The Rules of the Game

by Stewart Edward White

  XV

  Bob delivered his relinquishment at headquarters, and received the news.

  George Pollock had been arrested for the murder of Plant, and now lay injail. Erbe, the White Oaks lawyer, had undertaken charge of his case.The evidence was as yet purely circumstantial. Erbe had naturally givenout no intimation of what his defence would be.

  Then, within a week, events began to stir in Durham County. Samuelswrote a rather violent letter announcing his change of mind in regard tothe relinquishment. To this a formal answer of regret was sent, togetherwith an intimation that the matter was now irrevocable. Somebody sent acopy of the local paper containing a vituperative interview with the oldmountaineer. This was followed by other copies in which other citizenscontributed letters of expostulation and indignation. The matter wascommented on ponderously in a typical country editorial containing suchphrases as "clothed in a little brief authority," "arrogant minions ofthe law," and so forth. Tom Carroll, riding through Durham on business,was treated to ugly looks and uglier words. Ross Fletcher, visiting thecounty seat, escaped a physical encounter with belligerent members of aninflamed populace only by the exercise of the utmost coolness and goodnature. Samuels moved further by petitioning to the proper authoritiesfor the setting aside of the relinquishment and the reopening of thewhole case, on the ground that his signature had been obtained by"coercion and undue influence." On the heels of this a mass meeting inDurham was called and largely attended, at which a number of speakersuttered very inflammatory doctrines. It culminated in resolutions ofprotest against Thorne personally, against his rangers, and his policy,alleging that one and all acted "arbitrarily, arrogantly, unjustly andoppressively in the abuse of their rights and duties." Finally, as acrowning absurdity, the grand jury, at its annual session, oversteppingin its zeal the limits of its powers, returned findings against "oneAshley Thorne and Robert Orde, in the pay of the United StatesGovernment, for arbitrary exceeding of their rights and authorities; forillegal interference with the rights of citizens; for oppression," andso on through a round dozen vague counts.

  All this tumult astonished Thorne.

  "I had no idea this Samuels case interested them quite so much up there;nor did I imagine it possible they would raise such a row over that oldlong-horn. I haven't been up in that country as much as I should haveliked, but I did not suspect they were so hostile to the Service."

  "They always have been," commented California John.

  "All this loud mouthing doesn't mean much," said Thorne, "though ofcourse we'll have to undergo an investigation. Their charges don't meananything. Old Samuels must be a good deal of a demagogue."

  "He's got a good lawyer," stated California John briefly.

  "Lawyer? Who?"

  "Erbe of White Oaks."

  Thorne stared at him puzzled.

  "Erbe? Are you sure of that? Why, the man is a big man; he's generally acut or so above cases of this sort--with as little foundation for them.He's more in the line of fat fees. Here's two mountain cases he'sundertaken."

  "I never knew Johnny Erbe to refuse any sort of case he'd get paid for,"observed California John.

  "Well, he's certainly raising a dust up north," said Thorne. "Everypaper all at once is full of the most incendiary stuff. I hate to send aranger up there these days."

  "I reckon the boys can take care of themselves!" put in Ross Fletcher.

  California John turned to look at him.

  "Sure thing, Ross," he drawled, "and a first-class row between a brutalranger--who could take care of himself--and an inoffensive citizen wouldread fine in print."

  "That's the idea," approved Thorne. "We can't afford a row right now. Itwould bring matters to a head."

  "There's the Harris case, and the others," suggested Amy; "what are yougoing to do about them, now?"

  "Carry them through according to my instructions, unless I get orders tothe contrary," said Thorne. "It is the policy of the Service throughoutto clear up and settle these doubtful land cases. We must get suchthings decided. We can't stop because of a little localized popularclamour."

  "Are there many such cases up in the Durham country?" asked Bob.

  "Probably a dozen or so."

  "Isn't it likely that those men have got behind Samuels in order todiscourage action on their own cases?"

  "I think there's no doubt of it," answered Thorne, "but the point is,they've been fighting tooth and nail from the start. We had felt outtheir strength from the first, and it developed nothing like this."

  "That's where Erbe comes in," suggested Bob.

  "Probably."

  "It don't amount to nothin'," said California John. "In the first place,it's only the 'nesters,' [A] the saloon crowd, who are after you forAustin's case; and the usual muck of old-timers and loafers who eitherthink they own the country and ought to have a free hand in everythingjust as they're used to, or who are agin the Government on generalprinciples. I don't believe the people at Durham are behind this. I beta vote would give us a majority right now."

  "Well, the majority stays in the house, then," observed Ross Fletcherdrily. "I didn't observe none of them when I walked down the street."

  "I believe with John," said Thorne. "This crowd makes an awful noise,but it doesn't mean much. The Office cannot fail to uphold us. There'snobody of any influence or importance behind all this."

  Nevertheless, so skilfully was the campaign conducted, pressure soonmade itself felt from above. The usual memorials and largely-signedprotests were drawn up and presented to the senators from California,and the representatives of that and neighbouring districts. Men in theemploy of the saloon element rode actively in all directions obtainingsignatures. A signature to anything that does not carry financialobligation is the easiest thing in the world to get. Hundreds who had nogrievance, and who listened with the facile indignation of the ignorantto the representations of these emissaries, subscribed their names asvoters and constituents to a cause whose merits or demerits were quiteuncomprehended by them. The members of Congress receiving thesememorials immediately set themselves in motion. As Thorne could notofficially reply to what had not as yet been officially urged, his handswere tied. A clamour that had at first been merely noisy andmeaningless, began now to gain an effect.

  Thorne confessed himself puzzled.

  "If it isn't a case of a snowball growing bigger the farther it rolls, Ican't account for it," said he. "This thing ought to have died down longago. It's been fomented very skilfully. Such a campaign as this oneagainst us takes both ability and money--more of either than I thoughtSamuels could possibly possess."

  In the meantime, Erbe managed rapidly to tie up the legal aspects of thesituation. The case, as it developed, proved to be open-and-shut againsthis client, but apparently unaffected by the certainty of this, hepersisted in the interposition of all sorts of delays. Samuels continuedto live undisturbed on his claim, which, as Thorne pointed out, had abad moral effect on the community.

  The issue soon took on a national aspect. It began to be commented on byoutside newspapers. Publications close to the administration andthoroughly in sympathy with its forest policies, began gravely to doubtthe advisability of pushing these debatable claims at present.

  "They are of small value," said one, "in comparison with the largepublic domain of which they are part. At a time when the Forest Serviceis new in the saddle and as yet subjected to the most violent attacks bythe special interests on the floors of Congress, it seems unwise to doanything that might tend to arouse public opinion against it."

  As though to give point to this, there now commenced in Congress thatvirulent assault led by some of the Western senators, aimed at the verylife of the Service itself. Allegations of dishonesty, incompetence,despotism; of depriving the public of its heritage; of the curtailmentsof rights and liberties; of folly; of fraud were freely brought forwardand urged with impassioned eloquence. Arguments special to cattlemen, tosheepmen, to lumbermen, to cordwood men, to pulp men, to power men wereemphasized
by all sorts of misstatements, twisted statements, or specialappeals to greed, personal interest and individual policy. To supporttheir eloquence, senators supposedly respectable did not hesitate boldlyto utter sweeping falsehoods of fact. The Service was fighting for itsvery life.

  Nevertheless, persistently, the officials proceeded with theirinvestigations. Bob had conducted his campaign so skilfully againstSamuels that Thorne used him further in similar matters. Little bylittle, indeed, the young man was withdrawn from other work. He nowspent many hours with Amy in the little office going over maps andfiles, over copies of documents and old records. When he had thoroughlymastered the ins and outs of a case, he departed with his pack animaland saddle horse to look the ground over in person.

  Since the _eclat_ of the Samuels case, he had little hope of obtainingrelinquishments, nor did he greatly care to do so. A relinquishmentsaved trouble in the courts, but as far as avoiding adverse publicnotice went, the Samuels affair showed the absolute ineffectiveness ofthat method. But by going on the ground he was enabled to see, with hisown eyes, just what sort of a claim was in question, the improvementsthat had been made on it, the value both to the claimant and theGovernment. Through an interview he was able to gauge the claimant, toweigh his probable motives and the purity of both his original andpresent intentions. A number of cases thus he dropped, and that on noother than his own responsibility. They were invariably those whoseissue in the courts might very well be in doubt, so that it wasimpossible to tell, without trying them, how the decision would jump.Furthermore, and principally, he was always satisfied that the claimanthad meant well and honestly throughout, and had lapsed throughignorance, bad advice, or merely that carelessness of the letter of thelegal form so common among mountaineers. Such cases were far morenumerous than he had supposed. The men had, in many instances, come intothe country early in its development. They had built their cabins by thenearest meadow that appealed to them; for, to all intents and purposes,the country was a virgin wilderness whose camping sites were many andopen to the first comer. Only after their households had been longestablished as squatters did these pioneers awake to an imperfectunderstanding that further formality was required before these, theirhomes, could be legally their own. Living isolated these men, even then,blundered in their applications or in the proving up of their claims.Such might be legally subject to eviction, but Bob in hisrecommendations gave them the benefit of the doubt and advised that fullpapers be issued. In the hurried days of the Service suchrecommendations of field inspectors were often considered as final.

  There were other cases, however, for which Bob's sympathies werestrongly enlisted, but which presented such flagrant irregularities ofprocedure that he could not consistently recommend anything but a courttest of the rights involved. To this he added a personal note, goingcompletely into details, and suggesting a way out.

  And finally, as a third class, he was able, as in Samuels's case, todeclare war on behalf of the Government. Men who had already taken upall the timber claims to which they or their families were legallyentitled, nevertheless added an alleged homestead to the lot. Other menwere taking advantage of twists and interpretations of the law to gainpossession of desirable tracts of land still included in the NationalForests. These men knew the letter of the law well enough, and tookpains to conform accurately to it. Their lapses were of intention. Theexcuses were many--so-called mineral claims, alleged agricultural land,all the exceptions to reservation mentioned in the law; the actual endsaimed at were two--water rights or timber. In these cases Bob reporteduncompromisingly against the granting of the final papers. Thousands ofacres, however, had been already conveyed. Over these, naturally, he hadno jurisdiction, but he kept his eyes open, and accumulated evidencewhich might some day prove useful in event of a serious effort to regainthose lands that had been acquired by provable fraud.

  But on the borderland between these sharply defined classes lay many inthe twilight zone. Bob, without knowing it, was to a certain extentexercising a despotic power. He possessed a latitude of choice as towhich of these involved land cases should be pushed to a court decision.If the law were to be strictly and literally interpreted, there could beno doubt but that each and every one of these numerous claimants couldbe haled to court to answer for his short-comings. But that, in manyinstances, could not but work an unwarranted hardship. The expensesalone, of a journey to the state capital, would strain to the breakingpoint the means of some of the more impecunious. Insisting on theminutest technicalities would indubitably deprive many an honest,well-meaning homesteader of his entire worldly property. It was all verywell to argue that ignorance of the law was no excuse; that it is aman's own fault if he does not fulfill the simple requirements of takingup public land. As a matter of cold fact, in such a situation as this,ignorance is an excuse. Legalizing apart, the rigid and invariableenforcement of the law can be tyrannical. Of course, this can never beofficially recognized; that would shake the foundations. But it is notto be denied that the literal and universal and _invariable_ enforcementof the minute letter of any law, no matter how trivial, for the space ofthree months would bring about a mild revolution. As witness thesweeping and startling effects always consequent on an order fromheadquarters to its police to "enforce rigidly"--for a time--someparticular city ordinance. Whether this is a fault of our system of law,or a defect inherent in the absolute logic of human affairs, is a matterfor philosophy to determine. Be that as it may, the powers that enforcelaw often find themselves on the horns of a dilemma. They must taketheir choice between tyranny and despotism.

  So, in a mild way, Bob had become a despot. That is to say, he had todecide to whom a broken law was to apply, and to whom not, and thiswithout being given any touchstone of choice. The matter rested with hisown experience, knowledge and personal judgment. Fortunately he was abeneficent despot. A man evilly disposed, like Plant, could have workedincalculable harm for others and great financial benefit to himself.That this is not only possible but inevitable is another defect of lawor system. No sane man for one single instant believes that literalenforcement of every law at all times is either possible or desirable.No sane man for one single instant believes that the law can be exceptedto or annulled for especial occasions without undermining the publicconfidence and public morals. Yet where is the middle ground?

  In Bob's capacity as beneficent despot, he ran against many problemsthat taxed his powers. It was easy to say that Samuels, having fullintention to get what he very well knew he had no right to have, and foracquiring which he had no excuse save that others were allowed to dolikewise, should be proceeded against vigorously. It was likewise easyto determine that Ward, who had lived on his mountain farm, andcultivated what he could, and had himself made shakes of his timber, butwho had blundered his formal processes, should be given a chance to makegood. But what of the doubtful cases? What of the cases whereinapparently legality and equity took opposite sides?

  Bob had adventures in plenty. For lack of a better system, he started atthe north end and worked steadily south, examining with patience thepedigree of each and every private holding within the confines of theNational Forests. These were at first small and isolated. Only one largetract drew his attention, that belonging to old Simeon Wright in the bigmeadows under Black Peaks. These meadows, occupying a wide plateau grownsparsely with lodgepole pine, covered perhaps a thousand acres of goodgrazing, and were held legally, but without the shadow of equity, by theold land pirate who owned so much of California. In going over both theoriginal records, the newer geological survey maps, and the countryitself, Bob came upon a discrepancy. He asked and obtained leave for aresurvey. This determined that Wright's early-day surveyor had made amistake--no extraordinary matter in a wild country so remote from baselines. Simeon's holdings were actually just one mile farther north,which brought them to the top of a bald granite ridge. His title to thiswas indubitable; but the broad and valuable meadows belonged still tothe Government. As the case was one of fact merely, Wright had noopportun
ity to contest, or to exercise his undoubtedly powerfulinfluence. The affair served, however, to draw Bob's name and activitiesinto the sphere of his notice.

  Among the mountain people Bob was at first held in a distrust thatsometimes became open hostility. He received threats and warningsinnumerable. The Childs boys sent word to him, and spread that wordabroad, that if this government inspector valued his life he would dowell to keep off Iron Mountain. Bob promptly saddled his horse, rodeboldly to the Childs' shake camp, took lunch with them, and rode back,speaking no word either of business or of threats. Having occasion totake a meal with some poor, squalid descendants of hog-raising PikeCounty Missourians, he detected a queer bitterness to his coffee,managed unseen to empty the cup into his canteen, and later found, as hehad suspected, that an attempt had been made to poison him. He rode backat once to the cabin. Instead of taxing the woman with the deed--for heshrewdly suspected the man knew nothing of it--he reproached her withcondemning him unheard.

  "I'm the best friend you people have," said he. "It isn't my fault thatyou are in trouble with the regulations. The Government must straightenthese matters out. Don't think for a minute that the work will stop justbecause somebody gets away with me. They'll send somebody else. And thechances are, in that case, they'll send somebody who is instructed tostick close to the letter of the law: and who will turn you out mightysudden. I'm trying to do the best I can for you people."

  This family ended by giving him its full confidence in the matter. Bobwas able to save the place for them.

  Gradually his refusal to take offence, his refusal to debate any mattersave on the impersonal grounds of the Government servant acting solelyfor his masters, coupled with his willingness to take things intoconsideration, and his desire to be absolutely fair, won for Bob areluctant confidence. At the north end men's minds were as yet tooinflamed. It is a curious matter of flock psychology that if the publicmind ever occupies itself fully with an idea, it thereby becomes for thetime being blind, impervious, to all others. But in other parts of themountains Bob was not wholly unwelcome; and in one or two cases--whichpleased him mightily--men came in to him voluntarily for the purpose ofasking his advice.

  In the meantime the Samuels case had come rapidly to a crisis. Theresounding agitation had resulted in the sending of inspectors toinvestigate the charges against the local officials. The first of theseinspectors, a rather precise and formal youth fresh from Easterntraining, was easily handled by the versatile Erbe. His report,voluminous as a tariff speech, and couched in very official language,exonerated Thorne and Orde of dishonesty, of course, but it emphasizedtheir "lack of tact and business ability," and condemned strongly theirattitude in the Durham matter. This report would ordinarily have gone nofarther than the district office, where it might have been acted on bythe officers in charge to the great detriment of the Service. At thattime the evil of sending out as inspectors men admirably trained intheory but woefully lacking in practice and the knowledge of Westernhumankind was one of the great menaces to effective personnel.Fortunately this particular report came into the hands of the Chief, whohappened to be touring in the West. A fuller investigation exposed tothe sapient experience of that able man the gullibility of theinspector. From the district a brief statement was issued upholding thelocal administration.

  The agitation, thus deprived of its chief hope, might very well havebeen expected to simmer down, to die away slowly. As a matter of fact,it collapsed. The newspaper attacks ceased; the public meetings werediscontinued; the saloons and other storm centres applied their powersto a discussion of the Gans-Nelson fight. Samuels was very brieflydeclared a trespasser by the courts. Erbe disappeared from the case.The United States Marshal, riding up with a posse into a supposedlyhostile country, found no opposition to his enforcement of the court'sdecree. Only old Samuels himself offered an undaunted defence, but wassoon dislodged and led away by men who half-pitied, half-ridiculed hisviolence. The sign "Property of the U.S." resumed its place. Thorne madeof the ancient homestead a ranger's post.

  "It's incomprehensible as a genuine popular movement," said he on one ofBob's periodical returns to headquarters. The young man now held acommission, and lived with the Thornes when at home. "The opposition upthere was so rabid and it wilted too suddenly."

  "'The mutable many,'" quoted Amy.

  But Thorne shook his head.

  "It's as though they'd pricked a balloon," said he. "They don't love usup there, yet; but it's no worse now than it used to be here. Last weekit was actually unsafe on the streets. If they were so strong forSamuels then, why not now? A mere court decision could not change theirminds so quickly. I should have expected the real bitterness and thereal resistence when the Marshal went up to put the old man off."

  "That's the way I sized it up," admitted Bob.

  "It's as if somebody had turned off the steam and the engine quitrunning," said Thorne, "and for that reason I'm more than ever convincedthat it was a made agitation. Samuels was only an excuse."

  "What for?" asked Bob.

  "Struck me the same way," put in California John. "Reminded me of thewar. Looked like they held onto this as a sort of first defence as longas they could, and then just abandoned it and dropped back."

  "That's it," nodded Thorne. "That's my conclusion. Somebody bigger thanSamuels fears investigation; and they hoped to stop our sort ofinvestigation short at Samuels. Well, they haven't succeeded."

  Amy arose abruptly and ran to her filing cases.

  "That ought to be easily determined," she cried, looking over hershoulder with shining eyes. "I have the papers about all ready for thewhole of our Forest. Here's a list of the private holdings, by whomheld, how acquired and when." She spread the papers out on the table."Now let's see who owns lots of land, and who is powerful enough toenlist senators, and who would fear investigation."

  All four bent over the list for a few moments. Then Thorne made fivedots with his pencil opposite as many names.

  "All the rest are little homesteaders," said he. "One of these must beour villain."

  "Or all of them," amended California John drily.

  [Footnote A: "Nester"--Western term meaning squatters, smallsettlers--generally illegally such.]