Now, we meet with serious difficulties in attempting to decide how best to use the property owned or held by the United States Government as trustee for all the people. We have under our system of government a dual jurisdiction, or rather, two jurisdictions—that of the Nation on the one hand, and that of the State on the other. Yet between these two jurisdictions there is no real conflict; there ought to be no insuperable obstacle to such cooperation between States and Nation as will make possible a wise solution of all questions in which both jurisdictions have duties to perform. We hear much about States' rights, as though the problems of Conservation have brought to life again an old doctrine, as though in some way the Conservationist is endeavoring to take something away from the States. The very opposite is true. There is no effort on the part of the Conservationist to interfere with any duty that the State ought to and can perform. Those duties devolving on the States should be performed by the States; and the people of each commonwealth should see to it that their State representatives not only do what is wise and necessary each year but exercise foresight in dealing with all resources subject to their jurisdiction (applause). That, however, does not mean that the Federal Government is debarred from proper use of the public domain within the areas of the several States; it likewise has great duties devolving on it in so administering its property as to safeguard the interests and the rights of all the citizens of the country. The State lines are merely accidental in many instances. The States of the old Northwest and the States of the Middle West today were carved out of public territory simply by drawing of lines; they were not political entities in the first instance, but a few people got together and agreed that so many square miles of territory would be made into a State, and whether that State line was drawn here or a hundred miles over there should not determine how we are to deal with the public resources contained within the area.
In the early period of our development there was but little need of giving heed to the questions that are now uppermost in our minds in relation to the public domain. There was land enough and to spare; and the early purpose of the Federal Government was to provide easy methods for getting the public domain (which in those days was considered chiefly useful for agriculture, as it is in the middle West) into farms, and building up commonwealths that are now theatres of agricultural industry. But today the conditions are very different. The remaining agricultural land that can be used without irrigation or drainage is very little in comparison to the needs of our people; and in handling what is left of the public domain it becomes the duty of the Federal Government to see to it that not one acre of land that can be used for agricultural settlement and development is directed to any other purpose—and likewise to see to it that land capable of mineral development or of water development is not stolen from the public domain under the guise of homestead entries. (Great applause)
In order to understand exactly what the Federal Government can do in relation to the use of the public domain, let us keep clearly in mind the powers granted to it under the Constitution, and the laws enacted in accordance with the Constitution by Congress. The Constitution provides that—
The Congress shall have power to dispose of, and make all needful rules and regulations respecting the territory and other property belonging to the United States.
The executive power shall be vested in a President of the United States of America.
* * * he shall take care that the laws be faithfully executed.
Now, in accordance with the provisions of the Constitution, the Congress has enacted the following laws affecting the public domain:
The Secretary of the Interior is charged with the supervision of public business relating to * * * the public lands, including mines.
The Commissioner of the General Land Office shall perform, under the direction of the Secretary of the Interior, all executive duties appertaining to the surveys and sale of the public lands of the United States, or in anywise respecting such public lands.
The Commissioner of the General Land Office, under the direction of the Secretary of the Interior, is authorized to enforce and carry into execution by appropriate regulations, every part of the provisions of this title [the public land laws] not otherwise specifically provided for.
Congress, acting under these general provisions, has from time to time enacted laws affecting portions of the public domain. It has provided the Homestead Act, the Timber and Stone Act, the Mineral Entry Act; provided for the creation of the National Forests; enacted laws relating to the use of the public domain for reservoir sites, for pipe-lines, and for transmission lines; and as the needs of each generation have been made known, Congress, acting for the interests of all the people, has enacted direct legislation for the purpose of providing method for the disposition and use of the public domain.
Meantime, the Executive on his part has performed the duties devolving on him under the Constitution—duties few in number and easily expressed, though of great importance to the public welfare. They are, in brief, to see to it that the laws of the United States are faithfully executed; and he is granted all the executive power that could have been given by the use of the English language. There is no limitation. It is simply "executive power"; whatever that may be was granted to the President of the United States.
One of the great objects for which this Nation was created was to promote the "general welfare." That object was not only stated in the preamble of the Constitution, but was likewise written into the body of the instrument; and the power was specifically granted to Congress to provide for the general welfare of the United States. That was not an idle phrase. The founders of the Republic recognized that it was impossible for them to foresee all the things that it might be necessary for the Federal Government to do; it was not possible for them to define in specific language all the powers that were to be exercised, nor was it possible for them to indicate to what extent these powers, once granted, might properly and wisely be used; and this welfare clause has made it possible to carry out by both the Legislative and the Executive branches of the Federal Government the beneficent purposes of the founders in ways which they never contemplated or could have contemplated in detail. Fortunately, during the early days of our National existence we had at the head of the Supreme Court a master mind. Marshall was as profound a statesman as he was a great jurist. He recognized with that great far-seeing insight that amounts almost to inspiration, that it would have been to sound the death-knell of the Republic if he, as the chief law interpreter from the judicial seat, should so interpret the Constitution as to tie the hands of the Government and prevent the people from doing the things necessary to make themselves a great and permanent Nation. In one of the earliest decisions involving interpretation of the Constitution (McCullough vs. Maryland. 4 Wheaton 315) Marshall used this language:
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 consistent with the letter and spirit of the Constitution, are constitutional.