Looters of the Public Domain/Chapter 23
Chapter XXIII
ON February 13, 1905, the Federal Grand Jury of Oreg'on returned an indictment against John H. Hall, charging him with conspiracy to defraud the Government of its public lands under section 5440, of the United States Revised Statutes. Fie was not brought to trial until January 13, 1908, and after the case had lasted twenty-three days, the jury, late one Friday night brought in a verdict of guilty, so it would seem that Mr. Hall was up against it all around from a "hoodoo" standpoint.
Hall had been indicted jointly with Winlock W. Steiwer, Hamilton H. Hendricks, Clarence B. Zachary, Adelbert C. Zachary, Charles A. Watson, Clyde E. Glass, Binger Hermann, Edwin Mays, Franklin P. Mays, Clark E. Loomis and Edward D. Stratford, for his alleged connection with the fencing of a large body of Government land in Wheeler County, Oregon, by the Butte Creek Land, Livestock and Lumber Company, of which Steiwer was president, Hendricks secretary and general manager, and Zachary superintendent. A. C. Zachary, Charles A. Watson and Clyde E. Glass were employes of the corporation, and had been drawn into the law's drag net on account of having been used as "dummies" in making bogus homestead entries for the benefit of the Livestock Company. Hermann had been Commissioner of the General Land Office, and was believed to have had knowledge of the illegal operations of the corporation. Edwin Mays was Hall's assistant in the United States Attorney's office at the time the offenses were alleged to have occurred, while F. Pierce Mays, his brother, was attorney for the Butte Creek Company, and had used his influence with Hall to have civil, instead of criminal, proceedings brought against the concern. Loomis and Stratford were the two crooked special agents of the General Land Office who had been sent to investigate the illegal inclosure, and, as usual, found nothing wrong.
By some mysterious process, only Hall and Edwin Mays were placed on trial when the case reached an issue in Court, and while the case was pending, Steiwer, Hendricks and C. B. Zachary entered pleas of guilty and became witnesses for the prosecution. F. P. Mays also took the stand as a Government witness, but developed such a poor memory of events that his testimony was not of much consequence for either side, and in the charity of his heart, special prosecutor Heney dismissed all the remaining cases against him, he having already been convicted in the Blue Mountain Forest Reserve case, and it was thought that the state of his health would not permit any further ordeals of trial. In the course of the proceedings, Mr. Heney also recommended the dismissal of the case against Edwin Mays, upon the ground that the evidence produced did not warrant conviction, so that in the end the former United States Attorney for Oregon was left alone "like some banquet hall deserted."
A number of peculiar situations were developed at the trial, and as they all relate more or less to the general system of plundering the public domain, it is just as well to give a brief outline of the circumstances leading up to the indictment.
The town of Fossil, in Wheeler County, Oregon, was the base of operations for the Butte Creek Land, Livestock & Lumber Company, a wealthy concern that controlled a great many commercial and political interests in that section of the country. It had large holdings in the neighborhood, including a general merchandise store at Fossil, was owner of the local sawmill, and besides owned extensive properties in the shape of land thereabouts. In fact, it had full sway in almost every sense, and as usual in such instances, carried things with a high hand.
Adjacent to the conflux of Butte Creek with the John Day river, was a large body of Government land, aggregating nearly 20,000 acres, and valuable chiefly for grazing purposes. It was so situated that by comparatively slight effort, the entire tract could be converted into an immense pasture, at little expense, as a line of "rimrock" (high rocky bluffs) formed an impenetrable barrier for quite a distance, so that all that was necessary to complete the inclosure and thus create a great "corral," was to construct a line of fences connecting the various "rimrock" formations. This had been done by the Butte Creek Land, Livestock & Lumber Company in such manner that individual settlers thereabouts were prevented from enjoying the privileges of the range, and naturally there was much discontent in the community, especially when it is considered that the corporation had men in its employ whose duty was to prevent, by armed force, if necessary, any trespass upon its illegal holdings, or interference with its plan to divert the broad acres to its own use and benefit.
Matters finally reached such an acute stage that early in 1900 Edward A. Putnam, one of those who had settled in the country under the mistaken idea that he would be protected in his rights, began a systematic effort to have the illegal inclosure removed. Putnam naturally concluded that inasmuch as he was an actual settler in the neighborhood, and was endeavoring, in a small way, to get along in life, besides being an American citizen as well, that he had just as much right to the use of the unappropriated lands as anybody else, and only found out his mistake when he attempted to carry out some of his foolish ideas by driving a band of stock onto the disputed territory. Then it was that he was made to feel the iron heel of despotism, and to realize that a poor man has about as much show where a big corporation is involved, as a snowball would for perennial existence in the lower regions.
He was not only threatened by hired thugs of the company, but upon more than one occasion was actually assaulted for his audacity in daring to infringe upon the assumed prerogative of aggregated wealth. This sort of thing became wearisome in time, and as a last resort he told his troubles to Binger Hermann, then Commissioner of the General Land Office. In this respect his efforts resembled an attempt to convict someone for illicit distilling before a jury of moonshiners, as Hermann was about as closely allied to anything inimical to the people's interests as a person could possibly be without too much publicity. After much persuasion, however, he sent Special Agent C. E. Loomis (he of 11-7 notoriety) to investigate the alleged illegal inclosure—with the usual result. Loomis made his headquarters at the residence of H. H. Hendricks, secretary and general manager of the Butte Creek Land, Livestock & Lumber Company, while he was on this mission, and of course was lavishly entertained by his host during his stay in Fossil, so that when the special agent sent in his report to Washington it told of nothing but a philanthropic purpose on the part of the cattle barons. 
Years went by without any definite results from the numerous complaints of the settlers, many of whom became disheartened and left the country. Not so with Putnam, however. He kept pegging away at the Land Department in Washington until at la.st Special Agent E. D. Stratford (he of Kribs and C. A. Smith fame) was detailed to investigate conditions. It was the same old story about everything being all right, and again the settlers were left in the lurch, and again there was another exodus from the struggling homesteads. Putnam must have sprung from Revolutionary stock, however, as he never gave up hope—or at least, if he did. it had been replaced by a determination to fight it out on that line if it took all summer.
His letters, crude in composition, but wonderfully impressive, kept piling up in the General Land Office until they became traditions. He sent maps drafted with lead pencil on brown wrapping paper from a country store showing the extent to the depredations, but Hermann was too busy to pay any further attention to them, and in his desperation the aid of the United States Attorney for Oregon was invoked in suppressing the evils. Not being well up in the world on such matters. Putnam thought that anything relating to the Department of Justice was all that its name implied, but he failed to take the fact into consideration that John H. Hall was the United States Attorney before whom his grievances were laid.
The evidence produced during the trial of Hall indicated that about the only active interest displayed in the matter by the United States Attorney was to use the situation as a club for forcing Steiwer—who was a candidate for State Senator—to vote for the election of Charles W. Fulton as United States Senator, it being shown that Hall was an aspirant for re-appointment, and that both Fulton and Senator Mitchell could be relied upon to support him for the position. It was brought out by the testimony of Steiwer himself that Hall had made intimations to him of a nature to convey this idea, and Hendricks testified also that Hall and himself had discussed this feature of the situation at a private conference. At all events, after Fulton had been elected to the United States Senate, in which he was aided by Steiwer's vote—as he only received eleven majority at the legislative session in February, 1903—nothing further was done in connection with the charge of maintaining the illegal inclosure until quite a while afterwards.
At this juncture Putnam and his associates became disgusted with conditions, and finally appealed to Secretary of the Interior Hitchcock. The latter lost no time in ordering an investigation, with the result that Edward W. Dixon, at that time a Special Agent of the General Land Office, but now Chief of Field Division No. 3, was directed to make a careful inquiry into the situation. In their letter to Secretary Hitchcock appealing for aid, the settlers had declared that inasmuch as President Roosevelt had been a "rough rider," it was proper that one of the same type should be sent to make the investigations, instead of some person content to lay around comfortable quarters and take the word of those interested that there had been no violations of law. In this respect, Dixon answered every requirement of the settlers, as he was a man of determined character, in addition to being thoroughly honest and incorruptible. It was such a novelty, in fact, for the settlers to come in contact with him, after their experience with special agents of the Loomis and Stratford stripe, that it became difficult for them to realize that their long and earnest prayers for salvation were about to be answered. His coming, in fact, was on a par with the relief of the beleagured garrison at Lucknow by the Highlanders during the Sepoy insurrection, and was certainly equally as welcome.
Dixon did not let the grass grow under his feet when he found out that the settlers had not misrepresented anything in their complaints. In short, he soon ascertained that they had been extremely modest in that regard, and 
proceeded to lay all the facts before United States Attorney Hall, accompanied by the recommendation that criminal action be taken at once against the officers of the offending corporation, as despite their repeated assurances, they had taken no steps to remove any of the illegal obstructions.
Instead of complying with Dixon's recommendations, Hall brought a civil suit against the company, and in almost the same breath began criminal actions against several stockmen of minor importance who had been guilty of illegal inclosures to the extent of a few hundred acres in each case. Hall's efforts to protect his political associates and shield those "higher up," in this and other respects, eventually caused his removal from office and subsequent indictment on a conspiracy charge.
The testimony at the trial of Hall assumed a wide latitude, the Government being permitted to not only expose the entire scheme of the Butte Creek Company, and by this process implicate the defendant in an effort to protect those "higher up," but was allowed to delve into a great deal of Oregon's political history. It was during the progress of the case that Mr. Heney made his famous, speech against Senator Fulton, before an audience that filled the First Congregational Church in Portland to overflowing, in which Mr. Fulton was charged with having handled the sack at the notorious "hold-up" session of the State Legislature in 1897, at which John H. Mitchell sought re-election as United States Senator.
It was shown further from the developments of the Hall case that while he was United States Attorney he had been guilty of shielding those having a political pull, and had used his official position as a menace to those who were standing in the way of his ambitions. In this manner he had caused George C. Brownell. the political leader of the Republican party in Clackamas county. Oregon, and speaker of the State Senate, to withdraw his name as a candidate against Hall for United States Attorney, the latter claiming to be in possession of evidence that Brownell had been connected with the forgery of names to applications for Government surveys. It was proven afterwards, through the confessions of Henry Meldrum, the convicted United States Surveyor-General, that Meldrum had himself forged the signatures, and that Brownell had nothing whatever to do with it, Meldrum having surreptitiously used his notarial seal and attached Brownell's name to the documents without his knowledge or consent. When these facts became known to Francis J. Heney, he recommended the dismissal of the indictment against Brownell, and in conformity therewith Judge Wolverton wiped the case off the docket.
Another instance of Hall's inactivity where influential interests were involved was brought out in connection with the testimony of W. E. Burke, a member of the Oregon Legislature in 1894, who told of being employed by A. B. Hammond in 1899 in connection with William G. Gosslin, Hammond's secretary, when, with Gosslin's assistance, he induced twenty unemployed men that were picked up in the North End of Portland, to file on timber land at the Oregon City Land Office, each of the twenty illegal entrymen being paid $2 for their services. The witness explained that the men did not take the land with the intention of acquiring it for themselves, but did so with the understanding that they were to hold the land temporarily, and to execute relinquishments that were to be filed as soon as Burke and Gosslin received from Hammond lieu land scrip to plaster on the land when it was relinquished. He explained further that representatives of the Northern Pacific were after the same timber land, and that the course adopted by himself and Gosslin was the only means by which they could keep the rival land gobblers from acquiring the desired claims, which adjoined each other in a district of valuable timber.
Burke said that he afterwards related the facts attending the transaction to the United States Grand Jury, which was in charge of Edwin Mays, and by which an indictment was returned October 19. 1899, charging himself. Gosslin and the twenty entrymen with conspiracy to defraud the Government by perjury. He stated also that Senator Fulton, assisted by Henry E. McGinn, a Portland attorney, was employed by Hammond to defend those involved in the indictment.
On cross-examination, Burke admitted that he had never discussed the subject with Hall, although it is evident the latter was familiar with all the circumstances. In answer to another question by Heney, the witness said that Charles H. Carey and F. P. Mays were the attorneys for the Northern Pacific, and that while Hammond did not get the lands that were originally filed upon, he understood that eventually the twenty quarter sections were divided between the rival companies. William G. Gosslin, who followed, corroborated the testimony of Burke. It was while Gosslin was on the stand that Heney introduced telegrams that had 
embracing State of Washington and western portion of Idaho, who rendered material aid in uncovering the Oregon land
fraudspassed between Hall and Binger Hermann, and also a letter from Hall to Hermann, all relating to the claims that had been filed on by the men in charge of Burke and Gosslin. In the first telegram Hall notified Hermann that the men who had been indicted on the conspiracy charge had offered to compromise the case by forfeiting their filing fees and would execute relinquishments to the land that had been filed on in consideration of a dismissal of the indictment. He asked Hermann what he should do.
With his characteristic shrewdness, the ex-Land Commissioner replied that the case not being before the Department, it was up to Hall to do what the facts and circumstances in the case warranted. But this did not satisfy the District Attorney, who subsequently wrote a letter to Hermann, in which he detailed the circumstances attending the filing on the land and the evidence on which the indictment had been returned.
C. B. Moores, Register of the Oregon City Land Office from October, 1897, to May, 1903, identified a letter dated October 12, 1899, in which he had advised Hall of the suspicious characlcr of the twenty filings that had been made bv the men in charge of Gosslin and Burke. Further testimony was introduced bv the Government to establish its contention that while Hall knew of the illegal acts he never prosecuted any of the offenders, on account of their pull, and that eventually the indictment against the accused was dismissed.
As further proof that Hall had been derelict in his duties, it was brought out at the trial that in the case of Claude Thayer, the United States Attorney had completely ignored the charges of Special Agent Edward N. Deady that Thayer had been guilty of a conspiracy to defraud the Government of a large tract of timber in Tillamook county. The facts as uncovered by Deady during his investigations, and corroborated by abundant proof, were as follows:
In September, 1899. Claude Thayer, president of the Bank of Tillamook and a son of the late Governor Thayer, of Oregon, had induced eighty-eight persons to make timber entries in Township 2 North, Ranges 6 and 7 West, Tillamook county. They were mostly aged persons who were incapable, physically, of making personal examination of the land, as required by law. although they all took the necessary oath that they had inspected each subdivision. It developed during Deady's investigations that Thayer had paid all the Land Office expenses incident to the filings, and nine weeks after the entries were made at the Oregon City land Office, final proofs were offered on each claim. The Register and Receiver were obligated to refuse to issue the final certificates for the reason that Secretary Hitchcock had ordered a suspension thereof in connection with Oregon timber entries until such time as the Special Agents of the Land Department could investigate their validity. Deady had shown that the eighty-eight entrymen in question were under contract to deed their claims to Thayer as soon as final proof was made, and were to receive $150 each for their rights. It had developed also that at the time of offering proof one entryman had made a tender of the $400 purchase price of his claim, the acceptance of which was declined by the Land Office officials, and that he had thereupon handed the amount to one of the other entrymen, who had made the same sort of tender. In this way the one payment of $400 answered the purpose of a tender for the entire eightyeight claims.
Shortly after this the so-called proof had been made, Thayer saw breakers ahead, and consulted with F. P. Mays relative to overcoming the threatened difficulties. Mays suggested, as a means of throwing the Government agents off the scent, that arrangements should be made with the Northern Pacific whereby the railway corporation should file a selection list covering the lands embraced in the eighty-eight claims. Mays was one of the attorneys for the Northern Pacific, and therefore in a position to make this recommendation. The lieu selections were offered accordingly, but were rejected by the local Land Office as being in conflict with the eighty-eight timber entries, the idea being to cloud the issue to such an extent that it would tie up the land temporarily and have a tendency to prevent bona fide claimants from interfering in the acquisition of title.
In January, 1900, or about a month after the Northern Pacific had attempted to select the lands, Charles E. Hays, a timber locator of Portland, filed contests on all the eighty-eight entries, alleging in his affidavit that the latter were fraudulent, and furthermore that the Northern Pacific lieu selections had been made for collusive purposes. Hays won out on his contest, with the result that the eighty-eight entries were cancelled by the Land Department, and the Northern Pacific, on July 10, 1900, voluntarily withdrew its contest.
These facts were brought to the attention of the Federal Grand Jury by Special Agent Deady, who declared that Hall refused to proceed against Thayer and the others involved, contending that the statute of limitations had run against their offenses. In consequence no indictment was returned, and even if one had been, it would have been futile, as Hall was determined to protect his friend Thayer, and had announced that he would not prosecute the latter, according to Deady's statement on the witness stand. It is interesting to note that 
notwithstanding Hall's contention that the statute of limitations had run against their criminal liability in 1903, when the matter was before the United States Grand Jury, Thayer and associates were indicted September 2, 1905, for the same offense, at the suggestion of Mr. Heney, who held that the criminal responsibility of the accused was still active at that date.
Those involved in this indictment were Claude Thayer, Clark E. Hadley, Maurice Leach, Walter J. Smith (since deceased), Thomas Coates, John Tuttle, Charles E. Hays and G. O. Nolan, all of whom, with the exception of Hays, were prominent residents of Tillamook county. Later the case against Hays was dismissed, as it was established to Mr. Heney's satisfaction that he had never been connected with any fraudulent effort to acquire the lands. On the contrary. Hays filed a motion in Court during the July term in 1906, wherein he claimed the credit of having first called the attention of Secretary Hitchcock to the scope of the Oregon land frauds through Rev. Joseph Schell, a Catholic priest. In his petition asking for a separate trial, Hays set forth many interesting facts in connection with the matter, and as his statements throw considerable light upon the general system in vogue by which large tracts of valuable timber were secured through the "dummy" process of entry, a portion of the petition is presented herewith:
"That in the spring of 1901, and after Alma Baker and others named in the indictment, had filed on the lands set forth in the indictment. I was introduced by Mr. V. G. Howell to C. E. Loomis, then Special Agent of the General Land Office, at which time I disclosed to that Government official the facts that I had learned in relation to the acts of said Thayer, Hadley, Leach, Nolan, Tuttle, Smith and Coates, and requested said Loomis, as such Government official, to make an investigation thereof to the end that said parties might be prosecuted in the Courts of the United States for their unlawful acts; that nothing came of my interview with said Loomis, and in the Autumn of 1901, I went to J. A. Sladen, a Commissioner of the United States Circuit Court for the District of Oregon, and requested from said official a warrant charging said Thayer, et al., with the crime of conspiracy, and was by said Sladen referred to the United States Attorney for the District of Oregon as the proper person to apply for such warrant, and was introduced by said Sladen to Edwin Mays, Assistant United States Attorney for the District of Oregon.
"That I laid the case before said Mays, but he declined to act unless authorized to do so by John H. Hall, then United States Attorney for Oregon, his superior officer; that I went repeatedly to the United States Attorney's office to see Hall, but was always denied an interview, first on one pretext and then another. Knowing of no other official to make application to in order to bring the parties to justice, I furnished, at my own expense, the Rev. Joseph Schell with affidavits and copies of all documents which I had obtained disclosing the conspiracy, who thereupon proceeded to Washington, D. C, and laid the matter before the Department of the Interior, resulting, as I am informed and believe, in the assignment of Special Inspector A. R. Greene to this district for the purpose of investigating the frauds charged against said Thayer, Hadley, Leach, Nolan, Tuttle, Smith and Coates.
"That on August 26, 1902, the day on which I am charged with conspiring with these defendants, I was present at the Oregon City Land Office with Dan R. Murphy, my attorney, and through the latter waived the benefit I might derive through a motion to close the case filed in the contest of Hays vs. Allen (said contest case being one of those referred to in the indictment) and withdrew my motion in order to accommodate the officers of the Government, agreeing that said case might be referred to Edward N. Deady, to take the testimony of contestee therein and his witnesses, Claude Thayer, Clark Hadley, Maurice Leach and Thomas Coates, at Tillamook, Oregon, the Government officials agreeing with me that if said testimony were given before said Deady that the frauds alleged in the indictment would be laid bare, and facts elicited upon which to predicate an indictment as against said Thayer, et al. In order to disclose said frauds and secure indictments, I paid my attorney to accompany said Special Inspector Greene and referee Deady to Tillamook for the purpose of taking said testimony.
"That in the Autumn of 1902, when the United States Grand Jury for the District of Oregon was examining into the conspiracy charged in the indictment herein, I did all in my power to aid and assist Edward N. Deady, then Special Agent of the General Land Office, in gathering the facts against Thayer, et al., and fully and freely disclosed to him all the circumstances tending to show the guilt of said Thayer, et al., elicited by me during the time I had been contesting in good faith said fraudulent efforts to acquire the lands in question. That I am convinced that if it had not been for my contests and the ceaseless warfare waged by me against the fraudulent entries set forth in the indictment. that the lands described therein would have long since gone to patent, and the unlawful designs of said Thayer and others would have been successful.
"That I have, by every means in my power, endeavored to thwart the unlawful designs of said Thayer, et al, and have, through my contests, procured the absolute forfeiture of $5,356, paid by said Thayer, et al, into the Oregon City Land Office for thirteen claims situate in the same townships and ranges as the lands mentioned in the indictment, besides causing said parties to expend a large sum of money in defending the contests waged by me.
"That said Thayer, Hadley, Leach, Nolan, Tuttle, Smith and Coates are well aware of the steps taken by me to prevent them reaping the harvest they had planned, as above set forth, and by the position I have taken I have incurred the ill will of each and all of them, and any attorney employed by them, if entrusted in the slightest degree with my defense, would, if loyal to them, be compelled to suppress testimony necessary to be adduced to establish my innocence, as such testimony would tend to show the guilt of Thayer, Hadley, Leach, Nolan, Tuttle, Smith and Coates."
Hall was defended by Lionel R. Webster, County Judge of Multnomah County, Oregon, who made a remarkable fight for his client's liberty, but without any apparent effect, as the jury lost little time in finding the ex-United States Attorney guilty as charged in the indictment. An appeal has been taken from the verdict, pending which Hall is out on bonds.
With such marked ability was the defense of Hall conducted by Judge Webster, that Mr. Heney took occasion to compliment the Portland lawyer dur- ing the course of his argument, and called attention to the fact that it was the only case in which there had not been more or less friction between counsel for the opposing sides.
