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Private Wars for the Public Domain

WHILE THE “LAW OF THE RANGE”—the rhythm of the roundup and the lore of brands—had an appealing precision, answers to some basic questions remained tantalizingly vague. Since the land fed the stock, the ultimate source of all the cattleman’s wealth was land. But who had a right to the land? Or to put his stock on the land? Such questions which the older world settled by centuries of custom, by ancient documents and long public acquiescence, in the American West were opened anew. The distinctive disorders of the cattleman’s West did not arise because people refused to live by the Ten Commandments or to obey the simple rules of justice. The new problem was not dishonesty but ambiguity.

AMUSED AND UNCOMPREHENDING observers from more settled societies simply said that the naïve Americans had divided the whole world into Good Guys and Bad Guys. East Coast provincial Americans were inclined to accept this caricature. But nothing could have been further from the truth. The peculiar problem of Go-Getter Morality was not that it drew a clear line between Good Guys and Bad Guys. Quite the contrary. Traditional morality was inclined to do precisely that, but Go-Getter Morality was haunted by a New World uncertainty.

That uncertainty became a miasma enveloping the moral precepts and legal rules of the cattleman’s West. It was a parable of continuing American moral and legal problems. And it had arisen out of the very opportunities of the West, out of novel resources and unprecedented forms of property. Many of the violent struggles of those days, explained far from the scene as a fight between “law” and “lawlessness,” were in fact not that at all. On the scene both the rights and the wrongs seemed divided. And out of these uncertainties grew a novel Western version of civil war.

The ambiguities were never better dramatized than in the socalled Johnson County War in Wyoming in 1892. The celebrated Western feuds between cattlemen and the later invading sheepmen were mainly conflicts between the needs of two different kinds of livestock. Those had obvious parallels in the enclosure movement in western Europe, but the Johnson County War was something new. Here we see the full vagueness of Western morality, the mixing of legality and illegality, of honesty and thievery in a peculiar new concoction. The roots of this particular struggle lay in the Great Plains cattle boom which reached its height about 1883. Brisbin’s Beef Bonanza; or, How to Get Rich on the Plains, along with many other books and countless rumors and legends, drew millions of pounds sterling from England and Scotland, and thousands of settlers from the eastern United States. “It does not matter where the emigrant settles in the West, so he comes,” urged Brisbin, “and he will almost anywhere soon find himself better off than if he had remained East.” Within a few years the range was overstocked with cattle and overrun by people. British cattle corporations reported quick profits of as much as a third on their investments. Foreign speculators imagined there could never be too many cattle for the free Western range. But cattlemen on the spot knew better.

Fearing the overgrazing and depletion of the range, and distrusting the scores of small operators who had no registered brands of their own and hence were unlikely to respect the brands of others, the established cattlemen organized themselves. Their associations were of course intended to protect the cattle which bore their brands. But they were also protecting the large cattlemen’s control over pieces of the open range—the public domain—which, without any legal title, they called their own. By the summer of 1885, cattle prices began to fall. The increased costs of fencing and the heavy dues to the association added to the troubles of a range overcrowded by reckless foreign investors. In addition there were the invading wool growers, whose sheep cropped the grass to extinction, and the invading farmers, whose living depended on keeping out the grazing cattle.

The climax of the cattlemen’s woes came with two disastrous winters. The killing cold of 1885–86 foreshadowed what was to come, and the unprecedented blizzards of 1886–87 were a catastrophe. While the range was covered by the deepest snow in history, driving winds piled up the starving cattle against fences and tumbled them into ravines. A bad situation had been made even worse by President Grover Cleveland’s proclamations under an act of Congress authorizing him to remove unlawful enclosures on the public domain. Ordering all cattle removed from the Indian reservations, he had sent in General Sheridan with federal troops to see that it was done. When government officials removed private fences from the Cheyenne-Arapaho public lands, over two hundred thousand head of cattle were added to the overcrowded range at the beginning of a killing winter. The “improvement” of the original Texas Longhorns, by crossing them with high-grade domesticated Eastern cattle, had made the animals beefier but had begun to deprive them of the hardy, rustling, self-preserving character of the pure Longhorn. Snow turned the range into a slaughterhouse. Carcasses by the thousands littered the range in the spring. For years the lifeless stalks of willows would record the desperate struggle of the animals during that winter to fend off starvation by eating bark.

Experienced Wyoming cattlemen, plagued by falling prices and increasing local hostility from new settlers on land they had thought was theirs alone, did not know where to turn. Their mainstay had been the Wyoming Stock Growers’ Association. Another American example of community before government, the Association, when it was formed back in 1873, had only ten members owning altogether about twenty thousand head. But within a dozen years the Association had reached into the neighboring states of Colorado and Nebraska and the territories of Montana and Dakota, and counted four hundred members owning cattle to the number of about two million. Throughout a vast stretch of the West, nearly equal in area to all western Europe, the Association wrote and enforced its own law—its regulations for branding, roundups and cattle drives—where there was no other effective government. Mavericks were to be given the Association brand and auctioned off to help cover the Association costs. It was prohibited to brand any cattle found running loose between February 15 and the spring roundup. Association inspectors were stationed at the large markets and railroad depots, on the lookout for stolen cattle bearing brands registered to members of the Association. Such cattle were returned to their legal owners, or if the distance was too great, the agents sold the cattle and returned the proceeds. The laws of the Association became the law of the range.

In England the fundamental common-law distinction was between land and everything else: between “real property” (land and other forms of property which were attached to the land or had the character of land) and “movables” (personal property or chattels). That distinction seemed adequate to crowded, settled old England, where the basic fact was ownership of land, and where that ownership was anciently and most precisely defined. Medieval feudalism, in the age when the English common law was born, was at once a system of government and a system of land ownership. To own a piece of land meant to possess a fragment of government. But most of the land of the great American West was for all practical purposes at once ownerless and governmentless. You could not tell whose cow it was by seeing whose land it was on. For the land was everybody’s. You could not tell whose cow it was by seeing whose custody it was in, for on the trackless range the herds were untended dispersed thousands.

In the American West the old distinctions would not fit. It was not good enough to adopt the jargon of the common law and say that cattle were “movables.” Cattle out there were mobile property, self-moving property, that could care for itself and find its own way across the roadless expanse. This form of property was perfectly suited to Americans on the move. The cattle kept alive by moving, by seeking out the scant blades of grama grass; the cattle made money for their owners by moving, by taking themselves across no man’s land to the railroad and the market.

THE WYOMING STOCK GROWERS’ ASSOCIATION itself was a perfect embodiment of the special American ambiguity. For it gave to the big cattleman’s extralegal appropriation of the range the color of law, while it gave to the small cattleman’s and pioneer farmer’s lawful appropriation of the land the color of lawlessness. The Association men had been there first, and they viewed later corners as enemies and overcrowders, agents of lawlessness and confusion. By the strict letter of the law, firstcomers actually had no better right to the range than anybody else, but they applied the transient rule which gave the best rights to those who were there earliest. The mere multiplying of owners naturally made anybody’s brand harder to identify and harder to distinguish from anybody else’s. By the end of 1891 in Wyoming alone there were five thousand different brands, and the number was steadily increasing. In Montana the six thousand brands listed in 1889 had nearly doubled by 1892.

The owner of any rapidly growing small herd was a man to watch. Everybody knew that the indiscriminate use of a branding iron was the quickest way to acquire a herd. “It’s the fastest branders,” the saying went, “who accumulate the largest stocks.” Some of the large cattlemen, or their hired hands, had built their big herds in precisely this fashion. Knowing all the tricks of the business, and remembering the early days, they were not excessively trusting. Their Association, with its self-assumed powers of law, was not inclined to make subtle distinctions between the honest cattleman with a small herd, and the cattle thief who had not yet stolen more than a few head. It was always safer to be suspicious of unfamiliar persons whose cattle bore unrecognizable brands. What was the purpose of brand books and cattlemen’s associations if not to help honest men prove their property, and to make it harder for thieves to prove theirs? In 1888 the Association, weakened by the catastrophic blizzards of 1886–87, transferred most of its powers to a new Board of Live Stock Commissioners created by the Wyoming legislature. But the board proved unequal to the work which the Association could no longer do.

By the spring of 1891, anarchy reigned on the Wyoming range. The Association had become too weak and the government of the new state of Wyoming (admitted to the Union on July 10, 1890) was not yet strong enough to govern. Cattle rustlers and maverick factories were everywhere, and the large herds of the old established cattlemen were now targets of a new barrage of Populist propaganda. “Men who before this year have borne and deserved good characters,” wrote the Cheyenne Daily Leader on July 25, 1891, “are now openly engaged in preying upon the public ranges…. All their neighbors and acquaintances are perfectly aware of the fact and the practice is oftentimes not merely winked at, but applauded…. Efforts have been made by some of the larger cattle companies to bring the offenders to justice. In some cases the grand juries have refused to indict; in others petit juries have brought in verdicts of not guilty in the face of evidence as conclusive and convincing as any ever submitted in a court of justice.” While cattle rustlers stole, farmers slaughtered. The laws appeared to require that a farmer fence his land to keep cattle out, but many a farmer preferred to save the cost of a fence, then wait until cattle came on his land, and with a shot or two secure a winter’s supply of beef. While the big cattlemen insisted that God and Nature had decreed that theirs was “not a poor man’s country,” the federal land laws still limited the holdings of new settlers to 160 acres, too small an area for profitable irrigation.

Now on the defensive, the Association and its substantial members organized a counterattack. In the fall of 1891 they prepared a list of the rustlers’ brands and took measures at the markets to stop the sale of all cattle bearing those brands. They seized and sold all such cattle and used the proceeds for their community purposes. In November 1891, in Johnson County in northcentral Wyoming, two suspected cattle rustlers were shot from ambush. Local opinion pinned the crime on two big cattle companies, and the stage was set for the Johnson County War.

In the spring of 1892 the small stockmen, defying the Association and the Live Stock Commission, which was its agent, announced they would hold a roundup a month earlier than officially scheduled. By the custom of the country this was a brazen act, since it showed an intention to put their own brands on whatever cattle they chose. The larger cattlemen decided it was now or never. If they could not revive respect for their laws of the range, they would be lost. They determined to make an example of the people of Johnson County, who, they said, consisted of only two kinds: “Ranchers, who rustled on the side; and rustlers, who ranched on the side.” By a single dramatic act they would frighten the lawless into submission and reaffirm the laws of the range. The Association headquarters, the Cheyenne Club, was a favorite hangout for the big operators—English baronets attracted by romance and high profits; Eastern adventurers from the best families of Boston, Philadelphia, and New York; potent self-made Western cattle barons; and even a few literary men. Owen Wister, who had graduated from Harvard in 1882, went there to gather material for Lin McLean and The Virginian, and for other tales of the cattle country.

The Association collected a war chest, rumored at $100,000, from donations of $1,000 apiece. Secretly they organized an armed band of about fifty men. Twenty-six had been recruited by Tom Smith, a former cattle detective who had been indicted for murder for his work in Wyoming and who had served in Texas as a peace officer. To recruits from Paris and Lamar counties in Texas he offered pay of $5 a day and expenses, besides an accident policy of $3,000 and a bonus of $50 for each man they killed. A number of the recruits were former deputy U.S. marshals, who could be expected to know a thing or two about law enforcement. They were all told they were going to fight outlaws in Johnson County, Wyoming. One of the most interesting recruits was D. Brooks, later notorious as the Texas Kid, the only one of the group who would be executed as a result of his part in the Johnson County War. A year later, when the Texas Kid was hanged at Fort Smith, Arkansas, it was not for murder in Wyoming, but for killing his young wife, who nagged him for having joined the invasion. On the gallows he protested that he would never have gone to Wyoming if he had known what the Johnson County people were really like.

The Association recruits gathered in Denver on a special train which also carried saddle horses, wagons, and camping equipment. When the train arrived in Cheyenne the window shades of the passenger car were tightly drawn, and the mission remained secret. The party was given blankets and other equipment by a federal fort in the neighborhood. The train arrived in Casper, the end of the railroad line, early on the morning of April 6, 1892. After they unloaded they were joined by members of the Wyoming Association and their local recruits, including a correspondent of the Chicago Herald and a surgeon to treat their wounds, or more likely, those of the enemy. They mounted their horses and aimed for the county seat of Johnson County, the little town of Buffalo, reputed rustlers’ citadel. The friendly collusion of the governor of Wyoming insured that the state’s National Guard would not get in the way. Before leaving Casper, the invaders had taken the precaution of cutting the telegraph lines going north, so that the people down there would not be unduly alarmed.

En route to Buffalo they killed two men holed up in a remote cabin whom they assumed to be rustlers. One they shot from ambush as he went for water, then they burned the cabin and shot down the other as he fled. The delay for this little job gave time for the citizens of Johnson County to be alerted. On April 10, as the invaders approached the town of Buffalo, to their surprise they found their way blocked by an army of Johnson County citizens. Instead of attacking the town and exterminating the nest of rustlers, the invaders turned in quick retreat, finding refuge about twelve miles from Buffalo in the solid ranch buildings of Dr. Harris’ TA Ranch, where they had spent the preceding night.

The citizens’ army, two hundred strong, which now attacked them in the TA Ranch, confirmed their worst fears that the forces of lawlessness had captured Wyoming. Now they, the “law-enforcing” invaders, were the besieged. But the ranch house proved an effective temporary fortification, especially since the attacking citizens had no cannon, and the commander of the neighboring Fort McKinney refused to lend them one. Using wagons they had captured, the citizens improvised a movable breastwork which they called a “Go-Devil,” designed to approach close enough to the embattled ranch house to allow use of their plentiful supply of dynamite. The Go-Devil was moving ahead when in the nick of time three companies of federal cavalry appeared. The acting governor of Wyoming, a friend of the Association, had appealed to President Benjamin Harrison to send these troops from Fort McKinney “to restore law and order” in Johnson County. In plain language this meant that Wyoming’s leading cattlemen needed the intervention of United States troops if they were not to be lynched by an irate citizenry. The besieged invaders gladly surrendered to the commander of the federal troops, who took them to Cheyenne, where they were safely housed at Fort D. A. Russell.

Forty-six men surrendered. Of these, about half were the imported Texas gunmen, the rest were leading citizens of Wyoming, including a past president of the Stock Growers’ Association, a Live Stock commissioner, the State Water commissioner, a deputy U. S. marshal, at least one Harvard graduate, and others equally respectable. The President of the United States had sent his federal troops on an errand of mercy to save some of the most substantial citizens of the West from the local law-enforcement officials.

The invaders were never actually tried. Eventually they were handed over to Johnson County authorities, but on the understanding that they would not be tried in Johnson County. Meanwhile President Harrison, urged by the Association, issued a special proclamation ordering all citizens of Wyoming to cease obstructing the courts and laws of the United States. The men who had witnessed the double murder by the invaders on their way into Buffalo were now arrested by the U. S. marshal for selling whiskey to the Indians, and they were never seen again. When it appeared that Johnson County actually did not have the funds to pay for a lengthy trial of forty-odd men, the District Court in Cheyenne released the invaders on their own recognizance. Despite all the shooting, the Johnson County War, then, left only three fatalities—the two men killed by the invaders before they reached their destination, and the Texas Kid, who was executed for a murder only indirectly caused by the war.

This was a war, like many others, in which both parties lost. The big stockmen did not succeed in re-establishing their kind of law and order on the range, nor in excluding the small cattleman or the nester. Cattle bearing the brands of any of the invaders, now less safe than ever, were promiscuously stolen and slaughtered without fear of redress. On the other side, the citizens of Johnson County and the small stockmen and small farmers had not really won. The state Republican organization, which had been closely allied to the invaders and the larger cattle interests, after only a two-year setback returned to power. Moreover, efforts to spread the true story of the invasion to the discredit of the big cattlemen were suppressed. When Asa Shinn Mercer (enterprising founder of the Northwest Livestock Journal) wrote and published a documented account in 1894 under the title The Banditti of the Plains or the Cattlemen’s Invasion of Wyoming in 1892: The Crowning Infamy of the Ages, it was suppressed at once by a court injunction, and all copies were impounded for burning. A few copies were mysteriously rescued from the fire, but the plates of the book were destroyed. Mercer was charged with sending obscene matter through the mails, and he was forced to close his publishing business. The Association men even succeeded in extracting the copyright copies form the Library of Congress. To try to give a true account of the cattlemen’s invasion of Johnson County long remained a risky business. It was a full half-century before Jack Schaefer’s novel Shane (1949), and the movie adapted from it, dared tell the story. Seldom before or since have the agents of law been so thoroughly confused with the agents of lawlessness. Even at this distance it is no simple matter to tell which were which.

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