Proceedings of the second National Conservation Congress at Saint Paul, September 5-8, 1910

by United States. National Conservation Congress

Another sentence in the same opinion sets a standard for judging existing or proposed law; he says—

But where the law is not prohibited, and is really calculated to effect any of the objects entrusted to the Government, to undertake here to inquire into the degree of its necessity would be to pass the line which circumscribes the judicial department and tread on legislative ground. This court disclaims all pretensions to such a power.

Clearly, Marshall saw at that time that if the Supreme Court endeavored to prevent Congress from exercising to the full a power granted under the Constitution, it would at that very moment overstep its legitimate ground and interfere with the functions granted to the legislative body; and in dealing with the powers granted to the Executive, exactly the same rule of interpretation applies. Now, it is most interesting to notice how from generation to generation Marshall's interpretation has made possible the doing of the things that have been done by our people. In those days it was impossible for men to conceive of the commercial development that has taken place during the hundred years. They could not have realized that within a hundred years we would be a great manufacturing Nation, and that our commercial relations would not be confined to the thirteen colonies but would spread broadcast throughout the entire world.

A striking example of the application of this wise interpretation arose in dealing with the questions of the Philippine government. We there had an entirely novel proposition. The forefathers of the Republic had never contemplated the acquisition by us of territory in the Pacific, or islands elsewhere. Yet when we faced that problem, we found that under Marshall's interpretation, our Constitution was broad enough and big enough, and the powers granted therein were great enough, to permit us to fulfill the Nation's duty to the islands and islanders. President Taft, discussing our work in the Philippines, used this language three years ago:

It is said that there is nothing in the Constitution of the United States that authorizes National altruism of that sort. Well, of course, there is not; but there is nothing in the Constitution of the United States that forbids it. What there is in the Constitution of the United States is a breathing spirit that we are a Nation, with all the responsibilities that any Nation ever had, and therefore when it becomes the Christian duty of a Nation to assist another Nation, the Constitution authorizes it because it is part of National well-being.

That interpretation of the power of both the Executive and the Congress is exactly in line with the power that is exercised by both in dealing with this question of the public domain and the welfare of our people (applause). It would be a childish interpretation of the Constitution to hold that we as a Nation could act for the people in the Philippine Islands as was best necessary for their well-being, and yet within our own confines as a Nation would be prohibited from doing that which is necessary for the well-being and the welfare of our children and their children. (Applause)

The interpretation by Marshall gave vigor to the young Nation. He was not afraid of great responsibilities. He recognized that great responsibilities likewise meant the possibility of great mistakes, but that did not deter him from so interpreting the Constitution as to make possible the doing of the things that have been done. He was not of that class of timid folk who fear to exercise great power lest they may make a mistake. He was not that type, either as statesman or jurist, who because they do not see plainly written in the Constitution specific authority for the doing of every act necessary, therefore hold back and maintain that no such authority exists. This is the type of mind that prevents all progress. The timid man is often side by side with the dishonest man, because the timid man refuses to act from fear while the dishonest man raises the cry, "There is no power," in order to gain for himself that to which he is not entitled, or to escape Governmental jurisdiction or evade governmental regulation of any character. (Applause)

But we are not left simply to academic discussion as to whether the Federal Government has power to deal with the National domain. The Supreme Court has held, over and over again, that the Federal Government, acting through both the Legislative and the Executive branches, has the power to do what is best for the people's interests in handling the public domain. The Court has wisely and properly held that the power granted under the Constitution to dispose of the public domain carries with it every lesser power (applause)—that because Congress has the right to provide for the sale or the gift of land, it can likewise provide for the lease of land under such conditions and regulations as it may prescribe or as it may permit the Executive to prescribe. Therefore, the way is clear for the Federal Government to do whatever may be wise and necessary to protect the interests of the people in the use of the public domain.

Let us take another view of Executive authority. The chief Executive, above all other officers, is recognized and properly held as the great steward, the immediate custodian of the public property and of the people's rights. He is single-headed. He is one upon whom responsibility may be fixed. He is constantly at his desk; he is ever vigilant; he is constantly in touch with the things that interest the people and their rights therein; and as the custodian and guardian of the people's interests, it is to him that we must look for the protection of the public domain. It is not enough that the Executive shall simply carry into effect the specific language of a statute. He must go farther than that; he must be as aggressive in his vigilance as are those who would take the public property without conforming to the law (applause). The Executive is required to see to it that the laws are enforced. Now, in the enforcement of law he often finds that while the paper record presented to him or to his subordinates by those who seek to acquire the public domain is perfect (there is no difficulty about making a land title good on paper) his duty is only partially fulfilled unless he goes behind the paper record; and when the last Administration took hold of the question of the land frauds, the Executive decided that there was but one way to enforce the law, and that was to see to it that the paper record conformed to the facts in every case presented (great applause). The greatest land frauds that have been perpetrated against the people of the United States were perpetrated because the public officers in years past did not make that direct, careful investigation of the facts and of the condition of the lands which would have enabled them to save for the people hundreds of millions of dollars of valuable property that in the last generation has gotten illegally into the hands of the big interests. (Applause)

The founders of our Republic recognized and understood the vital need of giving ample power to the Executive. It is well to recall what Hamilton wrote when defending the Constitution: