The New Nation

by Frederic L. Paxson

Out of forty-eight States comprising the United States in 1912, and including about 1,902,000,000 acres, twenty-nine with 1,442,000,000 acres had been erected in the public domain to which Congress had once owned title. By cession, purchase, or conquest this domain had been acquired between 1781 and 1853; it had been treated as a national asset and governed with what efficiency Congress possessed. By 1903 the United States had transferred to individuals about half its public land and nearly all its farm land. It retained many millions of acres, but these were mountain or desert, and were not usable by the individual farmer who had been the typical unit in the occupation of the West.

Already, by 1880, the statisticians had recognized that the period of free land was at an end, and had turned their attention to the abuses which had arisen in the administration of the estate. From the beginning, it had been difficult to compel the West to respect national land laws. The squatter who occupied lands without title had always been an obstacle to uniform administration. Evasion of the law had rarely been frowned upon by Western opinion, which had hoped to get the public lands into private hands by the quickest route. In the region where the laws had to be enforced, opinion prevented it, while the National Administration, before the adoption of civil service reform, was incapable of directing with accuracy and uniform policy any administrative scheme which must be so highly technical as a land office. The Preëmption, Homestead, and Timber Culture Laws were all framed in the interest of the small holder, but were all perverted by fraud and collusion. The United States invited much of the fraud by making no provision by which those industries which had a valid need for a large acreage could get it legally.

Among the special abuses that were observed now that it was too late to remedy them were the violations of the law and the lawless seizures of the public lands. The cattle companies took and fenced what they needed and drove out "trespassers" by force. Mail contractors complained of illegal inclosures which they dare not cross, but which diverted the United States mail from its lawful course. Yet such was the general land law that against all but the United States Government the possessors could maintain their possession. If the Government could not or would not interfere, there was no redress.

These abuses had been noticed for many years, and were specially advertised in the early eighties by the enormous holdings of a few British noblemen. The problem of absentee landlordism was exciting Ireland in these years. When Cleveland became President his Commissioner of the General Land Office, Sparks, turned cheerfully and vigorously to reform, and denounced the discreditable condition the more readily because it had appeared under Republican administration. He held up the granting of homestead and preëmption titles for the purpose of examination and inspection, and demanded the repeal of the Preëmption Law. He was successful in recovering some of the lands that had been offered to the railways to aid in their construction.

The railway land grants were notorious because the railways had rarely been done on contract time, and had in theory forfeited their grants. The estimated area offered them was about 214,000,000 acres, and the question arose as to the extent to which forfeiture should be imposed upon them. The spectacular completion of their lines and their efforts to bring a population into the West, and the vast size of the corporations that owned them, had aroused a hostile opinion that supported the Democratic Administration in its efforts to save what lands it could. Some fifty million acres were restored to the domain by this fight, but the restoration only emphasized the fact that most of the good lands were gone.

Out of the demand for the reform of the public lands grew a new interest in the condition of the lands that were left. The Department of Agriculture was created at the end of Cleveland's term, and Governor Jeremiah Rusk was appointed as its first Secretary by Harrison. Rusk accepted cheerfully his place as "the tail of the Cabinet," asserting that as such he was expected "to keep the flies off," and set about rearranging or organizing a group of scientific bureaus. Since most of the remaining lands could not be used without irrigation, the surveys undertaken by Congress started a new phase of public science, and led ultimately to the rise of a positive theory of conservation.

The problems of national communication, Western settlement, and public lands resulted from the completion of the continental railways, while the railways themselves gave a new significance to transportation in America. During the years of the Granger movement the doctrine had been established that railroads are quasi-public and are subject to regulation by public authority. In the Granger Cases in 1877 the Supreme Court recognized the right of the States to establish rates by law, even when these rates, by becoming part of a through rate, had an incidental effect upon interstate commerce. The problem had been viewed as local or regional during the seventies. Most of the States had passed railway laws and had proceeded to accumulate a volume of statistical information upon the railway business, that was increased by such public investigations as the Windom and Hepburn Reports and by lawsuits that revealed the nature of special favors and rebates.

Before the States had gone far in the direction of railway regulation it was discovered that no State could regulate an interstate railway with precision and justice. The great systems built up by Villard and Gould and Vanderbilt and Huntington dominated whole regions and precipitated the question of the effectiveness of state action. The continental lines, necessarily long and traversing several States, emphasized the inequality between the powers of a State and the problem to be met. Their national character pointed to national control.

In Congress there were repeated attempts after 1873 to secure the passage of an Interstate Commerce Act. In continuation of this campaign a committee headed by Senator Shelby M. Cullom, of Illinois, made a new investigation in 1885, and reported early in 1886 that supervision and publicity were required, and that these could best be obtained through a federal commission with large powers of taking testimony and examining books. The committee was convinced, as the public was already convinced, that the problem had become national.

The Supreme Court reached the same opinion in 1886 when it handed down a new decision in the case of the Wabash Railway Company vs. Illinois. Here it reversed or modified its own decision in the Granger Cases. In 1877 it had ruled that railways are subject to regulation and that the States under their police powers may regulate. It now adhered to its major premise, but declared that such regulation as affected an interstate rate is exclusively a federal function. In effect it determined that if there was to be regulation of the great systems it could only be at the hands of Congress.