system. If it has only 31 per cent of the capacity that is being created by those who are expending their own money, when the Federal Government gets through with its work, then the Federal Government has created an abortion of the thing that was intended to be a utility, and I am here to appeal to you, gentlemen, not to destroy; if you can not build, don't destroy the thing that is intended for the service of the American people in the transportation of their commodities!

It might well be, and very properly, that a cargo of supplies of any kind shipped to, say, Pittsburgh or Cincinnati, or any other place on the Ohio River, to St. Louis or New Orleans, that when that cargo was delivered, the facility on which that cargo was shipped might want to reload a cargo for Chicago. Would anybody say that Congress had acted with wisdom if they made the facilities which are now being considered inadequate to meet that condition and enable the return cargo to go through to Chicago?

It is true, of course, that if we make a 31 per cent facility the people who use that 31 per cent facility could go back up to the Ohio, but that would not be interchangeable.

These facilities are being builded, if they are to be built at all, for the future. They are not to be built just to meet the idiosyncrasies of somebody who may have a faint heart or who may have a prejudice. They ought to be built to meet the Nation's needs, not for to-day but for the days that are to come. If we are not able to build them on that basis, they should not be built at all. That applies not only to the waterways the people of Illinois are particularly interested in, but it applies to all the waterways. It applies to the Warrior River, to the Tennessee River, to the Mississippi River; it applies to the Sacramento River and the Columbia River and the Missouri River, and to all the other rivers too numerous for me to undertake to mention. It is not a question of whether you are going to spend $1,000,000 or $2,000,000; it is a question that involves the problem of whether what you spend is wisely spent.

That is one of the things about which I am concerned, to which I devote a great deal of my time and thought-the wisdom of an expenditure. It is one of the things that has concerned me a great deal, as many gentlemen around this table know. Perhaps, I have been overenthusiastic sometimes about it, according to the judgment of others; but in the long run the taxpayers' interests must be conserved and in the long run they will only be conserved by the wisdom of the action, whatever it may be, that we may take.

I think that as far as the direct problem on this particular waterway is concerned, I have said all I really ought to say; but I want to urge before I close on that, that I hope that when the action of this committee is recorded, it will disclose the fact that adequacy for the future transportation of commodities will be the guiding reason for its action. And what I mean by adequacy is facilities here equal to the facilities elsewhere, interchangeable facilities, so that the people who ship may have the right as well as the facilities to move their boats first through one channel, then through another, as the importance of the business in either justifies.

I was very much interested the day before yesterday in listening to my good friend, the Secretary of War, with whom I have had the

most pleasant relations on many occasions under more difficult circumstances than these.

Mr. BAKER. I would like them to know we were in the trenches together.

Mr. MADDEN. We were. I was much interested in listening to him tell about the danger to transportation on the Lakes, about the lake levels, about the injustice that might follow a continuance of the flow through the existing channel leading from Lake Michigan at Chicago and on down through the Mississippi River through the channel that is now being proposed. And I want to say that I have looked up some of the historical facts in the case since that time in order that I might be able to place on record the statement which I think should go in the record in answer to the Secretary of War. Mr. BAKER. Ex-Secretary.

Mr. MADDEN. No. The gentleman was so efficient in his work that there never ought to be any diminution of the title. I had the greatest admiration for him, and I will say that he was one man who could always be seen, who was always courteous and always prompt, and if I asked him the day before, even in the biggest stress, if I could see him in the morning, and he said it was necessary to see him at 8 o'clock, he would be in his office at 8.

The diversion at Chicago is not limited by the language of the treaty to which the Secretary referred yesterday to a figure less than 10,000 cubic second-feet. In fact, the only limitation to be gathered by the treaty is under the language of Article II, which provides that that article shall not apply to cases already existing. It is, therefore, necessary in construing that language to have recourse to the purposes for which the treaty was negotiated, and that the findings and recommendations of the International Waterways Commission, that body having been created by the joint action of the United States and the British Government to investigate and report upon the use of certain waters, as well as to investigate and report upon the effect of diversions from the Great Lakes system.

In the preamble of the treaty it is stated that its purpose is to "settle all questions then pending between the United States and the Dominion of Canada," etc. The question naturally presents itself, what question concerning the diversion from Lake Michigan at Chicago was in dispute or in question at the time of the negotiation of the treaty in 1910?

In 1895, before the sanitary channel was completed and just before the Canadian Government requested the United States to join in the creation of this joint commission, the Dominion Government appointed J. L. P. O'Hanley, a prominent hydraulic engineer, to investigate and report upon the probable effect of the opening of the canal the levels of the Great Lakes.

upon

On February 29, 1896, O'Hanley's report was completed and presented to the Čanadian Government. He reported that the sanitary district channel would require a diversion of 10,000 cubic feet per second and that such diversion would have the effect of lowering the levels of the Great Lakes (except Superior) approximately 6 inches. Following the O'Hanley report, and when it was known to the Dominion Government that the canal about to be opened at the Chicago end of Lake Michigan would require the diversion of 10,000

cubic feet per second, the Canadian Government, through the British Embassy, requested the United States to join with it in the appointment of a joint commission to report on the use of boundary waters and waters adjacent to the boundary line, etc., and the maintenance of suitable levels, and the effect of diversion upon levels, etc.

The Congress of the United States adopted the necessary resolution and in 1905 the International Waterways Commission was created by the two Governments.

On March 19, 1906, pursuant to a joint resolution of the House and Senate of the United States, the American members of the International Commission made a report, which was submitted to the Senate and House of Representatives on March 27, 1906, by the President of the United States. The President, in submitting the report, recommended that Congress enact into law "the suggestions of the American members of the International Waterways Commission * * * without waiting for the negotiation of a treaty." In this report the American members recommended that legislation be enacted which would permit the Secretary of War to authorize permits for the diversion at Niagara Falls on the American side of 28,500 cubic feet per second (including therein a diversion of 10,000 cubic feet per second for the Chicago Drainage Canal).

On June 29, 1906, Congress passed an act for the preservation of Niagara Falls, which accepted the recommendations of the International Waterways Commission. The act of Congress referred specifically only to the diversions for power purposes at Niagara Falls. but the Chicago diversion was protected by section 1 of said act, which provided that the act should not be interpreted as forbidding the diversion of waters of the Great Lakes or of the Niagara River for sanitary or domestic purposes or for navigation.

On April 25, 1906, the Canadian section of the commission reported to the Dominion Government as follows:

* *

At Chicago the Americans have built a drainage canal which when in full operation will use about 10,000 cubic feet per second. * If our proposal is carried out, the diversion will be about as follows: Diversions on the American side: Niagara Falls, 18,500 cubic feet per second; Chicago Drainage Canal, 10,000 cubic feet per second.

Diversions on the Canadian side: Niagara Falls, 36,000 cubic feet per second. ** * Your commission is therefore of opinion that the time has come when it is desirable to make a treaty limiting these diversions. * * * Therefore this commission recommends that a treaty be had between the United States and Great Britain, in framing which it should be recognized that * The diversions by the Chicago Drainage Canal should be limited to the use of not more than 10,000 cubic feet per second.

In this same report the Canadian members, in speaking of the greater amount allotted to Canada than in its opinion should be allotted to the United States, said:

This would give an apparent advantage to Canadian interests, but as the diversion is not of serious injury to the Falls and does not materially affect the interests of navigation, it is more than counterbalanced by the complete diversion of 10,000 cubic feet by way of the Chicago Drainage Canal to the Mississippi River.

On May 3, 1906, a joint report was made by the Canadian and United States members of the commission to their respective governments in which the following recommendation was made to the two governments:

The commission therefore recommends that such diversion, exclusive of water required for domestic use or the service of locks in navigation canals, be limited on the Canadian side to 36,000 cubic feet per second and on the United States side to 18,500 cubic feet per second, and, in addition thereto, a diversion for sanitary purposes not to exceed 10,000 cubic feet per second be authorized for the Chicago Drainage Canal, and that a treaty or legislation be had limiting these diversions to the quantities mentioned.

Again, on November 27, 1906, the American section of the commission made a report to Secretary of War Taft in which it was stated that the commission in a previous report recommending the allowance of 10,000 cubic feet per second to the Chicago Drainage Canal had done so because it was "accepting a general tacit agreement that some such amount was required to protect the health of Chicago, and that that city should have it without further question whatever the effect upon navigation might be

* * * 29

Additional reports were made by the Canadian section of the commission and by the members representing both governments, and in a joint special report of January 4, 1907, upon the Chicago Drainage Canal, it was said, among other things, "there appears to be a tacit general agreement that no objection will be made to the diversion of 10,000 cubic feet per second as originally planned." The report last cited closes with this recommendation, "We, therefore, recommend that the Government of the United States prohibit the diversion of more than 10,000 cubic feet per second for the Chicago Drainage Canal."

In the report last mentioned the following language appears (see report International Waterways Commission, p. 525):

It remains to be seen whether any diversion, complete or otherwise, is necessary to preserve the health of Chicago. Upon this point the commission sought the advice of two eminent sanitary engineers-Messrs. Rudolph Hering and George W. Fuller--whom it instructed as follows, viz: "To examine the sanitary situation at Chicago, so far as it is affected by sewage disposal, and to report whether it is or is not necessary to the health of the city to extend to outlying territory the system which was adopted in 1889 for the main city. ** * The commission desires an emphatic opinion from authoritative sources as to whether the system of diverting the water of Lake Michigan in large quantities into the Illinois Valley is the only way to preserve the lives and health of the people of Chicago. It does not desire an investigation of the effect upon the navigation interests of the Great Lakes. It has satisfied itself upon that point. Nor does it wish to reopen the case of the Chicago Drainage Canal as designed and built. It accepts that as a fixed fact, with its attendant diversion of 10,000 cubic feet per second through the Chicago River. The extension of the system to the Calumet River alone is in question."

All the reports of the American section, the Canadian section, and all the joint reports of the International Waterways Commission demonstrate that the diversion of 10,000 cubic feet per second at Chicago was charged against the United States in all discussions leading up to the treaty, and this statement is borne out by the fact that by the treaty the Canadians have been given a diversion of 36,000 cubic feet per second, while that for the United States was fixed at only 20,000, clearly indicating that the difference between the two was represented by the 10,000 cubic feet per second tacitly agreed to be diverted at Chicago.

The boundary waters treaty of 1910 concluded between the United States and the British Government was the result of the labors and recommendations of the International Waterways Commission, and after it had been signed by Hon. Elihu Root, Secretary of State, representing the United States, and by the British ambassador, was transmitted to the United States for ratification. Following the usual practice in that body, the treaty was referred to the Committee on Foreign Relations, which did not approve the treaty until after full and exhaustive consideration and discussion, all of which

appears in the "proceedings of the Foreign Relations Committee, Fifty-second and Sixty-second Congresses, pages 271," etc.

While the treaty was pending in the United States Senate, one of the members of the Senate Committee on Foreign Relations objected to article 2 in the treaty, because he thought that provision might interfere with the diversion of waters from Lake Michigan for the purposes of the Chicago Drainage Canal. That objection, along with others, was referred by the committee to the Department of State for an opinion, and in response thereto, the Hon. Chandler Anderson, solicitor for the State Department, who had assisted Secretary of State Root in the negotiation of the treaty, sent a written memorandum to the Foreign Relations Committee in which he advised the committee that the objection to article 2 had no basis in fact, and called the attention of the committee to the express provision in article 2 that it should not apply to cases already existing, and stated that that provision was certainly intended to cover the canal system at Chicago."

66

Secretary of State Root also appeared before the committee, and stated that "We are now taking 10,000 cubic feet per second out of Lake Michigan at Chicago, and I refused to permit them to say anything in the treaty about it. * * * They consented to leave out of this treaty any reference to the Chicago Drainage Canal, and we are now taking 10,000 cubic feet per second for the Drainage Canal, which really comes out of this lake system."

This is a recital of historical facts in connection with the reasons for this treaty, and the preliminary reports by the American and Canadian commissioners approving our diversion of 10,000 cubic feet per second, which when read in connection with the language of article 2, that "it shall not apply to cases already existing," demonstrates without doubt that the case "already existing" at Chicago was the diversion of 10,000 cubic feet per second at Chicago by and for the sanitary district.

At the time that this treaty was pending in the United States Senate the chairman of the Senate Foreign Relations Committee was the senior Senator from Illinois, the Hon. Shelby M. Cullom. In view of the objections before that body that the language of the treaty as presented for ratification might have affected the right to divert 10,000 cubic feet per second at Chicago, and the further fact that the chairman of the Senate committee was the Senator from Illinois, it does not require any stretch of the imagination to draw the conclusion that the treaty would not have been ratified by the Senate had it not been for the assurance given by the Department of State that article 2 clearly covered the diversion at Chicago.

The construction placed upon the language of the treaty by the Department of State and by the Senate Committee on Foreign Relations is a fair interpretation by officials of the United States, and in my opinion that interpretation should be insisted upon, as it represents the honest American view rather than the technical view of the Dominion Government.

Now, as to the question of lake levels, we all admit, all engineers certify that this diversion really has reduced the Lake levels from 512 to 6 inches, that other lowering of the lake levels has been created by other causes, and that the total lake-level lowerings, as of to-day, are probably about 41 inches. But most of that 41 inches is due to the lack of rainfall. We have had dry seasons for several years; and if this committee should decide that the flow should not be permitted at the rate of 10,000 cubic feet per second at Chicago, it would simply decide that five years from now these lake levels would be restored to the extent to 52 to 6 inches, but would not affect the reduction of the lake levels for other causes.

Now it is well known to every engineer who has given any study to this problem that the lake levels could be restored without employing the method that has been suggested by me, and that they can be maintained without interfering with navigation in any way, or transportation, and that Chicago and Illinois have stood ready, and stand ready now, to supply the money to meet the situation that will restore lake levels. It is not a very large sum; it is