The Writings of Carl Schurz/To George W. Julian, March 15th, 1883
TO GEORGE W. JULIAN
Sir: In your contribution to the March number of the North American Review you seek to show that the Interior Department has constantly been under the influence of the railway corporations. The statements upon which you rely to substantiate that charge, with regard to my administration of that Department, I pronounce essentially false, and I shall now briefly review those among them which can pretend to any importance.
On page 244 you say:
Another advantage gained by the railroads had its origin in an opinion given by Attorney-General Black in 1857, when the railroad companies were anxious to obtain certified lists of their lands before they had been earned. Mr. Black held that these lists were simply in the nature of information from the records of the Department, and that he could see no objection to issuing them to any person who desired to make a proper use of them, just as any other information would be furnished from the records; and that they could have no influence on the title to the lands. Under this opinion the Department issued the certified lists as requested; but in May, 1880, the Secretary of the Interior decided that when any of his predecessors have certified lands under railroad grants, their acts are final and conclusive, and binding upon him as their successor. He further held that a complete legal title was conveyed by such certified lists, and that the latter were in all respects equivalent to patents.
This can have but one meaning, and it has been so understood by all the newspapers which have commented upon it—that certified lists of lands, issued without the lands having been earned by the railroad companies, merely in the nature of information, without any intention of conveying title thereby, were decided by me, as Secretary of the Interior, to have conveyed to the railroad companies complete legal title to the lands so listed.
You cannot but know that this is false. The only decision I can find to which your statement can possibly refer is the one in the case of Charles Brown vs. the Chicago, Rock Island and Pacific Railroad, rendered by me May 4, 1880. The merits of the case had already been passed upon by my predecessor, Secretary Zachariah Chandler, on August 31, 1876. They had also been covered by a decision of the United States Circuit Court for the eighth circuit, Judge Dillon presiding, as follows:
“The title to the tract of land in controversy in this suit was, by the Act of 1856, vested in the State of Iowa. The tract in question was within the terms of the Act of 1856, and when it was selected and the selection approved and certified by the Commissioner of the General Land Office, the title became perfect in the State. Every act had then been performed necessary to make the title of the State complete.” (Duray vs. Hallenbeck.)
The Act of 1856 was an act granting land to the State of Iowa to aid in the construction of the Missouri and Mississippi Railroad (now the Chicago, Rock Island and Pacific Railroad Company). As you know, land grants for the benefit of railroads were at that time made to the States wherein the roads were to be built, the lands to be transferred by the States to the companies. In the original granting act here referred to, as well as the act amendatory thereof, it was expressly and specifically provided that complete legal title should be conveyed to the State and the company by certified lists, and in no other way. Moreover, the conveyance of title by certification was provided for by a general statute enacted in 1854, being now Section 2449 of the Revised Statutes. It is as follows:
Where lands have been or may hereafter be granted by any law of Congress to any one of the several States or Territories, and where such law does not convey the fee simple title of the lands, or require patents to be issued therefor, the lists of such lands which have been or may hereafter be certified by the Commissioner of the General Land Office, under the seal of his office, either as originals or copies of the originals or records, shall be regarded as conveying the fee simple of all the lands embraced in such lists, or that are of the character contemplated by such act of Congress and intend to be granted thereby; but where lands embraced in such lists are not of the character embraced in such acts of Congress and are not intended to be granted thereby, the lists, so far as these lands are concerned, shall be perfectly null and void, and no right, title, claim or interest shall be conveyed thereby.
This statute would have covered the case completely, and made it my clear duty to recognize the certified lists as conveying title, even had the granting act not specifically provided for this and no other mode of conveyance.
And out of this state of facts you constructed the slanderous story that I had made a law of my own, for the benefit of railroad corporations, by which unearned lands could be surreptitiously put into their possession. As to the conveyance of unearned lands in that way, a little honest inquiry would have acquainted you with the fact that when, during my administration, a case in which unearned lands had by mistake been put upon such a list came to my notice, the list was at once cancelled, and the clerk responsible for the mistake promptly punished.
A word about my ruling, that when any of my predecessors had certified lands under railroad grants, their acts were final and conclusive, and binding upon me as their successor. This, too, you treat as an unscrupulous contrivance of mine. You are a lawyer, practising before the Departments. Are you so ignorant as not to know that while principles of administration and rules of practice and the like may be changed, the adjudications in any specific case by any one Secretary have always been held to be final and conclusive and binding upon his successors, unless new and essential facts be adduced which were not before the Secretary making the decision, or a new state of the law? Have you not ordinary sense enough to see that this must be so, for if it were not, everybody who had a decision rendered against him would have his case reopened at the incoming of a new Administration and that the whole time of the Departments would be absorbed by rehearing and deciding the same cases over and over? If you have never heard of this, you may learn what everybody else knows by reading the decision of the Supreme Court of the United States in the case of United States vs. Bank of Metropolis, 15 Peters, and the opinions of Attorney-Generals, vol. 2, pp. 9 and 464; vol. 4, p. 341; vol. 5, pp. 29 and 123; vol. 9, pp. 101, 301 and 387; vol. 12, p. 358; vol. 13, pp. 33, 226 and 456. But you can scarcely plead ignorance of this, for all these authorities are quoted in that very decision of mine, the decision of May 4, 1880, to which your statement above quoted refers.
This would seem sufficient to show what you are capable of in the way of reckless falsification, and I might dismiss this branch of the subject were there not a few more flowers too fragrant to be left unnoticed.
On page 246 of your article you say:
But they [the railroad corporations] were still exposed to possible danger under the adjudications referred to, and naturally felt the need of some further security. This they found in an opinion of Attorney-General Devens, dated June 5, 1880, and asked for by Secretary Schurz, as “an authoritative expression of his views.” Although the distinguished Secretary is not a lawyer, he is uncommonly skilled in the use of English words, and perfectly familiar with their import, and it seems a little remarkable, therefore, that he should have found it necessary to ask for this legal advice, in view of the clear and unmistakable language of three decisions of the Supreme Court of the United States on the very question now submitted, with others, for interpretation. But this opinion of the Attorney-General is still more remarkable than the request of the Secretary, and cannot fail to surprise every member of the legal profession who may chance to read it.
It is a part, and a most important part, of the duties of the Attorney-General, the highest law officer of the Government, to give legal advice to the heads of the Executive Departments, who are not presumed to be lawyers, and sometimes are not. It is, therefore, not only natural, but it may be looked upon as a matter of duty, that the heads of the Departments should ask for such advice when they have to decide disputed points of law. That the point on which I asked advice was a disputed one among lawyers appears from the simple fact that you hold one opinion upon it and Attorney-General Devens another. There is one reason imaginable, and only one, why under such circumstances the head of a Department, “not a lawyer,” might hesitate to ask the Attorney-General for advice. It is, that he might consider the Attorney-General incompetent as a jurist, or corrupt as an officer. How was this in Attorney-General Devens's case? He is highly respected by the profession as a lawyer. I have long known him, and the country knows him, as the very soul of honor. The State of Massachusetts is evidently of the same opinion. He was a judge there before being called to the Attorney-General's duties, and no sooner had he left the Cabinet, than he was placed as a justice on the supreme bench of that Commonwealth. There he is now. Can you tell any reason why this man as Attorney-General should not be trusted for his legal advice on a disputed question of law by a Secretary “not a lawyer”? Do you know any thing about Judge Devens calculated to make it appear “a little remarkable” that he should be so trusted? For when you say that the request of the Secretary of the Interior for legal advice was “a little remarkable,” and the advice given by the Attorney-General “still more remarkable,” you evidently mean to insinuate that the Secretary of the Interior, and still more the Attorney-General, were under “railway influence.” If you know anything to substantiate this insinuation you should not withhold it, for, while I am only a journalist, the late Attorney-General, Mr. Devens, is on the supreme bench of Massachusetts, and the people of that State are on public grounds obviously entitled to the benefits of your knowledge.
The subject of my request for advice and of the Attorney-General's opinion was the question whether land-grant railroads were entitled to indemnity only for lands sold, reserved or disposed of by the United States, within the granted limits, between the passage of the granting act and the definite location of the line, or also for lands sold, etc., within the granted limits before the passage of the granting act. The latter view, more favorable to the railroad companies, had always been held and acted upon by the Department when I came into office. In 1875 Justice Davis, in the case of the Leavenworth, Lawrence and Galveston Railroad Company vs. the United States, delivered an opinion favorable to the former rule. There were also other conflicting decisions. Now, you present the matter in your article as if I had resorted to every device to uphold the rule more favorable to the companies against the opinion expressed by Justice Davis.
This, you cannot but know, is false again. What are the facts? Having laid down for the action of the Department the principle that it should give to the corporations nothing which it was not under a strict construction of the law absolutely bound to give, I accepted the opinion of Justice Davis as the principle to govern my decisions in such cases, and subsequently, in 1879, embodied that principle in a paragraph put by my order in the instructions issued by the General Land Office to the local land officers. It was as follows: “In the adjustment of grants for railroads the principle has, until recently, prevailed that indemnity was allowed for all lands sold, reserved or disposed of within the granted limits, whether such sale, reservation or disposal occurred before or after the granting act; and the certifications and patents have been executed in conformity thereto. In accordance with the recent decision of the Supreme Court in the case of the Leavenworth, Lawrence and Galveston Railroad Company vs. the United States, it is held by the Department that indemnity can only be allowed for lands sold, reserved or disposed of in the granted limits by the General Government after the granting act and prior to the time when the railroad right attached, unless the grant be one of quantity specifically set forth in the act.” And to this I caused to be added a rule which arrested ever so much loose practice advantageous to the corporations, and which is still in force, to this effect: “In the adjustment of all grants it consequently becomes necessary to know for what lands lost in place the indemnity selections are made, and with the view to that end you will require the companies to designate the specific tracts for which the lands selected are claimed.” If you do not appreciate the bearing of this instruction, I am sure the land-grant railroads do.
It is clear, therefore, that far from trying to prevent the introduction of the principle set forth in Justice Davis's decision as the rule of Departmental action, I introduced it myself, and my rulings were made in accordance with it until the last months of my administration, when, in consequence of the protests of parties interested, and the arguments urged by respectable attorneys, the question was submitted to the Attorney-General, and I was overruled by him. Neither was his opinion only a suggestion that in view of conflicting decisions of the courts “it would seem that the safe course for the Department would be to return to its original construction”; but after quoting the conflicting opinions of judges, the Attorney-General says, in the most positive language: “In direct answer to your second inquiry, I am therefore of opinion that the road is entitled to indemnity, provided the lands can be found within the proper limits, for the lands which it may have lost by reason of the fact that lands within the granted limits were sold or preëmpted previously or subsequently to the date of the grant.” And then the opinion concludes in these words: “In view of the interest manifested in the question by you, and on account of their relation to other railroads than the one immediately concerned, I have felt it my duty fully to hear arguments of all other parties who have deemed that rights might be affected by any opinion which should be given in the present case.”
Do you find it still a little remarkable that I should have asked for a legal opinion in this matter, or that, when it had been given with such positiveness and so unusually solemn an assurance of careful consideration, I should have deemed it my duty to follow it? If you do, you will have to find it “still more remarkable” that, subsequently, Justice Miller, of the Supreme Court, in the case of Barney vs. Winona, and St. Peter Railroad Company vs. McCrarys (Report 421), decided, United States District Judge Nelson concurring, as follows:
I am of opinion that, by the true construction of the act of Congress of March 3, 1857, granting lands to the territory of Minnesota, the indemnity clause was intended to include alternate sections within the prescribed limit which had been sold by the United States or lost by preëmption prior to the date of the grant, as well as such as might be sold between that time and the location of the road. And without further comment on the cases of the Leavenworth, Lawrence and Galveston Railroad Company vs. the United States, and the Burlington and Missouri Railroad Company vs. the United States, I do not believe the Court in those cases intended to establish a different doctrine.
This is as direct and strong an endorsement of Attorney-General Devens's opinion as can possibly be imagined. Justice Miller, who is certainly a member in good standing of the legal profession, if he “chanced to read” that opinion, evidently was not “surprised” at it but simply agreed with it; and so he tells me that I was mistaken as to the import of the Leavenworth, Lawrence and Galveston decision in giving the instructions above quoted, and that the Attorney-General was right in overruling them, and that you are very wide of the mark in anticipating a unanimous verdict of the legal profession against the latter.
And this case, in which the Interior Department had to yield to legal authority, which it did very reluctantly, is the identical case which you in your article call a “shameful prostitution of the Land department.”
However, even this flight of fanciful eloquence does not fill the measure of your ambition. You go on to say (page 248):
But the most remarkable fact remains to be stated. The Land department having procured the opinion of the Attorney-General justifying this wholesale plunder of the public domain is still not satisfied. The opinion, it should be remembered, follows the decision of the Supreme Court as to the specific case of reserved lands. It admits that for them no indemnity can be allowed. But the Department disregards this opinion in the interest of the railroads when it becomes an obstacle to their purposes. I understand that the Atchison, Topeka and Santa Fé road has been allowed an illegal excess of indemnity for lands reserved at the date of its grant, amounting to about 800,000 acres, according to the principle affirmed in the case of the Leavenworth, Lawrence and Galveston Railroad against the United States. Of the excess more than 400,000 acres have been awarded contrary to the opinion of the Attorney-General and since it was given.
This is, indeed, “the most remarkable fact,” to be stated; for he who inquires at the Interior Department will learn that, while Attorney-General Devens's opinion was given in 1880, and granted lands were patented the same year, the last approval of indemnity land to the Atchison, Topeka and Santa Fé Railroad was made on April 13, 1875, two years before he became Attorney-General, and I, Secretary of the Interior. There is evidently a limit to the “shameful prostitution of the Land department,” but there seems to be none to the cool, unblushing and elaborate audacity of your misrepresentations.
I should stop here were not this letter intended for the public as well as for yourself. To the public a word should be said about your general allegation that the Interior Department almost invariably decided in favor of the railroad companies and against the settlers. When you wrote this you had before your eyes the testimony of the chief of the railroad division of the General Land Office given before a Senate committee. In reply to a question concerning the general drift of decisions, he said:
I find on examination that during the year ended December 31, 1881, there was final action pursuant to office and Department decisions in about 824 cases between settlers and companies, in about 635 of which cases the land in controversy was finally awarded to the settlers, and their filings or entries allowed or permitted to stand awaiting completion, or approved for patenting; and in about 189 cases the land was awarded to the companies, and the filings or entries of the settlers cancelled. In addition, some 227 applications to file or enter land within the limits of grants and reserved therefor were finally rejected.
Part of the year referred to was within the term of my administration, and all, or almost all, of the decisions made were under the rules and principles sustained or established during that period. I have no doubt that the record of the other years of my administrative term will, on examination, turn out to be about the same.
One point more remains to be touched. If you had intended to be in the least degree truthful and fair in the presentation of the spirit governing my administration of the Interior Department, you would, together with the acts which you thought to be in favor of the railroads, have mentioned at least some of my decisions and rulings adverse to them. It would not have been necessary to go into elaborate detail; but from the many rulings, instructions and decisions you would have felt in honor bound to point out at least one which was of peculiar interest and attracted much attention. It was my decision of July 23, 1878, in the case of Nelson Dudymott on his appeal from a decision of the General Land Office. I ruled that when the act making a grant of land to a railroad company provided that all the lands so granted “which shall not be sold or disposed of by said company within three years after the entire road shall have been completed, shall be subject to settlement and preëmption like other lands, at a price not exceeding $1.25 per acre to be paid to the company.” This provision meant that all lands not actually sold by the company three years after the completion of the road should be thrown open to settlement under the preëmption law; and I forthwith directed the Commissioners of the General Land Office to instruct the local land officers accordingly. This was done. The decision covered six of the land-grant roads completed more than three years—the Union Pacific, the Kansas Pacific, the Denver Pacific, the Sioux City and Pacific, the Central Pacific and the Western Pacific. It turned over to the settlers under the preëmption law, at the “Government price,” a great many more millions of acres than were ever covered by any decision or ruling concerning indemnity. For this act you had no memory. In the result of it you are personally concerned. The railroad corporations rushed at me with urgent applications for a reconsideration of the decision and a suspension of the instructions. I refused to suspend the instructions; and in a review of the decision on September 3, 1878, I reaffirmed it. The corporations then went before the courts, and the Supreme Court finally decided that, under the loose wording of the granting acts, the covering of the granted lands with a mortgage, which the companies had done as soon as they availed themselves of the granting act, was a “disposition” of them within the meaning of the law. Thus my decision was overruled, and I may say this was the keenest disappointment I suffered while I was at the head of the Interior Department.
Who was responsible for that loose wording of the law which brought forth this decision of the Supreme Court, and deprived the settlers of their preëmption right to untold millions of acres? When these granting acts were passed you were a member of the National House of Representatives, and also a member of the Committee on Public Lands. The larger part of the time you were chairman of that committee. You posed as the champion of the homestead law and as the protector of the settlers rights and interests. They were given into your official care. If there was a man in Congress who should have considered it his solemn and especial duty to see to it that in all these granting measures the settlers rights and interests be jealously guarded, and that no loose and equivocal language creep in that might be interpreted to their injury, you were that man; and yet you sat there and voted for all these acts, whenever you voted at all, without a single word of remonstrance or even of inquiry. Indeed, almost all the other practices which you now complain of as abuses existed when you were the chairman of the committee whose principal duty it was to investigate them and to provide a remedy. You failed to do so.
And now you do not blush to pursue, with wanton and malignant falsehoods men whose office it became at a later time—an office sometimes performed with great regret—to execute the laws which, in great part at least, through your neglect of duty, have become what they are.