historian, author, film producer

Category: law (page 1 of 1)

At the Library of Virginia: Looking for Mima Queen

After a coffee with Edward L. Ayers this morning (much excitement in Richmond with two teams in the NCAA final 16), I am at the Library of Virginia finishing the citations and edits for The Iron Way: Railroads, The Civil War, and the Making of Modern America.

But I can’t help looking ahead to my next project. I’m calling it “The Petition.” I’ve pulled the correspondence of John Randolph and Francis Scott Key in 1813. Key tried the Mima Queen case before the U. S. Supreme Court that year. There are nine letters in this file from him to Randolph. Will any of them mention the Queen case? Does her petition for freedom come up in their discussions? How can I reconstruct the case and its remarkable history? I’m looking forward to writing this early history of Washington, DC, slavery and freedom.

On a completely different subject, Ed Ayers and I agreed that we need to have a Valley Project team reunion and a session at the #AHA2011 in Chicago on the Valley of the Shadow and its progeny. Looking forward to that already.


In Houston, TX at the Organization of American Historians Conference, I have enjoyed catching with with friends and colleagues. I had a wonderful talk with Elizabeth R. Varon and heard about my friends at the University of Virginia, where she is now teaching Southern history. And she gave me some helpful advice on my next book project. I’m going to write about slavery and freedom in early Washington, D.C., and in particular at the case and family history of Mima Queen. The main focus will be on the Queens, and the case, which Francis Scott Key tried in the U.S. Supreme Court in 1813, and John Marshall decided. This was a petition for freedom case, and among other things established the “hearsay rule” in American law. I’ve found new documents on the case, and Liz, not surprisingly, had great suggestions for how to begin to uncover this story. The book will tell the story of early Washington, black and white, and through the lives of three generations of Queen women–Mary Queen, Mima Queen, and Louisa Queen.

The OAH session on Quantitative History revealed how historians are using new techniques of Social Network Analysis, ones that I plan to use in my next work on early Washington. Karen Wilson’s work on networks of Jewish business men and families in Los Angeles opened my eyes to how these techniques might be applied to my project on the Queens.

Melinda Miller (U.S.N.A.) explained why forty acres and a mule would indeed have made a difference in the lives of freedmen after the Civil War. Her brilliant analysis compares Cherokee Freedmen with Southern black freedmen.

And we had a mini-reunion of Valley of the Shadow folks, including Anne S. Rubin, Andrew Torget, and Amy Murrell Taylor. Missing Ed Ayers, but he was probably watching University of Richmond Spiders advance in the NCAAs.

The meeting also allowed my research team for our Railroads Digging into Data project to meet with Richard White and his Spatial History team from Stanford, including Erik Steiner and Kathy Harris. We hoped going into the meeting to drive “the golden spike” between our respective railroad data projects. No champagne, no worker strikes, no Thomas C. Durant. But we made major progress on how we might join our data and tools and collaborate on a future project. Our Aurora Engine framework for spatio-temporal visualization and analysis might be at least a common gauge–to use a railroad term.

And Oxford University Press put out The Old South’s Modern Worlds, with an excellent essay by Michael O’Brien among others.

French Railroads, The Holocaust, and American Slavery Reparations

In 2010 France’s state-run railroad, SNCF (Societe Nationale des Chemins de fer Francais), apologized for its role in the deportation of tens of thousands of Jews during World War II. Expressing “sorrow and regret,” the company’s apology came only after it emerged as a leading bidder in a $2.6 billion high speed rail project in Florida. Jewish citizens in Florida, no doubt, might see the company’s apology as nothing more than self-serving, and too little too late. SNCF America is also a potential bidder in a similarly large project in California. At first, the company issued its apology only on its English-language web site.

Then, last week (late January 2011), SNCF announced that it would create a Holocaust memorial outside Paris at its long-abandoned Bobigny depot, from which over 76,000 Jews were transported to the concentration camps. The company has long maintained that it merely cooperated with the Nazis, that it did so under duress, and that many of its trainmen found in the French Resistance and were themselves deported and killed for their actions. The case brings up complicated histories of occupation, resistance, war, and the “banality of evil.” It raises questions about how one can assess the crime of deportation and the responsibility of a corporation for such violence.

Nevertheless, as Sarah Wildman’s Politics Daily report on “The Railroad to Hell” makes clear, numerous scholars have found reason to challenge the company’s view of its role in the Holocaust. Both Harriet Tamen, an American lawyer representing 600 survivors who filed suit against the company in 2006, and Jean-Marc Dreyfus, a historian at the University of Manchester, have compiled detailed evidence that the company’s officials were complicit in the deportation. Tamen has led the effort to claim reparations for the survivors.

The question that the French and SNCF are wrestling with is now focused, at least in part, on whether reparations should be paid to the survivors, and this is one that American historians of slavery should pay attention to. Ironically, Florida’s railroads were nearly all initially constructed with slave labor before 1865 when the Civil War ended slavery. Indeed, the major railroad companies in the U.S. today, including C.S.X., Norfolk Southern, and B.N.S.F., among many others, are the successors to the slave-built railroads of the Old South. Over 10,000 miles of southern railroad track was built with slave labor. Politics certainly has shaped the French case–as Florida’s representative Ron Klein sought to require potential high-speed rail contractors to disclose any participation in deportation (see New York Times, January 25, 2011). But in the U.S. the same questions could be raised about descendant companies which bought and sold slave labor to such a degree that they were some of the most heavily committed to the institution. In fact, they were the most exploitative in many ways as well.

Railroads and Timber Grants: Edward Harriman, Conservation, and the “Harriman System”

For the last several years a controversy has unfolded in the southeastern corner of Wyoming that might have importance well beyond that corner of the United States. The dispute involves deeds issued by the Union Pacific Railroad in and around 1908 and 1910 to ranchers and landowners who purchased the land from the corporation. These deeds specifically reserved the timber on the land for the railroad company. The deeds essentially severed the timber rights from the land itself and while the railroad sold the land it retained the right to the timber on it and potentially to use the land for timbering in the future. Groups of environmentalists and local interests across the West have begun to pay attention to this issue, such as the “Railroads and Clearcuts Campaign,” and to draw attention to the consolidation of natural resources and their uses in a globalized world. Most recently, the issue has come forward in Broadbent Land and Resources, L. L. C. v. Ecosystem Resources L.C. in Uinta County, Wyoming. (I have served as an expert witness in this case for the defendant.)

One of the most curious and important cases surrounding the railroad land grants and timber resources originated on the Oregon and California, a railroad chartered in 1869 but a branch of the Southern Pacific Railroad at the turn of the century. The controversy over the O and C between 1903 and 1916 led to a major U.S. Supreme Court case and an unusual Congressional Act which took the railroad’s land grant back. Richard Orsi in Sunset Limited: The Southern Pacific Railroad and the Development of the American West, 1850-1930 provides the most recent scholarly examination of this major land grant railroad and its land policies. Orsi used Southern Pacific archives, company records, and detailed intra-company correspondence to revise our understanding of the land grants to these lines and how they were managed. He finds that the Southern Pacific and the Union Pacific were on the leading edge of conservation management of resources and worked with new government agencies in the Progressive era, especially the Forest Service, to institute best practices for long-term sustained yield harvesting of timber. Far from the land monopolists of legend or the corporate ogres of an earlier deeply suspicious period of historical scholarship, the land grant railroads were progressive stewards of these limited assets to run and maintain their lines. They dispersed lands quickly to settlers and managed the timber and mineral reservations with an eye toward long-term sustainability of their operations.

Edward Harriman purchased the Union Pacific out of receivership in 1897 for over $84 million. This was an astounding sum to pay, considering that just a few years earlier an internal report estimated that the Union Pacific railroad could be rebuilt and re-equipped in its entirety for $44 million. Harriman, it seemed, was willing to pay so much because he valued the road’s mineral, timber, and land grants and other assets. According to Orsi, the Union Pacific’s policy for years had been to hold lands as long as possible so that the Union Pacific could extract and process valuable resources, especially minerals and lumber. Harriman instituted a careful review of Union Pacific land policies, and he consolidated all decision making on land sales, contracts, and deeds in his New York offices, according to later testimony by Charles Eberlein, the UP’s land commissioner. Orsi states that when Harriman (who held the Union Pacific and the Illinois Central majorities as “the Harriman Lines” or “the Harriman System”) bought the majority share of the Southern Pacific in 1901, he instituted a new regime in the Southern Pacific land office. The Southern Pacific, in contrast to the Union Pacific, had pursued a long policy of disposing of its lands quickly to “develop” the country and build up long-term business for the road. The Oregon and California’s 1869 federal land grant act included a provision to sell its lands to “actual settlers” who might occupy and build up the Northwestern region. The “homestead clause” as it was called required the railroad to sell its land grant in sections of 160 acres and for prices no higher than $2.50 per acre. The Southern Pacific acquired the Oregon and California in 1887 and with it these same provisions for that railroad’s land grant.

A few years after taking control of the Southern Pacific, Harriman instituted a no sales policy across its lines in 1903, virtually shutting down all land sales a year later. Orsi suggests that Harriman wanted to hold the lands for speculation rather than have them sold by the railroad to others who would do the same: “instead, the company was instructed to hold its lands so the railroad itself could extract, process, and use or sell its natural resources, especially ores, oil, and lumber, or speculate on higher future prices and profits.” Harriman was especially concerned about railroad ties and the fact that many buyers of railroad lands were holding the timber on them rather than bringing the lumber to market. These speculative buyers were not only waiting for higher prices for lumber but also contributing to the accelerating rise in the price of railroad ties. “Henceforth, only some logging rights would be sold,” Orsi explains, “with the land remaining in reserve for the railroads own future uses for track ties and construction materials, as well as to take advantage of increased land values. The Southern Pacific would also reserve all mineral rights to itself.” (p. 126)

Northwest logging companies and those interested in Oregon’s “development” were according to Orsi, “outraged” at the new policy to stop land and timber sales, and to manage the timber and land for the company’s long-term future. They pushed through Rep. Willis C. Hawley for the U.S. Department of Interior and Justice to sue in 1907 to recover the unsold land grant on the grounds that the Southern Pacific was in violation of the congressional mandate that the O and A’s lands be sold to settlers. Lower courts found for the government. In 1915 the U. S. Supreme Court, however, overturned lower courts after eight years of litigation in which Northwest logging companies were angry that they could no longer buy Southern Pacific lands and timber them. They argued that the railroad under its original Southern Pacific land grant had to dispose of the lands, not hold them, and that the congressional mandate was for the lands to be sold and divested to the public. The Supreme Court, however, held in 1915 that the 1869 congressional act originating the Southern Pacific had passed perfect land title to the railroad (in this case the Oregon and California Railroad, part of the Southern Pacific) and that the company had no obligation to dispose of all of the lands. Congress actually followed this ruling up in 1916 in a “revestiture” bill, and confiscated the Oregon and California lands from the Southern Pacific, paid the company for them at an average maximum price of $2.50 per acre, and then proceeded to open the lands for sale.

The 1916 Chamberlain-Ferris Act re-vested the lands in the Government and classified them for sale with the highest priority given to timberlands, defined in the act as lands with 300,000 board feet of timber per 40 acre tract. The timber lands sold by the Department of Interior would supplement the lack of sale of the other lands so that the railroad would be paid $2.50 per acre for the total.

In 1916 during the Oregon and California Land Grants hearings before the Committee on the Public Lands, House of Representatives, the attorney for the Southern Pacific, J. P. Blair, testified on “the views of the grantee [the railroad] as to its strict legal rights under the granting acts.” Blair held that the Supreme court decision in 1915 on the Oregon and California meant that “there was a complete, absolute grant except only as to the restrictions upon sale contained in the actual settler’s clause. I think therefore that the grantee, the railroad company is the complete and absolute owner of the grant except so far as the rights of ownership have been taken away by the conditions imposed by the actual settlers’ clause.” Blair went on to argue that if the railroads could not dispose of the timber apart from the land, then it therefore could only be because it would preclude settlement by actual settlers. But Blair held that clearing the lands would not interfere with selling the lands to actual settlers. That is, the railroad company held the rights to the timber and could clear and harvest the timber, which would “further the purpose of the actual settlers clause.” Blair focused his testimony on “what the grant means.” And he argued here that the actual settlers restriction could not “be construed into a prohibition under all circumstances even against clearing the land before offering it for sale to people who had no right to buy it unless they bought it for the purpose of cultivating it and making it their home.” Blair argued that the grants had two purposes–to aid the railroad and to settle the country. The former was not less important than the latter and “Congress reserved nothing to the United States, there was no remainder.” When asked if the company was always entitled to “value of the timber plus $2.50 per acre,” Blair replied that it was wherever the clearing of the land of the timber “would not be inconsistent with or defeat the purpose of the actual settlers’ clause.” Blair went on to a key point: that the logic of the dual purposes of the grant were that “whatever is not necessary or required for the one purpose should be applied to the other purpose.” So, if the sale of the timber with the land is not necessary to gain actual settlers, then “it is not obligatory to sell the timber with the land to actual settlers.

Ironically, the federal government could not sell the lands, even with the timber, fast enough and the local county governments in Oregon were furious that the lands had been removed from their tax rolls. As it turned out, timber land sales were slow because the railroad’s holdings were inland and difficult to access. As a result counties lost the revenue from these lands being withdrawn from private holding (the railroad) to the government. And, in a further twist, the counties loss in tax base support led them to create the Assoc. of Orange & California Counties to secure an advance from the federal government to pay for what the counties would have had in revenue if the lands had stayed in private railroad ownership.

Whether Harriman pursued his no-sales policy on the Southern Pacific (and O and C) as a means to speculate on the rising land values or to engage in a serious conservation-oriented policy deserves further examination and consideration. Orsi contends that Harriman may have been interested in the former as much as the latter. But Harriman’s conservationist approach should be taken seriously. Harriman was more interested in and motivated by long-term conservationist ideas and principles than Orsi gives him credit for. Indeed, Harriman implemented a comprehensive resource management system on his railroads mainly because he wanted to insure that his railroads had the timber, coal, and other resources necessary to run their operations in perpetuity. In 1907 Harriman made his views public. He gave an address before the National Irrigation Congress, noting that preservation of the forest was necessary for irrigation and for maintaining the transportation network in the future. He explained that the Union Pacific and Southern Pacific together needed 4.5 million ties annually for maintenance of the system, and called ties “the foundation of the transportation line.” Furthermore, Harriman explained the intent of the Union Pacific Railroad: “we have given that subject a great deal of thought, and we are in control of, or ownership of, a considerable area of timber land in this western country and especially in Oregon, and, Mr. Chairman, we are not holding these lands for speculation; we are holding these lands to protect you people in the future–in twenty, thirty, or fifty years from now. We will let other people cut the forests; we will use the ties from their ground; and when the time comes we intend to have a reserve with which we can maintain these great transportation lines for those that come after, that they may not accuse us of wasting the resources which we had at our command.” It is significant that Harriman pointed out that after receivership practically the entire Union Pacific line had to be re-built/re-laid with ties. George Chamberlain, President of the Irrigation Congress and governor of Oregon and later a U.S. Senator, questioned Harriman immediately at the Congress to explain “how many acres were included in the original grant, what the original grant provided as to the sale and how many acres have been sold in excess of the price fixed by that grant.” A Progressive reformer intent on using the Union Pacific-Southern Pacific as a political issue in Oregon, Chamberlain objected to the companies holding the lands and instead argued the lands (with timber and minerals) should revert to the Government–“the government can take care of the future generations.” Harriman replied that Oregon was a beautiful country but uninhabited and that railroads would eventually be extended into the state when it was more developed. Harriman and Chamberlain’s battle deserves further investigation, especially its meaning for the future of development, the West, and the role that federal land grants to railroads played in the region, but the Harriman policies regarding resource management on his system between 1901 and 1910 seem clear. Concerned about timber scarcity and rebuilding his railroads, Harriman intended to reorient the Union Pacific, Southern Pacific, and Illinois Central’s operations around a long-term strategy of planning, scientific management, and forestry conservation.