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Railroad Land Grants in an Incongruous Legal System: Corporate Subsidies, Bureaucratic Governance, and Legal Conflict in the United States, 1850–1903

Published online by Cambridge University Press:  13 March 2017

Sean M. Kammer
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Extract

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.” 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.” 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. 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.

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Law and History Review , Volume 35 , Issue 2 , May 2017 , pp. 391 - 432
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Copyright © the American Society for Legal History, Inc. 2017 

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Footnotes

He thanks Will Thomas, Andy Graybill, Sandi Zellmer, Lloyd Ambrosius, Elizabeth Dale, and the anonymous reviews from Law and History Review for their guidance, criticisms, and suggestions.

References

1. Bryce, James, The American Commonwealth, vol. 2 (New York: Macmillan and Co., 1888), 507 Google Scholar.

2. Ibid.

3. See White, Richard, Railroaded: The Transcontinentals and the Making of Modern America (New York: W. W. Norton & Company, 2011)Google Scholar.

4. Pacific Railway Act, 37th Cong., Ch. 120, 12 Stat. 489 (1862).

5. Wilkinson, Charles F., Crossing the Next Meridian: Land, Water, and the Future of the West (Washington, DC: Island Press, 1992), 18, 122Google Scholar; Gates, Paul W., “The Railroad Land-Grant Legend,” Journal of Economic History 14 (1954): 143–46CrossRefGoogle Scholar; Dana, Samuel T., Forest and Range Policy: Its Development in the United States (McGraw–Hill Book Co., 1956), 37–38 Google Scholar.

6. See, for example, Thomas, William G. III, The Iron Way: Railroads, the Civil War, and the Making of Modern America (New Haven: Yale University Press, 2011)Google Scholar.

7. See, for example, Norris, Frank, The Octopus: A Story of California (New York: Doubleday, Page & Co., 1901)Google Scholar. See also Kammer, Sean M., “No Trespassing: Railroad Land Grants, the Right of Exclusion, and the Origins of Federal Forest Conservation,” North Dakota Law Review 90 (2014): 90 Google Scholar (“By the end of the nineteenth century, railroads had come to be seen not only as manifestations of the growth of corporate power in the United States, but also as representative of the federal government's nineteenth century approach to public lands, the failures and corrupt implementation of that approach, and the apparent threat of resource depletion that resulted.”). Wilkinson characterized the “main thrust” of such policies as being the desire “to transfer public resources into private hands on a wholesale basis in order to conquer nature.” Wilkinson, Crossing the Next Meridian, 18.

8. Parrington, Vernon Louis, Main Currents in American Thought, vol. 3 (New York: Harcourt Brace And Co., 1927), 23 Google Scholar.

9. See, for example, Brown, Richard Maxwell, ed., American Violence (Englewood Cliffs, NJ: Prentice–Hall, 1970)Google Scholar; Madison, Arnold, Vigilantism in America (New York: Seabury Press, 1973)Google Scholar; Brown, Richard Maxwell, ed., Strain of Violence: Historical Studies of American Violence and Vigilantism (New York: Oxford University Press, 1975)Google Scholar; Burrows, William E, Vigilante! (New York: Harcourt Brace Jovanovich, 1976)Google Scholar; Culberson, William C., Vigilantism: Political History of Private Power in America (Westport, CT: Greenwood Press, 1990)Google Scholar.

10. I refer here to Frank Norris's novel The Octopus.

11. Paul Wallace Gates once argued that the railroads’ administration of land grants had more to do with producing the settler-railroad conflicts of the late nineteenth century than the railroad's shady financial dealings, alleged rate-fixing, or accumulation of political power did. See Gates, Paul Wallace, Fifty Million Acres: Conflicts Over Kansas Land Policy, 1854–1890 (Norman: University of Oklahoma Press, 1997)Google Scholar.

12. See Stover, John F., The Life and Decline of the American Railroad (Oxford University Press, 1970)Google Scholar; Stover, John F., American Railroads, 2nd ed. (University Of Chicago Press, 1997)CrossRefGoogle Scholar.

13. Klein, Maury, Unfinished Business: The Railroad in American Life (Hanover, NH: University Press of New England, 1994), 141 Google Scholar. For specific works on the Union Pacific, see Klein, Union Pacific: The Birth of a Railroad, 1862–1893 (New York: Doubleday, 1987)Google Scholar; and Klein, Union Pacific: The Rebirth 1894–1969 (New York: Doubleday, 1989)Google Scholar. These works are primarily corporate, administrative, and economic histories with an emphasis on key figures. Klein has also published a biography of Harriman, Edward H., The Life and Legend of E. H. Harriman (Chapel Hill: University of North Carolina Press, 2000)Google Scholar, using some private manuscript sources made available for the first time to Klein.

14. See generally Thomas, William G. III, Lawyering for the Railroad: Business, Law, and Power in the New South (Baton Rouge: Louisiana State University Press, 1999)Google Scholar.

15. See generally Welke, Barbara Young, Recasting American Liberty: Gender, Race, Law, and the Railroad Revolution, 1865–1920 (New York: Cambridge University Press, 2001)Google Scholar.

16. See generally Ely, James W., Railroads and American Law (University Press of Kansas, 2001)Google Scholar (quotation at vii). Other recent works exploring railroads’ impact on broader society include Deverell's, William Railroad Crossing: Californians and the Railroad, 1850–1910 (Berkeley: University of California Press, 1994)CrossRefGoogle Scholar (a cultural and political history that explored why and how various socioeconomic groups in California opposed the Southern Pacific and the impact of their opposition efforts on California politics); and Usselman's, Steven W. Regulating Railroad Innovation: Business, Technology, and Politics in America, 1840–1920 (New York: Cambridge University Press, 2002)CrossRefGoogle Scholar (arguing that in the period from 1876 to 1904, the railroad experience of embracing those technical innovations consistent with an efficient and orderly railroad operation while rejecting those that threatened to disrupt those rules inspired the Progressive image of an efficient, well-run society attainable through rational and scientific management and provided a model for bureaucracies necessary to implement that vision on a grand scale).

17. Orsi, Richard J., Sunset Limited: The Southern Pacific Railroad and the Development of the American West, 1850–1930 (Berkeley: University of California Press, 2007), xiv–xvGoogle Scholar. Until very recently, scholars have largely neglected the impacts of railroads on natural resources law or policy. A notable exception is Olson's, Sherry H. The Depletion Myth: A History of Railroad Use of Timber (Cambridge, MA: Harvard University Press, 1971)CrossRefGoogle Scholar. Her central argument in that work was that the most important responses to the threat of depletions were made by the “major industrial consumers of wood, not by forest owners, managers or lumber producers” in the form of “investments in research … in the use of wood and its substitutes.” Olson, The Depletion Myth, 3. See also Yonce, Frederick J., “Lumbering and the Public Timberlands in Washington: The Era of Disposal,” Journal of Forest History 22 (1978): 4–17 CrossRefGoogle Scholar (contending that the Northern Pacific land grant “had a major impact on timber protection, land availability, and concentration that is seldom recognized,” and that “the picture that emerges in Washington is much more complex and much less ethically clear-cut than that of wholesale theft, fraud, and monopoly”). Accordingly, Olson's work focused on the railroads as consumers of timber products rather than as suppliers, producers, or managers of natural resources, and she grounded her analysis in the economic realities of supply and demand. More recently, Alfred Runte published a cultural and environmental history that examined the profound role of the railroads in creating and maintaining national parks throughout the West. Runte, Alfred, Allies of the Earth: Railroads And the Soul of Preservation (Kirksville, MO: Truman State University Press, 2006)Google Scholar. Runte argued that railroads, by providing the American public access to “nature” and by making it a shared experience, not only fostered the public's growing appreciation for nature but also strengthened the bonds of fraternity and nationalism.

18. See generally White, Railroaded.

19. See generally Thomas, Iron Way.

20. Scott, James C., Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed (New Haven, CT: Yale University Press, 1998)Google Scholar.

21. Latour, Bruno, The Making of Law: An Ethnography of the Conseil d'Etat (Malden, MA: Polity, 2010)Google Scholar.

22. Latour, Making of Law, 262–63 (emphasis added). As Latour described it, “law plunges into everything without having its own domain.” Latour, Making of Law, 263.

23. Federal public lands arguably date to December of 1783, when Virginia ceded its claims in the north and west of the Ohio River. I use the term “arguably” because much if not all of Virginia's claims were also claimed by one or more other states, including Connecticut, Massachusetts, or New York. Two years later, in 1875, Congress passed a law that would influence and constrain natural resource management up until today. Credited largely to Thomas Jefferson, this law, the Land Ordinance of 1785, established the rectangular survey system that would later be extended to virtually all of the land that the United States later acquired. Land was to be divided into 36 square mile townships, with each township being further divided into numbered “sections” of 640 acres (1 square mile) each. Continental Congress, Journal of the Continental Congress, 28 (1785), 375 Google Scholar.

24. Ibid. Land historian Vernon Carstensen identified the 1785 ordinance as being “of primary importance in the history of the public domain.” Carstensen, “Introduction,” in The Public Lands: Studies in the History of the Public Domain, ed. Carstensen, Vernon (Madison: University of Wisconsin Press, 1963), xvGoogle Scholar.

25. Continental Congress, Journal of the Continental Congress, 28 (1785), 375 Google Scholar.

26. Carstensen, Public Lands, xvi.

27. Scott, Seeing Like a State, 44.

28. Ibid.

29. Thomas Jefferson, who many see as the architect of the United States’ land system, made important––and woefully incorrect––assumptions regarding the American continent west of the Appalachians, in particular concerning its potential for agricultural productivity. See Allen, John Logan, “Imagining the West: The View from Monticello,” in Thomas Jefferson and the Changing West, ed. Ronda, James P. (Albuquerque: University of New Mexico Press, 1997), 3–23 Google Scholar.

30. The federal government also recognized early on a secondary policy of using the public domain to support public purposes such as education. That is why the Land Ordinance of 1787 provided that one section of each township covered by that act be reserved for the benefit of “common schools.” Similar provisions were later incorporated into land laws covering most of the rest of the public domain.

31. Preemption Act of 1841, 27th Congress, Ch. 165, 5 Stat. 453 (September 4, 1841).

32. Ibid.

33. See Homestead Act of 1862, 37th Cong., Ch. 75, 12 Stat. 392 (May 20, 1862); and General Mining Law of 1872, 42nd Cong., Ch. 152, 17 Stat. 91 (May 10, 1872).

34. Homestead Act of 1862, 37th Cong., Ch. 75, 12 Stat. 392 (May 20, 1862).

35. Morrill Act of 1862, 37th Cong., Ch. 130, 12 Stat. 503 (July 2, 1862).

36. Pacific Railway Act of 1862, 37th Cong., Ch. 120, 12 Stat. 489 (July 1, 1862).

37. See Greever, William S., “A Comparison of Railroad Land-Grant Policies,” Agricultural History 25, no. 2 (1951): 83–84 Google Scholar.

38. Whether the “checkerboard” provision actually paid for the subsidy has been a matter of some scholarly debate. See Gates, “Railroad Land-Grant Legend,” 143–46; and Greever, “A Comparison of Railroad Land-Grant Policies,” 83–84.

39. See Dana, Forest and Range Policy, 36–37; Ellis, David Maldwyn, “The Forfeiture of Railroad Land Grants, 1867–1894,” Mississippi Valley Historical Review 33 (1946): 27 CrossRefGoogle Scholar.

40. See Pacific Railway Act of 1862, 37th Cong., Ch. 120, 12 Stat. 489 (July 1, 1862).

41. Pacific Railway Act of 1864, 38th Cong., Ch. 216, 13 Stat. 356 (July 2, 1864).

42. Northern Pacific Railway Act of 1864, 38th Cong., Ch. 217, 13 Stat. 365 (July 2, 1864). During the following 7 years, Congress granted land for the construction of two additional “transcontinentals,” both to the south of the Union Pacific–Central Pacific line. I put this term in quotation marks because it is a bit of a misnomer, in that the railroads themselves did not cross the entire continent but rather merely connected to a railway system that did. They thus comprised parts, albeit substantial parts, of transcontinental routes, but were not themselves transcontinental. That the railroad promoters desired Portland as a terminus of a branch line was likely because of the growth of Portland in the decade prior to 1864, during which it had grown from a “mere hamlet” to a “thriving metropolis.” This branch line therefore can be seen as a recognition by the Northern Pacific of Portland's growing importance and of the need to “discourage her interest in any other railway connection.” Hedges, James Blaine, Henry Villard And The Railways Of The Northwest (Literary Licensing, LLC, 2012), (New Haven: Yale University Press, 1930) 19–20 Google Scholar.

43. At the time, the only state along the designated route was Minnesota.

44. That certain Northern Pacific officials had ownership interests in the Tacoma Land Company was a key reason that the company selected that city as its Western terminus. Ellis, “Forfeiture of Railroad Land Grants,” 46.

45. Gates, Paul Wallace, History of Public Land Law Development (Washington, DC: Government Printing Office, 1968), 363 Google Scholar.

46. See, generally, White, Railroaded.

47. White, Railroaded, xxviii.

48. “Editorial Note,” Morning Oregonian, May 14, 1870.

49. Joint Resolution, 40th Cong., Res. No. 15, 15 Stat. 346 (March 1, 1869).

50. Joint Resolution, 41st Cong., Res. No. 20, 16 Stat. 57 (April 10, 1869).

51. Joint Resolution, 41st Cong., Res. No. 67, 16 Stat. 378 (May 31, 1870). Congress added a requirement that any lands granted that had not yet been sold or disposed of at the expiration of 5 years after the entire road's completion be opened up for settlement and pre-emption, “like other lands,” with the price being paid to the company not exceeding $2.50 per acre, and that in the event that the mortgage was enforced through foreclosure, any sales of lands by the trustee be at a public auction, in single sections, and to the highest and best bidder.

52. Gates, Public Land Law Development, 380. The resolution was known as the “Holman Resolution,” and it passed the House on March 21, 1870.

53. Texas Pacific Railway Act of 1871, 41st Cong., Ch. 122, 16 Stat. 573 (March 3, 1871).

54. See Gates, Public Land Law Development, 380.

55. George, Henry, Our Land and Land Policy, National and State (White & Bauer, San Francisco, 1871), 8 Google Scholar.

56. See Dana, Forest and Range Policy, 37–38; Ellis, “Forfeiture of Railroad Land Grants,” 27.

57. Ellis, “Forfeiture of Railroad Land Grants,” 28.

58. Hurst, James Willard, Law and Economic Growth: The Legal History of the Lumber Industry in Wisconsin, 1836–1915 (Cambridge, MA: Harvard University Press, 1964), 23 Google Scholar. Gates agreed with Hurst's interpretation. Gates, History of Public Land Law Development; See also Sanborn, John Bell, Congressional Grants of Land in Aid of Railways (Madison: University of Wisconsin, 1899)Google Scholar.

59. In 1871, Henry George, a vocal critic of the federal government's lavish land policies, summarized the arguments of railroad land grant proponents as follows: “‘Here are thousands of square miles of fertile land,’ cries an eloquent Senator, ‘the haunt of the bear, the buffalo and the wandering savage, but of no use whatever to civilized man, for there is no railroad to furnish cheap and quick communication with the rest of the world. Give away a few millions of these acres for the building of a railroad and all this land may be used. People will go there to settle, farms will be tilled and towns will arise, and these square miles, now worth nothing, will have a market and a taxable value, while their productions will stream across the continent, making your existing cities still greater and their people still richer; giving freight to your ships and work to your mills.’” George, Our Land and Land Policy, 9.

60. Hurst, Law and Economic Growth, 125–42.

61. Perhaps the most notorious example of this was the depletion of forests in the upper Midwest over the latter half of the nineteenth century. See generally Hurst, Law and Economic Growth.

62. See, for example, Northern Pacific Railway Act of 1864, 38th Cong., Ch. 217, 13 Stat. 365 (July 2, 1864).

63. Between 1785 and 1880, Congress passed approximately 3,500 public land laws, with 241 of those occurring between March of 1869 and March of 1875 alone. Carstensen, Public Lands, xxii.

64. Conover, Milton, The General Land Office: Its History, Activities and Organization (Baltimore: Johns Hopkins Press, 1923), 35–48 Google Scholar.

65. Gates, History of Public Land Law Development, 380, citing Rae, John Bell, The Development of Railway Land Subsidy Policy in the United States (New York: Arno Press, 1979)Google Scholar.

66. Ellis, “Forfeiture of Railroad Land Grants,” 32–33.

67. Appleman, Roy E., “Timber Empire from the Public Domain,” Mississippi Valley Historical Review 26 (1939): 194 CrossRefGoogle Scholar.

68. See United States General Land Office, Annual Report of the Commissioner of the General Land Office, 1873 (Washington, DC: Government Printing Office, 1873), 14 Google Scholar (noting that the resolution of settler–railroad conflicts “forms a large part of the business of the new [railroad] division”). The number of statutes Congress passed correlated closely with the number of cases before the GLO, Interior, and the courts, and there were a great many statutes. See Mooney, Ralph James, “The Deady Years, 1859–1893,” in The First Duty: A History of the U.S. District Court for Oregon, ed. Buan, Carolyn M (Portland: U.S. District Court of Oregon Historical Society, 1993)Google Scholar.

69. United States General Land Office, Annual Report of the Commissioner of the General Land Office, 1877 (Washington, DC: Government Printing Office, 1877), 1–3 Google Scholar.

70. Docket, 1885–1899, Northern Pacific Railway Company records, Land Department records, Land Cases, Minnesota Historical Society, St. Paul, MN.

71. Dunham, Harold H., “Some Crucial Years of the General Land Office, 1875–1890,” in Public Lands: Studies in the History of the Public Domain, ed. Carstensen, Vernon (Madison: University of Wisconsin Press, 1963), 117–41Google Scholar.

72. Ibid.

73. Ibid. See also Nelson, William E., The Roots of American Bureaucracy: 1830–1900 (Cambridge, MA: Harvard University Press, 1982), 28 Google Scholar (arguing that the GLO “gained added importance because they gave rise to disputes requiring administrative and sometimes congressional adjudication”).

74. Commissioners of the GLO and secretaries of the Interior Department occasionally sought the advice of the attorney general's office in issuing both legal opinions in resolving particular cases and circulars to the land office for administering the land grants in light of such opinions.

75. Schulenberg v. Harriman, 88 U.S. 44 (1874).

76. Ellis, “Forfeiture of Railroad Land Grants,” 30.

77. Central Pacific v. Nevada (January 15, 1873), in Copp, Henry Norris, Public Land Laws Passed by Congress from March 4, 1869, to March 3, 1875: With the Important Decisions of the Secretary of the Interior, and Commissioner of the General Land Office, the Land Opinions of the Attorney General, and the Circular Instructions Issued Form the General Land Office to the Surveyors General and Registers and Receivers During the Same Period (Washington, DC: Henry N. Copp, 1875), 426 Google Scholar.

78. See the secretary of interior's decision in Daniel Freeman v. Union Pacific, issued on April 29, 1871, in which he held “[t]he grant was a present grant, but in the nature of a float until the line of the road was ‘definitely fixed;’ when definitely fixed it became operative and title vested.” Copp, Public Land Laws (1875), 426. See also Central Pacific v. Nevada, issued on January 15, 1873 and affirmed on appeal by Secretary, June 3, 1874. In that opinion, the Commissioner wrote the following: “From the foregoing it is clear that the grant became effective upon the definite fixing of the line of road, and that the Company could have no interest in the land prior to that date, thus rejecting the view contended for by the Railroad Company.” Copp, Public Land Laws (1875), 426.

79. Re: Northern Pacific R. R. (March 15, 1873), in Copp, Public Land Laws (1875), 377.

80. Copp, Public Land Laws (1875), 378.

81. Ibid.

82. Ibid.

83. This has become a principal rule of statutory construction for courts.

84. Copp, Public Land Laws (1875), 379. Smith cited several sources for the proposition that legislation must be construed as giving“force and effect, if possible, to all of its parts,” with no two provisions being “construed to mean the same thing, if a separate meaning can be assigned to each.”

85. The commissioner had reasoned that the withdrawal provision had meaning only in placing unsurveyed land in the same class as surveyed lands under the grant, and protecting the company's rights as to odd sections before survey. According to Smith, the clause was unnecessary as to that purpose, because the right of the Company attached to each class on definite location based solely on the granting language in another section.

86. Copp, Public Land Laws (1875), 379.

87. Ibid.

88. Copp, Public Land Laws (1875), 380.

89. Latimer et al. v. Burlington & Missouri River R.R. Co. (May 4, 1872), in Copp, Public Land Laws (1875), 402.

90. Boyd v. Burlington & Missouri R.R. Co. (July 21, 1871), in Copp, Public Land Laws (1875), 392. After major holdings, especially including those that modified prior interpretations, the Commissioner typically sent the registers and receivers circulars explaining the new interpretation and how best to implement it. In this instance, Commissioner Willis Drummond sent out a circular on November 7, 1871 calling their attention to the secretary's recent holding and instructing them on how to incorporate it into their daily dealings. See Circular, Commissioner Willis Drummond to Registers and Receivers, November 7, 1871, in Copp, Public Land Laws (1875), 405.

91. The Land Department later would grapple with the question as to whether the homestead claim had to be “valid” as of the date of definite location to be excluded from a railroad land grant. The secretary held, in a May 1, 1872 case, that a homestead claim, in order to except the tract, “must have been valid and subsisting, or in other words, one capable of being perfected, at the date of the definite location of the road.” Atchison, Topeka and Santa Fe R.R. Co. v. Catlin (May 1, 1872), in Copp, Public Land Laws (1875), 394. However, in an 1878 opinion, Secretary Schurz disagreed with his predecessor. He interpreted Boyd as meaning that “if a homestead claim attached to the land at the date of definite location, it was excepted from the operation of the grant.” Reasoning that a homestead claim attached as of “entry” even where the homestead claim was later shown to be invalid, Schurz held that even invalid claims excepted land from railroad land grants. Stainbrook v. Atchison, Topeka, and Santa Fe R.R. Co. (August 14, 1878), in Copp, Henry Norris, Public Land Laws Passed by Congress from March 4, 1875, to April 1, 1882: With the Important Decisions of the Secretary of the Interior, and Commissioner of the General Land Office, the Land Opinions of the Attorney General, and the Circular Instructions Issued Form the General Land Office to the Surveyors General and Registers and Receivers During the Same Period (Washington, DC: Henry N. Copp, 1883), 845–46Google Scholar.

92. Sargents, Treadways et al. v. Western Pacific R.R. Co. (March 7, 1871), in Copp, Public Land Laws (1875), 422.

93. Copp, Public Land Laws (1875), 422.

94. Copp, Public Land Laws (1875), 402.

95. Schulenberg v. Harriman, 88 U.S. 44, 62 (1874). Years later, Field expanded upon this holding: “The route not being at the time determined, the grant was in the nature of a float, and the title did not attach to any specific sections until they were capable of identification; but, when once identified, the title attached to them as of the date of the grant, except as to such sections as were specifically reserved. It is in this sense that the grant is termed one in praesenti; that is to say, it is of that character as to all lands within the terms of the grant, and not reserved from it at the time of the definite location of the route. This is the construction given to similar grants by this court, where the question has been often considered; indeed, it is so well settled as to be no longer open to discussion.” St. Paul & P.R. Co. v. Northern Pacific, 139 U.S. 1, 5–6 (1891).

96. Field, David Dudley, “Magnitude and Importance of Legal Science,” in Speeches, Arguments, and Miscellaneous Papers of David Dudley Field, ed. Sprague, Abram P. (New York: D. Appleton and Company, 1884), 527 Google Scholar.

97. Wiecek, William M., The Lost World of Classical Legal Thought: Law and Ideology in America, 1886–1937 (New York: Oxford University Press, 1998), 91 CrossRefGoogle Scholar.

98. Gordon, Robert W., “Law and Lawyers in the Age of Enterprise,” in Professions and Professional Ideology in America, ed. Geison, Gerald (Chapel Hill, NC: University of North Carolina Press, 1983), 89 Google Scholar (emphasis added). As another scholar has summarized it, legal science was “an aspiration to universality, certainty, and truth, achieved through techniques of systematic investigation and inductive reasoning.” Wiecek, Lost World of Classical Legal Thought, 90–91.

99. Field, “Magnitude and Importance,” 530.

100. Horwitz, Morton J., Transformation of American Law, 1870–1960: The Crisis of Legal Orthodoxy (New York: Oxford University Press, 1994), 10 Google Scholar

101. Ibid., 9. See also Delaney, David, Law and Nature (New York: Cambridge University Press, 2003), 9 CrossRefGoogle Scholar (characterizing classical legal thought as a compelling example of how law, as a state-centered institution, has always been impacted by its own internal concerns and commitments; namely, the effort to depoliticize––and hence legitimize––law's role in allocating scarce resources).

102. Delaney, Law and Nature, 21. Another way of phrasing the effort to separate law from politics is that it was an effort “to reconcile sovereign power and legal right without subordinating one to the other. Kennedy, Duncan, The Rise and Fall of Classical Legal Thought (Washington, DC: Beard Books, [1975] 2006), 76 Google Scholar.”

103. See Kennedy, Rise and Fall, 2.

104. Field, “Magnitude and Importance,” 529.

105. Ibid., 530.

106. Ibid., 530.

107. See Horwitz, Transformation of American Law, 1870–1960, 10–11.

108. Schulenberg v. Harriman, 62.

109. Ibid., 60–61 (citing Rutherford v. Greene's Heirs, 15 U.S. 196 [1817]).

110. Schulenberg, 61 (citing Lessieur v. Price, 53 U.S. 59 (1851)).

111. Schulenberg, 61.

112. Ibid., 60.

113. Ibid., 53 (emphasis added).

114. See, for example, Holmes, Oliver Wendell, “The Path of the Law,” in The Collected Works of Justice Holmes: Complete Public Writings and Selected Judicial Opinions of Oliver Wendell Holmes, vol. 3, ed. Novick, Sheldon M. (Chicago: University of Chicago Press, 1994), 398 Google Scholar; McCloskey, Robert G., American Conservatism In The Age Of Enterprise: a study of William Graham Sumner, Stephen J. Field, and Andrew Carnegie (Cambridge, MA: Harvard University Press, 1951)CrossRefGoogle Scholar; Horwitz, Morton J., The Transformation of American Law, 1780–1860 (Cambridge, MA: Harvard University Press, 1977), 253–55CrossRefGoogle Scholar. Hovenkamp, Compare Herbert, Enterprise and American Law, 1836–1937 (Cambridge, MA: Harvard University Press, 1991)CrossRefGoogle Scholar (arguing that classical economic theory, which dominated American economic thought from the Jacksonian era to the New Deal, influenced law's resolution of economic issues during that time period more than interest group politics).

115. See Gordon, Robert W., “Legal Thought and Legal Practice in the Age of American Enterprise, 1870–1920,” in Professions and Professional Ideologies in America, ed. Geison, Gerald L (Chapel Hill: University of North Carolina Press, 1983), 92 Google Scholar.

116. Leavenworth, Lawrence, and Galveston R. Co. v. United States, 92 U.S. 733, 745 (1875).

117. Ibid., 757–58.

118. Bardon v. Northern Pacific, 145 U.S. 535, 543 (1892).

119. Ibid.

120. Schulenberg, 44; Leavenworth, Lawrence, and Galveston R. Co., 733 (1875) (“They [the railroad land grants] vest a present legal title in [the grantee], though a survey of the lands and a location of the road are necessary to give precision to it, and attach it to any particular tract.”); Wood v. Railroad Co., 104 U.S. 329 (1881); and Buttz v. Northern Pacific, 119 U.S. 66 (1876) (The grant “operat[ed] to pass the fee of the land to the company…The grant conveyed the fee subject to [the Indians’] right of occupancy,” and “the railroad company took the property with this incumbrance.”).

121. See, for example, Pacific Railway Act of 1864, 13 Stat. 356, 367.

122. See Railway Co. v. Prescott, 83 U.S. 603 (1872); Railway Co. v. McShane, 89 U.S. 444 (1874); and Railroad Co. v. Traill Co., 115 U.S. 600 (1885). This line of reasoning, however, seems only to have been implemented in cases involving the states’ authority to tax railroad land grants prior to the railroads’ receiving patents, in order to block the states from taxing lands prior to railroad construction and the costs of implementing the grant paid. That the railroads were freed from tax obligations arising from their ownership interests in lands prior to the lands being surveyed and their receiving patents to the lands likely contributed to the massive delays in both land surveys and patent issuance. A large portion of the lands within land grants in the Pacific Northwest were not patented until the 1890s, despite the railways having been completed years (or even a decade) earlier. In all other cases, courts seemed to accept that the railroads possessed, from the date of the respective land grants, legal titles to the land, legal titles that remained afloat until definite location, when they could then be applied to specific tracts of land. In other words, the grant passed a present legal title in fee to the railroad company, except when it did not.

123. See Northern Pacific v. Cannon, 46 Fed. Rep. 224, 228–29 (D. Mont. 1891).

124. U.S. v. Childers, 12 Fed. Rep. 586, 588 (D. Or. 1882). To Deady, other sections in the act allowing the government to take construction of the railway into its own hands if the Northern Pacific failed in its obligations confirmed his view. This power, Deady contended, was “incompatible with the idea of an absolute grant to the corporation in praesenti that would entitle it to dispose of, encumber, or squander the lands in advance of the construction of the road, and thereby prevent the United States from completing it by this means in the contingency contemplated.” Childers, 588.

125. The practical result was that the Northern Pacific––or, in this case, another party under contract to purchase land from the Northern Pacific––could be held liable for cutting timber on granted lands prior to the railroad receiving patent to them.

126. See MO-KATY v. Kansas Pacific, 97 U.S. 491, 493 (1878).

127. U.S. v. Ordway, 30 Fed. Rep. 30, 35 (D. Or. 1887). In this case, Judge Deady also criticized Congress for failing to take action to forfeit unearned grant lands. Such action would have been taken, he lamented, if not for “the irrational conduct of certain persons in congress, who stubbornly insist that no part of the grant west of the Missouri river shall be forfeited, unless the bill includes the earned as well as the unearned lands.” Interestingly, in his diary entry for the day he finished writing the opinion, Deady had more to say about his reading of John Keats's poetry (including how Keats seemed “more at home … in the Grecian myths than in the Gothic ones”) and Hubert H. Bancroft's histories (assessing his recent work as repetitive, as “making mountains out of mole hills,” and as having an inappropriate tone of “mocking levity”) than about his own legal opinion. Matthew Paul Deady, Pharisee among Philistines: The Diary of Judge Matthew P. Deady, 1871–1892 (Portland: Oregon Historical Society, 1975), 513 Google Scholar.

128. Denny v. Dodson, 32 Fed. Rep. 899 (D. Or. 1887).

129. Ibid., 903.

130. Ibid., 905–6.

131. Ibid.

132. Ibid., 906.

133. Ibid., 907.

134. Ibid.

135. Ibid., 909.

136. Ibid.

137. Ibid., 911.

138. Stephen Field to Matthew P. Deady, November 17, 1887, Matthew P. Deady Papers, MSS 48, Oregon Historical Society Research Library, Portland, OR (hereafter “OHS”). Prior to issuing it, he even submitted it to a few associates––Bradley, Matthews, and Miller––on the Supreme Court, to make sure that no changes were necessary.

139. Ibid.

140. Ibid.

141. Ibid.

142. Ibid.

143. Cannon, 228–29.

144. The case was an ejectment case brought by the Northern Pacific against James U. Sanders, Junius G. Sanders, Wilbur E. Sanders, and Sarepta M. Sanders for the possession of a section of land near Helena, Montana. The parcel of land at issue was within 40 miles of the railroad's map of general location, filed on February 21, 1872, and, therefore, among those withdrawn from sale, pre-emption, or entry. See Complaint, Transcript of Record, Supreme Court of the United States, no. 390, October term, 1894, Northern Pacific Railroad Co. v. Junius G. Sanders et al. (hereafter “Sanders Transcript”) http://gdc.gale.com/products/the-making-of-modern-law-u.s.-supreme-court-records-and-briefs-1832-1978/, 5 (July 22, 2014),

145. Northern Pacific v. Sanders, 46 Fed. Rep. 239, 249 (D. Mont. 1891).

146. Ibid. Field had interpreted Northern Pacific's withdrawal provision to exclude lands from sale, pre-emption, or entry in at least two Supreme Court opinions in the previous 5 years. Buttz, 71-72; and St. Paul & Pacific R. Co. v. Northern Pacific, 139 U.S. 1, 17–18 (1891) (“The Northern Pacific act directed that the President should cause the lands to be surveyed 40 miles in width on both sides of the entire line of the road, after the general route should be fixed, and as fast as might be required by the construction of the road; and provided that the odd sections of lands granted should not be liable to sale, entry, or pre-emption before or after they were surveyed, except by the company. They were, therefore, excepted by that legislation from grants, independently of the withdrawal by the Secretary of the Interior. His action in formally announcing their withdrawal was only giving publicity to what the law itself declared. The object of the withdrawal was to preserve the land unincumbered [sic.] until the completion and acceptance of the road.”)

147. Northern Pacific v. Sanders, 46 Fed. Rep. 247.

148. Motion for Rehearing, Sanders Transcript, 40–41.

149. Northern Pacific v. Sanders, 47 Fed. Rep. 604, 608–09 (D. Mont. 1891).

150. Ibid., 612.

151. Nelson v. Northern Pacific, 188 U.S. 108, 120 (1903).

152. Ibid., 121.

153. Ibid.

154. Lochner v. New York, 198 U.S. 45 (1905).

155. Nelson, Roots of American Bureaucracy, 147.

156. In 1894, for example, that company's land attorney reported 134 land grant cases either pending in or resolved by the courts over the previous year and well over 1,000 pending before the Land Department. James McNaught, Memorandum, August 15, 1894, Northern Pacific Collection, Law Series, Land Litigation Files, Box 1, Folder 20, Minnesota Historical Society, St. Paul, MN.

157. See Priest, George L. and Klein, Benjamin, “The Selection of Disputes for Litigation,” Journal of Legal Studies 13 (1984): 1–55 CrossRefGoogle Scholar.

158. Oliver Wendell Holmes Jr., The Common Law (1881) http://www.gutenberg.org/ebooks/2449 (January 6, 2014).

159. Field, “Magnitude and Importance,” 523. To Field, it was the task of the legal profession to make sense of the morass through the learning and development of legal science, including at institutions of higher learning. It is no accident that the rise of legal science and classical legal thought accompanied the rise in formal legal education.

160. Ibid.