in the form of the somewhat striking question, "Does the Constitution follow the Flag?" The answer to this proposition is simple: the federal government cannot go anywhere or do anything except under some power conferred by the Constitu But this leaves unsettled the problem of what provisions of the Constitution control the federal authorities in the government of territories. It requires no very subtle analysis to discover that certain clauses of that instrument are designed to limit the federal government within the states; but do all the provisions in behalf of private rights contained in the original Constitution, and especially in the first ten amendments,' run into the territories and control the federal government there? In his famous opinion in the Dred Scott case, Chief Justice Taney declared that they did, and hence that slavery could not be prohibited there because that would be depriving the slaveowner of his property without due process of law a gross violation of the private rights guaranteed under the Constitution. Many years later the Supreme Court held that the Seventh Amendment required a unanimous verdict in common law trials, and controlled the legislation of Congress and territorial assemblies.2 A new aspect was given to this question when the Hawaiian Islands and the Philippines were acquired, because it was obviously impossible to apply there all of the elaborate principles of Anglo-Saxon jurisprudence laid down in the first ten amendments to the federal Constitution. In a series of Supreme Court 1 See Readings, pp. 134–137. 'Springville v. Thomas, 166 U. S. R., 707, (1897). |