The Writings of Carl Schurz/To George W. Julian, May 9th, 1883

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New York, May 9, 1883.

Sir: The public letter you recently addressed to me is in point of argument so wild and absurd that it appears more like a joke than a serious thing. It seems you desire it to be treated as the latter. A rapid analysis will expose its folly.

You accuse me of having devised some devilish machinery for conveying to railroad companies lands which do not belong to them. To this end you attack a decision of mine in the case of Brown vs. the Chicago, Rock Island and Pacific Railroad Company. In that decision I recognized that company as entitled to certain lands, showing that the title of the company through the State had already been affirmed by the United States Circuit Court for the eighth circuit thus: “The tract in question was within the terms of the act of 1856, and when it was selected and the selection certified by the Commissioner of the General Land Office, the title became perfect in the State. Every act had then been performed to make the title of the State complete.” (Duray vs. Hallenbeck.) I showed further that the matter had also been passed upon by my predecessor, Mr. Chandler, in the same sense, in the case of Bell vs. the Chicago, Rock Island and Pacific Railroad Company, in which decision he said with regard to the certification of the lands:

The line of the Mississippi and Missouri Railroad Company (of which the Chicago, Rock Island and Pacific Railroad Company is the successor) was definitely located prior to March 3, 1857, and upon the application of an agent of the State of Iowa, appointed by the governor of said State, the lands in question were on December 27, 1857, duly certified to the State for the benefit of said company. If there had been any irregularities in the selection and certification of these lands to the State and the granting of them by the State to the company, these were waived and all prior acts treated as valid.

In my decision I thereupon disclaimed jurisdiction over the lands, for the following reasons: “1. These lands were certified to the State by my predecessors, and their acts are final and conclusive and binding upon me as their successor. (United States vs. Bank of the Metropolis, 15 Peters; two Attorney-Generals opinions, p. 9, id. 464, etc.) 2. The certification of these lands invested the State with a complete legal title to the same (Duray vs. Hallenbeck), which was in all respects equivalent to patents.”

This is the devilish contrivance of mine to give to a railroad what did not belong to it. In my first letter I showed that the conveyance of lands by certified list is provided for by general statute, as it is also specially provided for by many of the granting acts. In an act amendatory of the granting act here in question it is spoken of as a matter of course.

What, then, is the trouble here? You say that in this case the certification was all wrong and worth nothing. Why? Because—I quote your own language—“the grant is in præsenti, and the title passed to all the lands in it by the grant itself.” Was not the road entitled to the lands in question? You affirm yourself that it was. You say expressly: “There is thus no controversy whatever about your action in recognizing as valid the certified lists referred to.” And “the certified lists referred to” were the only ones contemplated in my decision. The only trouble, in your own words, is “that the Act of 1856 does convey the fee simple title of the lands in dispute, and, therefore, that the lists which pretend to convey them are perfectly null and void.” And yet, “there is no controversy whatever about my action in recognizing as valid the certified lists referred to.” Your logic is too deep for this world. In the same breath you affirm that by my decision no land was given to the railroad to which it was not entitled, that I had concocted a devilish scheme to give to the road what did not belong to it by recognizing the lists certified to by my predecessors and that I did right “in recognizing as valid the certified lists referred to.” A man grown so blind in his fury as to box his own ears is always a ludicrous spectacle.

I might leave this matter here on your own showing, but will add for your information that certified lists have their use even when a land grant is made in præsenti. The grant usually refers to so and so many sections of land on each side of the road. The certified lists specify the sections and identify them by numbers according to the survey, and thus they become evidence of title attaching to specific tracts. It is in this sense that the Act of 1854 providing for conveyance of title by certified list applies to grants in præsenti like the one in question. The issue of specified lists is therefore not only a general practice, but a necessity where patents are not specially provided for or where the tracts granted are not specific ally identified in the granting act. This disposes of one-half of your letter.

Your next charge is equally portentous. It is that I committed the crime of asking the Attorney-General for legal advice in a case on which the Attorney-General's opinion did not agree with your own. This accusation is sufficiently preposterous in itself but the circumstances of the case serve to show its venom. In 1875 Justice Davis, of the Supreme Court, delivered in the Leavenworth, Lawrence and Galveston Railroad case, an opinion which could be interpreted as restricting in a certain way the right of land-grant railroads to indemnity lands. My predecessor, Mr. Chandler, did not so construe it, but maintained the old regulations more favorable to the railroads. So I found them when I came into office in 1877. Being determined to concede to the corporation nothing but what, under a strict construction of the law, they were entitled to, I adopted the interpretation of Judge Davis's decision most unfavorable to the railroads, and changed the regulations governing the action of the Land Office, accordingly. After these new regulations had been in operation a considerable time, questions arose before the Department as to their correctness in point of law. As is customary and proper, and as every conscientious executive officer will do, I submitted the matter to the Attorney-General for legal advice. After hearing full argument the Attorney-General ruled in the clearest and most emphatic terms, that my interpretation of the Davis decision was wrong, and that, as to the point at issue, I had to return to the rule laid down and observed by my predecessors. This I did, not hastily and joyfully, as you falsely assert, but reluctantly; for the Attorney-General's opinion was given on June 5, 1880, and I changed the instructions to the Land Office accordingly on October 16, 1880, more than four months afterward. And this you call criminal eagerness on my part to serve the railroads.

Every sane man, looking at these undeniable facts, will naturally conclude that had I wanted to favor the corporations, I should simply have permitted the rules governing the Land Office to stand as they had always stood, and as my predecessor, Mr. Chandler, had maintained them for nearly two years after the decision in the Leavenworth, Lawrence and Galveston case. This is clear. If there is any fault to be found with me at all, it might be, not that I favored the corporations, but that, instead of changing my ruling unfavorable to their interests promptly after the authoritative opinion of the Attorney-General, I did it reluctantly and hesitatingly, waiting more than four months. After all this, to accuse me of undue eagerness to serve the railroads is madness or malice. Take your choice.

The same applies to what you say of a subsequent decision of Justice Miller, in which that eminent Judge clearly and emphatically indorses the opinion of Attorney-General Devens. You argue that Justice Miller, if he did not agree with the Leavenworth, Lawrence and Galveston decision, should have entered a dissenting opinion when the decision was rendered. But Justice Miller did not say at all that he disagreed with it. What he did say was that, in his opinion, the Court did not in that decision “intend to establish a different doctrine” from that which had prevailed before; in other words, he decided that your interpretation of that and other similar decisions was wrong, and that the construction put upon them by Attorney-General Devens was right. What sane man will call that inconsistency?

Your third point against me was that the Interior Department under my administration “disregarded even this opinion of the Attorney-General in the interests of the railroads when it became an obstacle to their purposes,” by awarding four hundred thousand acres of indemnity lands to the Atchison, Topeka and Santa Fé Railroad, “contrary to the opinion of the Attorney-General and since it was given.” I thereupon showed that “while Attorney-General Devens's opinion was given in 1880, and granted lands were patented the same year, the last approval of indemnity lands (the only kind of lands referred to in the opinion) 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.” You had to admit that your charge was false. The difference between awarding, contrary to the opinion of the Attorney-General, indemnity lands not granted, on the one hand, and the patenting of granted lands on the other, is simply the difference between allowing the road what was not due to it, in the one case, and allowing it what was due to it in the other. The former I did not; the latter I did. And if it should be found, as you say it may, that during some period in the past the road had received lands in excess, then the Land Office, in the adjustment of the grant, will take the proper steps to rectify the mistake, a thing which was done during my administration, repeatedly, in similar cases. But your charge that I favored the railroad to the prejudice of the United States is just as false and absurd in its second form as it was in the first.

But more. Your general allegation that the Interior Department almost invariably decided in favor of the railroads and against the settlers, I confuted by quoting the sworn testimony of the chief of the railroad division of the General Land Office, that in one year, when the rulings and principles established and sustained during my administration were in force, of the office and Department decisions in 824 cases, in 635 the land in controversy was finally awarded to the settlers, and in 189 to the railroads. What now? The only escape you find is in saying that your general allegation “related to the general administration of the Land department during a long series of years.” And you significantly add: “If you made any such decisions (adverse to the railroads) I had nothing to do with them; my task was to show that for nearly a third of a century the Land department to a very great extent has been the servant of the railways and not the people.” This is a highly characteristic admission. It was, then, not your “task” to speak the truth, but to make a case by suppressing the truth. When a decision was made in favor of a railroad, no matter whether it was ever so just, you adduce it as proof that the railroads controlled the Land department. When three times as many decisions were made in favor of the settlers against the railroads you had “nothing to do with them.” This kind of suppression of the truth is a simple falsification of facts. Your self-imposed “task” was, therefore, that of a falsifier, convicted as such by your own statement.

The same recklessness appears in your assertion that five or six of the Department decisions under my administration have been overruled by my successors. I have inquired into that matter, and am informed by very competent authority that this is true only of one, the decision in the Gates case. This would demonstrate the rather remarkable fact that, although I have been out of office for two years, but one of the hundreds of decisions made during the four years of my administration has by my successor been set aside. I might almost thank you for the opportunity you give me of showing an infallibility on my part and that of my legal advisers which I should have hesitated to claim. The same might be said if there were six such cases instead of one.

But, to tell the exact truth, I have been overruled in two other instances: once when I had issued instructions to the General Land Office restricting the claims of the railroads to indemnity lands, the same instructions spoken of above; and then when I decided that the unsold lands of six land-grant railroads should be thrown open to settlement at the Government price. In the first case I was overruled by the Attorney-General, whose opinion was subsequently indorsed by Justice Miller's decision, and in the second case I was overruled by the Supreme Court. In both cases I had set aside the policy sustained by my predecessors, and in both cases superior authority ruled that I had gone beyond the intent of the law, not in favor of, but against the interests of the railroads. When, in my first letter to you, I mentioned that second decision of mine which threw open to the settler many millions of acres—indeed, so vast a quantity of land that all the land involved in the indemnity controversies about which you throw up so much dust appears as a miserable pittance in comparison to it—your genius rose to its most brilliant effort to make out that even in this case I was governed by railroad influence. You called my whole proceeding “clap-trap,” and then arraigned me as a traitor to the interests of the American people—for what? For submitting to a decision of the Supreme Court of the United States, which affirmed that the lands in question, although unsold, were “disposed of” by mortgages, and could therefore not be thrown open to settlement as I had directed, thus setting aside my ruling point-blank, in the clearest language, without the remotest possibility of a question as to its meaning. Your accusation in this case is so unique that it can not be explained by any ordinary mental process. One might be inclined to feel your pulse, were there not another explanation. But there is.

I showed in my first letter that in this case the railroads concerned were saved by the loose wording of the granting acts, and that these acts were framed and passed when you were a member of the House of Representatives and a leading man in the Committee on Public Lands, for the larger part of the time even its chairman. It was your special duty to watch this kind of legislation with untiring vigilance to protect the interests of the settlers. I showed that you voted for all these large land grants, whenever you voted at all, without a word of remonstrance, and that, while almost all the other practices you now complain of as abuses existed or grew up during that period, you never exerted your influence to check or remedy them. The loose language of the acts upon which the decision of the Supreme Court above referred to was based, elicited not a whisper from the leader of the Committee on Public Lands, the spokesman of the settler. If you could not prevent their adoption, you could at least protest against their objectionable or ambiguous clauses. But your voice was silent, and you simply voted “aye.” Your record in the Congressional Globe convicts you.

It is a fact known to every well-informed man that the mischievous results of the land-grant system have sprung from the reckless provisions of the granting acts, and not from the faithlessness of those who had to administer the laws as they stood. As one of the makers of those laws, and especially as the one man whose special business it was to watch and scrutinize them in behalf of the settlers, you can not escape your responsibility. The public records prove your failure in that duty. There is not a man in the land from whom false accusations against an executive officer would come with a worse grace than from you.

But that was not your only failure. Worse remains behind. At the close of your letter you address me in the following tremendous language: “It seems utterly incredible that you presided over the great home Department of the Government for four years; and the fact that the country has survived your administration is a fresh illustration of the power of republican institutions to withstand the most deadly assaults.” A dreadful state of things indeed! There was a Secretary of the Interior so unscrupulous as to recognize as valid certified lists about which “there is no controversy”; a Secretary who did not blush to ask the Attorney-General for legal advice and to follow it; who dared to permit granted lands to be patented, and who, after having tried to wrest many millions of acres from the railroad corporations, had the audacity to bow to an overruling decision of the Supreme Court. That our republican institutions should have endured such a strain is indeed almost incredible. But the danger of the situation was vastly aggravated by the singular circumstance that the whole American people witnessed these open and notorious proceedings without alarm. Only one man saw through it all, and you were that man. What did you do? When all these terrible things were going on, did we hear the blast of your bugle- horn summoning all friends of the imperiled Republic to the rescue? No. Where were you, then, at that awful crisis?

Alas, you were otherwise engaged. You were then going round among the railroad kings offering them your talents for a consideration. And only when the railroad kings failed to purchase your services, you became conscious of your own exceeding virtue and the total depravity of everybody else.

This revelation, however, is not surprising. You had already unmasked yourself before. Had you been sincere you would have been content to speak the truth. Instead of reviling with ridiculous charges a man who in official station had proved more dutiful than you, you would have fairly recognized my earnest endeavor to reduce the allowances of the corporations to the narrowest limit under the law. But it seems to be the uncontrollable propensity of hypocrites to overdo what they attempt. Even before the evidence was all in you convicted yourself by the virulent extravagance of your pretended zeal.

Here I take leave of you. As you now stand before the public I shall pass over without notice what you may still be moved to say.