which claims can be recorded—that is, to secure "dummy entries;" the other is for a number of genuine claimants to locate their claims together and agree that they will act jointly in the development of their claims. Of course it is difficult to prove that an entry is a dummy entry, and it is also difficult to prove that a group of men who, for instance, to save expense engage the same mining engineer to test the value of their holdings, have made an agreement such as nullifies the law. Of the nearly one thousand claims located, only thirty-three have reached the stage of "entry," which is the compliance with certain formalities and the payment of ten dollars per acre. These thirtythree are, however, of special value, and comprise the Cunningham group. If it can be shown that the men making the entries have violated the law, their entries can be canceled; but if once the entries are passed to patent, the land becomes the property of the claimants and cannot be recovered. A law passed in 1908 allows an association of men to acquire a tract of 640 acres; but the total acreage of the Cunningham group is more than eight times as much as that. The Pinchot brief declares that these entries are fraudulent by reason of both kinds of violation of the law that is, that not only have the claimants acted in accordance with an agreement, as was maintained by Mr. Brandeis before the Ballinger-Pinchot Committee, but that they have made use of "dummy" entrymen.

THE DUTY OF THE GOVERNMENT

The Pinchot brief re hearses the facts that have been elicited concerning these valuable claims. Much of what the brief sets forth is to be found in the voluminous records of the BallingerPinchot hearings, but is so intermingled with evidence on other points that its force is much greater as it appears arranged in an orderly fashion in this brief. There is documentary evidence to show that the claimants had agreed to combine. It has It has been said in reply that this agreement had been "abandoned;" but the brief cites fact after fact concerning the action of the claimants which it declares are inexplicable except on the ground that they had an

understanding that all the claims would be used as a joint property. For example, that they all shared in buying certain land, though this land would be of no benefit to some of them except as all the claims were to be consolidated; that joint moneys were used to add to the value of only some of the claims; that the reports made by agents of the claimants were made on the group of claims as a whole. Most significant of all is the statement of the brief that the Government's case was inadequately presented at the hearings before the Land Office. Before patent is granted, the Land Office is accustomed to hear testimony for and against the claimants. In this case the Government's case was intrusted to a young lawyer who had never tried a case in court. The brief declares that he did not introduce important evidence that was available, and cites as one instance a letter from an employee of the Government, an agent of the Land Office. This agent had an affidavit of one of the claimants containing certain statements decidedly damaging to the claimants. He returned this affidavit to the agent of the claimants, urging that the claimant, Mr. Baker, eliminate certain specified words, and adding:

You know, we know, and the Department knows that there will be a coalition of interests as soon as patent is granted to all in your group, and it asks nothing about such a matter, except that there be no understanding or agreement to such an end before patent. But when the applicant states in an affidavit that he hopes or expects to enter in combination or company with adjoining applicants, he not only casts a doubt on his own assertions of good faith, but also on that of those adjacent applicants, who comprise a group such as yours. I am afraid that if Mr. Baker insists on the affidavit as he has executed it, there will be a searching inquiry instituted by the Department which will at least involve an interminable delay.

This is the letter of a Government official supposed to be acting as a representative of the people! It is no thanks to him that a "searching inquiry " has been instituted, not by the Department, but by leaders of public opinion. The brief asserts that the Government attorney failed to use several lines of available evidence. In order to relieve the Secretary of the Interior and the President of responsibility for deciding this case, it has been proposed to authorize its transfer to a

THE BALLINGER CASE ONCE MORE

2

Speaking of Secretary Ballinger, a reader has called The Outlook to account. This is not unprecedented. In one week we received a letter reproving us for defending Mr. Ballinger, another reproving us for criticising Mr. Ballinger, and a third for our cowardly procedure in sitting on the fence! This particular reader, however, who writes from Minneapolis, takes us to task for crawling through a loophole. This, as Artemus Ward remarked, is "2 mutch." We should really like to assure our readers that in this case at least we have not intentionally done any crawling. What called forth the Minneapolitan's complaint is an editorial paragraph in The Outlook reporting and commenting upon the report of the majority of the Ballinger-Pinchot Committee. After summarizing their conclusions in favor of Mr. Ballinger, we called attention to the fact that one conclusion of the Committee is in direct issue with Mr. Ballinger on one of the fundamental questions of Conservation-namely, the policy regarding coal lands. Mr. Ballin

ger favors the sale of the coal; the Committee recommends that the Government refuse to sell the coal, but rather grant leases to mine it at fair royalties. The fact that the Secretary of the Interior was out of sympathy not only with his chief, the President of the United States, but also with those members of the Administration party in Congress who had investigated F's department, seemed to us an indica

on that Mr. Ballinger was not fitted for the office he holds in the Administration, and we said so. Now our friend from Minneapolis regards this as a shameful thing to say. He seems to think that this is our "conclusion and final verdict in the Ballinger Case,'" and declares, with

evident indignation, "All the charges, insinuations, and suspicions that have been blazoned broadcast for a year and a half by the public press, daily, weekly, and monthly, have all simmered down to just a little criticism of this matter of policy to be decided by Congress." We do not regard it as a little matter of policy. It concerns a very vital matter. It bears an important relation to the whole problem of Conservation. It is, however, not the only or even a chief factor in The Outlook's conclusion with regard to the whole Ballinger controversy. Evidently our friend in Minneapolis overlooked a part of the paragraph; otherwise he could hardly have made his mistake. As he overlooked it, others may have done so. We therefore repeat it:

The real cause of the controversy which led to the investigation was the belief that Mr. Ballinger was not, as head of the Department of the Interior, efficiently guarding the public interest, and that he was so far out of sympathy with the Conservation policies in which the American people believed and to which the Republican party had committed itself as to be unfitted to carry those policies into execution. On this point The Outlook reached its conclusion and stated it last June. We see no reason for changing the opinion then expressed.

Our belief-the belief that Mr. Ballinger's disagreement with the President and with his own party friends in Congress on the way of safeguarding the people's coal lands makes his position untenable—is not a substitute for the conclusion we expressed over six months ago—it is supplementary to it. Those who wish to know what that conclusion was can find it by turning to The Outlook for June 11, 1910, and reading the editorial entitled "The Ballinger Case: A Review." We reached that conclusion after a painstaking examination of the testimony given before the Committee-an examination that included not only the reading of the testimony (about five thousand printed pages) in addition to briefs and speeches of counsel on both sides, but also the attendance of a member of the staff of The Outlook at a number of the more important sessions of the Committee. The reading of the three reports of the Committee--namely, those of the majority, of the minority, and of Mr. Madison— has confirmed our previously expressed

conclusion. In order, if possible, to avoid any further misunderstanding, we here reiterate the substance of those conclusions: We do not assert that Mr. Ballinger has acted with deliberate wrong intent; but his attitude toward the Reclamation Service, his action with regard to the withdrawal of the water power sites, his unfortunate relations with the Forest Service, his inability to avoid methods of administration that must inevitably be demoralizing to organization, his course of conduct in regard to the Cunningham claims, his inability to appreciate the standards to which the American public have come to hold their public servants, and his lack of frankness while under investigation, all lead to the inescapable conclusion that he should not continue to be Secretary of the Interior.

bond issue of $20,000,000 for the prosecution of the work of reclaiming the arid lands in the West. Subsequently, in pursuance of a provision of the law, President Taft appointed a board of army engineers to look over existing and proposed reclamation projects and to advise him as to the expenditure of the $20,000,000 appropriated by Congress. This board of engineers has just made its report, and in a Message to Congress the President approves its recommendations. In its report the Board recommends the allotment of the proceeds of the loan to fourteen different projects in thirteen different States. Sums varying from $325,000 to $4,500,000 are thus allotted. The Board further recommends that the

$20,000,000 should be expended within the next five years. The full report of this Board has not been made public, but the excerpts which have appeared indicate that the army engineers found no ground for adverse criticism of the Reclamation Service. They apparently made no recommendations differing essentially from the course pursued previously, and they do not appear to have pointed out anything which was not fully understood by those in charge of the work long before they began their examination of the projects. The principal suggestions which

they have made have to do with standardizing the plans for the various projects, a matter which the Service itself has had in hand for several years, and with adjudicating water rights, which has also been one of the chief subjects under continual study. The Board expressed itself as "impressed with the ability of the employees occupying positions of responsibility," and as convinced that "the engineering structures are, as a whole, well designed and well built. Some of them, as the Pathfinder Dam, the Shoshone Dam, the Roosevelt Dam, and the Gunnison Tunnel, are monuments reflecting great credit on both designer and builder." This report, in so far as it has yet been made public, is a source of gratification to those who have long believed that the Reclamation Service has been carried on with unusual efficiency and fidelity and with a fine spirit of public service. It is a splendid tribute to the unremitting and unselfish work of the Director of the Reclamation Service, Mr. F. H. Newell. Incidentally it affords a convincing argument against the plan suggested six months ago of taking the work of reclamation out of the hands of the present Service and intrusting it to army engineers. There is no warrant for turning over, to a corps already overburdened and not especially trained to undertake it, a work which a board of army engineers finds to be so well done under its present management.

FORTIFYING THE PANAMA CANAL

The New York "Herald," which makes some pretensions to deal with interna

tional politics in a large way, prints the following extraordinary statement, in which the italics are ours, with regard to the proposed fortification of the Panama Canal:

That the United States is bound by treaty not to erect land fortifications along the Panama Canal cannot be disputed. Whatever may be the " Herald's " opinio with regard to the propriety of fortifying the Canal, its statement that there is no dispute regarding the treaty rights of the United States in the matter is absurd. To show how contrary to the facts the "Herald's" statement is, we refer to one significant discussion of the subject. Mr. Philippe

Bunau-Varilla, who, with Mr. Secretary Hay, negotiated the Panama treaty under which the Canal is now being built-a treaty which bears the name of its two negotiators and will ever be known in the history of the Panama Canal as the HayBunau-Varilla Treaty-has been having a long correspondence with the "Journal des Débats," of Paris, on the fortification question. The "Journal des Débats," which, in its review of international poli-` tics, is one of the ablest of French papers, takes direct issue with Mr. Bunau-Varilla on the question of the treaty rights, although both agree that the European Powers regard the fortification with regret. Mr. Bunau-Varilla states that in negotiating the Treaty he had no idea that it provided for fortifications, and contends that the Treaty does not permit permanent military defenses built and maintained by the United States. The "Journal des Débats," although it regrets the probable fortification of the United States on the ground that it will make the United States a naval power of too great magnitude for Europe to view with equanimity, and agrees with the London "Times" in the expression of what it admits is a hopeless desire that the whole question might be referred to an international tribunal, courteously tells Mr. BunauVarilla that he is mistaken.

It expresses its opinion in the following significant language, which we translate and transcribe from its issue of September 15, 1910: "We wish very much that we could share Mr. Bunau-Varilla's opinion upon the interpretation of the Treaty in the drawing up of which he participated. Unfortunately, the text of Articles III and XXIII is so exact that the United States is justified in holding another interpretation. We have already given the French translation of these articles. To-day we present below the original text, in order to enable our readers to weigh carefully the value of the terms employed:

"ARTICLE III.-The Republic of Panama grants to the United States all the rights, power, and authority within the zone mentioned and described in Article II of this agreement and within the limits of all auxiliary lands and waters mentioned and described in said Article II which the United States would possess and exercise if it were the sovereign of the territory within which

said lands and waters are located to the entire exclusion of the exercise by the Republic of Panama of such sovereign rights, power, or authority.

goes on to

"ARTICLE XXIII.-If it should become necessary at any time to employ armed forces for the safety or protection of the Canal, or of the ships that make use of the same, or the railways and auxiliary works, the United States shall have the rights, at all times and in its discretion, to use its police and its land and naval forces, or to establish fortifications, for these purposes." The "Journal des Débats " point out that Article XXIII leaves it to the discretion of the United States to determine "when and in what measure " armed forces shall be employed for the protection of the Canal; and it adds that other means than an appeal to the Treaty must be employed if the European Powers wish to protest against fortification. There is not the slightest doubt, the " Journal des Débats "says, that while Mr. Bunau-Varilla appended his signature to the Treaty in the belief that military measures could be taken only on specific occasions when the Canal was threatened, the Government of the United States, in drawing up the Treaty, did so with the distinct understanding that military measures could be taken at any time in their discretion. It explains the difference between the point of view of Mr. Bunau-Varilla and the United States Government by saying that "these accidents frequently happen in diplomatic discussions." France began the Panama Canal, and therefore French statesmen have a keener sentimental interest in its future than any other foreigners. That the "Journal des Débats" should give so much thought and space to upholding its view of the legal interpretation of the Treaty clearly indicates that the ablest foreign opinion will uphold the right of the United States, under the Treaty, to fortify the Canal.

States Supreme Court, where it was sustained. That tribunal rejected the fiction, so far as it affects the workingwoman, that the laborer should be free to make a contract for any number of hours of work or for any conditions of labor. It declared that the States under their police powers have a right to regulate the hours of labor of workingwomen in the interests of public health and welfare. This deThis decision was of the greatest value in supporting the efforts of workingwomen and their friends to raise the labor standards of the women of the country. The Oregon case was followed by a similar case in Illinois by which a ten-hour day for workingwomen of that State has been established by law under the exercise of the police powers of the State. These two steps were followed in the State of Michigan, where a ten-hour law for workingwomen was enacted in 1909 as one of the harvest of laws reaped after the favorable decision of the United States Supreme Court in the Oregon ten-hour case. The Michigan law has just been declared constitutional by the Supreme Court of that State. In some respects the Michigan law is more advanced than any legislation for workingwomen that the courts have so far held to be constitutional. It prohibits more than fifty-four hours' work in any one week and more than ten hours' work in any one day for women—not merely women working in factories and laundries, but also those employed in any store or in any clothing, dressmaking, millinery, or other mercantile establishment. The one serious defect of the law is that it specifically exempts from its operation all women "engaged in preserving perishable goods in fruit and vegetable canning establishments." The conditions prevailing in the canneries of Michigan and other States are so bad in the "rush season" that they form a class of industrial establishments which need, instead of special exemption, special regulation. The constitutionality of the Michigan law was attacked by the International Lock and Seal Company, a corporation which manufactures seals used by railway companies and shippers of freight for locking the doors of freight cars. The Company based its protest on two grounds-first, that the law inter

It

fered with "freedom of contract ;" and, second, that it was " class legislation." On both these grounds the Michigan Supreme Court has decided against the Company. While we are heartily glad that the International Lock and Seal Company was defeated, we are in hearty sympathy with what its counsel said regarding the exemption of women employed in canneries. In making this exemption the legislators, he asserted, "were not looking to the health of the women, but rather to the preservation of fruits and vegetables. is purely the spirit of commercialism, without any thought of the health of the women or the number of hours that they shall be employed; in other words, the provision means simply this. that, in order to protect the commercial interest of that class of citizens who are engaged in preserving perishable goods and who invested their money in canning establishments, they may work women any number of hours in order that their profits may be increased and their business not interfered with." We hope that the International Lock and Seal Company, with the same ardor with which it attacked the law, will now use all its influence, in common with other good citizens of the State, to persuade the Legislature to repeal this uniust and unhygienic exemption.

THE

RECALCITRANT

MONOPOLY

The Interborough Company, which operates the New York Subway, does not behave in a way that is calculated to make the city anxious for an extension of its monopoly. The people of New York, we believe, do not want a transit monopoly except under strict regulation. Such regulation is now provided by the Public Service Commission; but it is exercised against the bitter opposition of the managers of various transit lines, and especially of the Interborough. Early last year, for instance, the Commission issued an order to the Interborough directing it to run enough cars at all times to provide as many seats during each half-hour period as there were passengers, up, if necessary, to the maximum number of cars physically possible to be run. The Commission did not attempt to require the road actually to give every passenger