HISTORY OF THE SUPREME COURT
OF THE UNITED STATES
THE SUPREME COURT UNDER CHIEF
JUSTICE TANEY (CONTINUED)
On the same day that the appointment of Taney as Chief Justice, was confirmed by the Senate, March 15, 1836, that of Philip P. Barbour, as Associate Justice to succeed Justice Duvall, was also confirmed. Barbour by views and interests was associated with the landed class. His father, Thomas Barbour, had inherited considerable wealth, and had been a member of the old House of Burgesses of Virginia. On the maternal side, Philip P. Barbour was related to Judge Edmund Pendleton, whose operations as President of the Loyal Company have been referred to in Chapter I and elsewhere. Thomas Barbour, it is related, met with reverses, but seems to have recouped himself by securing a landed estate in Kentucky.
We have hitherto described how Charles Willing of Philadelphia obtained 32,000 acres of land in Kentucky, in 1784, on certain treasury warrants. It appears that Thomas Barbour by means of voiding that entry on the ground of its being illegal, secured legal title to a large portion of that area and that his possession was officially acknowledged. Then had come Humphrey Marshall, Federalist United States Senator from Kentucky, and a cousin of Chief Justice Marshall, with interconnected claims of his own. He asserted that, previous to Willings entry, he had acquired title to 12,313 acres of the land claimed by Willing. He freely admitted that his claim rested upon an entry made by an intermediary, one Isaac Holbert. Also he averred that he had subsequently acquired an interest in Barbours patent. The dispute crystallized into an action at-law between Willings heirs, on the one part, and Marshall and associates, on the other. The decision, by Chief Justice Marshall, in the Supreme Court of the United States, in 1831, went in favor of Senator Humphrey Marshall, thus sustaining the Barbour patent.1
Associate Justice Barbour had, as a student and lawyer, been a close, diligent and conscientious reader of law, but it was the medieval law, and the outgrowths of that species of law (such as we have described), that he had imbibed. When he became Associate Justice, he was fifty-three years old ; he, like the other members of the Supreme Court, was unalterably impregnated with his class creed. His views were soon bodied forth in that famous dictum of his in an opinion of the Supreme Court, written by him in 1837. The case involved the constitutionality of a restrictive immigration act passed by the New York Legislature. In holding that it was constitutional, Justice Barbour declared, We think it as competent and as necessary for a State to provide precautionary measures against the moral pestilence of paupers, vagabonds and possibly convicts, as it is to guard against physical pestilence, etc.2 But a power greater then the Supreme Court made this dictum a dead letter. That power was the capitalist class, the interests and development of which demanded a never-ending supply of surplus labor, so as to be able to command the wage market on its own terms.
Packing the Supreme Court.
Before Jacksons election the Supreme Court of the United States had been, as we have seen, pro Bank of the United States. As fast as the old members of that court died or resigned, Jackson had appointed as their successors politicians whose opposition to the Bank of the United States was assured. Never had the fact that the Supreme Court was essentially a political body been more frankly evident than during the administrations of Jackson and Van Buren. The taunt of Jacksons opponents that the Democrats were packing the Supreme Court with pro-State-bank and pro-slavery men was fully justified by the facts.
As the composition of the Supreme Court stood in 1836, five of the seven judges were Jacksons appointees. Shortly afterward, on March 3, 1837, Congress passed an act increasing the number of Supreme Court judges to nine ; this measure was expressly enacted to insure a majority on the Supreme Court bench favorable to State banks and to negro slavery. So far as the landed interests were concerned, no change was necessary ; the Supreme Court appointees, after Marshalls death, favored the land speculators and appropriators fully as much as during his tenure ; and it was easier for them to do so, having the authority of Marshalls decisions as precedents. The two new Associate Justices appointed in 1837 were John Catron and John McKinley. Catron was fifty-one years old at the date of his appointment, and McKinley fifty-seven. As an attorney Catron was reputed to be one of the foremost authorities in the country on land laws and judicial constructions of those laws. He had been States Attorney in Tennessee, a judge of the Superior Court of Tennessee from 1821 to 1830, Chief Justice of that court from 1830 to 1836. McKinleys career was consecutively that of a politician in Alabama, from which State he was elected to the National House of Representatives and to the Senate.
How elastic was the thing called Constitutional law, how it could be molded, as though by order, to suit the demands and interests of the particular section of the ruling class then in the ascendent, was now quickly demonstrated.
One of the banks that had been chartered by the Legislature of Kentucky was the Bank of the Commonwealth, with $3,000,000 capital. After this bank had been in operation for some time an action was brought to have its charter declared unconstitutional. If such a decision were made, then perforce all banks chartered by States would be illegal. It is probable that this was one of the reasons instigating this suit. But there seem to have been other reasons of a very different nature.
Thus we read that in a speech in the Kentucky Legislature, one of the members, Wickliffe, charged Guthrie, of the Bank of the Commonwealth, with belonging to a party who once issued three million dollars [in bank notes] without a dollar to redeem them with. And it is equally true, Wickliffe further asserted, that a portion of his party raised a pony purse, and promised great lawyers fifty thousand dollars to have their acts declared unconstitutional and void by the Supreme Court, that they might be thereby released from paying their debts to this Commonwealths bank.3
When the case was argued before Marshall, he and a majority of the Supreme Court were of the opinion that the act of the Kentucky Legislature, in chartering the bank, was unconstitutional and void. But the decision was deferred and the case was reargued before Taney. And, as was expected from the large majority of State Bank men now on the Supreme Court bench, a decision was rendered in 1837, that the act incorporating the Bank of the Commonwealth was a constitutional exercise of power and that the bank notes issued were not bills of credit within the meaning of the Constitution.4 Justice Story energetically dissented ; as one of the old guard he was an opponent of States rights. He himself had been instrumental in securing the chartering of banks by the Massachusetts Legislature, of one of which banks he had become president. His attitude was anomalous and seemed to imply inconsistency as well as betoken rare disinterestedness in declaring against his own interests. But we have seen how his bank fared well under the Bank of the United States regime.
Wild-Cat Currency Constitutional.
This decision had its grim aspects. For years, long before their charters were formally declared constitutional, the owners of the State banks had drenched the country with wild-cat currency, based to a great extent upon worthless security or no security at all. By 1819, the banks in New York State alone, apart from those of other States had issued $12,500,000 ; to redeem this fiat stuff the issuing banks had only $2,000,000 in specie. A New York Senate Committee reported, in 1819, that every artifice in the wit of man had been devised to find ways of putting these bank notes in circulation ; that when the merchant received this paper, he, in turn, saddled it upon the productive departments of labor. The great profits of the banks, reported a New York Senate Committee on banks and insurance, in 1834, arise from their issues. It is this privilege which enables them, in fact, to coin money, to substitute their evidences of debt for a metallic currency, and to loan more than their actual capitals. A bank of $100,000 capital is permitted to loan $250,000 ; and thus receive an interest on twice and a half the amount actually invested.5 The committee stated that banks in the State, outside of New York City, after paying all expenses divided eleven per cent. among the stockholders in 1833, and had on hand as surplus capital sixteen per cent. on their capital. New York City banks, the committee reported, paid larger dividends. This was an example of similar conditions in all of the States.6
The Workingmens Party of 1829, in its resolution adopted at Military Hall, New York City, on October 19, of that year, denounced the bankers as the greatest knaves, impostors and paupers of the age, and further declared that as banking was then conducted, the owners of the banks received annually of the people of the State not less than two million dollars in their paper money (and it might as well be pewter money) for which there is and can be, nothing provided for its redemption on demand. . . . In the panic of 1837, not less than eight hundred banks in the United States suspended payment, refusing a single dollar to the Government whose deposits of $30,000,000 they held, or to the people in general who held $120,000,000 of their notes.7 After the passing of the panic the same old frauds continued. The decision of 1837, of the Supreme Court of the United States, says an authority, opened the door wide for abuses of banking by the States.8 Unquestionably it did, as the results fully proved.
Competition Declared Immutable.
So far as the State rights issue was involved, the Supreme Courts policy under Taney, although exactly the reverse of what it had been under Marshall, produced in one respect the same result in effect. The Charles River Bridge Case was a striking instance of this. The company owning this bridge claimed that it held a vested, perpetual monopoly by reason of various old empowering acts of the Massachusetts Legislature. An act had been recently passed, however, authorizing the construction of the adjacent Warren bridge as a free avenue. The owners of the Charles River bridge asserted that the Legislature, in passing the new act, had impaired the obligation of a contract. The State courts refused their petition for an injunction, and Chief Justice Taney sustained the validity of the Warren bridge law.9
This decision again effectually stamped into law the doctrine then proclaimed as immutable by aggressive capitalism, and consequently by statesmen, universities, editorial sanctums and legislative halls the doctrine that competition is the life of trade. A companion edict to Marshalls decision in the Livingston steamboat monopoly case, the decision demolished the last stand of the old, archaic, feudal aristocracy and gave the new industrial and transportation aristocracy unlimited opportunities for competitive expansion and individual and corporate development. No longer was individual enterprise to be shackled by obsolete laws ; the old practice of granting powers of monopoly to a favored few was obliterated as a principle of jurisprudence. This decision freshly demonstrated that the Supreme Court of the United States continuously and accurately reflected, both in personnel and spirit, the needs and demands of the dominant sections of the ruling class, and incarnated those requisites into constitutional law.
In the consideration of private land claims no alteration whatever was made by the reconstituted Supreme Court, following Marshalls death. There was no sectional controversy over the spoliation of the national domain ; in the engrossing business of appropriating the public lands, men of power and influence of all sections of the country were jointly concerned. With the question of slavery, the case was very different. The issue was growing acute to a point generating the deepest and most vindictive passions and inflaming the most rancorous hatreds. It was a ticklish question for the Supreme Court of the United States to pass upon conclusively ; and every art of the juridical politicians on the bench was requisitioned into deciding ingeniously for the institution of slavery, and yet at the same time not rashly seem to flout the anti-slavery sentiment.
But a great change had come about since Marshalls decision in the Antelope case. The Supreme Court was now willing enough to make a concession to the anti-slavery element by outlawing the slave traffic. To retain the institution of slavery itself some sop had to be thrown, particularly as the Antelope decision had become the scorn and jeer of certain European powers, which now, more than ever before, were determined to put a peremptory stop to the slave trade. And the Supreme Court doubtless well knew that whatever words of indignation it should use in declaring the slave traffic illegal, that traffic nevertheless, would surreptitiously continue. That this proved to be so was shown by the large number of slave-trading ships plying their traffic up to the very outbreak of the Civil War, and even after.10
Revolting Slaves to be Treated With Respect.
Two decisions, handed down in the same month January, 1841 graphically illustrated the new policy of the Supreme Court.
The LAmistad, a Spanish schooner, sailed from Havana, June 27, 1839, bound for Puerto Principe, with a cargo of slaves kidnapped from Africa. On the voyage the negroes rose in revolt, killed the captain, and took possession of the vessel. Off Montauk Point, Long Island, Lieutenant Gedney, of the U.S. brig Washington, sighted the schooner and seized her. Two Spanish capitalists, Jose Ruiz and Pedro Montez, applied in court for restoration of the slaves to them as their property. The negroes, in opposition, recited that they were free-born Africans, and not slaves ; that in April, 1839, they had been kidnapped from Africa and transported to Cuba to be sold as slaves ; and that they had risen in revolt and killed the captain, intending to return to their native country or seek asylum in some free land.
When the circumstances became public, they aroused a tremendous sensation. In the North they excited mixed sympathy for the negroes, and indignation against the slave traders. Both in North and South admiration was felt for the courage of the revolters, although in the slave sections it was admiration burdened with an appalling fear ; if the negroes had shown such daring and determination in revolting on the ship, was it not possible that the same desperation might lead to a general uprising of the whole slave population in the South ?
The courts did not presume to proceed against the kidnapped negroes for mutiny and murder. The District Court ordered them to be returned to their native land. When the case was appealed to the Supreme Court of the United States, venerable John Quincy Adams appeared as the negroes attorney. Justice Story was allowed to write the courts opinion (only Justice Baldwin dissenting) to this effect : That the negroes had never been lawful slaves ; that they were natives of Africa, and had been kidnapped in violation of the Spanish laws by which the African slave trade had been declared utterly abolished and by which the traffic was outlawed as a heinous crime. The court ordered that the negroes be set free.11
Where now was Marshalls doctrine of acquiescence ? Was it imperative on the part of the enslaved, to revolt and slaughter, in order to prove the absence of acquiescence on their part ? If so, the Supreme Court in that decision was practically, although unwittingly, giving this advice to the enslaved of all generations : Tamely submit to servitude, and the meshes of the laws fictional doctrines will hold you. Revolt against those conditions, and you prove to our satisfaction that you do not acquiesce.
Slaves Were Merchandise, Not Persons.
But the other and accompanying decision, delivered in the same month, riveted the bonds of those already held in slavery. It did this under the State rights doctrine.
Robert Slaughter sued Groves and others for payment of promissory notes due for slaves that Slaughter had brought in to the State of Mississippi after May, 1833. Large numbers of slaves, it may be said parenthetically, had been rushed into Mississippi following the fraudulent acquisition by individuals and syndicates of those great tracts of cotton lands. Much of this seizure had gone on under Taney, as Secretary of the Treasury ; and the slave owners, needing the slaves to clear, till and cultivate the lands, imported gangs of them, despite laws prohibiting that importation. Some of these slave owners Groves and others saw, or thought they saw, an easy way of keeping slaves purchased and yet escaping the necessity of paying for them. Groves et al. refused to pay Slaughter, claiming that the notes were null and void because the contracts on which they were founded were in direct violation of the constitution of that State, adopted in 1832, which document expressly prohibited the introduction of slaves into Mississippi, as merchandise for sale, after May 1, 1833. The case went up on appeal to the Supreme Court of the United States.
Pleading that the slaves were property, and that property rights as such should be protected, Jones, attorney for Slaughter, urged upon the Supreme Court : This case is of much importance in principle, and it is also so because of the very large amount of property which depends for its safety on the decision of this Court. Millions of dollars have been laid out in the purchase of slaves, carried into the State of Mississippi from other States for sale ; without any idea on the part of the sellers or buyers that there was any law or constitutional provision which affected the transactions.12
Here the plea was ignorance of any prohibitory law. That the Supreme Court tolerated such a plea was extremely suggestive : in the case of poor offenders did not the courts always implacably say that ignorance of the law was no excuse ? The intent and meaning of the Mississippi Constitution of 1832 were direct and explicit ; there could be no mistaking them. How did the Supreme Courts decision meet this point ? The court evaded this point and based its decision upon entirely different, extraneous points.
Delivering the courts opinion, Justice Smith Thompson affirmed the decision of the lower court in favor of Slaughter. True, the Mississippi Constitution prohibited the importation of slaves, but (said he), it did not invalidate the contract ; to effect such an invalidation and to carry it into effect, a special law was required, and no such law was passed until 1837. The sinister importance of this precedent will be presently seen ; it was soon applied to the validation of the most enormous land frauds. Yet although Justice Thompson declared that the question of the power to regulate traffic in slaves between different points was not involve. McLean and Taney gratuitously came forward to pronounce the supremacy of State rights.
Why this eagerness to thrust forward this formulation ? Because the Constitution of the United States treated slaves as persons, as human beings, while the laws of Southern States treated them as property, and considered them as merchandise. In a separate opinion, concurring with Justice Thompson, Justice McLean, after pointing out that fact asserted : The power over slavery belongs to the States respectively. . . . The right to exercise this power by a State is higher and deeper than the Constitution.13
Chief Justice Taney skulked behind Justice McLean. In his opinion Taney wrote that he had not intended to express an opinion on the power of Congress to regulate the traffic, but inasmuch as my Brother McLean has, therefore he, Taney, would on account of the interest which a large portion of the Union naturally feel in this matter, and from an apprehension that my silence, when another member of the court has delivered his opinion, might be misconstrued. Taney declared that the States had exclusive power over the slave traffic. He added that no case, however, had yet arisen making it necessary to decide the question of control by Congress.14
What influences caused these Justices to obtrude opinions on issues not involved ? Doubtless they were the same influences used in the Dred Scott case sixteen years later. The real question was : Should the enslavement of negroes be continued or abolished ? The fate of millions of blacks in bondage, and millions more yet unborn, hung upon the answer. And here was the handful of men on the Supreme Court, all relatively old men, pretending not to know the fundamental issue, yet resorting to every dexterous device and fine-spun technical construction to justify and enforce negro slavery.
In the meantime, during the period following Marshalls death, the Supreme Court continued validating private land claims, most of which lay in the South and the beneficiaries of which were either Southern slave holders or a combination of them and Northern capitalists.
More Land Claims Validated.
The Soulard claim in Missouri, one of the land claim cases the decisions in which were deferred by Marshall for six years, was decided by the Supreme Court in January, 1836, shortly before Taney was confirmed as Chief Justice. This claim, to recapitulate, covered 10,000 arpents of land seventy miles north of St. Louis and about fifteen miles west of the Mississippi River.
It was a claim alleged to have been granted to Antoine Soulard, father of the ostensible claimants, by Trudean, the Spanish Lieutenant-Governor of Louisiana, in 1796. Soulard had been Surveyor-General, and it was alleged that the grant, so-called, had been surveyed by his deputy surveyor, Don Santiago Rankin, in 1804. This claim as well as many others bearing Trudeaus and Soulards supposed signatures, had been rejected by the U.S. Board of Land Commissioners in 1806-1807, as forged and in other respects fraudulent. The Soulard claim was also one of a number of such claims rejected by Judge Peck, in the U.S. District Court at St. Louis, in 1825, as illegal and invalid. Senator Penton of Missouri was one of counsel for Soulards heirs. They could produce no original decree of concession and certificate of survey ; when asked to explain they replied that those papers were by mistake thrown into the fire and destroyed.
In January, 1836, the Supreme Court of the United States validated the Soulard claim. That validation, of course, carried with it the validation of many similar claims. Justice Baldwin delivered the Courts opinion and it was very brief. It fell back upon the precedents set by Marshall in the Florida cases, and declared that Soulards heirs had a good and valid title.15
In his scorching criticism of the Supreme Courts decisions, Judge Peck gave particular attention to Soulards activities. He proceeded in great detail to state the reasons upon which it appears to me to impeach the record of surveys made by Antoine Soulard and to establish the startling fact that the frauds which appear to pervade the great mass of these Spanish claims pervade also the record of surveys made by Soulard under the Spanish government.16 After exhaustively and specifically describing the inception and development of these frauds, Judge Peck urged that the facts related should be convincing that those concessions had not been issued, had not existence at the date of those surveys, and therefore could not at that date have been delivered to Mr. Soulard or to his deputy.17 Yet the Supreme Court held fast to the doctrine that when an official survey was made the lands surveyed were thereby detached from the mass of public lands and vested in the beneficiary. The circumstances mattered nothing ; the formal, official act was conclusive, sacred and perpetually binding.
It was because it could not act in a way contradictory to its own dictum that the Supreme Court found itself compelled to reject certain private land claims which, it was proved by the Government, had never been surveyed. One of these rejected on this ground was that of John Smith, who claimed to have bought a grant for 10,000 arpents in Missouri, alleged to have been granted by Governor Carondelet, to James St. Vrain, in 1796.18 But this was one of the comparatively few claims the confirmation of which was refused. The total area of the claims in Missouri based upon alleged Spanish grants aggregated a very large area ; the claims alleged to have been given by Delassus, Trudeaus successor, alone embraced about 500,000 arpents ; yet judge Peck most clearly showed that a certain alleged official Spanish order by Morales, Delassus superior, purporting to suspend the strict limitations under which land was granted, was a forgery of recent date, and in the handwriting of Delassus.19
In January 1840, the Supreme Court of the United States gave another decision which, although involving only three hundred acres of land in Florida, nevertheless served as another precedent of vast importance, which together with previous decisions, was later successfully cited by claimants in cases dealing with the private appropriation of immense areas of the public domain. This was the action of the United States vs. Wiggins. The claimant relied upon a certified copy, or a testimonio, of a concession made by the Spanish authorities. The original concession could not be found among the archives, nor was its existence proved. A clerk in Aguilars office, where the archives were deposited, and who had been custodian for six years, testified that he had never seen or heard of the original. The Surveyor-General never saw it, nor was it enumerated in the list of documents made soon after the cession of Florida. Notwithstanding this negative proof, the Supreme Court of the United States accepted the plea that the original grant had once existed, and it validated the claim.20
Citing this decision as authority, the Supreme Court kept on validating Florida land grants, the original concessions of which were never produced, and the sole bases of which were alleged copies certified by Aguilar. One of these claims, for example, was that of John Rodman for 16,000 acres of land on the west side of St. Johns River, said to have been granted to Robert MHardy, a surveyor, for the building of a sawmill. The Government contended that not only did no original concession exist, but that the conditions of the alleged grant had never been complied with. The Supreme Court, however, validated the claim.21 But some claims were rejected, not because they differed intrinsically from the confirmed claims, but because the claimants had not been shrewd enough to get an aggregation of testimony affirming that formal surveys had been made, or that the original deeds of concession had been lost or destroyed.22 The moral seemed to be that those who, were so stupid as to neglect to fortify their claims with ample required testimony, deserved to lose.
The cumulative results of these precedents were shown in more than one way. They not only alienated into private ownership huge domains in territory already in the United States, but they gave points to land grabbers how to devise and buttress frauds in Texas and in the vaster regions, soon after acquired by the United States from Mexico. But before reciting these facts, it is necessary to advert to some changes occurring in the personnel of the Supreme Court.
Three New Associate Justices.
At Associate Justice Barbours death, Peter V. Daniel, on March 3, 1841, was appointed to succeed him. Daniel was connected with both the landed aristocracy and the dominant political coterie ; he was the scion of all old Virginia landed family, and his father was a man of fortune. Peter V. Daniel had increased the familys power by marrying a daughter of Edmund Randolph, in whose office he had studied law. Randolph had a large landed estate, and had been a potent politician, serving in Washingtons Cabinet. Daniel had been long in politics and office holding ; he had been a member of the Virginia Privy Council in 1812, Lieutenant-Governor of Virginia in 1835, and in 1836 had been appointed judge of the U.S. District Court in Virginia. He was one of Jacksons personal friends as well as a strong political adherent. At the date of his appointment to the Supreme Court he was fifty-seven years old.
Associate Justice Baldwin died in 1844. Toward the close of his career his mind was deranged, and he was often violent and ungovernable on the Supreme Court bench. In such abject poverty did he die that his friends found it necessary to raise a fund for his burial expenses.
This surely is a significant fact. Here was one of the Justices conspicuously instrumental in giving away to spoliators enormous areas of the most valuable agricultural, timber and mineral lands in the country. The beneficiaries of the decisions profited to the extent of hundreds of millions of dollars. Yet Baldwin himself received no reward nor any part of the profits. Typical of many other Justices, he was personally incorruptible so far as money went. It was not essential to corrupt by mercenary means men of his type. The class bias of their minds, the training that they had received both in law and politics, and their case-hardened views on vested property rights these were usually sufficient explanations of their attitude and decisions. To attempt to bribe men whose favor could be counted upon in advance would have been dangerous, as well as a superfluous expense. We have seen such judges and officials in our own time.23
And although Associate Justice Story, at his death in 1845, left an estate it was not large compared to great, or even passable, fortunes of the time. He had been extremely liberal to his family, and had educated them at considerable expense. My worldly estate, he wrote in his will, is not large, partly because I have not felt as strongly as some persons the importance of wealth to happiness.24
As a lawyer he had scrupled at no case, however rankly it reeked with fraud. But in his character of justice, his course was not determined by bribes ; it was assured by far more efficacious and subtly permeating influences class loyalty, class prejudices, class interests and personal gratitude and associations, as also (so the facts prove) personal interest. All of these men had absorbed the views of the ruling class and the ancient laws drafted to insure the supremacy of that class ; these ingrained ideas became inexorable convictions which no argument could shake, and which they conceived had to be translated into edicts at every fresh opportunity. Such men were unshakenly class-disciplined.
Levi Woodbury was now appointed to the Supreme Court. His appointment did indeed cause the land appropriators to exult in high gratification, but it was received with execrations by the forces opposed to the plundering of the national domain.
Both of these elements recalled his compliant serviceableness to the syndicates of land grabbers in the South, when he was Secretary of the Treasury, and how he had shielded corrupt land officials who had been the tools and accessories of those combinations. In fact insidious comment was made that his appointment as Associate Justice came at the very time when astoundingly enormous frauds were being originated or carried through in Texas frauds the ultimate validation of which would depend upon the courts.
At this point the significant fact should be noted that Woodburys successor as Secretary of the Treasury was none other than Robert J. Walker, the head and front of the great combination of speculators which had secured such enormous areas of cotton lands in Mississippi under Taney and Woodburys administrations. With the wealth extracted from land grabbing Walker easily had himself elected to the United States Senate in 1836. He was Secretary of the Treasury from 1845 to 1849 ; as has been noted, the Secretary of the Treasury then held jurisdiction over the public lands.
At the same time that Woodbury was appointed to the Supreme Court, in 1845, Samuel Nelson received his appointment to that tribunal. Nelson owned a landed estate of considerable value at Cooperstown, New York. In 1846 Robert Grier, at the age of fifty-two, ascended the Supreme Court bench by grace of President Polks commission. Grier had been a judge in Pennsylvania ; he had turned from Federalism to support of the Democratic Party, and as a lawyer was associated with the land interests.
The Great Land Frauds in Texas.
The capitalists promoting the huge frauds in Texas were largely those interested in the great Florida, Mississippi and Arkansas land spoliations. George Griswold, so conspicuous in the Mitchell claim of 1,200,000 acres in Florida validated by the Supreme Court of the United States, was equally prominent in the Texas frauds. Associated with him was an array of other Northern capitalists Anthony Dey of New York, William H. Sumner of Boston, George Curtis of New York, Dudley Selden, a New York politician, General John T. Mason, Stephen Whitney and others of the same city. From the profits of his land transactions, Stephen Whitney became so rich that at one time he was regarded as approaching Commodore Vanderbilt in point of wealth ; in 1852 Whitneys estate was estimated at a round $7,000,000. But these were only a few of the Northern capitalists concerned in vesting in themselves immense stretches of Texas land. Many other combinations and corporations were formed at the same time, embracing Northern and Southern politicians and capitalists, slave owners, judges and some of the highest officials in the country.
Texas contains 274,356 square miles or 175,587,840 acres an area exceeding that of the thirteen original States. The western part of Texas, because of the supposed lack of water, was long not considered habitable for man or beast, although in recent times inexhaustible subterranean supplies of water have been discovered, and orchards and farms now yield their harvests on stretches once deserts. But the potential richness of the equally vast areas of eastern, northern, central and southern Texas was early recognized ; it was well known that great tracts of valuable primitive timber lands awaited utilization, and that the soil was variously adapted for the raising of cotton, sugar-cane, rice, tobacco and other crops. It was a country marvelously adapted, also, for cattle ranging.
Beginning in 1821, when Texas was still a province of Mexico, various promoters, or empressarios, as they were called, solicited and obtained contracts from the officials of the joint States of Coahuila and Texas, by which, as compensation for their services in introducing colonists, they were to receive the jurisdiction of great colony grants of land. Each bona fide colonist was to be entitled to a certain tract of land for himself, usually a league and a labor (about 4,605 acres), and the empressario was to receive as personal compensation certain stated premium lands. In 1824 an event happened which had a direct and sinister connection with the origin and consummation of stupendous land frauds. This was the appearance in San Felipe of Samuel H. Williams, a young Baltimore adventurer. He had been in Mexico for several years and had learned the Spanish language thoroughly. His advent in San Felipe was as secretary of the land office at that place.
The Colonization Contracts.
From 1821 to 1832 thirty-three colonization contracts were allowed by the Mexican officials. In 1823 Moses Austin made one contract, and in 18231826 his son, Stephen F. Austin, made four contracts, covering scores of leagues of territory ; their agreements, as was the case with certain others, did not specify how many families were to be brought in. Robert Leftwich, by the contract of April 15, 1824, was to introduce eight hundred families ; he soon died and Sterling C. Robertson and Alexander Thompson assumed the contract under the name of the Nashville Company. Martin DeLeon, in 1824 and 1829, made two contracts, and Frost Thorn, by his contract of 1825, was to introduce four hundred families. D.G. Burnet, Joseph Vehlein and Lorenzo D. Zavala variously made contracts in 1828 and 1829, and similar contracts were entered into by Benjamin R. Milam, John L. Woodbury, John Cameron, General Thomas J. Chambers, Hewitson and Powers and others. Such of these contracts as specified the number of families to be brought in show a total of 9,248 families contracted for, to be settled in Texas.
When these contracts were made Commissioners were appointed, or alleged that they had been appointed, by the Mexican authorities to determine the number of colonists introduced and to give titles to both colonists and contractors accordingly. Williams acted in that capacity for Austins colony ; George A. Nixon for the Burnet, Zavala and Vehicin grants ; William H. Steele for the Nashville Companys colony, and other Commissioners for other colonies. In some cases the immediate friends or relatives of the contractors were appointed, or audaciously assumed the post of Commissioner, which was not a difficult imposture in a remote country and in a period of civil chaos, particularly following the time when Mexico won its independence from Spain.
Many of the colonization contracts, however, were almost at once turned over to companies of absentee capitalists who had never seen Texas, had no intention of going there, and whose only purpose was exploitation.
Not a few of these capitalists were New York and Boston owners of packet lines whose methods in luring over poor European immigrants, charging them extortionate rates, herding them foully in the ships, and dumping them unceremoniously in a state of destitution at the different Northern ports were at that very time subjects of legislative investigations at home. Thus, the Burnet, Zavala and Vehlein contracts became the property of a corporation calling itself The Galveston Bay and Texas Land Company, the officers of which were General John T. Mason, George Griswold, Stephen Whitney, Dudley Selden and associates.25 Another such corporation composed of New York and other Eastern capitalists was The Colorado and Red River Land Company, based upon the colonization contracts of J.C. Beale. The general offices of this corporation were at No. 8 Wall Street, New York, with L.B. Woodruff as secretary and attorney.26 Although the Beale contracts called for the colonization of only six hundred families, yet, in its prospectus the company computed the area in its grants at twenty million acres, and stated that it was authorized to select for itself, where it pleased, a premium of 23,000 acres for each one hundred families that it colonized.27
Among the various contractors or colonization corporations there existed a combination of inter-related interests. In the Nashville Company, for instance, Samuel M. Williams, Stephen E. Austin, H.H. League and associates were interested, and some of the same group were prime movers in the Powers and Hewitson contract.
These men were among the real promoters of the movement for the independence of Texas ; it was their interests that, not entirely, but largely, engendered the struggle, and it was their capital, in part, that supplied the arms and ammunition.28 Their frauds in seizing land were so truly gigantic and so flagrantly in violation of the Mexican laws that to reap the full benefits of their spoliations, they aimed to eject Mexican authority and substitute their own government and officials. They themselves, they knew, would become the head officials of the new Republic. This may not be romance, but it is fact.
It is also a fact that so well grounded were the fears of these spoliators that some aggressive Mexican President might declare their enormous frauds forfeited, that they were desperately bent upon getting Texas out of the jurisdiction of Mexico. General Santa Anna, President of Mexico, did in fact issue a decree to this effect in 1853. Article I of his decree declared that the public lands, as the exclusive property of Texas, never could have been alienated by decrees, orders or enactments. Article II denounced all sales, made without the approval of the central government, as null and void, and Article IV prohibited officials from admitting stick claims. This decree was followed by a still stronger decree in 1854. But by that time all of Texas, California, New Mexico, Arizona and other territory had gone into possession of the United States. Later on in this work, these decrees and how they were nullified by the Supreme Court of the United States, are described in detail.
Thus we see the land grabbers had the strongest possible economic reason for wresting Texas from Mexico. Many of them like Burnet and Milam became the chief officials of the Republic of Texas.
How enormous a territory these contracting individuals and companies fraudulently appropriated, and the bold methods that they used, may be learned from the action of the Texas Constitutional Convention of 1836. In many places in Texas the actual settlers were literally up in arms against these fraudulent claims, and the Convention was forced to take notice.
After achieving its independence, Texas, of course, had full control over its public lands ; and subsequently it consented to annexation to the United States only upon condition that it retain that jurisdiction. To this day that control has been retained ; Texas lands have never been subject to the authority of the National Government.
Eleven Hundred Leagues of Spurious Claims.
Article 220 of the Texas Constitution of 1836, aimed to prevent the indiscriminate plundering going on. Section D prohibited aliens from holding land except by direct title from the Republic of Texas. Section I was designed to annul an immense grant to General John T. Mason and company. It declared that the protection of the public domain from unjust and fraudulent claims . . . is one of the great duties of this Convention. It recited that the Legislature of Coahuila and Texas in 1834 and 1835 passed two acts in behalf of Mason, under which the enormous amount of eleven hundred leagues of land had been claimed by sundry individuals, some of whom reside in foreign countries, and are not citizens of the Republic. Those acts, the Constitution further read, were contrary to the laws of Mexico, and were forthwith declared null and void.29 One peculiarly heinous feature, the Convention declared, was that the land grabbers had taken advantage of the absence of most Texans who had been fighting for independence, and had rushed surveyors at great speed over the very choicest lands. After stating this fact, Sections J and K annulled all such surveys, and suspended the issuing of patents.30
But by no means did these annulling Constitutional provisions become effective. One factor was lacking to make them so, although at the time of their adoption it was supposed that Constitutional law was organic law. The omission, it was later discovered, depriving them of all force was, according to precedents established by the Supreme Court of the United States, the failure of the Texas Congress or Legislature to pass acts for the enforcement of those provisions. The land appropriators vigilantly saw to it that no such acts were ever passed. They themselves were leading officials and judges ; nearly all of the Supreme Court or the county court judges were either land appropriators or were in alliance. General J.T. Chambers not only was a colonization contractor, but he was long the Supreme Judge of Texas, acting the judicial autocrat.
In 1837 the Texas Congress passed a general law making donations to those who had been settlers before the date of independence, in 1836, and to all soldiers of the war against Mexico for independence. The enormous frauds committed under this law are described later in this chapter. The 20,000,000 acres of land already granted officially by the year 1838 did not comprise those particular claims. They consisted almost wholly of patented grants to colonization corporations, and to alleged settlers under Spanish or Mexican contracts and titles. The colonization companies claimed that up to the year 1838 they had brought in thirty-five hundred families. Even if this claim were true the extent of land accruing to the contractors would be about 4,000,000 acres. But the claim was fictitious. A certain number of settlers were in fact introduced, but the number was greatly magnified.
That this was so was evidenced by the general demand on the part of honest settlers for a Congressional investigation. It was amply proved by the report of a joint investigating committee of the Texas Congress in 1840, and by cases constantly coming up in the Texas courts. The resolution under which the joint committee was appointed declared that whereas we have the evidence of the Constitution itself of the existence of spurious claims to the amount of eleven hundred leagues of land [nearly 5,000,000 acres], and there is good reason to believe that a vast amount of fraud over and above that specified in the Constitution has been perpetrated, etc.31
Disclosures of Colossal Frauds.
The evidence was overwhelming. Samuel M. Williams and two associates, it appeared, had made a claim for four hundred leagues of land in Nacogdoches, Red River and Harrison counties, based upon an alleged grant from the Mexican governor, on the condition that they supply a thousand armed men to fight the Indians. In testifying to these facts John P. Borden, Commissioner of the Texas General Land Office, admitted that titles to ten leagues of land were gratuitously and without solicitation made out to himself (Borden), and one league to two of his brothers. Borden testified further that it appears from the record in my office that the whole number of men purporting to have been enlisted under the contract of Williams, Peebles and Johnson was forty-one. And what of the title papers ? Borden was asked. He declared that they bore the clearest proof of having been forged.32 It appeared that Aldrete, Commissioner for giving titles at Nacogdoches, was an impostor ; that he had no real authority ; and yet Borden testified that Aldrete in 1833-1834, had issued titles to 150½ leagues of land in Liberty, Houston and Red River counties to alleged colonists.33 And who, as Commissioner, had issued titles to John T. Mason ? None other than the malodorous Colonel James Bowie, and on pretended authority at that ; in the year 1835 alone Bowie had presented Mason with titles to ninety-five leagues of land in Harrison and Nacogdoches counties.34
General T.J. Chambers claimed to have received sixteen leagues on one occasion, and twenty-three leagues on another, near Waco and in other regions for judicial services ; Governor Viesca said he had never authorized the concession, yet titles were issued. George Aldrich, a surveyor, testified that in 1835 he had surveyed about four hundred leagues of land ; that he was paid for those surveys by Williams, Johnson and Peebles ; and that he was to receive twenty leagues as compensation for making the survey. Aldrich further testified that it was usual for surveyors to make surveys and sell the field notes afterwards without having in their Possession any order of survey.35 George A. Nixon, Commissioner for issuing titles, granted title, in 1834-35, to eight hundred and seventy-one leagues of land in Libby, Jefferson, Jasper, Sabine, Nacogdoches, San Augustine, Houston and Montgomery counties, to the Galveston Bay and Texas Land Company, on the Burnet-Vehlein-Zavala colonization contracts. Nixon himself received a present of eleven leagues by order of William H. Steele, Title Commissioner for the Nashville colony.36
E.L.R. Wheelock, a surveyor, testified that in 1835 he accused Steele of acting without authority in giving titles and that thereupon Steele became greatly agitated and swore. Steele then produced a document which he said was his authority, but when Wheelock tried to get it Steele hurriedly hid it. Wheelock further testified that Steele told him that he (Steele) was interested in the profits of the Nashville Company. Wheelock was invited to join them in a combination to let no man who came have land, unless it was poor or refuse land, unless they would let one of the company clear it out on shares.37 Steele, according to Wheelock, offered the latter a gift of seven leagues if he would turn over all his field notes in blank, and that Steele added at the same time, he came to Texas to make a fortune, and would have it at any price. Wheelock testified that he met Steele later and that Steele declared . . . I was a fool I had not followed his advice, as him and Joseph L. Hood were rich.38 Steele, it was further testified, controlled all of the municipal officers, and so ran his surveys completely round the improvements of actual settlers as to force them to buy land from him. Wheelock testified that he came into possession of a deed made out in blank by Steele for one sitio of land (equal to a league, or 4,428 acres) ; Wheelock turned it over to the Texas Government for the purpose of enabling it to detect such frauds.39
Recalled as a witness, Borden gave an itemized list of a huge number of forged and antedated titles in the Nashville, Vehlein, Burnet, Zavala, Cameron and Grant and other colonies.40 It will now be observed how carefully these appropriators followed the tacit advice given by the Supreme Court of the United States in its decisions in the Arredondo and Mitchell cases. Borden testified that many of the alleged grants deposited in the Land Office were not originals ; that they were certified copies ; and that it was generally believed that the originals were carried off or destroyed by the Commissioners. Of the four hundred leagues (1,771,200 acres) granted at Nacogdoches alone, irrespective of the grants elsewhere, Borden testified that a large portion were granted in violation of both Mexican and Texan laws prohibiting unauthorized settlement of any lands comprehended within twenty leagues of the limits of any foreign nation, or the settlement of any territory within ten leagues in a straight line from the Gulf of Mexico. Borden declared that there was absolutely no proof in the Land Office that any authority for their settlement existed.
These are a few typical facts from the joint committees report. As a further example of how land was granted to spurious colonists the case of Martin DeLeons colony will suffice. The Commissioner for that colony gave his own son, Francisco DeLeon, a grant of a quarter of a league of land, and made an affidavit that Francisco possessed all requisite qualifications, although, as a matter of fact, Francisco was only a boy of ten years at the time, and was at school in Louisiana. At the same time Commissioner DeLeon granted himself a sitio of land (4,428 acres) as the head of a family.41
Naturally, at this point of the narrative, the one question obtruding itself is : In the face of these proofs of glaring fraud did the looters retain their loot ? They did. The consecutive records of the Texas Land Office show that 25,517,391 acres were originally confirmed under a few Spanish and many alleged Mexican titles. Deducting several million acres subsequently subtracted or declared forfeited, there remained 22,492,507 acres permanently alienated by means of these fraudulent claims.
These appropriations covered the richest and most fertile parts of Texas. How was the alienation consummated ? By two methods : One device was to induce the Legislature to take no positive, effective adverse action ; the other to get confirmation from the courts.42 Judges Hemphill, Wheeler, Lipscomb and others of the Texas Supreme Court had all been attorneys for the land appropriators ; in fact, in a certain case coming up before them, several of the judges had been counsel for the interests concerned, and a special judge had to be appointed for the occasion.43 These judges fully accepted the doctrine laid down by the Supreme Court of the United States that the original deed need not be produced ; that a certified copy of a copy was as good as the original.44 After the annexation of Texas to the United States the precedents of the Supreme Court of the United States were, of course, jurisdictional and binding. Thus the validation of spurious grants comprising a large part of 22,000,000 acres was based upon the action of the Supreme Court of the United States in the Arredondo and Mitchell cases ; when the Texas judges were criticised, they pointed to precedents set by the great tribunal at Washington as their infallible justification.
From whom did these certified copies of copies emanate ? From the Land Office at Austin. Of the methods of the Land Office we get a clear glimpse in the suits of the City of Galveston and the State of Texas vs. Menard. Michael L. Alenard was a conspicuous member of the Senate under the Texas Republic ; he was associated with Williams, Thomas M. League and others in various projects. He and League, for example, were among the incorporators of the Houston and Brazos Railroad Company, Menard personally obtained patents for huge quantities of land in many Texas districts.
On December 9, 1836, the Texas Congress granted to Menard one league and one labor of land on the island of Galveston for $50,000, the funds being part of his plunder from his land operations. Galveston real estate was of great value even at that early date ; it was a principal sea-port with considerable commerce. Menard organized the Galveston City Company, partitioned his land into lots, and reaped large profits.
Presently he set up a claim to the whole of the flats or water-front. The Land Office graciously construed his claim so as to present him with an excess of more than 1,700 acres of water-front property. The Supreme Court of Texas in 1859 upheld that construction.45 In its petition to the court, in 1873, the State of Texas averred that the patent or deed was made to contain this excess through the fraudulent combinations and representations of M.B. Menard and the Commissioner of the General Land Office. Largely on Marshalls doctrine of acquiescence, the court decided against the States action to recover ; the claim, said the court, had been recognized for thirty years, and that should be sufficient.46
Everybody knew of the spurious nature of the alleged grants and titles, yet the Texas courts, not always, but usually, imitated Marshalls practice of treating proofs of fraud as fiction, and they studiously followed his precedents. And every well-informed person knew, too, how a large share of the capital that the New York capitalists had used in their Texas operations had been obtained. In 1838 it was discovered that Samuel Swartwout, a leader of Tammany Hall, and Collector of the Port of New York, had stolen the enormous sum of $1,222,705.69 from the Government, much of which theft had gone into Texas land speculation schemes.47
The Castro, Mercer, Peter and Other Contracts.
Within two years after the disclosure by the Texas Congressional joint committee, the Texas Congress made more colonization contracts. One of these grants was made, in 1842, to Henri Castro and associates, for the introduction of six hundred families within six years. A second contract was with Charles Fenton Mercer, for the introduction of five hundred families within five years. The Peters contract giving 10,000 square miles was a third, and Fischer and Millers for the introduction of six thousand German immigrants, a fourth. Mercers and Peters grants were in the north central part of Texas, Castros extended from the Frio River to the Rio Grande, and Fischer and Millers were on the waters of the Colorado, Llano and San Saba rivers.
The conditions of none of these grants were performed. Castro fell back upon the old subterfuge so often successfully pleaded in the Supreme Court of the United States, that Indian hostilities prevented him. In numerous cases in the Texas courts it was proved that Castro extorted contracts from all immigrants conveying to him and associates one-half of the lands that they should receive. If they refused they were rejected as colonists.48 In fact, all of the contractors, or empressarios, did the same.49 Mercer ( The Texas Association ), did not bring in a single settler, and Peter and associates (otherwise the Texas Land and Immigration Company) shamelessly violated their contracts.
Apparently their contracts stood forfeited. But in 1850 and 1852 the promoters induced the Texas Legislature to pass acts with various favorable provisions, one of which was the empowering of the local courts to adjudicate claims and decree grants. The argument used by the companies at least the public argument was based upon precedents of the Supreme Court of the United States that a contract created an express trust which could not be contravened. Under the acts of 1850 and 1852 the Peter, Mercer, Castro and Fischer and Miller companies received a total of 4,494,806 acres. A vast number of claims were allowed to fictitious colonists. In his message to the Texas Legislature on November 9, 1855, Governor E.M. Pease stated that a large majority of said certificates were issued to young men under seventeen years of age (at the time the settlement was alleged to have been made.) 50
Some of the 4,494,806 acres went to actual colonists, but by far the greatest portion remained in the ownership of the four promoting corporations.51 Thus, under the Castro contract, 879,920 acres were given to alleged colonists, and 1,088,000 acres to the company.
Official documents gave an appalling enough picture of how at least 26,000,000 acres of the richest Texas lands were literally stolen, but it was reserved to United States Senator Sam Houston to make public further details of how the thefts were accomplished. General Houston had been President of the Republic of Texas ; and when on February 3, 1859, he made an extraordinary statement of facts in the United States Senate, even reading undeniable documents showing how the land appropriators had carried on their operations and how they boasted of being able to corrupt the Supreme Court of the United States, his disclosures were accepted as the authoritative utterances of a man who knew his facts. His speech, in fact, made such a profound sensation that it was not allowed to remain embalmed in the soon-forgotten pages of the Congressional Globe, as most speeches of members of Congress were, but was published in book form.52
Judge Watrous Particular Activities.
The circumstances leading up to Senator Houstons revelations were as follows :
The local attorney for the Peters colonization company had been John C. Watrous. He was, it seems, not only a shrewd and unscrupulous lawyer, but he was also a capitalist promoter, and was associated with Williams, Menard, McKinney, Thomas M. League and other members of the group so diligently and successfully plundering Texas. Also he was one of the most adroit lobbyists in the Texas Legislature ; one of the measures that he had lobbied through was an act in 1841 incorporating himself and others of Texas and London, England, as the Texas Trading, Mining and Emigrating Company for the purpose of purchasing lands, importing immigrants, etc.53 Watrous had a hand deep in a large number of great frauds then being promoted : colonization schemes, alleged Mexican private grants, and spurious certificates alleged to have been granted to Texan soldiers and to settlers.
In fact, he helped to organize a company to profit from the traffic in immense numbers of these fraudulent certificates. This company was composed principally of Watrous, ex-Congressman Joseph L. Williams, J.N. Reynolds (a New York politician and lobbyist who received subsidies from the large cotton-mill firm of Lawrence, Stone & Company, of Fall River, for lobbying tariff measures through Congress by bribcry54), and J.S. Lake, an Ohio and New York City politician, banker and broker who had plundered the Wooster Bank and the public of $936,398, much of which he had lost in speculations.55 Associated with these men were other Texas and New York City capitalists ; the headquarters of the company was in New York City.
What the clique especially and most pressingly wanted was a judge of their own in the United States District Court ; although the Texas judges could be generally depended upon, still they often represented conflicting interests. Much more satisfying would be a judge absolutely and unalterably bound up in interest with the clique. Largely through the influence of Caleb Cushing, of Massachusetts, a puissant figure at Washington, and subsequently Attorney-General of the United States, the clique, on May 29, 1846, shortly after the annexation of Texas to the United States, succeeded in having Watrous appointed judge of the U.S. District Court in Texas.
Now, indeed, the land grabbers were sure of having their own way. True, Texas retained control of its lands, and the Texas courts were supposed to have complete jurisdiction. But by some member of the clique feigning or having a residence in some other State, collusive suits could be carried on and thrown into the United States District Court, which would be Watrous. This is what happened, as prearranged. When Watrous went on the bench, two lawyers, Ovid F. Johnson of Pennsylvania, and William G. Hale of New Hampshire, were imported into Texas to take charge of the cliques law affairs. To them Watrous turned over the Peters colony, and other legal business. Through Robert Hughes, his confidential adviser, Watrous was also interested in the Powers and Hewitson grant, covering a large body of land on the coast, west of Galveston. Hughes, it may be remarked, had been a surety in bond for William M. Gwin, former Marshall of southern Mississippi, whose implication in enormous land frauds has already been described.,
Texas Legislature Denounces Watrous.
On March 20, 1848, a joint resolution of the Texas Legislature declared that Judge Watrous had given important decisions in cases in which he was interested, and that it also believed that Judge Watrous has, while in office, aided and assisted certain individuals, if not directly interested himself, in an attempt to fasten upon the State one of the most stupendous frauds ever practised upon any country or any people, the effect of which would be to rob Texas of millions of acre of her public domain. . . . Judge Watrous was asked to resign. He ignored both the denunciation and the request.
One of the suits begun in Watrous court was an action to have fraudulent certificates validated. The case went up to the Supreme Court of the United States which in 1850 declined to validate them, saying that immense numbers of these certificates were put in circulation, either forged or fraudulently obtained, which, if confirmed by surveys or patents would soon have absorbed all of the vacant lands of the Republic.56 This decision caused consternation among the clique ; and, as the sequel indicated, they now began to exert influences to attempt to win over the Supreme Court of the United States.
In 1855, the Adjutant-Generals office at Austin, where many of the land archives were stored, was set on fire and destroyed by incendiaries. This act, Governor Pease reported, has destroyed most of the original evidences upon which bounty and donation certificates were issued.57 On July 29, 1856, Stephen Crosby, Commissioner of the Texas Land Office, reported that an attempt had been made to destroy the Land Office building by fire.58
The reason lay in a desperate attempt to hinder a select committee of the Texas Senate which had been investigating the matter of land certificates alleged to have been granted to settlers, head of families, and to former soldiers in the Texan army. This committee reported voluminously on January 21, 1856, that the Boards of Traveling Commissioners which had been originally appointed in 1837 to determine who was entitled to land had grossly betrayed their trust. The committee recited in detail that not only were enormous numbers of forged and otherwise fraudulent certificates issued in the name of persons who never existed, and to soldiers long since dead, but that the officials and courts knew of the fraudulent nature of most of the certificates.59
Watrous Impeachment Demanded.
In the same year that this report was submitted the Texas Senate passed a resolution demanding the impeachment of Judge Watrous. Said judge, the resolution read, is guilty of attempting, by contriving and carrying on a made-up suit in his own court, to validate in the same, over twelve hundred fraudulent land certificates, claimed by himself, and his compeers, and of a class, in all, the enormous amount of 24,331,764 acres of fraudulent certificates, thereby attempting to deprive his country of a vast domain, besides causing the State the cost of additional counsel in defending herself against such enormous precluded spoliations ; and, on discovery of his interests in said class of certificates being made, said judge transferred said suit for determination to the United States Court in another State, after shaping the case, and influencing that court in such a manner as to obtain his desired judgment. A similar resolution was passed in the next year by the Texas House.60
These resolutions were passed under great pressure. Genuine settlers were threatening violent retaliation if the frauds succeeded ; and at a time when men wore their guns and used them these threats were not dismissed as idle words. Moreover, the schemes of the Watrous clique interfered with those of certain railroad, real-estate, ranch and other corporations which combined all of their power and influence to depose him.61
In 1857 Jacob Mussina submitted a memorial to Congress asking for the impeachment of Watrous. Mussina claimed an interest in titles to the cities of Brownsville, Point Isabel and adjacent lands. He recounted that the Watrous clique, however, had turned up with an alleged old grant, called the Cavazos grant, and that under this they alleged ownership of 250,000 acres, including the towns of Brownsville and Point Isabel and numerous villages and ranches, as also Government sites and improvements. Mussina further charged that a fraudulent trumped-up case was brought by William G. Hale and his partner, and that after deciding the case against Mussina, and influencing other United States judges, Judge Watrous ordered Mussinas property sequestrated. Mussina submitted an impressive series of facts from the court records to prove his charges.62
At the same time, Eliphas Spencer, of Texas, submitted a like memorial showing that Watrous, Williams, League, John W. Lapsley, Menard and others were interested in pushing a claim for eleven leagues, based upon an alleged old grant to Thomas de La Vega. Spencer accused Williams of forging the power of attorney from La Vega, and he detailed how Judge Watrous became secretly interested in the claim and how Watrous had fraudulently and corruptly decided the case and had influenced other judges to act similarly.63 This particular eleven-league tract in dispute was merely a part of thirty-three leagues, or 180,000 acres, alleged to have been granted to La Vega and De Aguirres by the Mexican Government.
Watrous Haled up on Charges.
The House Committee on the Judiciary on February 2, 1857, recommended that action be taken on the charges against Watrous. Five days later, the House of Representatives as a body, determined, by a vote of 156 to 32, to proceed against Watrous in hearing the charges on which to determine whether he should be definitely haled up for impeachment.64
Powerful influences now exerted themselves to save Watrous. Caleb Cushing came forward to act as Watrous attorney. It was an era when corruption was rampant at Washington ; when committees of Congress were constantly reporting testimony that in tariff, railroad and other legislation, large amounts in bribery had been expended and received.65No one can read the elaborate testimony in Watrous impeachment action without feeling convinced that the charges were more than adequately proved, notwithstanding the fact that most of the witnesses summoned were Texas lawyers, and they demurred at testifying.
The vote of the committee hearing the charges was divided evenly. This, of course, ended the move to impeach him. The committee, however, handed in both majority and minority reports. The majority report apologetically said that the evidence was insufficient, because of the reluctance of the witnesses to tell all that they knew. The four minority members reported that the charges stood proved ; that judge Watrous with other persons had embarked in schemes involving immense tracts of land ; that fraudulent and collusive suits were brought in his court ; that he had procured improper testimony, and that he had decided those suits in his own favor.66
General Sam Houstons Denunciation.
The scandal resulting from judge Watrous escape from impeachment was the cause of Senator Houstons indignant speech of February 3, 1859. Inasmuch as the facts and documents in that speech comprise a volume in themselves, reference can be made here to certain cogent and relevant parts only. Senator Houston gave the history of the fraudulent operations of Watrous and his partners in minute detail, citing court records and other documents, and reading the actual correspondence of different members of the clique with one another. Speaking of the Peters colonization syndicate (which acquired as we have related, 1,088,000 acres vested in its own name, and 879,920 acres mostly in the names of alleged settlers), Sam Houston proceeded :
It further appears that the Hon. Caleb Cushing was employed as the attorney of this association, which is known to have numbered among its members men of the highest station and most powerful influence in the land ; and that when elevated to the high office of Attorney-General of the United States, he gave an extra-judicial opinion in favor of the claim of the company which will be found in the published Opinions of the Attorney-General.67 I mention this only to illustrate the ramifications of the influences brought to sustain judge Watrous. . . . It may here be observed that this was the same Caleb Cushing who probably then, and certainly later, was so influential in pushing the appointment of Supreme Court Justices.
Then came an astonishing revelation, directly reflecting upon the integrity of the Supreme Court of the United States.
Williams Letter on Striking the Supreme Court.
It ought to have been supposed, Senator Houston went on a little later, in describing the conspiracy to get fraudulent land certificates validated, that after the judgment of the supreme court of Texas, the high court of appeals, and finally, after the decision of the Supreme Court of the United States, against the validity of the certificates, further efforts on the part of the company would have been hopeless. But what vitality, what ramifications, what resources must they have possessed, when we find them daring at the last, as I shall show, to anticipate exerting an influence on the United States Supreme Court itself ! This certainly was a fitting climax to audacity and assertion of power. Thus we find this branch of the scheme of the conspirators expiring with an adventurous and desperate effort to retrieve their fortunes by improper influences with the courts ; the last effort still characteristic, and still significant of the comprehensive grasp and connections of this most extraordinary combination.
As exposing the honest proposition of exerting an influence on the Supreme Court of the United States, I will here read a letter from Mr. Joseph L. Williams on this subject, to whom, it appears, was and is allotted the Washington branch of the companys operations.
The letter was dated Washington City, November 1, 1851. Senator Houston did not state the name of the person to whom it was addressed. The last paragraph of Williams letter read :
I find much of your matter of reliance in the big suit in Bibbs reports. This casually led me the other day to bring the case to the notice of ____. He seems perfectly familiar with every precedent and doctrine applicable to this case, and he says it is quite impossible for the Supreme Court, on deliberate review and consideration, to abandon right, reason, and casual law, on account of one casual act of stultification at the last term. I shall not omit the part of striker with certain members of the court, which I told you I would see to. I am already here for the purpose. I will persuade Catron, of Tennessee, to take the case under his especial charge.68
To act the part of a striker, meant to influence unduly or corruptly.69 Of this letter one of two constructions is allowable : Either Williams was vapidly boasting, or he knew his ground. He stated that he had gone to Washington for the particular purpose of influencing certain members of the court. This pointed statement, by itself, was serious enough. But he specifically mentioned Associate Justice Catron as the one especial member whom he would persuade to take supervision of the case, signifying that he looked to Catron particularly to see to it that a favorable decision should be rendered.
If untrue, the statements in Williams letter were malignant and inexcusable attacks not only upon Justice Catron but upon the whole Supreme Court. Were that so, the Supreme Court would have been justified in haling Williams up for libel and punishing him severely, and Justice Catron should have immediately instituted suits, civilly and criminally.
Supreme Court Did Not Reply.
But no such development ever happened. Senator Houstons speech was given wide publicity ; and published in the permanency of a volume, it had a considerable circulation. Instead of replying, all of the parties inculpated in that speech seemed anxious to hush the matter as soon as possible. In concluding his remarks Senator Houston said that elaborate as were the details he had given they, after all, were only a sketch of the whole of the facts, and he intimated that he had more in reserve. Evidently, the prudent counsel prevailed of keeping dignified silence, and not pushing him too far by making any retort calculated to arouse him again.71
Senator Houston, it was clear, was holding back much striking information. These suppressed facts, exposing the inconsistency of the Supreme Court of the United States in validating certain private land claims, while rejecting others, would, if published in sequence, have reflected severely not only upon many of Houstons most distinguished colleagues in the Senate, but upon Congress itself.
Thus for example, United States Senator Judah P. Benjamin of Louisiana, one of the most powerful politicians in the country, was at that very time introducing a bill to validate a number of private land claims for some of which he had been attorney. These particular claims could not be confirmed by the Supreme Court of the United States. They had been explicitly declared void by an act of Congress, in 1804, as having been fraudulently granted by Governor Morales, at the very period when the United States was taking over the sovereignty of Louisiana and parts of what was called West Florida, and when the United States claimed jurisdiction over the section in which the alleged grants were made.
Senator Benjamin had argued in court as counsel for some of these claimants. In 1858 Senator Benjamin, as chairman of the Senate Committee on Private Land Claims, submitted a bill in behalf of the claimants, which bill became a law on June 22, 1860. Among the claims validated by this act were the Reynes claim to 40,000 arpents in the Baton Rouge district, Louisiana ; several other claims respectively embracing 32,000 and 40,000 arpents, in the same State ; and a considerable number of other claims in Louisiana, Florida, Arkansas, Missouri and other States. These claims, confirmed by act of Congress, of June 22, 1860, embraced an aggregate of about 600,000 acres.71
Similar circumstances surrounded the De Bastrop claim. This was an alleged grant made by Carondelet in 1796 or 1797, to Baron De Bastrop, of a tract of twelve leagues square, or 1,016,264 arpents, in the Ouchita and Bayou Siard districts, Louisiana. In 1807, Edward Livingston bought a sixteenth interest in the claim and sold a large part of it to Stephen Wante ; Robert R. Goelet obtained other parts, and Stephen Girard bought more than 200,000 acres of the claim. The board of Land Commissioners rejected the claim, and although potent influences assiduously tried to get a confirmation from Congress, that body for fifty years refused to consider it.
Girard bequeathed his estate to the cities of New Orleans and Philadelphia. These cities brought suit to have the claim validated, and succeeded in the lower courts. When the case came up on appeal before the Supreme Court of the United States, in 1850, Attorney-General Crittenden contended that (supposing that a concession to De Bastrop had been really made), the claimants not only did not produce the original concession but failed to bring forward an authentic copy and that they did not even allege the loss of the original. On these grounds the Supreme Court (Justice Catron writing the majority opinion) reversed the lower court and rejected the claim.72 But it was validated by act of Congress, in 1854.
At the same time Justice Catron wrote another majority opinion, rejecting the Boisdore claim, alleged to have been granted by Governor-General Miro in 1783, in what is now the State of Mississippi, as a grant of land for a cow pasture. The holders of this alleged grant claimed an area of from 100,000 to 400,000 acres. Notwithstanding the fact that Boards of Land Commissioners and Congress had, for forty years, consistently refused to recognize the claim as covering more than 1280 acres, the claim in full was validated by the U.S. District Court in 1845. The Government appealed. When the case was argued before the Supreme Court of the United States in 1850, Attorney-General Crittenden sardonically exclaimed, Boisdore never dreamed of such a magnificent principality for his cow pen as is claimed . . .! 73
The Courts Record Did Not Belie Houston.
Justice Catrons decisions in 1842, in a number of Florida land claims the Low, Hanson, Atkinson and others validating various claims of 15,000 and 16,000 acres each (XVI Peters, 166 etc.) had been subjected to sharp criticism. Contested by the Government, those claims had been confirmed by the Supreme Court of the United States, although some of the claimants had not even taken the trouble to be represented by counsel. But the majority opinions (cited above) delivered by Justice Catron and his dissenting opinion in the California land cases, would not seem to justify the implification that he, at least, was tampered with or was susceptible to illicit influences. Perhaps there were underlying developments and circumstances like those of the Dred Scott case, of which no hint appears in the formal records. But what does appear in the records indicates (so far as the Supreme Court as a whole was concerned) the drift of matters lucidly enough.
When Mussina applied to the Supreme Court of the United States, in December, 1857, for a mandamus compelling Judge Watrous to allow him an appeal in the Cavazos case, the Supreme Court (Justice McLean writing the opinion) denied his application, on the ground that Watrous had submitted an explanation and that the court was bound to accept it !74 Ten years later, another suit brought by Mussina against Cavazos was dismissed by the Supreme Court of the United States because of this extraordinary discovery : That when Mussinas counsel in the court below had filed a bill of exceptions the judge had not signed and sealed it. This formality not having been complied with, the Supreme Court refused to consider Mussinas petition.75
On the other hand, in the suit of Spencer vs. Lapsley over the alleged La Vega grant, we see the Supreme Court of the United States upholding Watrous decision by, deciding, in 1857, in favor of Lapsley. It was well known that Lapsley was an integral member of the Watrous clique, and that he had originally assumed a residence in Alabama in order to bring the suit in Watrous court. Hughes and Hale appeared as his attorneys in the Supreme Court. In a dissenting opinion, Justice Daniel declared that the alleged La Vega deed in question was spurious, denounced the whole transaction, and showed that judge Watrous lead a personal interest in the case, and should therefore have been disqualified from sitting.76
These were three of a series of suits occasioning no little scandal. In other feigned cases arranged by the Watrous clique, the lawyers for that clique, Hale, Robinson, and Hughes, were invariably in evidence, often appearing collusively on opposite sides ; 77 the facts were patent but the Supreme Court of the United States closed its eyes.
The area of land obtained by the Watrous combination was large and of great value, but the exact outcome of all their schemes it is not possible to trace here to the end.
But one fact is absolutely certain : By 1860, patents for great areas of land had been issued under the Powers and Hewitson contract and under many other grants in which Watrous, League and associates were openly or surreptitiously interested.78 And already, by the year 1858, according to a report of a joint select committee of the Texas Legislature, not less than 68,000,000 acres of Texas lands were patented to individuals, largely absentee capitalists. The committee complained that 21,000,000 acres escaped taxation. We find millions of acres of fertile soil, it reported further, lying over Texas, upon which the owners (the greater part of whom we believe to be non-residents) are wilfully and knowingly failing and refusing to, pay taxes.79 Elected Governor of Texas, General Sam Houston stated to the Legislature, on February 8, 1860, that his energies had been devoted to trying to put a stop to the legislating away of public lands, and towards overturning corruption and arresting abuses, but at every step, he [Houston] has been met by difficulties almost insurmountable.80 If this corruption was so actively and successfully employed in Texas, is it not reasonable to suppose that it was equally so at Washington ?
1 Case of Lewis et al. vs. Marshall et al., V Peters, 470. The principal point against Lewis was the Kentucky statute of limitations, barring suits not brought within a certain period.
2 City of New York vs. Miln, XI Peters, 142.
3 A History of Banking In All The Leading Nations, etc. (1896), Vol I : 144.
4 Case of Briscoe vs. The Bank of the Commonwealth, XI Peters, 257-348. The courts opinion was written by Justice McLean.
5 Doc. No. 108 [New York Senate] Docs., 1834, Vol. II.
6 The founders of some of the largest fortunes of present times were large stockholders in some of these banks, or were both stockholders and officials. John Jacob Astor, for example, held stock in the Manhattan Bank, the Merchants Bank, the Bank of America, the Mechanics Bank and others. Jacob Lorillard was president of the Mechanics Bank, and the Goelet family were extensive stock owners in the Chemical Bank (now the Chemical National Bank, one of the richest banks in the United States).
7 Abridgement of the Debates of Congress, from 1789 to 1856, Vol. XIII: 426-427.
8 A History of Banking In All The Leading Nations, etc., Vol. I : 144.
9 The full decision is set forth in XI Peters.
10 For instance : From May 1, 1852, to May 1, 1862, twenty-six American schooners and brigs were libeled by the Government at the port of New York alone, charged with being engaged in the slave traffic. Some were seized at New York, others on the coast of Africa. Many were condemned. See, Senate Doc. No. 53, Vol. V, U.S. Senate Docs., Second Session, 1861-62.
11 XV Peters, 518. The case was entitled United States vs. LAmistad. The suit brought by the Government had no direct bearing whatever on the question of the negroes, but was instituted to determine the rights of the Spanish claimants to the restitution of what they called their property.
12 Case of Groves et al. vs. Slaughter, XV Peters, 476.
13 XV Peters, 508.
14 Ibid., 509. Justices McKinley and Story dissented from Thompsons opinion, Justice Catron was ill, and Justice Barbour died before the case was decided.
15 Case of Soulards Heirs vs. U.S., X Peters, 100-106.
16 American State Papers : Public Lands, Vol. VIII: 841. Doc. No. 1538.
17 Judge Pecks criticism was so voluminous with records and facts, that neither the whole nor any adequate part can appropriately be cited here. Those desirous of learning its contents in detail are referred to Doc. No. 1538.
18 Case of John Smith vs. U.S., X Peters, 324-336. Senator Benton was Smiths attorney.
19 American State Papers : Public Lands, Vol. VIII: 839. (Doc. No. 1538.)
20 See, XIV Peters, 334.
21 U.S. vs. Rodman, XV Peters, 130-140.
22 Buycks claim for 50,000 acres in Florida was thus thrown out, Delespines for 92,16o acres, etc.See, Ibid., 213, 319, etc.
23 For example, John G. Carlisle. As Secretary of the Treasury, in 1895, he turned over a bond issue to a syndicate headed by J. Pierpont Morgan, allowing that syndicate to make $18,000,000 profit. After Carlisle left office he was slightly rewarded by being employed as a corporation attorney. He died recently in utter poverty, and his friends had to defray the expenses of his burial.
24 Life and Letters, etc., Vol. II: 553.
25 Case of Rose vs. the Governor, etc., XXIV Texas Reports (Supreme Court of Texas), p. 496. See, also, Address To The Reader of the Documents Relating To The Galveston Bay and Texas Land Company, etc., New York, 1831. It was the companys pamphlet calling public attention to the value of its land for timber supplies, and for raising sugar, cotton, rice, indigo, tobacco, etc.
26 This prospectus was issued in pamphlet form ; the date is uncertain probably 1834 or 1835. The above statement appears on page I.
27 Ibid., 3.
28 And they later received, in return for these outlays and advances, scrip entitling them to 1,329,200 acres. Stephen Whitney claimed that Mason advanced $1,000 to Williams as a loan in supporting the war for independence in 1835.Journal of the Texas Senate, 1856: 352. William, owned the Bank of Agriculture, chartered in 1835, and with his partner, McKinney, held large claims for loans to the Texas Government. Many of such claims, it was discovered, were forged.See Official Journal, Texas Senate, 1856: 369.
29 Early Laws of Texas, 1831-1845, Vol. I: 207-2o8. A league equaled 4,428 acres.
31 Evidence in Relation to Land Titles Taken Before The Joint Committee on Public Lands, Printed By Order of The House, 184o: p. 2.
32 Ibid., 6.
33 Ibid., 7 and 29.
34 Ibid., 29.
35 Ibid., 11. The italics are the present authors.
36 Evidence in Relation to Land Titles, etc., II.
37 Ibid., 18.
39 Ibid., 20.
40 See the long list he gave, Ibid., Doc. No. 13.
41 Case of De Leon vs. White, IX Texas Reports, 598.
42 See, Report of Texas House Judiciary Committee, January 4, 1858. It reported this fact, and declared that it was well known that not one in twenty of these titles were perfected by performance of conditions. It spoke of the old defenders of their country being driven from home that the land sharks and speculators may reap their harvest of gain. Official Journal, House of Rep., Texas, 7th Biennial Session, 470-471.
43 This note appears in the report of a land case in II Texas Reports, 78 (Dec., 1847) : This cause was tried before the Hon. R.T. Wheeler, Ass. J. of the S.C., and Thomas J. Jennings, Esq., so constituted in consequence of Justice Hemphill and Associate Justice Lipscomb having previously been counsel for the parties. In another such case (III Texas Reports, 248) Judge Wheeler did not sit, having been of counsel below.
44 See, Case of Paschal vs. Perez, VII Texas Reports (1851), p. 359, etc., etc.
45 XXIII Texas Reports, 349. Judge Wheeler, having been counsel for Menard, did not sit in the case.
46 XXXVIII Texas Reports, 12-35.
47 House Ex. Doc. No. 13, Twenty-fifth Congress, Third Session ; also House Report, No. 313.
48 See, Castro vs. James, VII Texas Reports, 219-223, and Ibid., Vol. XX : 278.
49 XV Texas Reports, 180-183.
50 Official Journal of the House of Representatives, State of Texas, Seventh Biennial Session, 1857: 80-81. See, also, Report of S. Crosby, Commissioner of the Texas General Land Office, Official Journal of the Senate, 1856: 149-150. In his report for the years 1900-1902, Charles Rogan, Commissioner of the Texas General Land Office stated (page 41) that an examination of the Spanish department of the Land Office showed that the act of September 4, 1850, also validated or confirmed private land claims to the extent of 1,1oo,000 acres, which are still claimed and which seem to have good titles. Among the claims thus confirmed, according to Rogan, was Jose B. Boregos claim to forty-seven leagues ; but, reported Rogan, the claimants are actually holding sixty-four leagues, or 286,532 acres. This excess, Rogan stated, the claimants have been holding on doubtful authority. Another claim confirmed by the act of 1850, Rogan reported, was that of Juan J. Balli, for seventy-one leagues and nine caballerios (315,362 acres).
51 For a time the capitalists owning the Mercer claim were satisfied with the 691,840 acres that they received. But twenty-five years later, they set up a claim to not less than six thousand square miles. Among the assertions, in reply to this claim, made by the State of Texas, were these charges : That the contract was fraudulently obtained and that the map submitted by the Mercer Company purporting to bear date of May 1, 1845, appeared to be of recent date ; had been surreptitiously deposited in the office of the Secretary of State, without his knowledge, and took in about three thousand square miles more than the contract actually covered.
If this new claim, or any part of it, had been allowed, it would have conflicted with domains owned by railroad corporations. Times had changed ; the judges on the bench in 1882 were almost exclusively former railroad attorneys. The Supreme Court of the United States, in 1883, threw the case out of court, saying that there was no satisfactory evidence that Mercer and associates ever introduced directly or indirectly a single family into Texas. Have they spent any money in the enterprise ? Justice Miller went on. A feeble attempt to show an outlay of $12,000 or $15,000 is made, but by no means successfully.Case of Hancock vs. Walsh (Commissioner of the Texas General Land Office), III Woods Reports, 351-367, and Case of Walsh vs. Preston, 109 U.S. Reports, 318. But this decision did not take away the 691,840 acres already obtained by the Mercer Company.
52 The Land Conspiracies of Texas, etc. Speech of Senator Sam Houston, of Texas, Exposing the Malfeasance and Corruption of John C. Watrous, Judge of the Federal Court in Texas, and f His Confederates, Delivered In The Senate of the United States, Feb. 3, 1859.N.Y., Pudney & Russell, Printers, 1860.
53 Laws of the Republic of Texas, Fifth Congress, 1841 : 78-79.
54 Report No. 352. Reports of Committees, Fifty-Third Congress, First Session, Vol. III: 20, etc.
55 De Bows Review, 1848: 262-263. Senator Houston gave details of Lakes career.
56 Case of Thomas M. League vs. John De Young, Howards Reports, Vol. XI: 201.
57 Journal of the (Texas) Senate, Sixth Legislature, 1855: 42.
58 Official Journal, Senate of the State of Texas, Adjourned Sesion, 1856 : p. 150.
59 Journal of the (Texas Senate) Sixth Legislature, 1856 : 387-389.
60 Official Journal of the Senate, of the State of Texas, Adjourned Session, 1856 : p. 399, and Ibid of the House, 1857 : pp. 420-424.
61 The railroad companies secured approximately 32,400,000 acres in Texas. Much of this was obtained in, or after, the year 1854. Manufacturing and navigating corporations, then and subsequently, obtained a gift, in total, of 4,061,000 acres.
62 Reports of Committees, First Session, Thirty-fifth Congress, 1857-58, Report No. 54 : 2-10.
63 Report No. 54, First Session, Thirty-fifth Congress, 11-12.
64 The Congressional Globe, Part I, Third Session, Thirty-fourth Congress, pp. 542 and 627-628.
65 For the array of specific facts, see the History of the Great American Fortunes, Vols. II and III.
66 Reports of Committees, First Session, Thirty-fifth Congress, 1857-58, Report No. 54: 14.
67 See, Opinions Of The Attorney-General for the U.S., Vol. VIII: 522-546. The question concerned the point whether an act passed by the Texas Legislature, in 1852, granting to the Peters contractors (The Texas Land and Emigration Company) 1700 sections of land, to be located where it chose, was constitutional. As Attorney-General, Cushing reported that the act was constitutional, and that the Peters Company had rights which it could assert in the Supreme Court of the United States.
68 The Congressional Globe, Part I, Second Session, Thirty-fifth Congress, 1858-59: p. 775. The italics appear in the Congressional Globe.
69 Thus, a strike bill is one introduced in a Legislature with a definite purpose of forcing the corporation or individual to whom it is hostile to yield tribute for its defeat or suppression.
70 Here we shall leave the subject of fraudulent Texas land certificates. By 1863, an aggregate of 41,956,202 acres in Texas had been patented to individuals or corporations. This amount did not include the 22,492,057 acres patented under alleged Spanish and Mexican grants and contracts. How much of the 41,956,202 acres was based on fraudulent certificates, it is impossible to say. Many of them, reported a Commissioner of the General Land Office later, were subsequently established apparently through judicial decree. Many of these decrees were not written in a courthouse.
71 See the remarkable history of these claims, and of their final validation, in U.S. vs. Lynde, XI Wallaces Reports, 632-647, in which Senator Benjamins activities are clearly described. There was a close identity of interest between the land appropriators and the original railroad promoters ; they were often the same persons. Senator Benjamin was one of the foremost promoters of the New Orleans, Jackson and Great Northern Railroad, and was chairman of its board of directors. (See, Butlers Judah P. Benjamin, pp. 134-136.) As for John W. Lapsley, partner and accomplice of Watrous, he was president of the Alabama and Tennessee Railroad Company (see, 53 Alabama Reports, 257) which received a large land grant, later confirmed by act of Congress, May 23, 1872. Lapsley was also a director of the Selma and Gulf Railroad Company (45 Alabama Reports, 698). Many of the railroad promoters obtained such sums as were invested by them from land frauds.
72 See, Case of U.S. vs. Cities of Philadelphia and New Orleans, XI Howard, 609-661. Justices McLean, Wayne, McKinley and Grier dissented. See, also, U.S. vs. Louise Livingston, widow of Edward Livingston, and U.S. vs. Callender, Ibid., 662-663.
73 U.S. vs. Boisdore, XI Howard, 63-104. Justices McLean, Wayne and McKinley dissented. Governor-General Miro was the official whose name was forged to so many documents in Arkansas. Justices McLean, Wayne, McKinley and Grier had also dissented when Chief Justice Taney and a majority refused to confirm the notorious Maison Rouge claim. This was a claim to thirty square leagues, or 1,044,000 acres in western Louisiana, alleged to have been granted by Governor-General Carondelet, in 1795. Chief Justice Taney denounced the alleged grant as forged and antedated. See, III Howard, 785, and VII Ibid., 833.
74 XX Howards Reports, 280-290.
75 VI Wallaces Reports, 355-363.
76 XX Howard, 264-280.
77 See, for example, Case of League vs. Atchison, VI Wallaces Reports, 112-116. This was an action by League to recover a lot in Galveston which both parties claimed under the Galveston City Company. Robinson and Hale represented League. Upon the Texas statute of limitations that a suit to recover real estate must be brought within three years, Justice Grier (writing the opinion of the Supreme Court of the U.S.) reversed the lower court, and decided in favor of League. See, also, Case of Cavazos vs. Trevino, VI Wallace, 773. Trevino, as Senator Houston had shown, was one of the cliques tools. Also, McKinney vs. Saviego, XVIII Howard, 235, in which Hale appeared for McKinney, and Hughes for Saviego.
78 See, Abstract of Patented Titles, etc., from the Records of the General Land Office, Austin, 1860 : pp. 1237, etc.
79 Official Journal, House of Rep., Texas, Seventh Biennial Session, 483-484.
80 Journal of the Senate, State of Texas, 1860 : p. 545.