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Show 474 HISTORY OF PUBLIC LAND LAW DEVELOPMENT persons "unlawfully inclosing tracts of public lands ...." He had conceded, however, that the only action he could take was to issue the warning and to refer cases to the Department of Justice for prosecution. His assistant had conceded that "little or no respect had been paid" to the warning and the Department of Justice was not inclined to press matters vigorously. Both McFar-land and Teller had recommended to Congress that it take action to authorize the people to break down and cut fences and compel the owners to remove them, but felt they lacked authority to do more. Commissioner Sparks' Battle At this time the enormous land holdings English and foreign capitalists had acquired in the United States, partly through misuse of the land laws by their agents or by the persons from whom they purchased their holdings, began to attract attention.33 The opposition to alien land ownership added strength to the movement for an act to outlaw illegal enclosures of the public lands. Under the leadership of Lewis Pay-son of Illinois and William S. Holman of Indiana, who were always in the center of land reform activities, Congress was persuaded to adopt a measure authorizing the Federal district attorneys, on the presentation of evidence of unauthorized occupation and fencing, to bring action in the Federal district and circuit courts to compel the removal of the fences, and authorizing the President to employ both civil and military forces to compel removal and destruction of such unlawful enclosures. Any person obstructing the entrance of settlers upon public lands or attempting to deter 33 Illinois, Kansas, Nebraska, Wisconsin, Minnesota, Colorado, Iowa, Idaho, and Missouri adopted anti-alien-landowning laws in 1885-87. The Federal Act of March 3, 1887, is in 24 Stat. 476. I have discussed the background of the agitation for these measures in Frontier Landlords and Pioneer Tenants (Ithaca, 1945), pp. 57-59. them by threats was liable to fine and imprisonment.34 In the easygoing days of President Arthur's administration unlawful fencing had multiplied widely in all the range states, but Sparks, armed with the new authority, struck right and left in his efforts to compel removals and to open the millions of enclosed acres to settlers. District attorneys were instructed to secure indictments against those responsible, orders were issued that the fences must come down and in 1887 Sparks persuaded the War Department to sanction the use of a company of cavalry to aid in destroying the fences in, Wyoming.35 Bold action of this sort was bound to bring down upon Sparks, Lamar, and Cleveland the wrath of the railroads whose unearned grants were being restored to the public domain, of owners of private land claims whose questionable titles or surveys were threatened, and of the many attorneys and claim agents who had built up profitable practices through their ability to get access to information not open to the general public and to expedite the patenting of suspended and dubious claims. Also distressed were the numerous landlookers and attorneys in every land office town in the western states whose business was immediately contracted, cattle, timber, and mining companies who were in process of acquiring land through the use of dummy entry-men operating under the commutation clause or the preemption law, and some actual settlers who needed to gain title, even if questionably, in order to be able to borrow for farm needs. The legitimate 3i Act of Feb. 25, 1885, 23 Stat. 321. 85 New York Times, May 28, 1887. Peake, The Colorado Range Cattle Industry, p. 77, lists 14 individuals and companies under investigation for illegally fencing nearly 3 million acres, the largest of which were the Arkansas Valley Land and Cattle Company, the Prairie Land and Cattle Company, the Livesy Brothers, the Cleveland Cattle Company, and John W. Prowers. |