Near the end of the nineteenth century, English scholar James Bryce criticized Western railroad land grants as “often improvident” and as giving “rise to endless lobbying and intrigue, first to secure them, then to keep them from being declared forfeited in respect of some breach of the conditions imposed by Congress on the company.”Footnote 1 Bryce also observed the extent to which grants of land to railroads allowed the beneficiary companies to exercise great power not only through their role as carriers of people and commerce, but also through their role as large landowners. This, he noted, brought them “yet another source of wealth and power” and “brought them into intimate and often perilously delicate relations with leading politicians.”Footnote 2 From the perspective of the so-called “railroad tycoons” and their financial backers, the land grants became sources of wealth and power independent of and sometimes contrary to the interests of the railroad corporations themselves as carriers.Footnote 3 Whereas Congress intended the railroad land grants to serve as a means to the end of railroad construction and the settlement of the federal government's expansive public domain, the railroads came to see them as an end in themselves: as independent sources of wealth and power.
Bryce wrote at a time when railroad subsidies had become unpopular. Over the previous decades, however, federal land grants to railroads had been a critical component of the government's effort to settle its newly expanded public domain, an endeavor that Euro-Americans largely celebrated. Stephen Douglas orchestrated the first such grant to the Illinois Central in 1850. Then, during the Civil War, the granting of public lands to railroads accelerated with Congress's passage of the Pacific Railway Act of 1862, which chartered the Union Pacific and the Central Pacific and subsidized their construction of a railway from Nebraska to San Francisco, California through the granting of land.Footnote 4 This policy continued in subsequent years with similar grants on both sides of the Union Pacific–Central Pacific line. In all, agents of the federal government granted roughly 130,000,000 acres to railroads from 1850 to 1871.Footnote 5
It was not only the subsidies of land that had become unpopular by the end of the century, but also railroad companies themselves. In the middle of the century, railroads represented American modernity. As technological marvels, they symbolized the ability of American society to control and harness nature to better American life, while their carrying of passengers and products represented the freeing of humans from the tyranny of distance and time.Footnote 6 Over the coming decades, however, they came to represent something much more negative. They indeed became the symbol of corporate monopolization of resources, including land, and oligarchic malfeasance.Footnote 7 The massive giveaway of land to corporations from 1850 to the end of the century was part of the reason that American historian Vernon L. Parrington famously described the era as “the Great Barbecue.”Footnote 8 Although there was seemingly enough food at this barbecue for everyone to receive healthy portions, it became increasingly apparent to many that it was railroad officials and other plutocrats getting fat, while farmers and laborers went hungry.
These land grants led not only to “endless lobbying” in Congress to secure them and to keep them from being forfeited, as Bryce noted, but also to endless disputes in towns and rural areas across the West. Some of these disputes were handled informally through negotiation, coercion, or violence, a phenomenon that had come to typify the so-called “frontier experience” by this time.Footnote 9 For example, in the San Joaquin valley of central California, an armed conflict between settlers and Southern Pacific officials over land claims resulted in the deaths of seven people. The railroad involved in this tragedy even came to be immortalized as “the Octopus” and eventually came to represent all malevolent, monopolistic corporations.Footnote 10 The railroads’ ownership (or claimed ownership) of so much land contributed mightily to their fall in public imagination from that of promoter to that of parasite, and from that of savior to that of scapegoat.Footnote 11
Although some conflicts were decided through violence, many others were adjudicated through formal administrative and judicial processes. The Northern Pacific alone was party to more than 3000 formal land contests. The legal disputes among railroads and settlers, miners, speculators, politicians, and government officials not only contributed to the emerging view of railroads as counter to the public interest; they also tested a nascent bureaucracy and an overburdened judiciary. Long delays and seeming inconsistencies in the government's handling of such disputes only added fuel to the populist fire raging against corporations and government corruption. They also provided additional ground for scholars and judges to challenge the legal paradigm that dominated late-nineteenth century thinking: one that viewed law as determined by the logical deduction of specific results from established principles.
Largely a narrative about relationships between railroad officials and attorneys and government officials, representatives, and bureaucrats, this article draws upon—and ultimately adds to—the historiography of railroad regulation. Traditional historical accounts have largely focused on the government's regulatory efforts in the areas of commerce, political influence, and consumer and labor protections. John F. Stover's studies of railroads during the Progressive era, for example, include discussions of the government's regulatory attempts to address problems relating to monopoly and corporate organization, political corruption, passenger safety, and labor conditions; however, they lack any discussion of the influence of railroads on the management of land and natural resources.Footnote 12 Similarly, Maury Klein, writing in 1994, examined what he called the “second pioneering era of American railroads” from the Civil War to the first decades of the twentieth century, during which time railroads, according to Klein, helped to bring about federal regulation of big business in the areas of capital mobilization, corporate organization, accounting, and labor relations, by demonstrating the failures of self-rule through a purported “community of interests.”Footnote 13
This article follows a recent trend in railroad historiography that has favored exploring the multifaceted impacts of railroads on broader social, cultural, economic, political, and legal processes. Several works demonstrate this trend, among them three works that are above all legal histories. First, in his account of Southern railroad lawyers during the late nineteenth century, William G. Thomas III linked the choices these lawyers made not only to the development of increasingly complex corporate forms and mechanisms, but also to several broader trends. These included the integration of the South into the national economy; the usurpation of the planter class as the dominant power brokers and the development of a local political economy unique to that region; the bifurcation and increased professionalization of the legal profession; the weakening of common law defenses such as fellow-servant, contributory negligence, and assumption of risk; and the shift in regulatory power from the states to the federal government.Footnote 14 Second, Barbara Welke, in Recasting American Liberty: Gender, Race, Law, and the Railroad Revolution, 1865-1920, analyzed how people's daily experiences with the railroad impacted their conceptions of liberty and, ultimately, shifted the balance in American society and law between individual freedoms and corporate or state power. In doing so, she linked the development of railroads and public streetcars to the formulation of new legal causes of action to redress mental or emotional harms, to the institution of formal racial segregation, and to the general acceptance of the proposition that liberty in such a modern world required state protection (all of which she claimed were also rooted in gendered assumptions).Footnote 15 Finally, James W. Ely, in Railroads and American Law, showed how railroads affected “the evolution of American law” more generally, including their impact on the role of government as both sovereign and contractor, on issues of corporate liability for personal injury, on law's mediation of broader social conflict, on the separation of powers (both among the branches of government and within the federalist structure), and on bankruptcy law.Footnote 16
Because this article also concerns the role of railroad corporations in the allocation and exploitation of natural resources, another recent work, Richard Orsi's Sunset Limited: The Southern Pacific Railroad and the Development of the American West, 1850-1930, has also helped in framing this article's analysis. Based on his extensive research into the Southern Pacific's practices and policies toward land and its development, Orsi argued that the Southern Pacific, because it saw its corporate interests as consistent with the public welfare, “promoted more organized, efficient settlement, economic development, and more enlightened resource policies in its service area.” In doing so, that railroad, according to Orsi, “took a major role in the emergence of modern management of water, wilderness parks, forests, and rangelands.”Footnote 17
Two works from 2011 especially exemplify the depth of work currently being done on railroad history. One is Richard White's Railroaded: The Transcontinentals and the Making of Modern America. In that work, as immense in its depth of research as in its size, White agreed with traditional economic history orthodoxy that railroad entrepreneurs played an important role in “making … modern America,” as his title suggests; however, the “contributions” in his account are nothing to be celebrated. Railroad entrepreneurs played their part not through innovating technologies and systems intended to improve society, but rather through developing financial mechanisms to enrich only themselves, often at the expense of the corporations whose interests they purportedly represented and the social policies that motivated the federal government's subsidies to them.Footnote 18 The other is Thomas's The Iron Way: Railroads, the Civil War, and the Making of Modern America. In this work, Thomas explored the role of railroads in the Civil War, particularly in supporting two different “modern” worlds, one in the North, the other in the South.Footnote 19 Whereas the “modern America” in White's account was one of greed, corruption, and ineptitude, the modernity of Thomas’ America was plural, malleable, and amoral. Railroads “made” something, to be sure, but what that thing was, and the meanings attached to it, depended upon a host of other factors beyond the control of railroads. Just as White used railroad subsidies and the workings of railroad companies to exemplify the essence of the modern American economy, this article uses similar phenomena to reveal the core of another facet of modern life; namely, the modern American legal order. Just as Thomas found modern technologies to be directionless in themselves, this article finds the same regarding the legal structures and doctrines that contemporaries considered “modern.”
Within the modern universe, the “state” and the “law” are intimately intertwined. The state relies on the law for authority to exercise its monopoly over legitimate violence, and the law relies on the state for its articulation, refinement, and enforcement. In Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed, political scientist James C. Scott contended that states acquire and hold onto power only by making their subjects and landscapes “legible” using processes of standardization and abstraction. Ultimately, however, the complex networks of social and physical processes defy such simplifications and their continued existence leads to unintended—and unforeseen—consequences.Footnote 20 In The Making of Law: An Ethnography of the Conseil d'Etat, Bruno Latour, an anthropologist and philosopher of science, found law to be just one of many forms—albeit an important one—of association among members of a society.Footnote 21 For Latour, law was not only embedded within the social, as Critical Legal Historians typically have recognized, but “already of the social, of association.”Footnote 22 Accordingly, one cannot separate—even fuzzily—the legal from the social (as well as from the political, scientific, or cultural). In defining what makes the legal aspects of social connections different from the other forms of association, Latour's conception of law mirrors Scott's view of the state in emphasizing law's lightness, its abstractness, and its superficiality. Latour's work thus connects with Scott's to suggest a strong correlation between legalistic associations and the modern state. States are built on abstract, superficial renderings of the domain precisely because they are products of associations of which legalistic reasoning—itself necessarily abstract and superficial—is a fundamental part.
With this as a model, it is not surprising to find that the federal government's colonization of the West, perhaps the most ambitious American project for ordering society to date, and the legal profession's development of a “modern” law, whose principal purpose was maintaining the established order, suffered from the same defect. Policy makers and lawmakers alike attempted to make the social and the physical legible through systems of standardization and categorization that belied the complexities inherent to the social and physical orders that they encountered. As inevitable conflict exposed contradiction, each system failed to deliver on its promises. Anyone who has gazed out the window on a cross-country flight has seen that the consequences of these failures are real. They are written across the land.
Lighting up a Great Barbecue: Congress and the Subsidization of Western Expansion
Grants of land to railroad corporations continued, and expanded Congress's prior policy of granting lands to states for the construction of wagon roads and canals, and of granting rights of way (but not additional grants of land) for the construction of railways. Even more than that, they embodied the government's approach to public lands dating back to 1785.Footnote 23 In short, the government favored disposing of them, whether through public auction, through preemption or homestead, or by granting them to entities that had made (or had agreed to make) improvements such as the construction of canals or railroads.
The Land Ordinance of 1785 established the general system by which the government would legally and politically divide, identify, and convey its public domain.Footnote 24 Given the amount of land the federal government owned (even before the Louisiana Purchase, the Treaty of Guadalupe Hidalgo, and the purchase of Alaska), the system needed to allow for the quick, efficient, and orderly sales of land. The ordinance largely succeeded in creating such a system. It rendered the federal government's claimed lands legible though its use of the rectangular (cadastral) survey system that the United States would later extend to virtually all of the land it later acquired. Specifically, the law directed that land be divided into 36 square mile townships, with each township being further divided into numbered “sections” of 640 acres (one square mile) each.Footnote 25 Therefore, virtually any tract of land within the grid could be described through a uniform, objective, and unchanging notation of its size, shape, and location. This stood in stark contrast to the traditional metes-and-bounds system, by which objects such as trees, rocks, fences, or roads (any one of which could be confused for another or even moved or eliminated in time) defined a property's boundaries.
The cadastral survey certainly had important advantages over the metes-and-bounds system. Public lands historian Vernon Carstensen once observed that “had a system of describing land by metes and bounds been employed” after 1850, when land settlement “reached vast proportions,” then “lawsuits and neighborhood feuds would have been one certain harvest of this vast movement of land-seekers on to new land.”Footnote 26 However, the ease of transfer and security of title came at a cost, one unforeseen at the time. As Scott reasoned in Seeing Like a State, the value of the cadastral system lay “in its abstraction and universality.”Footnote 27 Although these features allowed for land to be transferred to and from outsiders (people who perhaps had never even seen the land) and for ownership to be clearly delineated, Scott also emphasized the irony that the completeness and unambiguousness of the cadastral map depended upon its “abstract sketchiness, its lack of detail: its thinness.”Footnote 28 The federal government found an ideal way to “see” its land for the purposes of disposing of it; however, its system allowed for the perpetuation of its blindness to the land's actual, physical character.Footnote 29 Such myopia would allow Congress to continue a public lands policy ill-suited to conditions in much of the West long after the need for serious reassessment should have become clear.
For several decades, the federal government used the cadastral survey to sell lands by auction with specified minimum prices. Policy makers believed that the public domain was one of the government's most valuable assets and that the government should use it for raising revenues while also allowing for the orderly expansion of the body politic.Footnote 30 Americans and European immigrants, however, did not always wait for lands to be surveyed, for the opening of land offices, or for the eventual public auction before settling on federal lands. In 1841, Congress legitimated the claims of such settlers—called “squatters”—with its passage of the Preemption Act.Footnote 31 This legislation allowed heads of families, widows, or single men to secure legal title to 160 acres of surveyed public lands, provided they followed the prescribed steps. Qualified settlers were required to file a declaration of intent to preempt, to “improve” their lands within 1 year, and to submit an affidavit testifying that they had met all of the requirements of the act. If they met all the requirements, they could purchase the land for $1.25 per acre.Footnote 32 The law also applied retroactively to persons and families meeting the abovementioned requirements, so long as they paid the required $1.25 per acre to the land office. This was just one of many times in the nineteenth century when Congress validated illegal entries.Footnote 33
During the Civil War, Congress expanded its program for subsidizing Western settlement with three monumental laws: the Homestead Act, the Morrill Act, and the Pacific Railway Act, each passed within months of one another in 1862. Under the Homestead Act, heads of households of at least 21 years of age could acquire title to up to 160 acres of land for free, as long as they resided on the land for 5 years and improved it for agricultural purposes.Footnote 34 The Morrill Act granted land to individual states for the establishment of colleges “where the leading object shall be [the teaching of] agriculture and the mechanical arts.”Footnote 35 The Pacific Railway Act chartered and granted lands to the Union Pacific and the Central Pacific to aid in the construction of a railway from a point on the Missouri River in Nebraska to a point on the Pacific Ocean at or near San Francisco, and granted land to other corporations for the construction of five eastern branches.Footnote 36 The Homestead Act provided free land, the Morrill Act provided the means to learn how to farm it, and the Pacific Railway Act provided for the necessary transportation.
Although each piece of railroad land grant legislation was to some degree unique, the Pacific Railway Act shared several features with most other land grants from the era, all borrowed from the first federal railroad land grant, for construction of the Illinois Central Railroad, in 1850.Footnote 37 All of them included “rights of way” across public lands for the construction of the railways themselves. These “rights of way,” normally 100 feet wide, were merely usufructuary rights (rights to use the land owned by another) rather than full property rights, and the law treated them separately from grants of land. Railroad companies generally received their land grants defined according to a certain number of square mile sections of land within a prescribed distance—the “place limits”—from the railway. Congress normally granted only alternate (odd-numbered) sections of land, thereby creating a “checkerboard” pattern of land ownership, the rationale being that the government could then sell the even-numbered sections it retained for no less than double the typical minimum price of $1.25 per acre given their proximity to the railroad, effectively paying for the subsidy. The “checkerboard” provision dated to the Illinois Central Railroad grant and was a key reason why Stephen Douglas was able to get the Illinois Central legislation through Congress.Footnote 38 Additionally, railroad land grants normally excluded lands containing minerals other than coal and iron, and lands already settled, claimed, or reserved pursuant to federal laws as of the date of “definite location,” a legal term of art for maps or plats that railway companies filed to show the precise location of proposed railways in relation to the cadastral survey, and to ensure their consistency with applicable land laws. To make up for lands “lost” as a result of minerals or because they were already being claimed, land grants typically provided for “in-lieu lands” (also frequently called “indemnity strips”) outside of the place limits within which the railroads could select lands in lieu of excluded place lands. Finally, they required completion of the roads by a certain date, usually within 10 years of the granting legislation.Footnote 39
Under the Pacific Railway Act of 1862, the recipient railroads initially received the odd sections of land within 10 miles of the railway, with an indemnity strip of 5 miles beyond that.Footnote 40 This amounted to a grant of 6,400 acres per mile of railway constructed. Even with that amount of land, both the Union Pacific and the Central Pacific still proved unable to find the requisite capital for the massive construction project that Congress had envisioned. Two years later, Congress responded by passing new legislation allowing for both corporations to mortgage lands, and doubling the size of their land subsidies.Footnote 41
On the same day that Congress increased the land subsidies to the Union Pacific and Central Pacific, it also passed the largest land subsidy of all. Specifically, it chartered the Northern Pacific and provided it with a land grant estimated to include as many as 50,000,000 acres to subsidize the construction of a railway from Lake Superior to the Puget Sound, with a branch line along the Columbia River to Portland, Oregon, then that region's largest commercial center.Footnote 42 The immense size of the land grant was not only because of the length of the route, but also because the average subsidy per mile constructed exceeded that of any other railway. For the portion of the route passing through territories—covering all but the portion through Minnesota, the only state along the route at the time—the subsidy was double even the twenty sections per mile given to the Union Pacific and Central Pacific.Footnote 43 Northern Pacific promoters justified its larger size by citing the enormity of the task of constructing a railway through such a seemingly desolate region. They also pointed out that Congress had decided not to provide additional subsidies in the form of government bonds or in allowing the Northern Pacific to mortgage lands.
Political influence and the financial self-interests of members of Congress played a role as well, just as it did with other subsidies.Footnote 44 Members of Congress and their influential “friends” engaged in self-dealing at every step, from the Pacific Railroad Survey of the 1850s, to the passage of land grant legislation, to the selection of termini and routes, to the construction of the railway itself, and to the ultimate disposal of land. Paul wallace Gates reported in his federally commissioned History of Public Land Law Development that the Pacific Railroad Survey “enabled influential people to have surveys made that favored their political and sectional interests and, indeed in a number of instances, their own land investments.”Footnote 45 After railroads received their subsidies, the self-dealing of railroad entrepreneurs, as Richard White recently detailed, contributed mightily to the many failures of the railroad corporations, as well as to the more general financial panics and economic recessions they precipitated.Footnote 46 Railroad officials routinely awarded construction contracts and sold land to companies with which they were also associated, at a loss to the railroad but at a gain to themselves. White, in Railroaded, even went so far as to argue that the railroad companies ought to be regarded “not as new businesses devoted to the efficient sale of transportation but rather as corporate containers for financial manipulation and political networking.”Footnote 47
By the end of the decade, Republicans and Democrats alike had soured on railroad land grants to such a degree that Republicans would only vote for them if they contained protections for settlers and against railroad speculation, whereas Democrats opposed them altogether.Footnote 48 Even in that political climate, the Northern Pacific was still able to feed at the trough a few more times in 1869 and 1870. At the behest of that company, Congress passed legislation in 1869 allowing the company to issue bonds on its grant lands, despite the fact that the lack of such authority was a substantial part of the justification for the unprecedented land subsidy.Footnote 49 That same year, it also authorized the company to extend its branch line from Portland to Puget Sound, while also providing that there would be no additional financial or land subsidy (aside from a right-of-way) for the extension.Footnote 50 The practical effect of this legislation was to allow the Northern Pacific to carry an even greater percentage of the trade from the “Inland Empire” to its port on Puget Sound, thereby rendering Portland, a competitor for regional supremacy, just another stop along the line. A year later, Congress authorized the Northern Pacific to locate and to construct its main line to Puget Sound “via the Columbia River,” and to locate and construct a branch line across the Cascades, each “with the privileges, grants, and duties provided for in [the company's] act of incorporation” in 1864.Footnote 51 Although some in Congress may not have realized it, the practical effect of this legislation was to give the Northern Pacific an additional land grant for its railway between Portland and Tacoma.
In 1870, the House signaled the end of the land grant era when it passed a resolution stating that “the policy of granting subsidies in public lands to railroads and other corporations ought to be discontinued.”Footnote 52 The last federal grant, to the Texas Pacific for the southernmost transcontinental route, was awarded a year later.Footnote 53 Gates attributed the shift against railroad subsidies to Westerners having realized “that railroads were not prompt in bringing their lands on the market and putting them into the hands of farm makers,” a realization that caused “the West [to turn] from warm friendship to outright hostility to railroads.”Footnote 54 Henry George encapsulated such hostility in the following rant, from 1871, against the Pacific Railroad land grants:
Since the day when Esau sold his birthright for a mess of pottage we may search in vain for any parallel to such concessions. Munificence, we call it! Why, our common use of words leave no term in the English tongue strong enough to express such reckless prodigality. Just think of it! 25,600 acres of land for the building of one mile of railroad—land enough to make 256 good sized American farms; land enough to make 4,400 such farms as in Belgium support a family each in independence and comfort. And this given to a corporation, not for building a railroad for the Government or for the people, but for building a railroad for themselves; a railroad which they will own as absolutely as they will own the land--a railroad for the use of which both Government and people must pay as much as though they had given nothing for its construction.Footnote 55
However, inasmuch as railroad land grants were proven imprudent, the damage had already been done by 1871. In all, the federal government granted roughly 130,000,000 acres to railroads from 1850 to 1871.Footnote 56 Although almost a third of this was granted to one railroad, the Northern Pacific, more than seventy railroads in all received some grant of federal public land.Footnote 57 The federal government ultimately patented 38,000,000 acres to the Northern Pacific, more than 12,000,000 to the Atlantic & Pacific, more than 11,000,000 to the Union Pacific, roughly 8,000,000 to the Central Pacific, and roughly 7,000,000 each to the Kansas Pacific and Southern Pacific.
Several factors contributed to the federal government's subsidization of Western settlement and resource exploitation. In his monumental work on the legal history of the lumber industry in Wisconsin, Law and Economic Growth: The Legal History of the Lumber Industry in Wisconsin, 1836-1915, James Willard Hurst emphasized the role of capital scarcity combined with land abundance. In short, because land (and its resources) seemed unlimited while the capital to develop it remained in short supply, the proper role for government was to stimulate development in any way it could including, if necessary, giving away the nation's economic base.Footnote 58 The central argument of proponents of railroad land grants was that they were necessary to attract the necessary capital. They reasoned that capitalists would not invest in railroad construction ahead of settlement (and, hence, traffic), but that they would invest if the railroad corporations held rights to substantial land as an additional asset. Other arguments centered on the potential for economic growth, the spread of “civilization,” national security concerns, and, in the case of the transcontinental railroads, the potential linking with Chinese markets.Footnote 59
If that seems shortsighted, it is because it was, and it was intentionally so. With land seemingly unlimited, most policy makers saw any concern for conserving resources for future use as misplaced. The best way to increase development in the short term, policy makers thought, was to delegate the state's power over public lands to private parties.Footnote 60 This preference can be seen in other areas of law, including certain legislative changes to the common law of contract at the state level that were designed to allow citizens to make maximum use of limited capital, and the lack of regulations governing the timber industry. It was not only the government that was shortsighted. For their part, private landowners were also typically incapable, if not unwilling, to consider the costs of current practices on the future productivity of their lands.Footnote 61
Managing a Great Barbecue: The Making of the Modern Administrative State
Although the federal land grant era ended in 1871, at that time, most of the land “granted” had not been conveyed to the respective recipient railroad companies. Despite all land grants containing language of present conveyance (“that there be, and hereby is granted,” for example),Footnote 62 they also provided for the government to issue patents only after actual railway construction.
Prior to issuing patents, the government's land bureaucracy had several duties as to railroad land grants as their recipients went through the several prescribed steps in availing themselves of their respective subsidies. The administering of land grants was an overwhelmingly difficult task, one made more difficult by the shifting politics against railroads and their apparent monopolization of Western land and resources. With so many different laws providing for the government's disposal of land,Footnote 63 it became difficult for settlers and railroad agents alike to determine whether land was public, whether it had been entered under any number of land laws, or whether it was contained in one or more land grants. Charged with the primary responsibility for administering land laws was the General Land Office (GLO). Formed in 1812 and housed in the Department of Interior since 1849, the GLO had many duties. It was responsible for surveying the public lands and dividing them into legal divisions and subdivisions, for protecting the public domain from timber depredations and from illegal or fraudulent entries or appropriations, for classifying lands according to their natural resources and to their most valuable uses, for furnishing patent records, and for adjudicating disputes related to the public domain.Footnote 64
The GLO's task was made even more difficult by Congress's imprecision in defining the respective rights and duties of grantees and claimants and the times at which their rights attached. Specifically, Gates described the GLO's predicament as follows: “[c]arelessly drafted measures led to uncertainty about routes, about the rights of railroads nearing or crossing each other, about the inclusion of swamp or what the states tried to call swampland in grants, about the penalty of forfeiture for failure to build the lines or to build on time, and about restrictions affecting the right to select indemnity lands.”Footnote 65 In 1887, Secretary Lucious Q. C. Lamar complained of the confusion that resulted from the magnitude of different laws. “The public land States and Territories,” he argued, “were gridironed over with railroad granted and indemnity limits,” with “the limits of one road [in many instances] overlapping and conflicting with other roads in the most bewildering manner, so that the settler seeking a home could scarcely find a desirable location that was not claimed by some one, or perhaps two or three, of the many roads to which grants of land had been made by Congress.”Footnote 66 Decades later, in 1905, one report concluded that “the land laws, court decisions, and departmental practices had become so complicated that the settler was at a marked disadvantage in trying to get his share of the public lands when pitted against the wealth and superior legal services of corporations.”Footnote 67
The confusion regarding the legal status of lands led to conflicting claims, and ultimately to disputes. In addition to all of their executive duties, public land officials in the Department of Interior and the GLO (collectively referred to as the “Land Department”) also adjudicated such disputes. In this sense, the Land Department, like other executive agencies, served a judicial function in addition to its executive one, and, arguably, its legislative ones. Its adjudication of such contests, including those involving railroad land grants became one of its most time-extensive obligations throughout the late nineteenth century and a source of even greater power for the office.Footnote 68
As with its other duties, however, the Land Department (and particularly the GLO), for the most part, did not possess the necessary means to adjudicate claims in a timely manner, such that land titles often remained clouded for several years. It was not just the number of people working in the Land Department, but also their lack of expertise, that was a problem. In 1877, Commissioner James A. Williamson reported that, as to the resolution of land disputes, the office was “still further in arrears,” because of the inability of officials or clerks lacking legal training—or as he called them, “mere novices in official life”—to handle the work. The examination and resolution of conflicting claims required legal training and “the acquisition of those habits of care, research, and judicial observation which enter into the judgments of courts.”Footnote 69
The disputes took many forms. There were disputes between rival claimants for the same tract of land, between claimants and others seeking cancellation of the entries or claims and a preference right to enter the lands, and between the federal government itself and claimants upon allegations of illegality in the filing of entries or claims. The railroads became embroiled in litigation over the nature and extent of their rights to particular tracts of land as against the rights of pre-emptors, homesteaders, mining claimants, Indian governments, federal and state governments, and other railroads. The Northern Pacific, on its own, was a party to more than 3,000 formal legal disputes involving its land grant.Footnote 70
A recognized procedure existed for resolving such disputes, whether they arose from an application or from a land contest. Typically, the local register and receiver took the first action. The judicial discretion of these officers was quite limited, in that all decisions were subject to review by the commissioner of the GLO whether appealed or not.Footnote 71 The commissioner's role in the process was expansive; at the same time, he served as prosecutor, judge, and jury. He prepared the charge and collected and presented the evidence, decided questions of law and declared legal rules, and made findings of fact.Footnote 72 In the great majority of cases, the commissioner's decision was final and conclusive, although parties could appeal to the secretary of interior and ultimately to the United States Supreme Court, whose scope of review was limited to the secretary's interpretations of law. Given the finality of the great majority of the commissioner's decisions, and given the amount of money involved in such decisions, one member of Congress called the commissioner “the most important law officer of the Government.”Footnote 73
The problem that land officials faced was that they initially had little guidance in navigating a rather tricky legal terrain. The railroad land grants themselves contained little guidance for administering the grants, particularly as the rights arguably created therein conflicted with rights under the many other public land laws. Rather than leave such decisions to individual registers and receivers and clerks in local land offices, executive officials higher up in the administration took the lead in interpreting railroad land grants and in providing directives to the district land offices.Footnote 74
The commissioner, the secretary, or the attorney general often established precedent later followed not just by lower officials in the Land Department, but also by courts, including even the Supreme Court. For example, the Supreme Court's holding regarding the nature of a railroad land grant in its 1874 opinion in the case of Schulenberg v. Harriman has often been cited as establishing two principles: that railroad land grants were grants in praesenti, and that, prior to the road being located, they were considered to “float” until the route was located, at which time title related back to the date of the act.Footnote 75 This is why public lands historian David Maldwyn Ellis labeled Schulenberg “the most important case dealing with land grants.”Footnote 76 This interpretation, however, dated back at least to 1856, when Attorney General Caleb Cushing advised the Land Department that “[a railroad land grant] by its text makes a conditional grant in praesenti in the nature of a float, and which does not attach to any particular parcel of the public lands until the necessary determinative lines shall have been fixed on the face of the earth.”Footnote 77 That principle was cited in at least two more administrative land decisions prior to the Supreme Court's supposedly precedent-establishing opinion.Footnote 78
The Land Department also developed precedent regarding the meaning of the withdrawal provisions contained in many land grants, including the Northern Pacific's expansive grant, before receiving guidance from courts. A source of much settler resentment and legal confusion, these provisions directed the government to withdraw lands along proposed railway routes, as indicated in railroad filings of “general location,” from sale or entry. These “general locations” differed from “definite locations”—the filings that actually fixed a railroad company's rights as to particular land parcels—in that they lacked the precision of the latter and often were filed years before lands had even been surveyed. Because so much time usually elapsed between general and definite locations, there was much opportunity for settlers, ranchers, miners, timbermen, speculators, or even other railroads to attempt to claim lands within the place limits of land grants for themselves. The prospects of railroad construction themselves brought railroad companies and settlers (or land speculators) into conflict, as they enticed settlement along proposed routes. Some settlers entered lands prior to the secretary's orders of withdrawal even reaching the local registers and receivers, who had the principal duty of enforcing such withdrawals. In such cases, the practice of registers and receivers was initially to accept such entries at least until such time as they received the withdrawal orders. The Northern Pacific, for one, contested that practice, however, by filing applications with the GLO to cancel entries made on odd sections within granted limits after their maps of general location had been filed and accepted but before the orders of withdrawal had reached the local land offices.Footnote 79
In one case, the Northern Pacific's lawyers argued that the withdrawal provision operated automatically upon the filing of its map of general location. Accordingly, they argued, any entries made after the filing of general location must be canceled, even if the order of withdrawal had not yet been issued or received.Footnote 80 Despite the GLO's reputation—one that has persisted—for favoring the railroads as against settlers, Commissioner Willis Drummond, formerly a practicing attorney, seemingly went out of his way to decide against the Northern Pacific. The commissioner provided two distinct rationales for his decision, one explicitly policy based and the other purportedly based on legal precedent. He first argued that “bona fide settlers who had continued to improve their claims on the faith of the government withdrawal would be prejudiced” by cancelling their entries as the railroad requested, and that such a result should thus be avoided. He then offered a legal interpretation of the withdrawal provision, one that would apply right up to the time of definite location. Taking a strikingly narrow view of the withdrawal provision's protections, he argued that the provision applied only to those lands found, as of the date of definite location, to belong to the company, and that it “did not operate as a withdrawal of lands from market” prior to definite location.Footnote 81 The commissioner reasoned that the words “hereby granted” in the withdrawal provision referred to those identified as being included in the grant itself, namely those odd sections, within the place limits, free from pre-emption, homestead, or other legal claims as of definite location. Although this interpretation made some sense in isolation, it essentially made the withdrawal provision meaningless, because courts and the administration had consistently held, since the attorney general's opinion in 1856, that the company's rights under in praesenti grants, such as the Northern Pacific's, attached to such specific parcels as of definite location even without the withdrawal provision.
Not surprisingly, the Northern Pacific appealed the commissioner's decision to the secretary, who sought the advice of the attorney general despite being a respected attorney himself. Assistant Attorney General Walter H. Smith gave his advice and recommendation on March 15, 1873.Footnote 82 Smith first cited the rule that all words in a statute are presumed to have meaning; that is, that no word—much less a whole sentence or paragraph—should be rendered superfluous.Footnote 83 Specifically, any construction of [the withdrawal provision] that would render it “a mere repetition of the [section defining the extent of the grant] must be rejected if any other reasonable construction can be found consistent with the objects of the act and the intention of Congress.”Footnote 84 He considered the commissioner's opinion to represent just such a construction.Footnote 85 Therefore, “if any force or effect whatever is to be given to the clause in question …, it must be held to extend protection to the odd sections prior to definite location.”Footnote 86 Smith found the Northern Pacific's proffered interpretation the only one to be “reasonable,” consistent with “the usual and accepted meaning of the words,” consistent “with every other portion of the act and with the whole act,” and “justified by the objects contemplated by Congress in making the grant.”Footnote 87 The clear purpose of the withdrawal provision, Smith wrote, was to withdraw odd sections within the limits of the grant from the date of the approval of the map of the general route.Footnote 88
Land Department officials did not always follow the precedents their predecessors had established. For example, after Columbus Delano replaced Jacob D. Cox as President Ulysses S. Grant's secretary of interior in 1870, Delano was presented with the issue of what happened to the status of parcels of land within railroad grant place limits where homestead or pre-emption claims were active as of the date of definite location but subsequently abandoned. Did the lands pass to the railroad (assuming it had yet to receive its full allotment of lands) or revert to the government? From 1866 to 1871, the department had held that “an abandonment or termination of [valid homestead] claims [after the road was definitely fixed] operated to invest the railroad with title to the land.”Footnote 89 However, in 1871, Delano, a former attorney, changed course and held that if a homestead claim “has attached at the time the line of the road is definitely located, then the railroad is excluded,” and that it was “immaterial what became of the claim after that.”Footnote 90 In other words, if the claim was later abandoned, the land went back to the government (in most cases to be subject to homestead and pre-emption laws) and not to the railroad.Footnote 91
Such reversals begged the question as to whether the Land Department could re-adjudicate prior decisions (made pursuant to the discarded rule) under the new—and implicitly “correct”—rule. In the judicial system, final decisions made pursuant to subsequently discarded legal rules remained final rather than being subject to retroactive application of the new rule; however, the extent to which officials in the Land Department acted as “judges” for the purposes of adjudicating disputes was less than clear. Delano sought the help of United States Attorney General Amos T. Ackerman, who advised Delano that although “it [had] not yet been settled how the decisions of the head of a department have the conclusive force of the judgments of courts,” he still thought that “the better opinion certainly is that such decisions should not be disturbed except in extraordinary cases.”Footnote 92 Further, “extraordinary cases” were apparently only those in which there was “haste, … surprise, … [or] inadvertence” in the previous ruling.Footnote 93 Absent any of those characteristics, a decision of the secretary should be considered to be “the final adjudication of [the] Department,” even if later found to be incorrectly decided. A year later, the assistant attorney general clarified that the secretary and commissioner did act as “judges” in regard to land disputes. He wrote that “the Commissioner, under the Secretary, was vested by the [railroad land grant] act with limited judicial powers.… [W]hen Congress directed that the Secretary should cause the lands granted to be certified and conveyed to the Company, it evidently intended to give him power, as a quasi-judicial officer, to construe the act and declare what lands should be conveyed. The Commissioner derived through the Secretary a like jurisdiction and power.”Footnote 94
The Land Department also occasionally reversed course because the judicial branch overruled its interpretations. Given the number of complex legal issues and simply the vast number of conflicts regarding lands and resources encompassed in them, the judiciary came to play an increasingly important role in the administration of the railroad land grants. It did this both through the judicial review of administrative adjudications and through litigants bringing actions (normally either for ejectment or trespass) directly in the federal court system.
Judging a Great Barbecue: The Federal Judiciary and the Making of Modern Law
The Supreme Court's 1874 opinion in Schulenberg v. Harriman purportedly established the foundational judicial principles for interpreting railroad land grants. Writing for the majority in that case, Justice Stephen Field held that grants of land effected an immediate transfer of title, even as subsequent proceedings may be required to give precision to that title and attach it to specific tracts.Footnote 95 Although this holding followed an attorney general's opinion from 18 years earlier, Justice Field did not cite that opinion; nor is it clear if he was even aware of it. Rather, he found dispositive earlier Supreme Court opinions not even regarding railroad land grants. His opinion therefore demonstrated two key features of lawmaking during this era: 1) the effort to systematize all precedents into a coherent, logical whole, whereby even issues of apparent first impression could be decided based on how they fit into the overarching system; and 2) the contingency involved in lawmakers’ finding and defining such precedents.
Years earlier, Justice Field's brother David Dudley Field—himself a renowned legal expert from New York and architect of New York's Code—explained the systematization of law at the opening of the Law School of the University of Chicago. To D. D. Field, law was a science, and he implored those in attendance to teach and to study law as if it were any other “natural science.” In the address, D. D. Field provided two metaphors for understanding the nature of law. The law, he stated, was like “the streams of your own Mississippi Valley, where there is the great parent stream, the father of all rivers; into this pours the Arkansas, the Ohio, the Missouri; into these again pour lesser rivers; and still smaller into these last, and so on, till you reach finally the myriads of rivulets, all over the valley, and trace them to their springs,” but it was also like “a majestic tree that is ever growing,” one with “a trunk heavy with centuries, great branches equal themselves to other trees, with their roots in the parent trunk; lesser branches, and from those lesser branches still, till you arrive at the delicate bud, which in a few years will be itself a branch, with a multitude of leaves and buds.”Footnote 96 Like small streams into a river, individual decisions combine into general (or “first”) principles, and like branches from a growing tree, these principles produce, according to laws as neutral and universal as the laws of biology, an ever-growing array of new rules to govern the growing society.
Stripped of poetic imagery, what D. D. Field saw as “legal science” was simply a process of systematizing the law through the application of logic. The first task for legal scientists was to induce a set of legal principles from the sources of law, primarily court decisions. This process involved the gathering of seemingly disparate rules from decided cases, generalizing them into “first principles,” then classifying these principles and grouping them together in a cohesive and uniform structure. It was from this structure that judges and attorneys could deduce specific rules and apply them to specific cases predictably, impartially, and consistently. Any pre-existing rules that could not be deduced from the general principles were considered to be faulty judgments not in line with “the law,” and were eliminated.Footnote 97 “Classical legal thought,” as this style of reasoning has come to be known, became closely linked with the concept of “formalism,” a term much maligned throughout the twentieth century. As Robert W. Gordon outlined it in his influential 1983 article, “Legal Thought and Legal Practice in the Age of American Enterprise, 1870–1920,” the central task in making law “scientific” was “to make the whole system formally realizable, that is, to standardize the definition of rights and duties,” so that parties and lawyers could predict how law would apply to particular activities and judges could “enforce the rules without exercising any discretion of [their] own.”Footnote 98
Although D. D. Field presented, and perhaps intended, his notion of American law to be descriptive rather than normative, it was not an accurate portrayal of legal developments in America up to that time. Rather, early American law was typified by what he saw as the stark alternative to his view of law as a science; it was a system in which “the decision of litigated questions [depended] upon the will of the Judge or upon his notions of what was just.”Footnote 99 In previous decades, law had depended upon judges’ notions of which legal rulings would best serve what they defined as the public interest, usually the promotion of economic activity and growth. However, in the decades following the Civil War, jurists and attorneys increasingly took up the task of making the law into a science.Footnote 100 D. D. Field's account became a sort of self-fulfilling prophecy, as those trained in the “legal science” he advocated came to conceive of the law as a science and of themselves as scientists, and as they filled law firms and judicial seats later in the century, they dictated the course of law itself.
The development of classical legal thought can be seen as an effort to depoliticize law, something that legal historian Morton J. Horwitz has argued “has always been a central aspiration of American legal thinkers.”Footnote 101 The specific problem that legal scientists attempted to resolve, according to legal philosopher David Delaney, was “how to insure that the processes and products of judicial practice [were] sufficiently neutral and objective so as to bear the weight of legitimacy.” Their answer was to make legal meaning sufficiently determinate so that any judicial decision could “plausibly be portrayed as being necessitated by ‘law’ rather than as simply the outcome of subjective or ideological choice.”Footnote 102 In short, judges maintained or even enhanced their power by denying that they had any will, any choice, or any power at all. Rather, the power resided in the law itself, and they merely neutrally and objectively, employing their expertise in the methodology of legal science, deduced the law and applied it to the facts at hand.
It would be an oversimplification, however, to point to the self-interest of judges as an explanation for the effort to depoliticize law. As legal scholar Duncan Kennedy argued in his influential 1975 paper, long unpublished but widely circulated among legal scholars, classical legal thought was likely a legitimate attempt at promoting justice through reason, not a right-wing, reactionary attempt to protect self-interests through a retreat to “formalism.”Footnote 103 The supposed apolitical nature of law was thought to be crucial not just to the promotion of justice but also to civilization itself. If law was anything but an objective set of rules to which all members of society must conform, D. D. Field argued, “there could be no civilization and no order, since order is but another name for regularity, or conformity to rule.”Footnote 104 American governance was best, in his estimation, because it was a sovereign of laws rather than of people, an attribute that he saw as “our great security against the maladministration of justice” and the essential condition “of all free government, and of republican government above all others.”Footnote 105 In such a government, he explained, the objective application of a system of formal rules derived from “first principles” decided legal questions rather than the judge's personal notions of what was fair or just.Footnote 106
One important “first principle” in classical legal thought was crucial in Justice Field's decision in the Schulenberg case, and that was the distinction between “public” and “private” law. “Public law” was broadly thought of as a set of laws defining relationships between the government and its citizens, and it was typified by criminal and regulatory law, both of which were coercive in their basic structures. “Private law,” on the other hand, broadly referred to the set of legal doctrines that defined relationships among the government's citizens, and it was typified by the laws of tort, contract, property, and commerce.Footnote 107
Railroad land grants, because they involved a relationship between the federal government and railroad corporations vis-à-vis the public domain, arguably constituted public law, but these grants also constituted contracts between the government and the railroad corporations involving primarily the deeding of property between these two parties, such that a court could have found that the private law of contracts or property should apply. Which category of law Justice Field decided to apply was dispositive of his resolution of the Schulenberg case. As he himself framed the issue before the Supreme Court, the timing of the conveyance depended upon its characterization as “public law” or “private law.” The specific issue in the case was whether the granted lands had, without any subsequent action taken by Congress, reverted back to the federal government because of the failure of the state to provide for the construction of the railway within the permitted time. Before arriving at the issue of reversion of title, the court first had to determine whether any title had even passed to the state prior to the specific lands being ascertained and the railway being constructed.
Had he deemed the railroad grant to be “private law,” he would have considered the Supreme Court to be bound by rules applicable to private transactions. Because private law generally held grants of lands not yet designated to be “mere contracts to convey” rather than “actual conveyances,” the validity of any private transfer required the “possibility of present identification of property to the validity of its transfer.”Footnote 108 As the identification of the actual lands granted could not occur until the railway had been located, land grants could therefore only qualify as “mere contracts to convey,” that is, assuming private law applied. However, Justice Field found a different line of precedent for public laws involving grants of land. He specifically cited an 1817 case in which the Supreme Court interpreted a 1782 North Carolina land grant as immediately vesting a title in the grant's recipient, although surveys were necessary to give “precision to that title and [to attach] it to the lands surveyed.”Footnote 109 He also cited a similar construction of the land grant provisions of the 1820 legislation admitting Missouri into the Union, which the Supreme Court characterized as a “present grant, wanting identity to make it perfect.”Footnote 110 Based on these precedents, Justice Field held that where a legislative grant contains words indicating a present transfer of title, “unless there are other clauses in [the] statute restraining the operation of words of present grant, these must be taken in their natural sense to import an immediate transfer of title, although subsequent proceedings may be required to give precision to that title and attach it to specific tracts.”Footnote 111 In this case, the grant used language of immediate transfer—“that there be, and is hereby, granted”—typical of railroad land grants, and Justice Field held that the clause calling for the reversion to the United States of all unsold lands if the road was not completed within a specified time frame did not restrain the operation of these words.Footnote 112
Justice Field's opinion is as notable for what it did not say as for what it did. In its briefing, the plaintiff argued against regarding the grant as in praesenti based primarily on public policy grounds. Congress issued the land grant, the plaintiff urged, for a “defined purpose,” one that did not require “the construction that the [recipient] State takes the legal title in praesenti.” Rather “it must be presumed,” the plaintiff reasoned, “that Congress in passing the acts considered that the general good would be best subserved by such application of a portion of the public lands, and so made provisions, through the agency of the States and their representatives, the railroad companies, to dispense, as the improvements go on, the fund provided to further such object.”Footnote 113 This argument may have been persuasive even a decade earlier, but Justice Field, in 1874, did not even consider it, at least not explicitly. He did not interpret the grant in terms of public policy or in terms of what Congress may have desired, but rather by interpreting the words actually used through reliance upon past judicial precedent. Had he explicitly considered policy concerns, he might have thought of the effect his opinion would have on the development of the West, one of the primary purposes behind all of the railroad land grants. That he did not do so shows that he fully bought the tenets of classical legal thought. Policy was for Congress; applying the law pursuant to established rules was for the courts.
Legal science was not value free, however, and classical legal thinkers valued certainty, stability, and predictability, both in society and in law, above all. As applied to society, this showed up most notably in doctrines promulgated to protect “vested property rights” and the sanctity of the “free market” from governmental redistribution of wealth or other interference. Such doctrines are the principal reason that many have criticized classical legal thought as being essentially a reactionary pretext for protecting privilege.Footnote 114 As for making the law more stable and predictable, legal scientists believed that they had found a way to perfect lawmaking by making law fully cognizable and, hence, predictable, and they claimed this to be the primary virtue of the system.Footnote 115
The law as applied to railroad land grants, however, never reached that level of predictability. That might have become evident even to Justice Field just a year after his opinion in Schulenberg, when a majority of the Supreme Court disagreed with Field as to how his precedent should apply. In that case, the court held that because the land grant was in praesenti, it extended only to public lands owned absolutely by the United States as of the date of the grant. It did not extend to lands that Congress reserved for other purposes, including for the establishment of Indian reservations, even if such lands were later restored to the absolute ownership of the United States by the date of definite location.Footnote 116 Justice Field wrote a dissenting opinion in which he held that the date of definite location was the only important date for defining the extent of the land grant; just as the size of the land grant could be reduced by occurrences after the date of the granting legislation, so too could it be enlarged.Footnote 117 Seventeen years later, in 1892, Justice Field acknowledged, “after a much larger experience in the consideration of public land grants,” that the majority opinion was correct after all.Footnote 118 Interestingly, his rationale was not based on the majority's logical persuasiveness, but rather on what was better for society. As he stated it, the rule holding that “a grant of public lands only applies to lands which are at the time free from existing claims is better and safer, both to the government and to private parties,” than the rule for which he had advocated in 1875.Footnote 119 That Justice Field, one of the leading devotees of the tenets of legal science, changed his mind shows that his science was not determinative; judges still had to make choices. That Justice Field did so explicitly on policy grounds shows that even the most ardent legal scientists could be instrumentalist in their reasoning.
Justice Field's opinion in Schulenberg was not even determinative of the nature of the title that passed in praesenti. During the 1880s, the judiciary continued to struggle with this issue, and each resolution seemed only to make the land laws less—rather than more—intelligible. The Supreme Court failed to clarify the legal milieu. In one line of cases, the court stood firmly for the proposition that the railroad land grant acts passed to the railroad companies a present legal title to the lands, at least to the extent that the government held the fee at the time of the grant.Footnote 120 This interpretation relied principally on the fact that railroad land grants incorporated language of “absolute donation” (“that there be and is hereby granted”).Footnote 121 In another line of cases, the court characterized the title that passed to the railroads as merely an equitable interest, with the government retaining legal title until the railroad met its obligations in paying the expenses of surveying, selecting, and conveying the lands within the grant.Footnote 122
Some lower court federal judges used the resulting legal latitude to disregard—or creatively distinguish—binding Supreme Court precedent. In a few cases decided during the 1880s, Judge Matthew P. Deady of the federal court for Oregon, for example, gained notoriety for his judicial creativity as it came to manipulating precedent from the country's highest court.Footnote 123 In one 1882 case, he reasoned that a section of the Northern Pacific's grant calling for the issuance of patents to the company only after completion of each 25 mile section of railway was a clause “restraining the operation of words of present grant”—quoting Justice Field's language from Schulenberg—so as to render the grant not a present one. Deady further explained that although the grant evidenced the intention of Congress “to set apart and devote the lands in question absolutely to the construction of the Northern Pacific Railroad,” it did not, when taken as a whole, evidence intent “to part with the title” as of the date of the grant, but rather “only so fast as they were earned by completion of the work.”Footnote 124 Deady therefore concluded that the legal title to unearned portions of the grant remained in the United States.Footnote 125 Deady's opinion is striking in its similarities to the arguments Justice Field implicitly rejected in deciding Schulenberg.
Still, Deady's holding was a plausible, albeit strained, reading of Schulenberg. However, it also conflicted with other Supreme Court precedent, including at least one opinion that Justice Field himself also wrote. In an 1878 opinion, Justice Field held a provision containing language identical to that which Deady found to “restrain[] the operation of words of present grant” not to have that effect.Footnote 126 Deady was either unaware of this other opinion or he chose to ignore it.
Even after the Supreme Court reaffirmed the principle that railroad land grants, including the Northern Pacific's, passed present legal titles, Deady doubled down on his previous holding in an 1887 case, United States v. Ordway. In this case, however, he addressed the seeming incompatibility between his interpretation and that of the Supreme Court. In particular, he reasoned that a Supreme Court opinion from just a year earlier that seemingly affirmed the court's prior holdings did not in fact mean what it said. Although acknowledging there to be “language, in the opinion of the [Supreme Court], which, abstracted from its surroundings, may be so construed … as authority for the proposition that the [land grant was] an unqualified present grant of the odd sections included therein, whether earned or unearned,” Deady instead interpreted the opinion as standing for two lesser propositions, both consistent with the titles to unearned lands remaining in the United States.Footnote 127
Only months after Deady's opinion in United States v. Ordway, Justice Field and Deady sat together on the circuit court for the District of Oregon, and they decided a case that again called into question the nature of the Northern Pacific's land grant. Writing for the court, Justice Field took the opportunity to reaffirm the precedent he had helped establish from his seat on the Supreme Court. He first reiterated that “the present title here mentioned is a legal title, as distinguished from an equitable or inchoate interest arising upon a contract or promise of the government,” and that the railroad land grants “transfer a present legal right to the sections designated, which become attached to them specifically whenever they are identified.”Footnote 128 To Justice Field, the Supreme Court had consistently given railroad land grants this same interpretation. He explained that the grant is “in the nature of a float,” with the legal title not becoming “definitely attached to specific sections until they are capable of identification,” at which time, “the title attaches as of the date of the grant, except as to such parcels as in the mean time … have been otherwise appropriated.”Footnote 129
Justice Field dealt specifically with Deady's seemingly inconsistent interpretation. Regarding Deady's argument that the section calling for the issuance of patents only after completion of each 25 miles of road qualified the language of absolute donation, Justice Field reasoned that the issuance of patents, rather than conveying the government's fee title, merely served as evidence of the grantee's title, being in effect “deeds of further assurance” that the railroad had met all the conditions of the grant, confirmation of the grantee's title, and “source[s] of quiet and peace in their possession.”Footnote 130 The government, in other words, used patents not just to convey title to lands, but often as confirmation of a previously existing title, and that was the case in this situation. Regarding Deady's argument that an absolute grant of legal title would allow the Northern Pacific to dispose of lands prior to construction, thereby potentially defeating the ability of the government to complete the railway in the event of the company's failure, Justice Field held that the legal title the company received did not include the power to dispose of it prior to receiving a patent, unless Congress explicitly consented to such disposal.Footnote 131 In legal terms, the present title was a fee simple defeasible, and it only became a perfected, indefeasible fee simple upon completion of the road and receipt of a patent.
Having adequately—at least to his satisfaction—disposed of Deady's arguments, Justice Field then went on the offensive. Citing Congress's 1870 authorization for the Northern Pacific to issue bonds to aid in the construction of the railway and to secure these bonds by mortgaging its land grant, Justice Field argued that Congress could not have allowed this mortgage if the company had no legal title to the lands it was to use as security for investors in the event of default. “To suppose that Congress would sanction such a proceeding,” Field reasoned, “would be to impute to it complicity in a fraud, which cannot be entertained for a moment.”Footnote 132 The conclusion therefore followed, according to Justice Field, that Congress allowed for the mortgage because it had already transferred to the company a legal title to the lands “hereby granted.”Footnote 133 This legal title benefited both parties to the contract in that it secured the application of the property for the construction of the railway and telegraph line, the central purpose of the land grant, and it secured the company's right against the government allocating the lands to other purposes. For these reasons, Justice Field stated that he was compelled to reject “the conclusion of the learned judge [Deady] who is so generally right in his decisions that one may well hesitate to dissent from his judgment.”Footnote 134
Justice Field also felt compelled to clarify the apparent split in Supreme Court jurisprudence regarding the nature of the land grant. Just as 5 years earlier Deady had explained away apparently disparate Supreme Court precedent—including some of Justice Field's opinions—by contending that the court did not mean what it said, Justice Field took the same approach to explaining that the meaning of cases holding the railroad title were merely equitable rather than legal, up to the issuance of the patent. As he insisted, “it is not believed that the court intended to hold that a legal title to the lands had not passed by the grant to the company, and thus overrule or qualify a long line of decisions, announced after the most mature consideration, and discredit the security which … Congress had authorized by mortgage on the lands to raise funds to construct the road.”Footnote 135 Rather, the Supreme Court intended only “to declare that the power of disposition by the grantee was stayed until the payment of [the cost of surveying, selecting, and conveying the lands] was made, and that the right of the government to enforce such payment could not be defeated by the tax laws” of any territory or state.Footnote 136 This declaration, as Justice Field pointed out, was consistent with his interpretation of the nature of the railroad's present title prior to patent issuance; namely, one burdened with a government lien incorporating the terms of the granting act and excluding the right to transfer the legal title.
For his part, Deady avoided an open revolt against Justice Field's views. In an opinion remarkable for its brevity, Deady found the question as to whether the grant was merely an agreement to convey land upon certain conditions precedent, a grant that only takes effect as each 25 mile section of road is completed, or a present grant of legal title with a restraint on the power of alienation until construction to be immaterial to the case before the court. He then concluded with the following statement: “As to all the other points covered by the opinion of the court, I fully concur in both the conclusions and the reasons given in support of them.”Footnote 137 Despite the seeming meeting of minds, because most of Field's opinion dealt with the question that Deady had dismissed as irrelevant, “all the other points” seemingly referred to virtually nothing at all.
In mailing his opinion to Deady, Justice Field confided in him a “good deal of trouble with the opinion,” and he even acknowledged that the trouble was because of the Supreme Court's decisions on grants similar to the Northern Pacific's having “not always been consistent.”Footnote 138 He indicated to Deady that he endeavored to secure the Northern Pacific's lands “against any arbitrary alienation to others attempted by Congress,” while at the same time ensuring that they be devoted to railway construction and not diverted by the Northern Pacific “to other purposes.”Footnote 139 He concluded the letter by proclaiming that he had done his best “to work out what [he] believe[d] to be a just result.”Footnote 140 After Deady had replied with his concurring opinion, Justice Field wrote that he was “glad” that Deady could concur “as far as [he] did,” while also expressing his hopes that the opinion would have “a good effect.”Footnote 141 These letters therefore seem to confirm that the formalistic reasoning employed by Field and other jurists during this era was at least occasionally more of a rationalization than the axis of decision making. Even the most formalistic of judges considered the foreseeable results of their opinions, even if they could not articulate such considerations in their opinions. This revelation might be one reason that 3 years later, Justice Field wrote Deady regarding the “great many letters” he had written Deady during the last quarter of a century, asking that he “destroy them all.”Footnote 142
Deady's opinions caught the attention of at least one federal judge in Montana, Judge Hiram Knowles. In an 1891 opinion, Knowles agreed with Deady that the general language in land grants evidenced a congressional intent not to grant a present legal title, but rather only an equitable title, to the lands included therein; however, Knowles found the preponderance of Supreme Court precedent to favor the opposite conclusion, and, therefore, he reluctantly acknowledged that “the views of the Supreme Court must control this.”Footnote 143
However, in an opinion published 10 days later, Knowles disregarded decades of legal precedent in finding against the Northern Pacific in a case involving the issue of whether mining claims could attach to land after being withdrawn for the benefit of the railroad.Footnote 144 Although both the Land Department and the judiciary, including the Supreme Court, had consistently held that the withdrawal provision operated to exclude lands from any other rights attaching, Knowles held that the section should not “be so construed as to withdraw any land from market until the line of plaintiff's road should be definitely fixed opposite the same, and a plat thereof filed.”Footnote 145 Knowles did not completely ignore precedent, but rather reasoned around it. As to the prior Supreme Court holdings to the effect that the provision “withdraws the land granted from sale and entry or preemption from the time the general route is fixed,” Knowles stated he found them “unsatisfactory,” such that “this court is not precluded” by them.Footnote 146
In his interpretation of the withdrawal provision, Knowles was influenced by the fact that so much time had passed between the date of general location and definite location. “It could hardly have been contemplated,” he wrote, “that it would be eighteen years after the grant was made before the fixed route of that road would be established in Montana.” He rhetorically asked the following question: “Can it be supposed that Congress intended, ten years before the fixed route of plaintiff's road was established, to withdraw the lands granted to plaintiff from market, and leave it to subsequent explorations and surveys to determine what would be the lands granted?”Footnote 147 Clearly the answer to Knowles was “no.” By even asking the question, however, Knowles violated a central tenet of classical legal thought: that words have a fixed meaning independent of context. If legal rules can change their meaning based on changed circumstances, law ceases to be a closed, logical system.
Knowles's opinion surprised all of the parties to the dispute. Neither side had even argued the issue of whether the withdrawal provision excluded lands from pre-emption, sale, or entry. They assumed that point to be settled beyond dispute. Accordingly, the Northern Pacific filed for a re-hearing so that the parties could present arguments on the point. In his argument for the railroad, Fred M. Dudley contended rightly that Knowles's opinion was contrary to precedent and that it rendered the provision effectively meaningless.Footnote 148 Knowles got around Supreme Court precedent by contending that any holdings as to the withdrawal provision were not essential to the disposition of those disputes, and hence not binding. As to the binding effect of administrative rulings, Knowles acknowledged that Land Department practices, especially when they were “begun so early and continued so long, would be in the highest degree persuasive, if not absolutely controlling.” However, he held that to be the case only where there was any “ambiguity” in the statutory language, and Knowles found no such ambiguity in the Northern Pacific land grant. To him, the language was “clear and precise” such that there was “no room for construction”: the provision did not exclude lands from sale, pre-emption, or entry until after definite location.Footnote 149 Knowles did not venture a guess as to how countless members of the judiciary and Land Department had managed to miss something that was so blatantly obvious to him. As to the issue of his interpretation rendering the provision superfluous (and therefore violating a core tenet of statutory construction), Knowles admitted that this was the case. He shrugged off the issue, however, by stating simply that “there is nothing unusual in finding in a statute words which might have been omitted,”Footnote 150 and that rules of statutory construction could be damned.
The Northern Pacific appealed Knowles's decision to the Ninth Circuit Court of Appeals and then to the Supreme Court, both of which upheld the decision, albeit on narrower grounds. Eleven years later, however, the Supreme Court, in another case involving an attempt by the Northern Pacific to eject a settler from a parcel of land, agreed with Knowles that “withdrawn” lands were still open to settlement up to the date of definite location, as long as the settlement was made in good faith. Similarly to Knowles, Justice John Marshall Harlan, in writing for the majority, explained away Justice Field's holdings to the contrary by explaining that “this language is not to be taken literally.”Footnote 151 Unlike Knowles, however, Harlan did not attempt to hide the fact that his interpretation of the Northern Pacific's grant was influenced by the specific equities involved in the case before him. The settler, Harlan noted, “was not a mere trespasser, but went upon the land in good faith, and, as his conduct plainly showed, with a view to residence thereon, not for the purposes of speculation, and with the intention of taking the benefit of the homestead law by perfecting his title under that law, whenever the land was surveyed.”Footnote 152 Moreover, “for 16 years before this action, he maintained an actual residence on this land.”Footnote 153
Harlan was not a classical legal thinker, and he felt no need to pretend that he was. The fact hat Harlan's opinion incorporated such reasoning to overturn a unanimous Supreme Court judgment, one that the Land Department had universally followed for more than 20 years, indicates that the hold of classical legal thought over the judiciary was already beginning to wane as early as 1903, 2 years before the Supreme Court, by a five-to-four vote, issued an opinion that would come to represent the entire era—the “Lochner era”—of jurisprudence.Footnote 154
Conclusion
By the turn of the century, it had become evident to some that legal science had failed in its promise of making law certain, stable, and predictable. As early as 1897, Oliver Wendell Holmes, who would later lead the Supreme Court away from strict formalism, rightly predicted that “certainty … and repose” would not be “the destiny” of American law in the years to come.Footnote 155 The large number of legal cases involving railroad land grants itself indicates the legal uncertainty regarding their provisions.Footnote 156 Where law and the relevant facts are both certain (meaning that disputants agree how a judge will decide), disputants have no reason to assume the costs of litigation in terms of both time and money. They will instead settle based on their mutual understanding of their respective rights and obligations, and hence save the costs of litigation.Footnote 157 In most land grant cases, parties agreed on the facts, such that the only questions typically regarded the law and its application. Apparently, there remained many questions regarding the legal meaning of statutory provisions that Congress had enacted several decades earlier.
Holmes had been critical of classical legal thought from the start. In 1881, for example, he disputed its premise that law was a closed, autonomous system induced and refined through the application of logic free from political influence. As he wrote, “[t]he life of the law has not been logic; it has been experience.”Footnote 158 The experience was one of increasing complexity, not clarity, and this was a foreseeable result of the project. In his 1859 speech, for example, D.D. Field implored the audience to join the project of making American law more “complete,” even as he recognized that making the law “complete”—something he equated with progress or “civilization”—came at the cost of sacrificing simplicity.Footnote 159 He implored the audience,
Ask the man who wonders that there are so many laws, to go with you to the neighboring prairie, and, standing in the door of the farmhouse, with corn-fields and pastures before you, explain to him the title by which the owner holds the land, how far his use is absolute, and how qualified by the rights of his neighbors, or the paramount rights of the State, the relative rights of the wife and husband, the persons who shall succeed when the owner dies, the rights of the adjoining proprietors in the stream which runs through the pasture, the rights of the tenant who tills the meadow, what right the owner has in the shore of the lake, how far he may build into it and on what conditions, the relative rights of himself and the public in the highway before his house, the right which he has to the pew in the church, whose spire shines through the trees, and in the family vault where he expects in due time to be borne.Footnote 160
It was perhaps no accident that D. D. Field used a hypothetical settler on the American frontier to make his point. Both classical legal thought and the United States's public land system incorporated a high level of abstraction and generality. Legal professionals sought to standardize all rules governing social phenomena into set categories of rights, duties, liberties, and liabilities, such that judges and bureaucrats could administer the law objectively, neutrally, and predictably. Similarly, Congress sought to systematize its land holdings to allow for their quick and orderly privatization, primarily in 160 acre blocks, the rationale being that that was the minimum believed to be required to support a family farm. The basic problem for both was that any such system depends upon its lack of detail, and the real world is full of detail. Forms can make the real world legible through abstraction and generalization; however, the substances that the forms represent remain concrete and particular. The blindness of judges and policy makers to the reality of the Western physical, social, and legal geographies would come at a profound cost, one typified by rampant fraud and corruption, the monopolization and depletion of Western resources, and continuing legal uncertainty regarding their exploitation or protection.
