Now he was talking about something far more than a survey. He was talking about a policy, and a sweeping one. He was proposing to close, apparently forever, a great part of the remaining public domain, and to bring to a close, except within the irrigable lands, the agricultural expansion which had been part of the national expectation for almost a century. And even within those irrigable lands which would still be open he was implying a degree of strict federal control. Left to themselves, he said, settlers would choose their lands "for personal gain rather than for common interest." The thought that the government had any business imposing respect for the common interest upon the individual would have set the Western dragons to breathing fire. Up to now, the General Land Office could content itself with tidying up the confusion that laissez faire squatting created, or pushing its grid of surveys outward in advance of foreseeable settlement. Major Powell now proposed (though not yet publicly) the end of laissez faire, the beginning of government supervision to prevent not only land and water monopolies but the danger of individual failure among settlers. In 1878 he had advocated co-operative control of irrigation by the settlers within a natural district. Now he appeared to a.s.sume that only federal intervention could be effective. Government should now say to pioneers what lands they could settle, and enforce its directives by control of the water. Settlers should now be limited in their anarchic personal rights and brought up sharp against a thing that until now few had bothered to consider: the common interest. The justification was the abiding aridity of the West. Indian and Spaniard and Mormon had all been ultimately forced to community morality. Mutuality was a condition of survival. But community morality, especially if it was to be enforced by federal law, was a new and alarming notion in 1889, and especially in the West, and most especially among those Westerners devoted to the kind of "development" that Senator Stewart defended.

It would be a mistake to a.s.sume that Powell's notions could have found no popular support. They might have found a good deal in 1889, for "radicals" and "cranks," the Farmers' Alliance or the Populists, were beginning to mutter in terms close to Powell's in their political and economic significance. Those cranks and radicals who had a large part in bringing the initiative, referendum, recall, woman suffrage, and the Australian ballot into our political system were already turning for help to the only power which was apparently able to resist or control the railroads and the trusts. Precisely at this time, as Frederick Jackson Turner points out, "the defense of the pioneer democrat began to shift from free land to legislation, from the ideal of individualism to the ideal of social control through regulation by law." 3 3 But this influence, after a brief triumph in the elections of 1892, But this influence, after a brief triumph in the elections of 1892,4 would be considerably delayed in its effects, and for a long time the man who thought in these terms would remain a crank and a crackpot. Alexander Aga.s.siz was not the only rugged individualist left in America, and science not the only activity with its shibboleths of personal initiative. The myths surrounding free land were among the most durable the nation ever developed. And the slow bending of inst.i.tutions to fit the conditions of the arid West - a bending which included inevitably a growing amount of federal "welfare" legislation - has been so truly glacial in its slowness that it was still a symbolic campaign issue in 1952, and may be for many elections to come. Ant.i.thetical political philosophies can clash as appropriately on the battlefield of the Hungry Horse dam as on any other. would be considerably delayed in its effects, and for a long time the man who thought in these terms would remain a crank and a crackpot. Alexander Aga.s.siz was not the only rugged individualist left in America, and science not the only activity with its shibboleths of personal initiative. The myths surrounding free land were among the most durable the nation ever developed. And the slow bending of inst.i.tutions to fit the conditions of the arid West - a bending which included inevitably a growing amount of federal "welfare" legislation - has been so truly glacial in its slowness that it was still a symbolic campaign issue in 1952, and may be for many elections to come. Ant.i.thetical political philosophies can clash as appropriately on the battlefield of the Hungry Horse dam as on any other.

Fortunately for Major Powell, no one heard him proposing revolution except Secretary of the Interior Vilas, who was largely in sympathy with his views. And though Congress did not give Powell the $350,000 he asked for, it did give him a quarter of a million in March, 1889, and that appropriation allowed him to expand and to push the work that had been begun the fall before. There was a kind of red-letter day when he designated his first reservoir site on April 6; 5 5 and a kind of appropriateness in the fact that the first one designated was a symbol of the old and pa.s.sing West. It was Bear Lake, the old trapper rendezvous in the Utah-Wyoming-Idaho comer. Quite as symbolically apt, in its way, as the choice itself, was the fact that the surveyors had hardly lugged their plane tables into the lake basin before speculators were posting notices and filing claims. The common interest was not yet a thoroughly understood doctrine, except among those actively trying to protect it. and a kind of appropriateness in the fact that the first one designated was a symbol of the old and pa.s.sing West. It was Bear Lake, the old trapper rendezvous in the Utah-Wyoming-Idaho comer. Quite as symbolically apt, in its way, as the choice itself, was the fact that the surveyors had hardly lugged their plane tables into the lake basin before speculators were posting notices and filing claims. The common interest was not yet a thoroughly understood doctrine, except among those actively trying to protect it.

Ignore works already installed or planned by private enterprise, Powell wrote Dutton.6 Conceive unified plans for whole irrigation districts, without regard to the limited and perhaps interfering works already there. Plan maximum irrigation at minimum expense for the maximum number of people. "It is to be borne in mind," Powell wrote, "that this survey is not primarily designed for the benefit of private parties who may contemplate the construction of works, though if they should incidentally derive benefit therefrom it would be a matter of congratulation." One of the princ.i.p.al purposes to which Powell called his a.s.sistant's attention was "to guide the development of agriculture in the greatest practical area" and to prevent the hardship resulting from ill-considered settlement and the failure of homesteaders on family-sized farms. Conceive unified plans for whole irrigation districts, without regard to the limited and perhaps interfering works already there. Plan maximum irrigation at minimum expense for the maximum number of people. "It is to be borne in mind," Powell wrote, "that this survey is not primarily designed for the benefit of private parties who may contemplate the construction of works, though if they should incidentally derive benefit therefrom it would be a matter of congratulation." One of the princ.i.p.al purposes to which Powell called his a.s.sistant's attention was "to guide the development of agriculture in the greatest practical area" and to prevent the hardship resulting from ill-considered settlement and the failure of homesteaders on family-sized farms.

To serve the common interest as he thought it should, the survey had to be accurate, and that meant it moved more slowly than the impatient wanted it to. And though the designation of reservoir sites did move along at some speed after the first selection of Bear Lake, it seemed that half the sites designated brought trouble. He had hardly named Clear Lake, California, before local residents began writing their Senator, that same George Hearst who had demoralized the scorpion in Tucson. They feared for their vested rights, they worried that inchoate t.i.tles could not now be perfected. Protests of these kinds would become commoner as the survey proceeded. Powell soothed them with a.s.surances 7 7 that reservation would not interfere with either perfected or inchoate t.i.tles, but would merely prevent further filings. The reservation was only temporary anyway, and its only purpose was "to secure the site of the Lake as it now exists as a natural reservoir and to prevent it being destroyed for the purpose; and further to prevent the flooded lands around the lake and its arms and tributaries from being filed upon in order to sell relinquishments and rights to the public hereafter when the Lake is needed as a natural reservoir." His a.s.surances may not have satisfied Hearst's const.i.tuents, some of whom may have had in mind just such profitable relinquishments. Still, the trouble over Clear Lake was trifling by comparison with what erupted on the Rio Grande. that reservation would not interfere with either perfected or inchoate t.i.tles, but would merely prevent further filings. The reservation was only temporary anyway, and its only purpose was "to secure the site of the Lake as it now exists as a natural reservoir and to prevent it being destroyed for the purpose; and further to prevent the flooded lands around the lake and its arms and tributaries from being filed upon in order to sell relinquishments and rights to the public hereafter when the Lake is needed as a natural reservoir." His a.s.surances may not have satisfied Hearst's const.i.tuents, some of whom may have had in mind just such profitable relinquishments. Still, the trouble over Clear Lake was trifling by comparison with what erupted on the Rio Grande.

Properly speaking, it was not Powell who first proposed to dam the Rio Grande, but Major Anson Mills; when Mills came to the War Department with his proposals, the War Department referred him to Powell, who empowered him to study the problems and possibilities of a site just above El Paso.8 That was even before the pa.s.sage of the Sundry Civil Bill that in October, 1888, gave funds to the Irrigation Survey; as soon as the funds were available, Powell made Mills a supervising engineer under E. S. Nettleton. It was apparently the intention of all concerned to push for government construction of the dam. But in the midst of the preliminary studies, Mills was detached to investigate a water row at Fort Selden, in New Mexico. There the War Department had granted a ca.n.a.l company a charter to build a ditch across the reservation, but the Mexican farmers, seeing that the new ditch would cut across their own and put them under the control of the new company, threatened to rise in arms. Mills, Senator Reagan of Texas, and other investigators satisfied themselves that the whole scheme was an unprincipled grab, and they so testified at a hearing in Washington on February, 1889. The War Department revoked the ca.n.a.l company's charter, and thereby earned for all the federal irrigation forces the ferocious enmity of men who had been hurt in the pocketbook. W. H. H. Llewellyn, the representative of the ca.n.a.l company, went back west after leaving a note like a challenge to a duel at Mills' hotel: That was even before the pa.s.sage of the Sundry Civil Bill that in October, 1888, gave funds to the Irrigation Survey; as soon as the funds were available, Powell made Mills a supervising engineer under E. S. Nettleton. It was apparently the intention of all concerned to push for government construction of the dam. But in the midst of the preliminary studies, Mills was detached to investigate a water row at Fort Selden, in New Mexico. There the War Department had granted a ca.n.a.l company a charter to build a ditch across the reservation, but the Mexican farmers, seeing that the new ditch would cut across their own and put them under the control of the new company, threatened to rise in arms. Mills, Senator Reagan of Texas, and other investigators satisfied themselves that the whole scheme was an unprincipled grab, and they so testified at a hearing in Washington on February, 1889. The War Department revoked the ca.n.a.l company's charter, and thereby earned for all the federal irrigation forces the ferocious enmity of men who had been hurt in the pocketbook. W. H. H. Llewellyn, the representative of the ca.n.a.l company, went back west after leaving a note like a challenge to a duel at Mills' hotel: "Dear Major: I have wired Messrs. Davis and Morehead to have their people keep out, that if there is no new ditch at Las Cruces there will be no new dam at El Paso."

That posed the fight in its most naked terms: local interests against the public interest, and it not only marked the beginning of a dreary and celebrated dispute, but set a pattern for others just as dreary and just as celebrated. The irrigation forces went ahead with their plans. Mexico laid claim by prior right to the waters of the river. Negotiations finally resulted in an acceptable compromise which was written into a bill introduced into both houses of Congress, appropriating funds for the construction of the El Paso dam and granting Mexico half the water in exchange for the relinquishment of its claims.

It could easily have been the first and most important step of the United States government into large-scale reclamation and multi purpose control of the great western rivers. But Llewellyn's threat had not been an idle one. Before the bill could pa.s.s Congress, entrepreneurs led by Dr. Nathan Boyd obtained a charter from the willing legislature of the Territory of New Mexico, giving them the right to build a dam at Elephant b.u.t.te, one hundred twenty-five miles upstream. So now the dispute was brought past the stage of conflicting claims, and was brought to the stage of conflicting authorizations by law. There, all complete, was the whole tangled mess of rights and claims and jurisdictions. Instead of quarreling with the government of Mexico about the Rio Grande waters, the United States government had sensibly compromised. But it had no such chance with its own rebellious territory, for New Mexico said it owned the river within its boundaries and would dam it where it pleased. There was no court decision which ruled otherwise. Before the local entrepreneurs could be prevented from hogging the waters of the river and invalidating the federal government's pledged agreement with Mexico, the case would go three times to the Supreme Court. And when the Reclamation Bureau finally did dam the Rio Grande, many years later, it would choose the Elephant b.u.t.te site. There never has been a dam at El Paso.

This controversy that arose in the very first months of the Irrigation Survey would take years in the settling, and even then would not provide a clear precedent upon which future disputes could be decided. Like the federal land laws, the water laws would be a patchwork of improvisations, compromises, state law and federal law, interstate agreements and agreements between states and the federal government, riparian rights, appropriation rights, preferential uses, the Wyoming doctrine of tying water rights to land t.i.tles, the notion of ca.n.a.l companies not as owners but as common carriers like railroads - a tedium and a headache and a complicated and special branch of the law throughout the West. The "California doctrine," which holds that in surrendering certain political rights on the admission of a state the United States Government does not surrender ownership of the flowing streams, has yet to be weighed in the Supreme Court against the "Colorado doctrine" that the state on admission acquires all rights within its territory not specifically withheld by the const.i.tution.9 No answers, only increasingly pressing questions. Before ever the Rio Grande trouble had burst, Powell had been asked by Congress to comment on how the upstream and downstream rights on the Platte and Arkansas should be adjusted between the citizens of Colorado, Kansas, and Arkansas. Having no law to base an opinion on, he had contented himself with pointing out how the available waters could be most economically distributed and used. The legal question he had to refer to the courts.

It was easy enough for his engineers to work out the best general plan for any district or watershed, but it would be very much harder to apply the plan, with existing water rights on almost every stream, many of them wasteful, and with the state-ownership doctrines of many states permitting water companies to defy federal direction or control. As reservoir sites were reserved, the federal control of the situation would grow. And yet too great haste could lead to carelessness, error, the necessity of later duplication of the surveys. Powell was constantly forced to compromise between his view of the inclusiveness of the job and his sense of how urgent it was that something be done fast.

He had been in the irrigation business nine months, had selected about one hundred fifty reservoir sites and approximately thirty million acres of irrigable land, and had the General Land Office full of his clerks checking records of t.i.tle so that the selected lands could be withdrawn from settlement, when on July 5 he was invited by Senator Stewart to make a western tour with the Irrigation Committee of the Senate.10 Presumably he went not only to refresh his information but to do what he could as a missionary, to explain to Westerners the broad needs of their region and the ways in which the survey hoped to serve them. Political considerations were not missing, for in that summer of 1889 five of the western territories most affected by irrigation needs were holding const.i.tutional conventions and their admission as states was a.s.sured within a year or two. Presumably he went not only to refresh his information but to do what he could as a missionary, to explain to Westerners the broad needs of their region and the ways in which the survey hoped to serve them. Political considerations were not missing, for in that summer of 1889 five of the western territories most affected by irrigation needs were holding const.i.tutional conventions and their admission as states was a.s.sured within a year or two.

On the last of July, when Stewart and Reagan both preached irrigation and free silver to the South Dakota convention, Powell had not yet joined the group in person, though his ideas were mult.i.tud inously present in Senator Stewart's speech, and without sufficient quotation marks.11 By August 5 Powell had joined the committee. They addressed the North Dakota convention in Bismarck on that day, and Powell gave the delegates some home thoughts on water. Eastern Dakota, he said, nearly always had enough rain, central Dakota sometimes did, and western Dakota practically never did. Both the eastern belt, with adequate rainfall, and the western, which had to depend completely on irrigation, were safe. The danger lay in the middle, where if farmers did nothing to utilize the streams and artesian wells and storm-water reservoirs they could make up their minds to cyclic disasters of the kind they were experiencing now. He meant that central Dakota was what the British in India called a "famine belt," though he had the political sense not to use that phrase at that place and time. When rain failed in a region that had made no preparations against drouth, failure was complete. By August 5 Powell had joined the committee. They addressed the North Dakota convention in Bismarck on that day, and Powell gave the delegates some home thoughts on water. Eastern Dakota, he said, nearly always had enough rain, central Dakota sometimes did, and western Dakota practically never did. Both the eastern belt, with adequate rainfall, and the western, which had to depend completely on irrigation, were safe. The danger lay in the middle, where if farmers did nothing to utilize the streams and artesian wells and storm-water reservoirs they could make up their minds to cyclic disasters of the kind they were experiencing now. He meant that central Dakota was what the British in India called a "famine belt," though he had the political sense not to use that phrase at that place and time. When rain failed in a region that had made no preparations against drouth, failure was complete.

It therefore behooved the delegates to write the new state's const.i.tution with a view to conserving water and preventing the monopolization of the life that ran in the streams. On the critical question of state and federal rights he said nothing definite: he only advised the delegates to learn something from California or Colorado, either one, so that North Dakota's own water laws would be clear. And he told them again, as he had been telling the hopeful for fifteen years, that the climate was not changing. Nothing that man could do would change the climate materially. They would have cyclic drouths, and they had better prepare for them.12 It was not a spread-eagle speech, but it probably represented in its earnestness and the honesty of its convictions the highest pitch of eloquence Powell was capable of. His heart was still in the irrigation struggle, and the battle could still be won.

While he was telling North Dakota what was good for it and urging it to make maximum use of its streams, the North American Review North American Review published a Powell article published a Powell article 13 13 (the source of Senator Stewart's learning) pointing up the lessons of the Johnstown flood. It said what only an ethnologist might have been expected to know: that agriculture developed first in arid lands, that irrigation agriculture was historically the first agriculture worthy of the name, that on the Indus and the Tigris-Euphrates and the Nile, as well as in the American Southwest, stable civilizations had built themselves on the necessity of controlling streams for irrigation. The only truly agricultural American Indians were desert Indians living in areas where agriculture might have been thought impossible. There was the full hope and expectation, therefore, that the American West would become one of the great agricultural regions of the world, but the hope was predicated on wise use of water and control of the rivers. The Johnstown flood, which had told many Americans that it was fatally dangerous to dam rivers, told Powell something quite different: that it was essential to know in advance all the conditions and specifications of the engineering job. The lesson was one in intelligent surveying and planning. The Johnstown flood was actually the most eloquent justification of the long-range and careful preliminary work that his survey was then engaged in. (the source of Senator Stewart's learning) pointing up the lessons of the Johnstown flood. It said what only an ethnologist might have been expected to know: that agriculture developed first in arid lands, that irrigation agriculture was historically the first agriculture worthy of the name, that on the Indus and the Tigris-Euphrates and the Nile, as well as in the American Southwest, stable civilizations had built themselves on the necessity of controlling streams for irrigation. The only truly agricultural American Indians were desert Indians living in areas where agriculture might have been thought impossible. There was the full hope and expectation, therefore, that the American West would become one of the great agricultural regions of the world, but the hope was predicated on wise use of water and control of the rivers. The Johnstown flood, which had told many Americans that it was fatally dangerous to dam rivers, told Powell something quite different: that it was essential to know in advance all the conditions and specifications of the engineering job. The lesson was one in intelligent surveying and planning. The Johnstown flood was actually the most eloquent justification of the long-range and careful preliminary work that his survey was then engaged in.

The Major did not let his whole plan out of the bag in a single speech or a single article, but distributed it. At Helena, where he spoke to the Montana convention four days after the Bismarck speech, he showed another and more political side of it.14 He spoke, he said, as an old-time Westerner, not as a politician. But as an old-timer in the West he knew how badly the inst.i.tutions of the humid regions matched Western conditions. Montana had 35,000,- 000 irrigable acres, 35,000,000 acres of mountains useful chiefly for their minerals and timber, and 20,000,000 acres of range. Those figures alone had profound inst.i.tutional - and hence political - implications. Farmers on the irrigable acres needed to control the adjacent mountains, not merely for their timber but for their water-storage facilities, and for their potential exposure to erosion and floods and destruction of the watershed. The relations between mountains and plains was so close that the two should not be politically separated. And on the strength of that relationship and of the abiding importance of water ("all the great values of this territory have ultimately to be measured to you in acre feet") he made a set of proposals. He spoke, he said, as an old-time Westerner, not as a politician. But as an old-timer in the West he knew how badly the inst.i.tutions of the humid regions matched Western conditions. Montana had 35,000,- 000 irrigable acres, 35,000,000 acres of mountains useful chiefly for their minerals and timber, and 20,000,000 acres of range. Those figures alone had profound inst.i.tutional - and hence political - implications. Farmers on the irrigable acres needed to control the adjacent mountains, not merely for their timber but for their water-storage facilities, and for their potential exposure to erosion and floods and destruction of the watershed. The relations between mountains and plains was so close that the two should not be politically separated. And on the strength of that relationship and of the abiding importance of water ("all the great values of this territory have ultimately to be measured to you in acre feet") he made a set of proposals.

What he suggested was so radical that it could not possibly have any effect on the delegates, so rational that it could not possibly come to pa.s.s short of heaven, so intelligently reasoned from fact that it must have sounded to Montana's tradition-and-myth-bound const.i.tution-makers like the program of a crank.

He proposed simply to organize the new state of Montana into counties whose boundaries would be established by the divisions between hydrographic basins rather than by arbitrary political lines drawn on the map. Such basins, already being plotted out in Montana as in other parts of the West by his survey crews, were natural geographical and topographical unities; they might be given political and economic unity as well. Within any drainage basin, timber, grazing, and agriculture were all tied together by the controlling element of water. Suppose local self-government were established within each basin; suppose the federal government ceded to each basin-county all the public lands within its limits, suppose water rights within those limits should be established by locally elected water-masters and enforced by local courts. That way, they could lessen and perhaps eliminate litigation, friction, water-wars, multiplying costs. If it chose, Montana could organize itself and set a pattern for all the still-forming states of the West.

He told them how they might do it, though he could even then have had only the smallest and most wistful hope that they or any other western territory would match their political and economic organizations to the facts as revealed by his survey and to the most economical general plan of reclamation. Somewhere in Major Powell's small, maimed, whiskery person there burned some of the utopian zeal of Brook Farm and New Harmony. His vision of contented farmers controlling their own timber, gra.s.s, and water clear to the drainage divides, and settling their problems by an extension of the town meeting, is touched with a prophetic, perhaps a pathetic, piety. Science and Reason have always been on the side of Utopia; only the cussedness of the human race has not. In Montana the race was as cussed as elsewhere. It went ahead and organized the new state according to the tried and true patterns of more than a hundred years, with county lines marking none but the political drainage basins, and county seats compet.i.tively chosen in the atmosphere of deal, coup, and horse-trade. The water that was the state's lifeblood was not neglected, but its control was left open to franchise and purchase and grab, and its management confused by four dozen illogical political dividing lines.

3. The Long View and the Short

THE SWING through the West with the Irrigation Committee in the summer of 1889 had little effect on the const.i.tution-makers of North Dakota and Montana, whom Powell addressed, nor on those of South Dakota, Washington, Idaho, and Wyoming, whom he did not. Nevertheless Powell's general system of ideas did have an effect, through Elwood Mead, on the Wyoming convention which in September wrote into the const.i.tution the principle tying water rights to land - a principle first enunciated in the Arid Region Arid Region report - and the Wyoming action in turn ultimately influenced at least half of the other western states. report - and the Wyoming action in turn ultimately influenced at least half of the other western states.1 Aside from that victory, the summer was about as fruitless as the Committee's August 20 inspection of the El Paso damsite that was doomed never to be used. The one positive and direct result of the trip was to breed between Powell and Senator Stewart an intense and incurable dislike. Aside from that victory, the summer was about as fruitless as the Committee's August 20 inspection of the El Paso damsite that was doomed never to be used. The one positive and direct result of the trip was to breed between Powell and Senator Stewart an intense and incurable dislike.

With Senators Reagan and Jones, the others on the Irrigation Committee, Powell maintained the most cordial relations; he and Stewart were a little too positive for each other's taste, and in addition they represented utterly ant.i.thetical points of view. Powell stood for an ideal of public service both dedicated and comprehensive, for the greatest good for the greatest number as disinterested intelligence determined it. Stewart's notion of public service was as intense as his partisanship, as narrow as his intelligence, and as malleable as his personal ethics, His reason for interesting himself in irrigation was to bring water to his Nevada const.i.tuents, or some of them; his grasp of the problem was likely to be bounded by the drainage divides of the Truckee and the Carson. He wanted reservoir sites reserved and irrigable lands designated at once, by rough rule of thumb and without all this time-consuming squinting through theodolites.2 He resented delay, disliked theorists, suspected disinterestedness, and was uncomfortable in the presence of intelligence. By the time the committee returned to Washington the honeymoon was over, though it would still be some months before Stewart would stamp out of the love nest and slam the door. And during the last months of 1889 and the first of 1890 Stewart's impatience and dislike would be exacerbated by legal developments which no one, not even Powell, had foreseen. He resented delay, disliked theorists, suspected disinterestedness, and was uncomfortable in the presence of intelligence. By the time the committee returned to Washington the honeymoon was over, though it would still be some months before Stewart would stamp out of the love nest and slam the door. And during the last months of 1889 and the first of 1890 Stewart's impatience and dislike would be exacerbated by legal developments which no one, not even Powell, had foreseen.

The Joint Resolution of March, 1888, was Powell's enabling legislation; the rider to the Sundry Civil Bill of October 2, 1888, merely provided him funds to go ahead. But the Joint Resolution carried two amendments, one directing the withdrawal of all lands that the survey designated irrigable, and the other providing that these lands could be restored to settlement under the Homestead Act provisions upon proclamation by the President. The Resolution did not specify how anyone was to tell which lands were irrigable until the survey designated them, and it did not define the boundaries of the region affected.

Trouble had brewed even before the Irrigation Committee started west. In early July, 1889, the Idaho Const.i.tutional Convention complained to the General Land Office that speculators had followed the survey crews and staked out claims within the supposedly reserved reservoir site of Bear Lake.3 The Acting Commissioner, William M. Stone, thought things over for a few weeks and on August 5 directed local land offices to cancel all claims filed after October 2, 1888, on reservoir, ditch, or ca.n.a.l sites. That is, he retroactively ordered the closing of the public lands, The Acting Commissioner, William M. Stone, thought things over for a few weeks and on August 5 directed local land offices to cancel all claims filed after October 2, 1888, on reservoir, ditch, or ca.n.a.l sites. That is, he retroactively ordered the closing of the public lands,4 for no one yet knew where such sites were. for no one yet knew where such sites were.

Instantly there was consternation. What? Close all the land offices? Invalidate claims? Refuse the American yeoman his right to free land? And in the midst of the consternation some revelation: The General Land Office according to its own recent ruling should have been out of business in the West since the authorization of the Irrigation Survey, but it had never communicated to its local offices the law closing the entries on irrigable land. Whether it had simply overlooked that detail, which is hardly conceivable, or had misunderstood the law, which was easy enough to do, or had deliberately refused to suspend its operations, it was impossible to know. The Commissioner defended himself by insisting that the Joint Resolution, which had the force of law, had never been certified to his office.

As soon as the land offices were closed by Stone's order of August 5, 1889, both speculators and bona fide filers of claims who had acted in ignorance of an obscure law cried aloud. Their Congressmen also cried aloud, and shortly they forced a fl.u.s.tered Land Office back into business again: the local offices were told to issue patents to claimants, with the proviso that they might later be found invalid. That expedient pleased n.o.body, and left both Land Office and claimants hanging in uncertainty. But that was where they were both hanging when Stone gratefully moved over to make way for a new commissioner, L. E. Groff.

Mr. Groff, caught between the law and the wrath of the Congressmen who had pa.s.sed it, appealed for an opinion to the Attorney General, the a.s.sistant Attorney General, and the Secretary of the Interior. The answer was that as soon as Congress had pa.s.sed the Sundry Civil Act making funds available for the Irrigation Survey, all irrigable lands whether surveyed or in process of survey or not yet touched were reserved by the amendment to the Joint Resolution. But it was April, 1890, before Groff finally ordered the head office to approve no more t.i.tle patents on claims filed after October 2, 1888 - that date whose mere mention was now enough to scald Western excitabilities.

Attorney General Taft ruled that by the terms of the Joint Resolution all claims filed after that date were invalid; in his annual message President Grover Cleveland interpreted the act in the same way. The Land Office promptly withdrew 850,000,000 acres from entry, and now everyone understood what Congress had done in its zeal for irrigation to relieve the drouthy West. It had repealed all the land laws between the 100th meridian and the Pacific, and closed the public domain. More than that, it now appeared that there was no possibility of reopening the land to entry until the Irrigation Survey was completed or until the President proclaimed the restoration of certain districts. The President would obviously not restore any lands until they were certified to him by Major John Wesley Powell. Major John Wesley Powell would not certify any lands until his survey had worked them over. And his survey was apparently going to take forever.

Consternation approached apoplexy in Stewart and others who, having in mind a quick federal look-see at irrigation problems and a quick reservation of the obvious sites, now found that by their own act they had inst.i.tuted federal planning on an enormous scale, put one man in almost absolute charge of it, and totally fouled up the local water and land interests to whom they were all bound to give a polite if not an obedient ear. What Powell aimed to do, it now became clear, would take years, and while he carried out his plans he had despotic powers over the public domain. His enemies had always said he drew his considerable authority from peculiar and irregular acts of legislation. Now the most peculiar of all had made him, so far as the development of the West went, the most powerful man in the United States. He could dictate, by his location of reservoirs and ca.n.a.ls and his selection of the lands to be irrigated, the precise pattern that future settlement would take. He could block water and land companies wanting to acc.u.mulate a domain, by holding back lands or delaying their certification until they were ready for settlement by homesteaders. He could practically distribute the nation's remaining resources of soil and water according to his own plan and philosophy. He could all but command the sun to stand still in the West until he told it to go on.

Until the Attorney General's ruling in April, 1890, it is doubtful that Major Powell suspected the full power he possessed. At least he had taken the trouble on November 9, 1889, to request the segregation of 8,000,000 acres in the Snake River drainage basin in Wyoming and Idaho 5 5 - and he would not have asked the withdrawal of a specific tract if he had a.s.sumed that the whole public domain was automatically withdrawn. By the spring of 1890 he knew his strength, and he had begun to understand the violence of his opposition. - and he would not have asked the withdrawal of a specific tract if he had a.s.sumed that the whole public domain was automatically withdrawn. By the spring of 1890 he knew his strength, and he had begun to understand the violence of his opposition.

Yet he seems not to have feared it as much as he might have. Pushed by a combination of accident and public urgency into a control of land policies more complete than he could ever have dreamed of having, he could appreciate the need for haste without wanting to miss the opportunity through letting himself be crowded. He not only pursued his general plan, but he practically incorporated himself in it, and of necessity, when his enemies rallied to attack him, they attacked him through those parts of the plan that were furthest out of line with popular beliefs. He was as busy as he liked to be, trying on the one hand to convert short-range politicians and short-range settlers to long-range thinking, and on the other to balk the water and land companies with plans as long-range as his own, but with somewhat more private than public interest in their success.6 He did not know how much public support he could summon, but he hoped for enough, and for long enough, to let him complete at least the basic essentials of the survey. He did not know how much public support he could summon, but he hoped for enough, and for long enough, to let him complete at least the basic essentials of the survey.

The only thing that kept him from being impossibly busy was the very real efficiency of his bureaus and the high esprit of his collaborators. Thanks to careful organization and the combining of the clerical staffs, the Bureau of Ethnology and the Geological Survey could almost run themselves if need be; and the Irrigation Survey complemented the Geological Survey in concrete ways. The foundation of both was the topographical map. Powell accordingly devoted almost eighty per cent of his Irrigation Survey budget to topography, and moved the $200,000 allocated for that purpose in the Geological Survey budget to areas not covered by the Irrigation Survey. Shaping the map was slow; but it was essential, essential enough to justify even the stopping of a process of settlement that had begun with Jamestown. To win the support that would let him get it done, Powell intensified his missionary campaign with Congress and the public.

He explained his plan and the scientific observations upon which it was based in a series of meetings with the House Committee on Irrigation between February and April, 1890.7 He aired it in speeches, wrote it for the magazines, repeated it in his published reports, argued it at dinners, dictated it in patient letters to angry or inquiring or plaintive correspondents. To work through that body of report and polemic is to realize how consistent, by now, his views about the arid region had become, and how widely his plan reached to embrace the related problems of land, water, erosion, floods, soil conservation, even the new one of hydroelectric power; and how behind the plan was a settled belief in the worth of the small farmer and the necessity of protecting him both from speculators and from natural conditions he did not understand and could not combat. He aired it in speeches, wrote it for the magazines, repeated it in his published reports, argued it at dinners, dictated it in patient letters to angry or inquiring or plaintive correspondents. To work through that body of report and polemic is to realize how consistent, by now, his views about the arid region had become, and how widely his plan reached to embrace the related problems of land, water, erosion, floods, soil conservation, even the new one of hydroelectric power; and how behind the plan was a settled belief in the worth of the small farmer and the necessity of protecting him both from speculators and from natural conditions he did not understand and could not combat.

The key ideas 8 8 were hammered at over and over in an attempt to break down tradition and the feeling that it was unpatriotic in a Westerner to admit that his country was dry. The best and the safest agriculture, and the oldest, was irrigation agriculture. And it was fatal to believe that tillage altered the climate. Tillage brought no more rain than burning the prairies, or sending up balloons, or any of the other schemes. Climate depended on meteorological forces too sweeping to be changed by any local expedients. were hammered at over and over in an attempt to break down tradition and the feeling that it was unpatriotic in a Westerner to admit that his country was dry. The best and the safest agriculture, and the oldest, was irrigation agriculture. And it was fatal to believe that tillage altered the climate. Tillage brought no more rain than burning the prairies, or sending up balloons, or any of the other schemes. Climate depended on meteorological forces too sweeping to be changed by any local expedients.

And no one should expect to reclaim all the western lands. Twenty per cent was probably an optimistic estimate of what was reclaimable - but even that twenty per cent would total more than all the lands tilled so far in the nation. To reclaim that twenty per cent, water would have to be available, and most of it would have to come from the large rivers. Dams on these rivers would have far-reaching effects. Properly engineered, they would protect from floods instead of causing them as at Johnstown. They would allow the reclamation of arid lands on the headwaters and swamp lands near the mouths, and they would permit a controlled flow that would prevent wasteful runoff. Also, one of the first needs in the utilization of these great rivers was a legal one, for rivers were an interstate, sometimes an international, matter, and as yet there was no clear body of law covering their ownership and use.

The best way to approach that legal question was by first organizing the West into hydrographic basins which would be virtually self-governing and hence able to negotiate with other similar basins, as well as to control their own watersheds clear to the drainage divides. Inter-basin water law would offer a sound basis for the development of interstate water law, whereas to permit development of water by local franchise was to permit monopoly and waste and the peonage of the small farmer. Moreover, no individual or company could afford the enormous engineering works that were necessary for proper development of the great rivers and the maximum use of water. The ideal way was co-operation: he would have supported federal construction only as a preventive of local grabbing. But however the works were to be built, the absolutely necessary first step was a systematic and careful survey, and that was the proper function of the government's scientific bureaus.

Over and over he repeated and explained and ill.u.s.trated his thesis that the new conditions of the West demanded new inst.i.tutions. These he outlined in his three articles for Century Century in the spring of 1890, he incorporated them in his reports, he used them as a basis of principle from which to answer ca.n.a.l companies demanding to be rea.s.sured in their rights or to be told what their rights were, or coyly offering to co-operate with the survey in the selection of reservoir sites. Probably he convinced some, perhaps many. Certainly he did more than his part to air the West's peculiar problems and emphasize the need for more forethought in its settlement than had gone into the settlement of the East and Midwest. He found himself both a champion and a scapegoat, for Congress, which had closed the public domain and repudiated the myth of the Garden of the World, was looking for someone to blame. There were three House bills and one Senate bill already introduced, all aimed at canceling the Joint Resolution's provisions. A good deal of Powell's missionary work was actually self-defense. in the spring of 1890, he incorporated them in his reports, he used them as a basis of principle from which to answer ca.n.a.l companies demanding to be rea.s.sured in their rights or to be told what their rights were, or coyly offering to co-operate with the survey in the selection of reservoir sites. Probably he convinced some, perhaps many. Certainly he did more than his part to air the West's peculiar problems and emphasize the need for more forethought in its settlement than had gone into the settlement of the East and Midwest. He found himself both a champion and a scapegoat, for Congress, which had closed the public domain and repudiated the myth of the Garden of the World, was looking for someone to blame. There were three House bills and one Senate bill already introduced, all aimed at canceling the Joint Resolution's provisions. A good deal of Powell's missionary work was actually self-defense.

Meantime he was doing more than missionary work. By June, 1890, in addition to the nearly 30,000,000 acres of irrigable lands he had tentatively selected,9 he had designated two hundred reservoir sites to the General Land Office for reservation. But before any of the 30,000,000 acres could be certified to the President for restoration to settlement, the t.i.tles to all privately held parcels within the large districts had to be checked. Powell still had a dozen clerks over in the General Land Office turning pages, but by the time the appropriations committees got around to him at the beginning of June he had been unable actually to certify a single acre. he had designated two hundred reservoir sites to the General Land Office for reservation. But before any of the 30,000,000 acres could be certified to the President for restoration to settlement, the t.i.tles to all privately held parcels within the large districts had to be checked. Powell still had a dozen clerks over in the General Land Office turning pages, but by the time the appropriations committees got around to him at the beginning of June he had been unable actually to certify a single acre.

Nevertheless the request for funds and the plan of operations that he sent to Secretary Vilas in April 10 10 was breezily confident. He now asked grandly, on the scale that Stewart and Teller had at first proposed. By now Dutton had trained a staff of hydraulic engineers; there were people to make the survey move. So Powell asked for $720,000, plus another $70,000 for map engraving, cement research, and office rental. The total was more than three times his last Irrigation Survey appropriation. Though Dutton had been skeptical from the beginning about the propriety of devoting so much of the appropriation to topography, Powell looked upon the map as the basis of the whole plan he had submitted to the irrigation clique in 1888. was breezily confident. He now asked grandly, on the scale that Stewart and Teller had at first proposed. By now Dutton had trained a staff of hydraulic engineers; there were people to make the survey move. So Powell asked for $720,000, plus another $70,000 for map engraving, cement research, and office rental. The total was more than three times his last Irrigation Survey appropriation. Though Dutton had been skeptical from the beginning about the propriety of devoting so much of the appropriation to topography, Powell looked upon the map as the basis of the whole plan he had submitted to the irrigation clique in 1888.11 He busied himself gathering ammunition for the conversion of the appropriations committees, and while he was doing so the Senate gave notice of its temper by pa.s.sing a resolution demanding to know how much, if any, of the money appropriated for irrigation surveys had been diverted to topographic work, and if so, "by what authority of law where appropriations are made by Congress for several purposes the money appropriated for one purpose can be diverted and used for another purpose for which an appropriation is also made in the same statute." 12 12 The animus and the apoplectic turgidity of the resolution would have told Powell who had got it up. Stewart had found what he conceived to be a loose stone in the Major's wall, and he was busy digging. If he could cast doubt on the legality of the Irrigation Survey's topographic work, he would have a chance to bring the whole thing down. Actually Stewart had known from the beginning that Powell based everything upon the topographic map. But he also knew that Powell had been criticized for taking more authority on occasion than the law allowed him. Having fathered it himself, he knew that the enabling law of the Irrigation Survey was irregular and that Powell might be made to seem responsible for it. He would personally take steps in that direction. The animus and the apoplectic turgidity of the resolution would have told Powell who had got it up. Stewart had found what he conceived to be a loose stone in the Major's wall, and he was busy digging. If he could cast doubt on the legality of the Irrigation Survey's topographic work, he would have a chance to bring the whole thing down. Actually Stewart had known from the beginning that Powell based everything upon the topographic map. But he also knew that Powell had been criticized for taking more authority on occasion than the law allowed him. Having fathered it himself, he knew that the enabling law of the Irrigation Survey was irregular and that Powell might be made to seem responsible for it. He would personally take steps in that direction.

The Resolution that Stewart and other Westerners pushed through on May 31, 1890, had as its purpose the repudiation of the irrigation legislation, at least as it presently stood, and the scotching of the man who, having been put in charge, had shown that he would fight for it. But it was not the first action of 1890 that aimed at the vilification of Major Powell. That first action had come at the very start of the new year, when the spies and whisperers, sensing another opportunity and seeing formidable forces attacking Powell from the front, came out from behind the arras with their knives in their hands.

4. Spies and Whisperers Again

ON JANUARY 12, 1890, a Sunday, the New York Herald was ban nered with scare headlines:

SCIENTISTS WAGE BITTER WARFARE. PROF. COPE, OF THE UNIVERSITY OF PENNSYLVANIA, BRINGS SERIOUS CHARGES AGAINST DIRECTOR POWELL AND PROF. MARSH, OF THE GEOLOGICAL SURVEY. CORROBORATION IN PLENTY. LEARNED MEN COME TO PENNSYLVANIAN'S SUPPORT WITH ALLEGATIONS OF IGNORANCE, PLAGIARISM AND INCOMPETENCE AGAINST THE ACCUSED OFFICIALS. IMPORTANT COLLATERAL ISSUE. THE NATIONAL ACADEMY OF SCIENCES, OF WHICH PROFESSOR MARSH IS PRESIDENT, IS CHARGED WITH BEING PACKED IN THE INTERESTS OF THE SURVEY. RED HOT DENIALS PUT FORTH. HEAVY BLOWS DEALT IN ATTACK AND DEFENCE AND LOTS OF HARD NUTS PROVIDED FOR SCIENTIFIC DIGESTION. WILL CONGRESS INVESTIGATE? 1 1

This time Cope and his cohorts had come out loaded for bear. It is doubtful that any modem controversy among men of learning has generated more venom than this one did. All the old charges were there in the Herald's Herald's full and delighted story, all distilled and aged but not mellowed through twenty years of hatred. Powell was not the princ.i.p.al object of attack, but he took some blows aimed at Marsh and he took some in his own right. He was a political boss who had built a scientific Tammany within the government, intimidated or bought off his opposition, gained control of the National Academy, and made himself head of a great scientific monopoly. His bureaus were asylums for Congressmen's sons and provided sinecures for press agents and pap for college professors, and the activities and influence of these were used in turn to milk great appropriations from Congress. full and delighted story, all distilled and aged but not mellowed through twenty years of hatred. Powell was not the princ.i.p.al object of attack, but he took some blows aimed at Marsh and he took some in his own right. He was a political boss who had built a scientific Tammany within the government, intimidated or bought off his opposition, gained control of the National Academy, and made himself head of a great scientific monopoly. His bureaus were asylums for Congressmen's sons and provided sinecures for press agents and pap for college professors, and the activities and influence of these were used in turn to milk great appropriations from Congress.

Powell's personal learning was a fake, and in supporting Marsh he supported the worst snake, fake, and plagiarist in American science. Moreover Powell had stolen or duplicated the work of the state geological surveys; had jealously blocked publication of Cope's paleontological work done for the Hayden Survey; had insulted Cope by suggesting that some of Cope's collections actually belonged to the government; had obstructed geological work which contradicted his own; had attempted to dominate scientific meetings; had neglected mining geology in his conduct of the Geological Survey; and had misused Survey funds by sending Captain Dutton to Hawaii to study volcanoes.

As for Marsh, he was an incompetent, a plagiarist, a cheat. He consistently published the work of his a.s.sistants as his own; he failed to pay his helpers; he destroyed fossils in the field so that no one else could study them; he kept the enormous collections of the Geological Survey in his Yale laboratory under lock and key and refused other scientists access to them; and he had mixed them so hopelessly with the Yale collections that no one would ever be able to sort them out. He had conspired with Powell to pack the National Academy with Geological Survey stooges. He had committed every stupidity possible to a man who called himself a scientist. He had stolen some of his work from Cope, and his celebrated genealogy of the horse was a pure theft from the Russian Kowalevsky.

Supporting this blast was an extensive collection of letters and testimonials, gathered over a period of many years, as well as Endlich's 23,000 word smear which Congress had looked at and decided to ignore in 1885.

It was not, in spite of its hysterical extravagances, an attack to be laughed off. William Hosea Ballou, the Herald Herald reporter who had a.s.sembled it out of interviews with Cope, Endlich, Sterry Hunt, Persifor Frazer, a group of Marsh's disgruntled a.s.sistants, and another group of dissident and anti-Powell scientists, was obviously convinced that he had stumbled upon a good deal of fire as well as a lot of murky smoke. He did have the courtesy to bring the article to Powell and send it to Marsh before it appeared, and he ran Powell's reply in the same issue in which the charges were made. reporter who had a.s.sembled it out of interviews with Cope, Endlich, Sterry Hunt, Persifor Frazer, a group of Marsh's disgruntled a.s.sistants, and another group of dissident and anti-Powell scientists, was obviously convinced that he had stumbled upon a good deal of fire as well as a lot of murky smoke. He did have the courtesy to bring the article to Powell and send it to Marsh before it appeared, and he ran Powell's reply in the same issue in which the charges were made.

In that reply, Powell had one great advantage over Cope: hatred had not seared his thinking apparatus, and the dignity of his defence made the attack look as hysterical as in fact it was.

As Director of the Survey a great trust is placed upon me, and I recognize that I am responsible not only to the President of the United States, whose commission I bear, and to the Secretary who is my immediate chief, and to the Congress of the United States, to whom I make an annual report setting forth in full the transactions of the survey, but also to the people of the United States, whose servant I am.... I feel myself deeply responsible to the scientific men of the country also, for during a period of more than twenty years they have supported me and the work under my charge almost with unanimity....

Having put Cope where he belonged, in an envious minority, Powell traced step by step, with doc.u.ments at least as convincing as Cope's, the progress of almost two decades of malice, from the founding of the survey and the defeat of Hayden's forces to the Cope-Endlich attempt to smear him before the investigating committee of 1885.2 He corrected some of Cope's figures, especially with regard to the funds annually allocated to Marsh, and he defended Marsh's scientific reputation, leaving to Marsh himself the defense of his personal honesty. He stoutly defended his arrange inents with several state surveys for topographical mapping, categorically denied duplicating or stealing from any state survey, justified his press agent W. A. Croffut as the general editor of extensive survey publications, told Cope that any time he submitted a completed ma.n.u.script his paleontological volumes for the Hayden Survey would be published, and made some mildly deleterious remarks about "species fiends" that applied about as well to Marsh as to Cope. And he concluded with a touch of kindly and ironic condescension: He corrected some of Cope's figures, especially with regard to the funds annually allocated to Marsh, and he defended Marsh's scientific reputation, leaving to Marsh himself the defense of his personal honesty. He stoutly defended his arrange inents with several state surveys for topographical mapping, categorically denied duplicating or stealing from any state survey, justified his press agent W. A. Croffut as the general editor of extensive survey publications, told Cope that any time he submitted a completed ma.n.u.script his paleontological volumes for the Hayden Survey would be published, and made some mildly deleterious remarks about "species fiends" that applied about as well to Marsh as to Cope. And he concluded with a touch of kindly and ironic condescension: I am not willing to be betrayed into any statement which will do injustice to Professor Cope. He is the only one of the coterie who has scientific standing. The others are simply his tools and act on his inspiration. The Professor himself has done much valuable work for science. He has made great collections in the field and has described these collections with skill. Altogether he is a fair systematist. If his infirmities of character could be corrected by advancing age, if he could be made to realize that the enemy which he sees forever haunting him as a ghost is himself... he could yet do great work for science.

Professor Marsh's reply was marked by no such restraint and decorum. Having been attacked with talons, he replied with claws. First he collected a series of denials from people whom Cope had quoted against him. The denials in very few instances took back anything their authors had previously said about Marsh: they merely denied that Cope had been authorized to publish anything. Still, they prepared the way for Marsh's own turn in the Herald on the following Sunday.

Marsh's statement was cold, controlled, furious. He denied Cope's charges of plagiarism and misuse of his a.s.sistants, and to Cope's charges of scientific incompetence he replied with countercharges, notably with reference to Cope's achievement in articulating one skeleton backside-to. And he noted also Cope's raids on private collections, admitting that since Cope had sneaked into the Yale laboratory and stolen and published some of Marsh's uncompleted work he saw there, the Yale collections, including those of the Geological Survey, had indeed been closed to unauthorized persons, especially Professor Cope. "Little men with big heads, unscrupulous in warfare, are not confined to Africa," he said, "and Stanley will recognize them here when he returns to America. Of such dwarfs we have unfortunately a few in science."

And what of Cope's claim that Marsh had stolen his genealogy of the horse from Kowalevsky? Poppyc.o.c.k. Marsh had never seen Kowalevsky's work. He had convinced Thomas Henry Huxley of the true genealogy in 1876, and a few days later Huxley had cited the source of his altered opinions in a New York speech. More than that, Kowalevsky was as notorious in Europe as Cope was in America for raiding other people's museums. "Kowalevsky," wrote Professor Marsh with his teeth precisely together, "was at last stricken with remorse and ended his unfortunate career by blowing out his own brains. Cope still lives, unrepentant."

Cope had shot off all his ammunition in the first charge. He was scattered and routed by Powell's dignified immovability and by the bullwhip of Marsh's tongue. Given opportunity to make fresh statements so that the Herald Herald could keep its profitable controversy going, he replied only that "the recklessness of a.s.sertion, the er roneousness of statement and the incapacity of comprehending our relative positions on the part of Professor Marsh render further discussion of the trivial matters upon which we disagree unnecessary, and my time is too fully occupied on more important subjects to permit me to waste it upon personal affairs which are already sufficiently before the public. Professor Marsh has recorded his views could keep its profitable controversy going, he replied only that "the recklessness of a.s.sertion, the er roneousness of statement and the incapacity of comprehending our relative positions on the part of Professor Marsh render further discussion of the trivial matters upon which we disagree unnecessary, and my time is too fully occupied on more important subjects to permit me to waste it upon personal affairs which are already sufficiently before the public. Professor Marsh has recorded his views aere perenne, aere perenne, and may continue to do so without personal notice by E. D. Cope." and may continue to do so without personal notice by E. D. Cope." 3 3 But he was not to get away with any such lame and lofty curtain line. Marsh would have the last word. Cope's feeble rejoinder, he said, showed that he was now in the exact position of the boy who twisted the mule's tail. He was not so good-looking as he once was, but he knew more.

Up to a point, Marsh's cold triumph was justified. And yet, though discomfited and even discredited in the eyes of most scientific men, Cope could take a smoldering satisfaction in what he had done. It was both true and important that the "personal affairs" toward which he now expressed indifference were "sufficiently before the pub