authority to regulate navigable waterways has never been questioned, as such waterways have been in all ages the natural media for commercial intercourse. It was a maxim even of the common law, that the public easement of navigation bears a perfect resemblance to public highways. It is a singular fact, however, that in the early days of the Government, it was seriously doubted that the power to regulate, comprehended the right to improve, or in other words, that the improvement of rivers and harbors was a subject of national concern and of constitutional appropriation. In the first Congress an act was passed providing for the future support and maintenance at Federal expense, of lighthouses, buoys, beacons, and public piers, for rendering the navigation of bays, harbors, and ports easy and safe, and thereafter, appropriations were made from time to time for the construction and placing of these instrumentalities. But actual improvement was left to the States, and the strict constructionists of that day continued, for a long period, to draw distinctions between the erection of lighthouses and beacons and the improvement

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of harbors, between the marking of obstructions and removing them. The absurdity of this discrimination became apparent in the course of time, and the principle came to be recognized that it was as logical for the National Government to remove a rock, or a ledge of rocks, from the pathway of vessels as it was to build a lighthouse by which they may descry such rocks and sail safely and easily around them. The first distinct act of Congress for improving navigation was that of May 24, 1824, entitled an act to improve the navigation of the Ohio and Mississippi Rivers. An appropriation of $75,000 was provided for removing sand bars from the Ohio, and planters, sawyers, and snags from the Mississippi. It is interesting to note that after the lapse of 100 years, the improvement of these two rivers is still being actively prosecuted, and that such improvement still includes the operation of snagboats and dredgeboats.

About this time the luminous decision of Chief Justice Marshall in the case of Gibbons vs. Ogden was announced, and this decision scattered into thin air all the curious, not to say absurd, distinctions and differences that had been set up during the preceding 35 years of the Government's existence. It established clearly and indubitably the exclusive power of Congress with respect to the interstate waterways of the country, and the principles declared have been reaffirmed in an unbroken line of judicial decisions, and have been the basis of all subsequent legislative action regarding them. These principles are, perhaps, most concisely yet comprehensively expressed in the

opinion rendered by Mr. Justice Swayne in the case of Gilman vs. Philadelphia, 3. Wallace, 724:

"Commerce includes navigation. The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States which are accessible from a State other than those in which they lie. For this purpose they are the public property of the nation, and subject to all the requisite legislation by Congress. This necessarily includes the power to keep them open and free from any obstruction to their navigation, interposed by the States or otherwise; to remove such obstructions when they exist; and to provide, by such sanctions as they may deem proper, against the occurrence of the evil and for the punishment of offenders. For these purposes Congress possesses all powers which existed in the States before the adoption of the National Constitution, and which have always existed in the Parliament in England. It is for Congress to determine when its full power shall be brought

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into activity, and as to the regulations and sanctions which shall be provided."

The sound reasoning and unanswerable conclusions of the court in the case of Gibbons vs. Ogden made a profound and convincing impression upon public thought, and thereafter it was generally recognized that the lifting of a snag, the removal of a sand bar, or the building of a breakwater, is a national work, with a national character and a national consequence, and a proper subject of national appropriation. It marks the birth of a permanent Federal policy of river and harbor improvement, a policy limited in scope at first, but which has grown and broadened from year to year with the advance of population and the increasing needs of commercial transportation, until today the projects of navigation improvement range from the bays and broad armed ports where "rich navies ride" to the small streams, creeks, and inlets over which the products of the farm are carried in flatboats and rafts. It is, perhaps, unnecessary to say that the Corps of Engineers have been associated with every feature of these improvements. The making of surveys, the development of plans, and the actual prosecution of the work, have been intrusted to the officers of that Corps from the early days, and our commodious harbors, enlarged channels, artificial canals and slackwater systems are enduring evidences of their energy, training, and skill. The utilization of their services in the conduct and direction of these important civil works has proven most wise and in respect to both the value and economy of accomplishment has resulted in

marked advantage to the Government. It is safe to say, that no better system could have been devised in the beginning, or is conceivable today.

While a broad and systematic policy of river and harbor improvement was early adopted and pursued uninterruptedly in the succeeding years, it seems not to have occurred to the legislative mind that protection of waterways from trespass and obstruction was as vital and important as improvement. It was well understood of course that the power of Congress to regulate and improve navigable waters included the power to keep them open and free from obstructions to their navigation, to remove such obstructions as exist and provide against their recurrence; and that it was for Congress to determine when its full power would be brought into activity. Nevertheless, it is a historic fact that for nearly a century this power which clearly existed in Congress lay dormant and unexercised. In the meantime, while the Government was expending hundreds of millions of dollars to increase the facilities of navigation, interested parties, including States,

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corporations and individuals, were placing obstructions and impediments of all kinds in and across the improved waterways. The necessity for Federal legislation to protect these waterways from impairment and ultimate destruction eventually became urgent. Prior to 1890, the efforts along this line were sporadic, fragmentary, and directed chiefly to the suppression of some obnoxious local practice, or the curing of some special evil. The first general legislation assuring Federal jurisdiction and authority over the protection of navigable waters was enacted in the river and harbor act of September 19, 1890. The proceedings in connection with the origin and ultimate form of this legislation are somewhat peculiar. The Engineer Department had prepared and submitted to Congress a bill covering the entire subject, which was passed by the Senate early in the session, favorably reported by the House Committee, and placed on the House Calendar without further action. It was offered in the Senate as an amendment to the river and harbor bill then pending, but there was much objection to it on the part of Railroad and other interests, and it was excluded on a point of order that it involved general legislation on an appropriation bill which was in violation of an existing rule. When the river and harbor bill was passed and went to conference, the conferees took the Engineer Department bill and with many changes in phraseology and arrangement inserted it as an Amendment to the former bill. As finally enacted the law was crude, ambiguous, and difficult to interpret, and

its administration was in many respects unsatisfactory and ineffectual. To use the language of Attorney General Olney the entire law was infelicitously, not to say clumsily, drawn. Experience soon showed the inadequacy of the law, and the department felt that piece-meal amendment was not desirable, but that its complete revision and enlargement should be secured at the first opportunity. Recital of how this was accomplished involves some personal allusion to myself for which I hope I may be pardoned.

In 1896 when the Committee on Rivers and Harbors had completed the rough draft of its bill I was designated by my chief, Colonel Mackenzie, at the request of the Chairman to go over the bill with the Committee and assist in getting it into final shape for introduction. All afternoon and evening we were engaged in bluepencilling the measures, completing our labors about 2 o'clock in the morning. As everyone appeared to be in a genial mood, superinduced by the consciousness of work well done, it occurred to me that this was a propitious time for the first step toward securing a modification of our imperfect law. I suggested to the Chairman that the bill needed just one more provision to make it

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perfect, and thereupon prepared and presented for his consideration a provision directing the Secretary of War:

To cause to be prepared a compilation of all general laws that had been enacted from time to time by Congress for the maintenance, protection, and preservation of the navigable waters of the United States, and to submit the same to Congress with such recommendation as to revision, emendation, or enlargement of the said laws as in his judgment would be most advantageous to the public interest.

This was accepted by the Committee and was made section 2 of the act of June 3, 1896. Immediately after the passage of the act I took up the, to me, very agreeable task contemplated by this section. All the previous laws were carefully compiled and studied, and a complete bill was drafted covering all phases of the subject, and embodying such changes and additions as the experience of the department, through a long period of administration, showed to be essential for the effective conservation of the interests of navigation. This bill consisting of 13 sections was submitted to a number of the ablest and most experienced of our engineer officers for consideration and suggestive criticism, and was approved by them. It was transmitted to Congress by the Secretary of War February 10, 1897, and was printed as House Executive Document No. 293, of that session. It was hoped that the bill would be given early consideration and enacted as an independent measure from any appropriation bill, but

it slumbered unnoticed for nearly three years, and when we had about concluded it would never receive any attention whatever, it was taken up and passed in the most unexpected manner. On a day when the river and harbor bill of 1899, which had already been passed by the House, was nearing final action in the Senate, Colonel Mackenzie received a short note from Senator Frye, then Chairman of the Senate Commerce Committee, suggesting that if the department had any special matter it desired included in the pending bill, it be sent to him at once. Without a moment's delay we cut the printed bill from a copy of the House Document, eliminated the enacting clause, changed the section numbers, and dispatched it to Senator Frye with a special memorandum of explanation. He immediately presented it in the Senate as a Committee amendment— it was incorporated in the bill and accepted by Congress without the change of a word and practically without debate or discussion. Thus, Gentlemen, was born sections 9 to 20 of the river and harbor act of March 3, 1899, whose collective provisions have ever since constituted the Federal statute for the protection of navigable waters. It was intended to be, and is, an assertion of police power to protect from physical injury

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those highways of commerce in which the Federal Government has dominion and propriety, and within its comprehensive proviare embraced all forms and varieties of physical obstructions. An examination and study of the law will impress anyone with the organic and far reaching character of the jurisdiction asserted, and with its evident value both as a preventive and remedial measure. In approaching a discussion of some of the provisions of the law of 1899 applicable only to the navigable waters of the United States, it may be pertinent to inquire what are the navigable waters of the United States, to which they apply. It may be stated as a general as well as an exact proposition that all waters which are in fact navigable, and which are accessible from a State other than that in which they lie, are subject to the dominion and regulation of the National Government. This embraces without question, the harbors, bays, and other bodies of water flowed by the tide, as likewise the Great Lakes and important rivers extending throughout the country. Many of our rivers, however, are of uncertain and variable navigability, and hence all streams denominated rivers are not necessarily to be classed as navigable waters of the United States. As defined by the courts:

A river is navigable in law when it is navigable in fact, and it is navigable in fact when it affords, in its ordinary condition, a