Political Recollections / 1840 to 1872

by George Washington Julian

Such is the history of this remarkable experiment in legislation; but it is an experiment no longer. Its character has been perfectly established by time, and the logic of actual facts. It has been extensively and thoroughly tried, and after repeated attempts to amend it by supplementary legislation, its failure stands recorded in the manifold evils it has wrought. The Land Commission, appointed under the administration of President Hayes in pursuance of an Act of Congress to classify the Public Lands and codify the laws relating to their disposition, visited the mining States and Territories in detail, and devoted ample time to the examination of witnesses and experts in every important locality touching the policy and practical operation of the laws in force relating to mineral lands. This Commission condemned these laws on the strength of overwhelming evidence, and recommended a thorough and radical reform, including the reference of all disputed questions as to title and boundary to the regular officials of the United States; the abolition of the "local custom or rules of miners," with the "local courts" provided for their adjudication; and the adoption of the United States surveys as far as practicable, including the geodetical principle of ownership in lieu of the policy of allowing the miner to follow his vein, "with its dips, angles and variations under the adjoining land of his neighbor," which policy is declared to be the source of incalculable legislation. The Commission, in short, urged the adoption of the principles of the Common Law and the employment of the appropriate machinery of the Land Department, as a substitute for the frontier regulations which Congress made haste to nationalize in 1866. It declared that under these regulations "title after title hangs on a local record which may be defective, mutilated, stolen for blackmail, or destroyed to accomplish fraud, and of which the grantor, the Government, has neither knowledge nor control"; that in the evidence taken "it was repeatedly shown that two or three prospectors, camped in the wilderness, have organized a mining district, prescribed regulations involving size of claims, mode of location and nature of record, elected one of their number recorder, and that officer, on the back of an envelope, or on the ace of spades grudgingly spared from his pack, can make with the stump of a lead pencil an entry that the Government recognizes as the inception of a title which may convey millions of dollars; that even when the recorder is duly elected he is not responsible to the United States, is neither bonded nor under oath, may falsify or destroy his record, may vitiate the title to millions of dollars, and snap his fingers in the face of the Government; and that our present mining law might fitly be entitled 'An Act to cause the Government to join, upon unknown terms, with an unknown second party, to convey to a third party an illusory title to an indefinite thing, and encourage the subsequent robbery thereof.'"

These strong statements are made by a Government commission composed of able and impartial men, who were guided in their patient search after the truth by the evidence of "a cloud of witnesses," who spoke from personal knowledge and experience. The character of our mining laws is therefore not a matter of theory, but of demonstrated fact. They scourge the mining States and Territories with the unspeakable curse of uncertainty of land titles, as everywhere attested by incurable litigation and strife. They thus undermine the morals of the people, and pave the way for violence and crime. They cripple a great national industry and source of wealth, and insult the principles of American jurisprudence. And the misfortune of this legislation is heightened by the probability of its continuance; for it is not easy to uproot a body of laws once accepted by a people, however mischievous in their character. Custom, and the faculty of adaptation, have a very reconciling influence upon communities as well as individuals. Moreover, men absorbed in a feverish and hazardous industry, and stimulated by the hope of sudden wealth, are not disposed to consider the advantages of permanent ownership and security of title. Their business is to make their locations according to local custom, and sell out to the capitalists; while the men who feel the burden of litigation and the evil of uncertain titles, are not the men who control public opinion and influence the course of legislation. It may thus happen that a system of laws initiated by itinerant miners solely for the protection of their transient posessory interests, and carried through Congress at their behest by parliamentary roguery, may be permanently engrafted upon half the continent. If California had been contiguous to the older States, and her mining operations had only kept pace with the progress of settlements, or if her representatives had been less ready to sacrifice the enduring interests of their constituents for temporary and selfish ends, the wretched travesty of law which now afflicts the States and Territories of the West would have been unknown, and the same code and forms of administration would have prevailed from the lakes to the Pacific.

The lesson of this vital mistake is a pregnant one. The laws regulating the ownership and disposition of landed property not only affect the well-being but frequently the destiny of a people. The system of primogeniture and entail adopted by the Southern States of our Union favored the policy of great estates, and the ruinous system of landlordism and slavery which finally laid waste the fairest and most fertile section of the republic and threatened its life; while the New England States, in adopting a different system, laid the foundations of their prosperity in the soil itself, and "took a bond of fate" for the welfare of unborn generations. Their political institutions were the logical outcome of their laws respecting landed property, which favored a great subdivision of the land and great equality among the people, thus promoting prosperous cultivation, compact communities, general education, a healthy public opinion, democracy in managing the affairs of the church, and that system of local self government which has since prevailed over so many States. So intimate and vital are the relations between a community and the soil it occupies that in the nomenclature of politics the word "people" and "land" are convertible terms; but no people can prosper under any system of land tenures which tolerates a vexatious uncertainty of title, and thus prompts every man to become the enemy of his neighbor in the scuffle for his rights. Such a state of affairs is worse than pestilence or famine; but the evil of uncertain titles puts on new and very aggravated forms in our gold-bearing regions. The business of mining naturally awakens the strongest passions. It sharpens the faculties and dulls the conscience. It gives to cupidity its keenest edge. Its prizes are often rich and suddenly gained, and when they are sought through the forms of a law which compels a man to choose between an expensive and hazardous litigation and robbery, human nature is severely tried. No situation could well be more deplorable than that which obliges a man to pay heavy black- mail as the only means of saving his property from legal confiscation by another; and the moral ravages of a code which allows this can not be computed. It tempts civilized men to become savages and savages to become devils. It is not a mistake merely, but a great misfortune, that our laws touching so delicate and vital a question as the ownership and transfer of mineral lands were not so framed as to avert these frightful evils. As far as the past is concerned they are without remedy, and there is no positive safeguard for the future but in a return to the time-honored principles which give to the owner of the surface all that may be found within his lines, extended downward vertically, and refer all disputes to the old-fashioned and familiar machinery of the General Land Office. This system gave order and peace to the great lead and copper regions of the Northwest, and it would bring with it the same inestimable blessings to the harassed and sorely tried regions of the Pacific slope.

About the same time the action of Congress supplied another example of hasty and slip-shod legislation, which has been perhaps equally prolific of evil. The State of California, soon after her admission, had assumed the right to dispose of the public lands within her borders according to her own peculiar wishes, and in disregard of the authority of the United States. This led to such serious conflicts and complications, that a remedy was sought in a bill to quiet land titles in that State. It was a very questionable measure, inasmuch as the parties claiming title under the State could only be relieved by recognizing her illegal acts as valid, and at the expense of claimants under the laws of the United States. It necessarily involved the right of pre-emption, and this was distinctly presented in connection with what was known as the Suscol Ranch in that State. It contained about ninety thousand acres, and was covered by an old Spanish grant which the Supreme Court of the United States in the year 1862 had pronounced void, soon after which numerous settlers went upon the land as pre-emptors, as they had a right to do. Their claims as such, being disputed by parties asserting title under the void grant, the General Land Office, on the reference of the question to that department, decided in favor of the pre-emptors, upon which the opposing parties procured the submission of the question to the Attorney-General. That officer gave his opinion to the effect that a settler under the pre-emption laws acquires no vested interest in the land he occupies by virtue of his settlement, and can acquire no such interest, till he has taken all the legal steps necessary to perfect an entrance in the Land Office, being, in the meantime, a mere tenant-at-will, who may be ejected by the Government at any moment in favor of another party. In pursuance of this opinion scores of bona fide settlers were driven from their pre-emptions, which the laws of the United States had offered them, on certain prescribed conditions, with which they were willing and anxious to comply, and their homes, with the valuable improvements made upon them in good faith, were handed over to speculators and monopolists. The proceeding was as outrageous as the ruling which authorized it was surprising to the whole country; and it naturally awakened uneasiness and alarm among our pioneer settlers everywhere. It seemed to me very proper, therefore, that in a bill to quiet land titles in California, these troubles on this Ranch should be settled by a fitting amendment, which should protect the rights of these pre-emptors against the effect of the ruling referred to. The opinions of the Attorney- General had completely overturned the whole policy of the Government as popularly understood, and I simply proposed to restore it by a proviso guarding the rights of bona fide settlers who were claiming title under the laws of the United States; but to my perfect amazement I found the California delegation bitterly opposed to this amendment. The reading of it threw them into a spasm of rage, and showed that they were less anxious to quiet titles in their State than to serve the monopolies and rings which had trampled on the laws of the United States, and thus involved themselves in trouble. The zeal and industry of the delegation in this opposition could only be paralleled by their labors for the passage of their mineral land bill; and the same appeals were made in both cases. They said this was a "local measure," and that they understood the interests of the Pacific coast better than men from the old States, while they begged and button-holed members with a pertinacity very rarely witnessed in any legislative body. They turned the business of log-rolling to such account that the amendment was defeated by a strong majority, while it proved the entering wedge to other and greater outrages upon the rights of settlers which the country has since witnessed, and was followed by a decision of the Supreme Court of the United States, fully affirming the principle laid down in the opinion of the Attorney General. This ruling, which has been aptly styled "the Dred Scott decision of the American Pioneer," has been repeatedly re-affirmed, while the claim of pre-emption, once universally regarded as a substantial right, has faded away into a glamour or myth.

CHAPTER XIV. RECONSTRUCTION AND IMPEACHMENT. Gov. Morton and his scheme of Gerrymandering—The XIV Amendment— Hasty reconstruction and the Territorial plan—The Military Bill— Impeachment—An amusing incident—Vote against impeachment—The vote reversed—The popular feeling against the President—The trial —Republican intolerance—Injustice to senators and to Chief Justice Chase—Nomination of Gen. Grant—Re-nomination for Congress—Personal —Squabble of place-hunters—XVI Amendment.

The fall elections of this year were complicated by the hostile influence of the Executive, but the popular current was strongly on the side of Congress. A few prominent Republican members followed the President, but the great body of them stood firm. In my own Congressional district my majority was over 6,200, notwithstanding the formidable conservative opposition in my own party, and its extraordinary efforts to divide the Republicans through the patronage of the Administration. Nearly all of my old opponents in the district and State were now Johnsonized, except Gov. Morton, whose temporary desertion the year before was atoned for by a prudent and timely repentance. He was not, however, thoroughly reconstructed; for in the Philadelphia Loyal Convention which met in September of this year to consider the critical state of the country, he used his influence with the delegates from the South to prevent their espousal of Negro Suffrage, and begged Theodore Tilton to prevail on Frederick Douglass to take the first train of cars for home, in order to save the Republican party from detriment. He was still under the shadow of his early Democratic training; and he and his satellites, vividly remembering my campaign for Negro Suffrage the year before, and finding me thoroughly intrenched in my Congressional district, hit upon a new project for my political discomfiture. This was the re-districting of the State at the ensuing session of the Indiana Legislature, which they succeeded in accomplishing by disguising their real purpose. There was neither reason nor excuse for such a scheme at this time, apart from my political fortunes; and by the most shameless Gerrymandering three counties of my district, which gave me a majority of 5,000, were taken from me, and four others added in which I was personally but little acquainted, and which gave an aggregate Democratic majority of about 1,500. This was preliminary to the next Congressional race, and the success of the enterprise remained to be tested; but it furnished a curious illustration of the state of Indiana Republicanism at that time.

On the meeting of Congress in December the signs of political progress since the adjournment were quite noticeable. The subject of impeachment began to be talked about, and both houses seemed ready for all necessary measures. Since mingling freely with their constituents, very few Republican members insisted that the XIV Constitutional Amendment should be accepted as a finality, or as an adequate solution of the problem of reconstruction. The second section of that amendment, proposing to abandon the colored race in the South on condition that they should not be counted in the basis of representation, was now generally condemned, and if the question had been a new one it could not have been adopted. This enlightenment of Northern representatives was largely due to the prompt and contemptuous rejection by the rebellious States of the XIV Amendment as a scheme of reconstruction, and their enactment of black codes which made the condition of the freedmen more deplorable than slavery itself. In this instance, as in that of Mr. Lincoln's Proclamation of Emancipation, it was rebel desperation which saved the negro; for if the XIV Amendment had been at first accepted, the work of reconstruction would have ended without conferring upon him the ballot. This will scarcely be denied by any one, and has been frankly admitted by some of the most distinguished leaders of the party.

The policy of treating these States as Territories seemed now to be rapidly gaining ground, and commended itself as the only logical way out of the political dilemma in which the Government was placed. But here again the old strife between radicalism and conservatism cropped out. The former opposed all haste in the work of reconstruction. It insisted that what the rebellious districts needed was not an easy and speedy return to the places they had lost by their treasonable conspiracy, but a probationary training, looking to their restoration when they should prove their fitness for civil government as independent States. It was insisted that they were not prepared for this, and that with their large population of ignorant negroes and equally ignorant whites, dominated by a formidable oligarchy of educated land-owners who despised the power that had conquered them, while they still had the sympathy of their old allies in the North, the withdrawal of Federal intervention and the unhindered operation of local supremacy would as fatally hedge up the way of justice and equality as the rebel despotisms then existing. The political and social forces of Southern society, if unchecked from without, were sure to assert themselves, and the more decided anti-slavery men in both houses of Congress so warned the country, and foretold that no theories of Democracy could avail unless adequately supported by a healthy and intelligent public opinion. They saw that States must grow, and could not be suddenly constructed where the materials were wanting, and that forms are worthless in the hands of an ignorant mob. It was objected to the territorial theory that it was arbitrary, and would lead to corruption and tyranny like the pro-consular system of Rome; but it was simply the territorial system to which we had been accustomed from the beginning of the Government, and could not prove worse than the hasty re-admission of ten conquered districts to the dignity of States of the Union, involving, as it has done, the horrors of carpet-bag government, Ku Klux outrages, and a system of pro-consular tyranny as inconsistent with the rights of these States as it has been disgraceful to the very idea of free government and fatal to the best interests of the colored race.

But the strange chaos of opinion which now prevailed was unfavorable to sound thinking or wise acting. Great and far-reaching interests were at stake, but they were made the sport of politicians, and disposed of in the light of their supposed effect upon the ascendancy of the Republican party. Statesmanship was sacrificed to party management, and the final result was that the various territorial bills which had been introduced in both Houses, and the somewhat incongruous bills of Stevens and Ashley, were all superseded by the passage of the "Military bill," which was vetoed by the President, but re-enacted in the face of his objections. This bill was utterly indefensible on principle. It was completely at war with the genius and spirit of democratic government. Instead of furnishing the Rebel districts with civil governments, and providing for a military force adequate to sustain them, it abolished civil government entirely, and installed the army in its place. It was a confession of Congressional incompetence to deal with a problem which Congress alone had the right to solve. Its provisions perfectly exposed it to all the objections which could be urged to the plan of territorial reconstruction, while they inaugurated a centralized military despotism in the place of that system of well-understood local self- government which the territorial policy offered as a preparation for restoration. The measure was analyzed and exposed with great ability by Henry J. Raymond, whose arguments were unanswered and unanswerable; but nothing could stay the prevailing impatience of Congress for speedy legislation looking to the early return of the rebel districts to their places in the Union. The bill was a legislative solecism. It did not abrogate the existing Rebel State governments. It left the ballot in the hands of white Rebels, and did not confer it upon the black loyalists. It sought to conciliate the power it was endeavoring to coerce. It provided for negro suffrage as one of the fundamental conditions on which the rebellious States should be restored to their places in the Union, but left the negro to the mercy of their black codes, pending the decision of the question of their acceptance of the proposed conditions of restoration. The freedmen were completely in the power of their old masters, so long as the latter might refuse the terms of reconstruction that were offered; and they had the option to refuse them entirely, if they saw fit to prefer their own mad ascendancy and its train of disorders to compulsory restoration. This perfectly inexcusable abandonment of negro suffrage was zealously defended by a small body of conservative Republicans who were still lingering in the sunshine of executive favor, and of whom Mr. Blaine was the chief; and it was through the timely action of Mr. Shellabarger, of Ohio, which these conservatives opposed, that the scheme of reconstruction was finally so amended as to make the Rebel State governments provisional only, and secure the ballot to the negro during the period, whether long or short, which might intervene prior to the work of re-admission. This provision was absolutely vital, because it took from the people of the insurrectionary districts every motive for refusing the acceptance of the terms proposed, and settled the work of reconstruction by this exercise of absolute power by their conquerors. It was this provision which secured the support of the Radical Republicans in Congress; but it did not meet their objections to this scheme of hasty military reconstruction, while these objections have been amply justified by time.

Thaddeus Stevens never appeared to such splendid advantage as a parliamentary leader as in this protracted debate on reconstruction. He was then nearly seventy-six, and was physically so feeble that he could scarcely stand; but his intellectual resources seemed to be perfectly unimpaired. Eloquence, irony, wit, and invective, wre charmingly blended in the defense of his positions and his attacks upon his opponents. In dealing with the views of Bingham, Blaine, and Banks, he was by no means complimentary. He referred to them in his closing speech on the bill, on the thirteenth of February, when he said, in response to an interruption by Mr. Blaine, "What I am speaking of is this proposed step toward universal amnesty and universal Andy-Johnsonism. If this Congress so decides, it will give me great pleasure to join in the io triumphe of the gentleman from Ohio in leading this House, possibly by forbidden paths, into the sheep-fold or the goat-fold of the President." In speaking of the amendment to the bill offered by General Banks, he said, "It proposes to set up a contrivance at the mouth of the Mississippi, and by hydraulic action to control all the States that are washed by the waters of that great stream." He declared that, "The amendment of the gentleman from Maine lets in a vast number of Rebels, and shuts out nobody. All I ask is that when the House comes to vote upon that amendment, it shall understand that the adoption of it would be an entire surrender of those States into the hands of the Rebels. * * * If, sir, I might presume upon my age, without claiming any of the wisdom of Nestor, I would suggest to the young gentlemen around me, that the deeds of this burning crisis, of this solemn day, of this thrilling moment, will cast their shadows far into the future, and will make their impress upon the annals of our history; and that we shall appear upon the bright pages of that history just in so far as we cordially, without guile, without bickering, without small criticisms, lend our aid to promote the great cause of humanity and universal liberty."