Political Recollections / 1840 to 1872

by George Washington Julian

"I know that within the last five weeks, as members of the House will recollect, an extra strut has characterized the gentleman's bearing. It is not his fault. It is the fault of another. That gifted and satirical writer, Theodore Tilton, of the 'New York Independent,' spent some weeks recently in this city. His letters published in that paper, embraced, with many serious statements, a little jocose satire, a part of which was the statement that the mantle of the late Winter Davis had fallen upon the member from New York. The gentleman took it seriously, and it has given his strut additional pomposity. The resemblance is great. It is striking. Hyperion to a satyr, Thersites to Hercules, mud to marble, dung-hill to diamond, a singed cat to a Bengal tiger, a whining puppy to a roaring lion. Shade of the mighty Davis, forgive the almost profanation of that jocose satire!"

This uncomely sparring match seemed to have no significance at the time beyond the amusement it afforded and the personal discredit it attached to the combatants; but in its later consequences it has not only seriously involved the political fortunes of both these ambitious men, but rent the Republican party itself into warring factions. Still more, it has connected itself in the same way, and not very remotely, with the nomination of General Garfield in 1880, and his subsequent assassination. Such are the strange political revenges of a personal quarrel.

During this session of Congress the policy of Military Land Bounties was very earnestly agitated, and threatened the most alarming consequences. Probably no great question has been so imperfectly understood by our public men as the land question, and the truth of this is attested by the multiplied schemes of pillage and plunder to which the public domain has been exposed within the past thirty or forty years. Among these the project of Land Bounties to soldiers has been conspicuous. Of the millions of acres disposed of by the Government through assignable land-warrants in the pretended interest of the soldiers of the Mexican War a very small fraction was appropriated to their use. The great body of the land fell into the hands of monopolists, who thus hindered the settlement and productive wealth of the country, while the sum received by the soldier for his warrant was in very many cases a mere mockery of his just claims, and in no instance an adequate bounty. The policy, however, had become traditional, and now, at the close of the grandest of all our wars, it was quite natural for the country's defenders to claim its supposed benefits. Congress was flooded with their petitions, and it required uncommon political courage to oppose their wishes. It was very plausibly urged that the Nation, with its heavy load of debt, could not pay a bounty in money, and that it should be done by drawing liberally upon the thousand million acres of the public domain. Some of the advocates of this policy openly favored the repeal of the Homestead law for this purpose, just as Thurlow Weed, earlier in the war, had demanded its repeal so that our public lands could be mortgaged to European capitalists in security for the money we needed to carry on the struggle. The situation became critical. Everybody was eager to reward the soldier, and especially the politicians; and there seemed to be no other way to do it than by bounties in land, for which all our previous wars furnished precedents. The House Committee on Public Lands considered the question with great care and anxiety, and in the hope of check-mating that project made a report in response to one of the many petitions for land bounty which had been referred to it, embodying some very significant facts. It showed that more than two millions and a quarter of soldiers would be entitled to a bounty in land, and that it would require more than one third of the public domain remaining undisposed of, and cover nearly all of it that was really fit for agriculture; that the warrants would undoubtedly be made assignable, as in the case of previous bounties, and that land speculation would thus find its new birth and have free course in its dreadful ravages; and that it would prove the practical overthrow of the policy of our pre-emption and homestead laws and turn back the current of American civilization and progress. The report further insisted that the Nation could not honorably plead poverty in bar of the great debt it owed its defenders, and it was accompanied by a bill providing a bounty in money at the rate of eight and one third dollars per month for the time of their service, which was drawn after conferring with intelligent men among them who fully appreciated the facts and arguments of the committee. This report and its accompanying bill had an almost magical effect. They not only perfectly satisfied the soldiers everywhere, but revolutionized the opinion of both Houses of Congress, and thus saved the public domain from the wholesale spoilation that had threatened it. The bill was referred to the Military Committee, and afterward became well known by its title of "General Schenck's bill." It passed the House, but failed in the Senate. It passed the House repeatedly at different session of Congress afterward, although it never became a law; but it was the timely and fortunate instrument through which the public domain was saved from the wreck which menaced it in the hasty adoption of a scheme which would have proved as worthless to our soldiers as disastrous to the country.

CHAPTER XIII. MINERAL LANDS AND THE RIGHT OF PRE-EMPTION. The lead and copper lands of the Northwest—The gold-bearing regions of the Pacific, and their disposition—A legislative reminiscence —Mining Act of 1866, and how it was passed—Its deplorable failure, and its lesson—Report of the Land Commission—The Right of Pre- emption, and the "Dred Scott decision" of the settlers.

The action of the Government in dealing with the mineral lands of the United States forms one of the most curious chapters in the history of legislation. It had its beginning in the famous Congressional Ordinance of May 20, 1785, which reserved one third part of all gold, silver, lead and copper mines to be sold or otherwise disposed of as Congress might direct. From this time till the discovery of gold in California in 1848, the legislation of Congress respecting mineral lands related exclusively to those containing the base or merely useful metals, and applied only to the regions now embraced by the States of Michigan, Wisconsin, Iowa, Illinois and Missouri. The policy of reserving mineral lands from sale was obviously of feudal origin, and naturally led to the leasing of such lands by the Government, which was inaugurated by the Act of Congress of March 3, 1807. The Act of Congress of March 3, 1829, provided for the sale of the reserved lead mines and contiguous lands in Missouri, on six months' notice, but mineral lands elsewhere remained reserved, and continued to be leased by the Government. This policy was thoroughly and perseveringly tried, and proved utterly unprofitable and ruinous. President Polk, in his message of December 2, 1845, declared that the income derived from the leasing system for the years 1841, 1842, 1843 and 1844 was less than one fourth of its expense, and he recommended its abolition, and that these lands be brought into market. The leasing policy drew into the mining regions a population of vagrants, idlers and gamblers, who resisted the payment of tax on the product of the mines, and defied the agents of the Government. It excluded sober and intelligent citizens, and hindered the establishment of organized communities and the development of the mines. The miners were violently opposed to the policy of sale, but the evils incident to the leasing policy became so intolerable that the Government was at length obliged to provide for the sale of the lands in fee, which it did by Acts of Congress of July 11, 1846, and March 1 and 3, 1847. The tracts occupied and worked by the miners under their leases possessed every variety of shape and boundary, but there were no difficulties which were not readily adjusted under the rectangular system of surveys and the regulations of the Land Department. A new class of men at once took possession of these regions as owners of the soil, brought their families with them, laid the foundations of social order, expelled the semi-barbarians who had secured a temporary occupancy, and thus, at once promoted their own welfare, the prosperity of the country, and the financial interests of the Government. Under this reformed policy the lead and copper lands of the regions named were disposed of in fee.

But the gold-bearing regions covered by our Mexican acquisitions created a new dispensation in mining, and invited the attention of Congress to the consideration of a new and exceedingly important question. How should these mineral lands be disposed of? They covered an area of a million square miles, and their exploration and development became a matter of the most vital moment, not only in a financial point of view, but as a means of promoting the settlement and tillage of the agricultural lands contiguous to the mineral deposits. President Fillmore, in his message of December 2, 1849, recommended the sale of these lands in small parcels, and Mr. Ewing, his Secretary of the Interior, urged upon Congress the consideration of the subject, and recommended the policy of leasing them; but no attention seems to have been given to these recommendations. By Act of Congress of September 27, 1850, mineral lands in Oregon were reserved from sale; and by Acts of March 3, 1853, and of July 22, 1854, they were reserved in California and New Mexico. This was the extent of Congressional action. Early in the late war, the Secretary of the Interior, Hon. Caleb B. Smith, referred to the question, and the Commissioner of the General Land Office afterward repeatedly recommended the policy of leasing, but Congress took no notice of the subject. My interest in the question was first awakened in the fall of 1864, in carefully overhauling our land policy. Our mineral lands for more than sixteen years had been open to all comers from whatever quarter of the globe, during which time more than a thousand million dollars had been extracted, from which not a dollar of revenue reached the National Treasury save the comparatively trifling amount derived from the Internal Revenue tax on bullion. This fact was so remarkable that it was difficult to accept it as true. The Government had no policy whatever in dealing with these immense repositories of national wealth, and declined to have any; for a policy implies that something is to be done, and points out the method of doing it. It had prohibited the sale of mineral lands, and then come to a dead halt. The Constitution expressly provides that Congress shall have power "to make all needful rules and regulations respecting the territory or other property belonging to the United States"; but Congress, in reserving these lands from sale and taking no measures whatever respecting their products, simply abandoned them, and, as the trustee of the Nation, became as recreant as the father who abandons his minor child.

The case was a very curious one, and the more I considered it, the more astonished I became at the strange indifference of the Government, and that no public man of any party had ever given the subject the slightest attention. The Nation had been selling its lands containing iron, copper and lead, and the policy of vesting an absolute fee in individual proprietors had been accepted on actual trial, and after the leasing policy had signally failed, and I could see nothing in the distinction between the useful and precious metals which required a different policy for the latter. Some policy was absolutely demanded. The country, loaded down by a great and continually increasing war debt, could not afford to turn away from so tempting a source of revenue. To sleep over its grand opportunity was as stupid as it was criminal. It was obvious that if the Government continued to reserve these lands from sale, some form of tax or royalty on their products must be resorted to as a measure of financial policy; but this would have involved the same political anomaly as the policy of leasing, and the same failure. In principle it was the same. To retain the fee of the lands in the Government and impose a rent upon their occupiers, would make the Government a great landlord, and the miners its tenants. Such a policy would not be American, but European. It would not be Democratic, but Feudal. It would be to follow the Governments of the Old World, which reserve their mineral lands for the Crown, because they are esteemed too precious for the people. It was at war with our theory of Democracy, which has respect chiefly to the individual, and seeks to strengthen the Government by guarding his rights and promoting his well-being. These considerations convinced me that the time had come to abandon the non-action course of the Government, and adopt a policy in harmony with our general legislation; and that the survey and sale of these lands in fee was the best and only method of promoting security of titles, permanent settlements, and thorough development. As early as December, 1864, I therefore introduced a bill embodying this policy, which was followed by a similar measure, early in the Thirty-ninth Congress, accompanied by an elaborate report, arguing the question pretty fully, and combating all the objections to the principle and policy of sale. My views were commended by Secretary McCullough, as they had been by Mr. Chase, while I was glad to find them supported by intelligent men from California, who spoke from actual observation and extensive experience in mining.

But although this measure fully protected all miners in the right of exploration and discovery, and carefully guarded against any interference with vested rights, the idea was in some way rapidly and extensively propagated that it contemplated a sweeping confiscation of all their claims, and the less informed among them became wild with excitement. The politicians of California and Nevada, instead of endeavoring to enlighten them and quiet this excitement, yielded to it absolutely. They became as completely its instruments as they have since been of the Anti-Mongolian feeling. They argued, at first, that no Congressional legislation was necessary, and that while the Government should retain the fee of these lands, the miners should have the entire control of them under regulations prescribed by themselves. This, it was believed, would placate the miners and settle the question; but the introduction of the measure referred to, and the agitation of the question, had made some form of legislation inevitable, and the question now was to determine what that legislation should be. Senators Conness of California, and Stewart of Nevada, who were exceedingly hostile to the bill I had introduced, and feared its passage, sought to avert it by carrying through the Senate "a bill to regulate the occupation of mineral lands and to extend the right of pre-emption thereto," which they hoped would satisfy their constituents and prevent further legislation. They supported it as the next best thing to total non-action by Congress. It provided for giving title to the miners, but it did this by practically abdicating the jurisdiction of the National Government over these lands, with its recognized and well-settled machinery for determining all questions of title and boundary, and handing them over to "the local custom or rules of the miners." These "local rules" were to govern the miner in the location, extension and boundary of his claim, the manner of developing it, and the survey also, which was not to be executed with any reference to base lines as in the case of other public lands, but in utter disregard of the same. The Surveyor General was to make a plat or diagram of the claim, and transmit it to the Commissioner of the General Land Office, who, as the mere agent and clerk of the miner, with no judicial authority whatever, was required to issue the patent. In case of any conflict between claimants it was to be determined by the "local courts," without any right of appeal to the local land offices, the General Land Office, or to the Federal courts. The Government was thus required to part with its lands by proceedings executed by officials wholly outside of its jurisdiction, and irresponsible to its authority. The act not only abolished our rectangular system of surveys, but still further insulted the principles of mathematics and the dictates of common sense by providing that the claimant should have the right to follow his vein or lode, "with its dips, angles and variations to any depth, although it may enter the land adjoining, which land adjoining shall be sold subject to this condition"; a right unknown to the mining codes of England, France or Prussia, and not sanctioned by those of Spain or Mexico. Subject to this novel principle the crudely extemporized rules of the miners were to be recognized as law, and this system of instability and uncertainty made the basis of title and the arbiter of all disputes, instead of sweeping it away and ushering in a system of permanence and peace through the well-appointed agency of the Land Department. It was easy to see that this was an act to encourage litigation and for the benefit of lawyers, and not to promote the real interest of the miners or increase the product of the mines.

This was made perfectly clear at the time, by the report of a Senate committee of the Legislature of Nevada. In speaking of the local laws of the miners, it says, "There never was confusion worse confounded. More than two hundred districts within the limit of a single State, each with its self-approved code; these codes differing not alone each from the other, but presenting numberless instances of contradiction in themselves. The law of one point is not the law of another five miles distant, and a little further on will be a code which is the law of neither of the former, and so on, ad inifitum; with the further disturbing fact superadded, that the written laws themselves may be overrun by some peculiar custom which can be found nowhere recorded, and the proof of which will vary with the volume of interested affidavits which may be brought on either side to establish it. Again, in one district the work to be done to hold a claim is nominal, in another exorbitant, in another abolished, in another adjourned from year to year. A stranger, seeking to ascertain the law, is surprised to learn that there is no satisfactory public record to which he can refer; no public officer to whom he may apply, who is under any bond or obligation to furnish him information, or guarantee its authenticity. Often, in the new districts, he finds there is not even the semblance of a code, but a simple resolution adopting the code of some other district, which may be a hundred miles distant. What guarantee has he for the investment of either capital or labor under such a system?" The report proceeds to show that these regulations can have no permanency. "A miners' meeting," it declares, "adopts a code; it stands apparently as the law. Some time after, on a few days' notice, a corporal's guard assembles, and, on simple motion, radically changes the whole system by which claims may be held in a district. Before a man may traverse the State, the laws of a district, which by examination and study he may have mastered, may be swept away, and no longer stand as the laws which govern the interest he may have acquired; and the change has been one which by no reasonable diligence could he be expected to have knowledge of." Of course these facts thus officially stated in the interest of the miners of Nevada, were applicable to California, and all the mining States and Territories, and they fitly and very forcibly rebuked the attempt to enact the Senate bill.

When this bill reached the House it was properly referred to the Committee on Public Lands, which then had under consideration the bill I had reported providing for the survey and sale of mineral lands through the regular machinery of the Land Department. The House Committee subsequently reported it favorably, and could not be persuaded by the delegations from California and Nevada to adopt the Senate bill as a substitute. Senators Stewart and Conness, finding their project thus baffled, and becoming impatient of delay as the session neared its close, called up a House bill entitled "An Act granting the right of way to ditch and canal owners over the Public Lands in the States of California, Oregon and Nevada," and succeeded, by sharp practice, in carrying a motion to strike out the whole of the bill except the enacting clause, and insert the bill which the Senate had already enacted and was then before the House Committee. This maneuver succeeded, and the bill, thus enacted by the Senate a second time, and now under a false title, was sent to the House, where it found its place on the Speaker's table, and was lying in wait for the sudden and unlooked-for movement which was to follow. The title was misleading, and thus enabled Mr. Ashley of Nevada, to obtain the floor when it was reached, and under the gag, which of course would cut off all amendment and debate, he attempted to force through a measure revolutionizing the whole land policy of the Government so far as relates to the Western side of the continent, and surrendering the national authority over its vast magazines of mineral wealth to the legalized jargon and bewilderment I have depicted. I succeeded in preventing a vote by carrying an adjournment, but the question came up the next day, and the Senators referred to, with their allies in the House, had used such marvelous industry in organizing and drilling their forces, and the majority of the members knew so little about the question involved, that I found the chances decidedly against me. I was obliged, also, to encounter a prevailing but perfectly unwarranted presumption that the representatives of the mining States were the best judges of the question in dispute, while it was foolishly regarded as a local one, with which the old States had no concern. The clumsy and next to incomprehensible bill thus became a law, and by legislative methods as indefensible as the measure itself.