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to saying that it has been paid. If it has been paid, the lien certainly has passed out of existence. Where there is a special lien on specific property it is easily understood that the lien is not destroyed under the terms of the bankruptcy act creating an exception to the rule of discharge.

It seems to us that after the discharge of the bankrupt, this judgment remained only against the wife and had she survived the husband, it could have been enforced against the estate by entirety.

THE LAW IS CUSTOM, NOT REASON.

"Whatever is reason is law," is the popular way of expressing the error, while the classic employs such sayings as, "The law is the embodiment of reason," "The law is right reason."

Possessing more sense than learning, the laity mistake reason for law, while the profession, with more learning than sense, declare law reason.

Laying aside the meaning, if any, in these sayings, the grammatical construction makes law and reason equivalent terms, not one the property or quality of the other.

When, however, we discard words and substitute ideas, we readily perceive that neither is reason law nor law reason, for reason exists only in the mind, while law is manifest in action, in custom. This gives us the most comprehensive dictionary definition of law, universal uniform activity. in matter, custom in men.

Custom, therefore, among men is law. What men are accustomed to they regard as law, as a rule of action, as binding, the older and more universal the more profound.

"Custom (law) is the king (dominant authority) of all men," said an ancient, wise and philosophizing Persian.

That a laudable custom (salutary law) of one nation has been a crime (infraction of custom) in another, confirms the rule.

Common custom is the common law, where reason, sense, common sense, that too much overworked term, has necessarily no part, for we have common customs, but

no common sense.

Like travelers starting on a journey, but all choosing different ways, different modes of travel, and different conveyances, all eventually arriving at the same destination, all delighted with the trip from necessarily different motives, so common customs are eventually arrived at by diverse, individual --not common, collective sense.

If, now, reason be not law and common sense nonexistent, neither should opinion, more especially, be made law.

As the law is now sought to be administered, the opinion (judgment, conclusion), of the judge is what he thinks or determines the law, (the custom, the rule) to be, but this may or may not be the correct determination, chiefly because he has reasoned to a conclusion, instead of searching for a fact.

In ascertaining what the law is, the judge should be an investigator after fact; for, what the law is, is as much a question of fact as the acts of the parties, commonly called the "facts of the case."

No intuitive powers of mind or depth of reasoning can ever lead us to a principle of law, (a rule, a custom) or the supporting ground, any more than to a fact of history and the motive of the character involved; for the law (custom) is matter of history. A thing done is history, but why done is usually a question for speculation, and frequently unknown even to the actor himself; yet these speculations now make up the body of our law.

The correct determination of the law, therefore, is a historical inquiry and investigation to ascertain the custom, (the rule,

the law) applicable to the particular case under consideration.

Here, then, is the genus of an action: The parties have done or omitted certain things. These are judicially determined. Now, do or do not these things, (acts, facts) conform to the established and recognized custom (the law)?

To answer this, such custom (law) must be known and declared, laid down, shown, not as matter of opinion, judgment, conclusion, determination, resulting from any process of reasoning, but as matter of fact after investigation.

No difference, therefore, exists between the correct determination of the two controversies in a lawsuit, the FACT and the LAW. The first step is to determine the individual case (the acts, the facts), the second, the general, (the custom, the rule) both investigations for the ascertainment of facts, while the third is to measure the individual with the general, and this is the ascertainment of a fact, also.

This process differs not from the mathematical, for we have not two methods of reasoning. As between the moral and the mathematical, the difference is only in the definiteness of the terms, acts or facts in one, number in the other.

I am writing particularly of the common law, (the common customs of any country) of course, but what has been here said applies as well to statutes, only easier of determination.

Our judicial decisions are thus shown to be formulated in the exercise of opinion, reasoning about rules and principles, as controversies were settled in medieval and scholastic times, when the methods used bore no relation to the end sought. That these decisions are sometimes right, is merely fortuitous, as right things may be done in wrong ways. No improvement can be expected until the method is changed. A. A. GRAHAM.

Topeka, Kansas.

LAWS AND REGULATIONS REGARDING THE USE OF WATER IN PAN-AMERICAN COUNTRIES*

Scope of This Discussion:-The proper utilization of the natural resources of the Pan-American countries is of the greatest importance to their internal development as well as to their industrial and political relations with each other.

Of all such resources, the fresh-water streams of these countries are ever present, ever renewed, and, therefore, inexhaustible, resources for industrial supremacy.

Unlike the fuel resources of coal and oil, the energy of the water fall is not latent, and, if not confined and utilized, it is forever wasted and becomes a part of the great useless waste of Nature which cannot be recouped.

Conservation of the natural resources of a country demands the greatest and most immediate prevention of this constant waste of energy from undeveloped water powers, and requires the greatest and most extensive utilization which can possibly be made consistently with proper protection of the interests of individuals and of the

public at large.

The principal cause of this uneconomic waste is, in all cases, that legislation for the regulation and use of water resources, instead of promoting their use, has become an obstacle to their use. Legislation has not kept pace with the progress of the science of water-power development and

use.

It is the main scope of this paper to summarize, with reference to the uses of water, and particularly of water powers, the laws, and regulations under public authority, existing in the Pan-American countries, and especially to note certain ways in which such laws are obstacles to that utilization of these resources which would otherwise be made, as well as to

This article is a summary of the principal points made in an address by the author before the Second Pan-American Scientific Congress held in Washington, Dec. 27, 1915, to Jan. 8, 1916.

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suggest possible remedies in such legisla- and exclusive private rights could be action.

General Sources of the Law:-In most Pan-American countries, with the exception of the United. States, the sources of the law of water rights are, as other phases of their laws, Spanish law. The fundamental principles of the Spanish law, as applied in these countries, was further confirmed or modified by the introduction into their Colonial law of certain principles of the French law. Further modifications have been caused by local and partial recognition and adoption of principles of law which are more peculiarly those of the United States, where the law of waters is generally founded upon that of the English law. But in the United States, wide modifications from the English law have been made to suit the physical conditions peculiar to our country and not characteristic of the mother country to which the English law was adapted.

Spanish Law:-Until the independence, Spanish law was in force in Spanish America. Since then it has been modified by various codes modelled largely on the Napoleonic Codes. The Siete Partidas, the The Siete Partidas, the great medieval Code, divided "things" into common things (comunes);-those belong to private persons, and those consecrated. to the service of God. Common things were divided into (a) those common to all living creatures, as the air, rain water, the sea and its shores; (b) those common to all mankind, as rivers, ports, and highways; and (c) the common property of cities and towns to be used only by the inhabitants thereof, as fountains. Private rights in waters were recognized, but some rivers were taken to be the property of the King. Mill dams could be erected in public or private streams under a grant from the King. The ownership, use, and enjoyment of waters which arose and died within the confines of one estate, belonged to the owner of the land. The theory of governmental control of rights in rivers increased. especially for the protection of navigation

quired only by special Royal Privilege or an immemorial user.

Colonial Law:-While generally following the Spanish law, the Colonial private law reserved in the King the dominion of rivers in America; but laws of the Indies made waters, not granted to private parties, common to all. Confusion existed in the Colonial law and was increased by the introduction of the modern Codes based on the French Codes; and it is only in very recent years that the law has made any marked progress toward the solution of the puzzling questions left open by the Codes, as to the effect of the large arbitrary powers of granting special concessions exercised by dictatorial governments.

United States Law:-In the United States there are 20,000,000 kilowatts of water power so situated as to be commercially feasible for development, that is, susceptible of utilization at a profit, in case only reasonable conditions to development were imposed upon the investor. Of this number only about one-fourth are actually developed, and the other three-fourths are unnecessarily running to waste. Of this wasting water-power energy 75 per cent is located upon navigable streams, and is, therefore, under the laws of the United States, either directly or indirectly, subject to Federal legislation. This immense waste is due, primarily, to deficiencies in Federal legislation, and to a great extent also, to defects in State legislation.

Federal Legislation:-In the United States, the Federal government is one of expressly limited powers, all other powers of legislation and control being expressly reserved to the several States. The power of the Congress to regulate water powers on navigable streams arises solely from its constitutional power to "regulate commerce" between the States. It may, therefore, supervise water-power structures in navigable streams, in order that they may not interfere with navigation. But such regulations and statutes have been unrea

sonably and unnecssarily restrictive of be removed and water-power development

water power development, because they place prohibitive burdens upon private investors, not necessary for, and not consistent with, reasonable protection of navigation interests.

Water Powers on the Public Domain:Permits for development of water powers on the public domain are granted by the Department having the lands in charge, and are revocable at will They are subject to such conditions as the Department may impose, not only when the permit is granted, but subsequently thereto. There is no power to make terms and conditions free from unlimited uncertainties as to tenure, and as to the burdens to be borne by the investor. Private capital has halted before such conditions; and, out of 5,000,000 kilowatts of water power on the public domain which are capable of commercial development, less than one-tenth has been developed.

Water Powers on Navigable Streams:Under its power to regulate commerce, the Congress, in order to protect navigation interests, has passed certain "Dam Acts", with reference to water-power dams on navigable streams. Such structures are prohibited except by express consent of the Congress and under conditions imposed by statute and by the Department of War, whose approval of the structures and the terms of the permit must be obtained. By these Acts the term of the consent cannot exceed fifty years, and at the end of that period the investor has no rights. The power of revocation is reserved without adequate protection to the private investment made under the permit. There is no limit fixed as to the possible conditions and burdens which may be imposed as part of the permit or which may be added thereto afterwards.

These acts have been prohibitive of water-power development. The present administration is proposing remedial measures, by which obstacles to investment will

encouraged.

Water Powers at Government Navigation-Dams:-The Federal Government sometimes builds, at its own expense, or in co-operation with private investors, navigation dams where there is an incidental water-power development of a size in excess of that necessary to operate the nav

igation-dam. Where the Government has acquired all the riparian rights, such excess water power belongs to the Government and can be leased to private users on such terms as can be obtained; and thus the investment-cost to the Government of navigation improvements may be diminished. In some instances the cost of improvement. for navigation alone would be prohibitive, and it would also be prohibitive for waterpower development alone. In such cases the policy is, to make a co-operative agreement between the private investor who desires the water-power development and the government which desires the navigation development; and both interests are served, at a reasonable investment-cost, by such co-operation.

State Legislation :-The Federal right of control for protection of navigation is paramount to the right of State control of streams, and also to the rights of individuals. Subject only to this paramount Fedderal right, the rights of the States and of the individuals thereof to develop and use water powers of both navigable and unnavigable streams, is fixed by the property laws of the respective States.

In most States east of the Mississippi River the English common law of riparian. rights prevails, and the private owner of the riparian land has the right to develop and use the water powers appurtenant thereto. In other States, west of the Mississippi River, the law of riparian rights has been either repudiated or modified. There the rule of right by prior appropriation generally prevails, and the uses of water are subject to appropriation rights according to the law of the State.

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The tendency of State legislation with reference to water powers is more and more that which has been noted to exist in the case of Federal legislation. The private property rights of riparian owners are attempted to be confiscated by legislation which views the control, and even the ownership, of water powers within the State, as belonging to the State or to the public, and as public resources for the purposes of revenue. This theory of State legislation is also repugnant to the property rights of individuals and has discouraged investments of private capital in waterpower development.

Water Powers in South America: South America, while affording magnificent water-power possibilities, is more sparingly supplied with oil and coal than any other of the continental land bodies of the world, with the possible exception of Africa. This southern continent is favored with the natural resources of coal and oil to only a comparatively insignificant degree. On the other hand, water powers are found in almost every part of South America, the Pampas country and the rainless district of Northern Chile being among the few exceptions.

In Chile, there are occasionally fuel famines, from lack of coal and oil fuel, causing loss and suffering. Nevertheless, it is the most favorably located country in the world for easy and comparatively inexpensive hydro-electric development. But such development has been slow.

due largely to the location of undeveloped water powers at too great a distance from populous communities to make transmission at the present time feasible. The same limitations of transmission, preclude the great population centers of the cities of Buenos Aires, Montevideo, La Plata, and others, from utilizing the water powers on the streams flowing into the Atlantic from the Eastern slope of the Andes.

In the Argentino-Uruguayan country, the great Mendoza River has a fall of 9,000 feet in a distance of 100 miles, which presents water-power possibilities unequalled anywhere in North America, except perhaps in Alaska. There is, at the present time, demanded by the population and the industries of the surrounding country, within easy transmitting distance, over 200,000 kilowatts of power, which is far less than the capacity of the Mendoza.

In British Guiana, the Potaro River presents the highest fall of great volume in the world. The river, 300 feet wide, drops 700 feet, and the immense energy from this cataract is wasting until increase in population and in industrial development shall create a demand warranting the expense of the long transmission lines necessary to bring the power to a market.

Defects in Spanish-American Laws:But physical obstacles and the lack of appreciation of the opportunities open to commercial development are not the cause, in these southern countries, of the waste of water-power energy, the utilization of which is already commercially feasible. As in the United States, the first requisite for the promotion of water-power development, and, therefore, for the prevention of waste of this natural resource, is legisla

In Peru, which has more coal and oil resources than other South American countries, the lack of transportation facilities makes the price of such fuel generally prohibitive. There, however, the practical opportunities for water-power development | tive encouragement to private investors, are very great, and the 75,000 kilowatts already developed are insufficient to meet the present, unsupplied demand.

who must furnish the capital for hydroelectric development. The hazards incident to such investment, even under the most favorable laws and regulations, are very great. But the physical hazards may be overcome or diminished. Before such

In Bolivia, Ecuador, Colombia, Venezuela, and Paraguay, little has thus far been accomplished in hydro-electric development, but this retardation of development is dangers capital does not show timidity.

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