WATERWAYS
The connection between forests and rivers is like that between father
and son. No forests, no rivers. So a forester may not be wholly beyond
his depth when he talks about streams. The conquest of our rivers is one
of the largest commercial questions now before us.
The commercial consequences of river development are incalculable. Its
results cannot be measured by the yard-stick of present commercial
needs. River improvement means better conditions of transportation than
we have now, but it means development too. We cannot see this problem
clearly and see it whole in the light of the past alone.
The actual problems of river development are not less worthy of our
best attention than their commercial results. Every river is a unit from
its source to its mouth. If it is to be given its highest usefulness to
all the people, and serve them for all the uses they can make of it, it
must be developed with that idea clearly in mind. To develop a river for
navigation alone, or power alone, or irrigation alone, is often like
using a sheep for mutton, or a steer for beef, and throwing away the
leather and the wool. A river is a unit, but its uses are many, and with
our present knowledge there can be no excuse for sacrificing one use to
another if both can be subserved.
A progressive plan for the development of our waterways is essential.
Pending the completion of that plan, which should neither be weakened by
excessive haste nor drowned in excessive deliberation, work should
proceed at once on some of the greater projects which we know already
will be essential under any plan that may be devised. First and
foremost of these by unanimous consent is the improvement of the
Mississippi River. A comprehensive and progressive plan of the kind we
need can be made in one way only, and that is by a commission of the
best men in the United States appointed directly by the President of the
United States.
Such a plan must consider every use to which our rivers can be put, and
every means available for their control. It must deal with such great
questions as the relation of the States and the Nation in the
construction and control of the work, and with terminals and the
coordination of rail and river transportation. The engineering
difficulties may be larger than any we have yet solved. The adjustment
of opposite demands between conflicting interests and localities, and
other questions of large reach and often of great legal complexity will
tax the powers of the best men we have. No part of the work will require
greater temperance, wisdom, and foresight than certain questions of
policy and law.
I have observed in the course of some experience that difficulties
originating with the law are peculiarly apt to foster misconceptions. It
happens that the Forest Service has recently supplied a typical example.
Certain men and certain papers have said that the Forest Service has
gone beyond the law in carrying out its work. This assertion has been
repeated so persistently that there is danger that it may be believed.
The friends of conservation must not be led to think that before the
Forest Service can proceed legally with its present work all the hazards
and compromises of new legislation must be faced.
Fortunately, the charge of illegal action is absolutely false. The
Forest Service has had ample legal authority for everything it has done.
Not once since it was created has any charge of illegality, despite the
most searching investigation and the bitterest attack, ever led to
reversal or reproof by either House of Congress or by any Congressional
Committee. Since the creation of the Forest Service the expenditure of
nearly $15,000,000 has passed successfully the scrutiny of the Treasury
of the United States. Most significant of all, not once has the Forest
Service been defeated as to any vital legal principle underlying its
work in any Court or administrative tribunal of last resort. Thus those
who make the law and those who interpret it seem to agree that the work
has been legal.
But it is not enough to say that the Forest Service has kept within the
law. Other qualifications go to make efficiency in a Government bureau.
A bureau may keep within the law and yet fail to get results.
When action is needed for the public good there are two opposite points
of view regarding the duty of an administrative officer in enforcing the
law. One point of view asks, "Is there any express and specific law
authorizing or directing such action?" and, having thus sought and
found none, nothing is done. The other asks, "Is there any justification
in law for doing this desirable thing?" and, having thus sought and
found a legal justification, what the public good demands is done. I
hold it to be the first duty of a public officer to obey the law. But I
hold it to be his second duty, and a close second, to do everything the
law will let him do for the public good, and not merely what the law
compels or directs him to do.
It is the right as well as the duty of a public officer to be zealous in
the public service. That is why the public service is worth while. To
every public officer the law should be, not a goad to drive him to his
duty, but a tool to help him in his work. And I maintain that it is
likewise his right and duty to seek by every proper means from the legal
authorities set over him such interpretations of the law as will best
help him to serve his country.
Let the public officer take every lawful chance to use the law for the
public good. The better use he makes of it the better public servant he
becomes. One man with a jack-knife will build a ladder. Another with a
full tool-chest cannot make a footstool. The man with the jack-knife
will often reach the higher level. I am for the man with the jack-knife.
I believe in the man who does all he can and the best he can, with the
means at his command. That is precisely what the Forest Service has been
trying to do with the money and law Congress has placed in its hands.
Every public officer responsible for any part of the conservation of
natural resources is a trustee of the public property. If conservation
is vital to the welfare of this Nation now and hereafter, as President
Roosevelt so wisely declared, then few positions of public trust are so
important, and few opportunities for constructive work so large. Such
officers are concerned with the greatest issues which have come before
this Nation since the Civil War. They may hope to serve the Nation as
few men ever can. Their care for our forests, waters, lands, and
minerals is often the only thing that stands between the public good and
the something-for-nothing men, who, like the daughters of the
horse-leech, are forever crying, "Give, Give." The intelligence,
initiative, and steadfastness that can withstand the unrelenting
pressure of the special interests are worth having, and the Forest
Service has given proof of all three. But the counter-pressure from the
people in their own interest is needed far more often than it is
supplied.
The public welfare cannot be subserved merely by walking blindly in the
old ruts. Times change, and the public needs change with them. The man
who would serve the public to the level of its needs must look ahead,
and one of his most difficult problems will be to make old tools answer
new uses--uses some of which, at least, were never imagined when the
tools were made. That is one reason why constructive foresight is one of
the great constant needs of every growing nation.
The Forest Service proposes to use the tools--obey the law--made by the
representatives of the people. But the law cannot give specific
directions in advance to meet every need and detail of administration.
The law cannot make brains nor supply conscience. Therefore, the Forest
Service proposes also to serve the people by the intelligent and
purposeful use of the law and every lawful means at its command for the
public good. And for that intention it makes no apology.
Fortunately for the Forest Service, the point of view which it worked
out for itself under the pressure of its responsibilities was found to
be that of the Supreme Court. In the case of the U.S. vs. Macdaniel (7
Pet., 13-14), involving the administrative powers of the head of a
Department, the Supreme Court of the United States said:
"He is limited in the exercise of his
powers by the law; but it does not
follow that he must show statutory
provision for everything he does. No
government could be administered on
such principles. To attempt to regulate,
by law, the minute movements
of every part of the complicated machinery
of government, would evince a
most unpardonable ignorance on the
subject. Whilst the great outlines of
its movements may be marked out,
and limitations imposed on the exercise
of its powers, there are numberless
things which must be done, that can
neither be anticipated nor defined, and
which are essential to the proper action
of the government."
Congress has given to the Secretary of Agriculture, acting through the
Forest Service, the specific task of administering the National
Forests, with full power to perform it, and has provided that he "may
make such rules and regulations and establish such service as will
ensure the objects of said reservations, namely, to regulate their
occupancy and use and to preserve the forests thereon from destruction."
Every exercise of the powers granted to the Secretary of Agriculture by
statute has been in accordance with the principles laid down by Chief
Justice Marshall ninety years ago in the case of McCulloch vs. Maryland
(4 Wheat., 421), when he said as to powers delegated by the Federal
Constitution to Congress:
"Let the end be legitimate, let it be
within the scope of the Constitution,
and all means which are appropriate,
which are plainly adapted to that end,
which are not prohibited, but consist
with the letter and spirit of the Constitution,
are constitutional."
After the transfer of the National Forests from the Interior Department
to the Forest Service in 1905, some things were done that had never been
done before, such as initiating Government control over water-power
monopoly in the National Forests, giving preference to the public over
commercial corporations in the use of the Forests, and trying to help
the small man make a living rather than the big man make a profit (but
always with the effort to be just to both). Always and everywhere we
have set the public welfare above the advantage of the special
interests.
Because it did these things the Forest Service has made enemies, of some
of whom it is justly proud. It has been easy for these enemies to raise
the cry of illegality, novelty, and excess of zeal. But in every
instance the Service has been fortified either by express statutes, or
by decisions of the Supreme Court and other courts, of the Secretary of
the Interior, of the Comptroller, or the Attorney-General, or by
general principles of law which are beyond dispute. If there is novelty,
it consists simply in the way these statutes, decisions, and principles
have been used to protect the public. The law officers of the Forest
Service have had the Nation for their client, and they are proud to work
as zealously for the public as they would in private practice for a fee.
So I think the ghost of illegality in the Forest Service may fairly be
laid at rest. But it is not the only one which is clouding the issues of
conservation in the public mind. Another misconception is that the
friends of conservation are trying to prevent the development of water
power by private capital. Nothing could be farther from the truth. The
friends of conservation were the first to call public attention to the
enormous saving to the Nation which follows the substitution of the
power of falling water, which is constantly renewed, for our coal, which
can never be renewed. They favor development by private capital and not
by the Government, but they also favor attaching such reasonable
conditions to the right to develop as will protect the public and
control water-power monopoly in the public interest, while at the same
time giving to enterprising capital its just and full reward. They
believe that to grant rights to water power in perpetuity is a wrongful
mortgage of the welfare of our descendants, and to grant them without
insisting on some return for value received is to rob ourselves.
I believe in dividends for the people as well as taxes. Fifty years is
long enough for the certainty of profitable investment in water power,
and to fix on the amount of return that will be fair to the public and
the corporation is not impossible. What city does not regret some
ill-considered franchise? And why should not the Nation profit by the
experience of its citizens?
There is no reason why the water-power interests should be given the
people's property freely and forever except that they would like to have
it that way. I suspect that the mere wishes of the special interests,
although they have been the mainspring of much public action for many
years, have begun to lose their compelling power. A good way to begin to
regulate corporations would be to stop them from regulating us.
The sober fact is that here is the imminent battle-ground in the endless
contest for the rights of the people. Nothing that can be said or done
will suffice to postpone longer the active phases of this fight; and
that is why I attach so great importance to the attitude of
administrative officers in protecting the public welfare in the
enforcement of the law.
From time to time a few strong leaders have tried to unite the people in
the fight of the many for the equal opportunities to which they are
entitled. But the people have only just begun to take this fight, in
earnest. They have not realized until recently the vital importance and
far-reaching consequences of their own passive position.
Now that the fight is passing into an acute stage it is easily seen that
the special interests have used the period of public indifference to
manoeuvre themselves into a position of exceeding strength. In the first
place, the Constitutional position of property in the United States is
stronger than in any other nation. In the second place, it is well
understood that the influence of the corporations in our law-making
bodies is usually excessive, not seldom to the point of defeating the
will of the people steadily and with ease. In the third place, cases are
not unknown in which the special interests, not satisfied with making
the laws, have assumed also to interpret them, through that worst of
evils in the body politic, an unjust judge.
When an interest or an enemy is entrenched in a position rendered
impregnable against an expected mode of attack, there is but one remedy,
to shift the ground and follow lines against which no preparation has
been made. Fortunately for us, the special interests, with a blindness
which naturally follows from their wholly commercialized point of view,
have failed to see the essential fact in this great conflict. They do
not understand that this is far more than an economic question, that in
its essence and in every essential characteristic it is a moral
question.
The present economic order, with its face turned away from equality of
opportunity, involves a bitter moral wrong, which must be corrected for
moral reasons and along moral lines. It must be corrected with justness
and firmness, but not bitterly, for that would be to lower the Nation to
the moral level of the evil which we have set ourselves to fight.
This is the doctrine of the Square Deal. It contains the germ of
industrial liberty. Its partisans are the many, its opponents are the
few. I am firm in the faith that the great majority of our people are
Square Dealers.