The Origins of the American Public Trust Doctrine

The Originsof the American Public Trust Doctrine: WhatReally Happened in Illinois Central JosephD. Kearney& ThomasW Merrillt

Introduction...... 800 I. The StandardIllinois Central Narrative .805 II. Settingthe Stage ..811 A. The Lay ofthe Land .811 B. LegalUncertainty over Property Rights in SubmergedLands ....826 C. Implicationsfor the Lakefront .836 III. 1867:The Lakefrontin Play ..838 IV. 1868:Debating the Future of the Lakefront . .842 V. 1869:Chicago and the Illinois Central Go to Springfield.. 853 A. A Noteon Newspapersand State Legislatures in the Mid-NineteenthCentury .853 B. TheLake FrontAct of 1869 .860 C. TheMotives of the Illinois Central .877 D. The PublicInterest .881 E. The Questionof Corruption .887 VI. Afterthe Act ...... 894 A. 1869-1870:North Lake Park...... 895 B. 1870-1872:The OuterHarbor ...... 900 C. 1873:Repeal ...... 905 VII. TheLake FrontCase ...... 912 VIII. WhatIllinois Central Really Tells Us aboutthe PublicTrust Doctrine ...... 924 Conclusion...... 930

t Kearneyis Dean and Professorof Law,Marquette University Law School.Merrill is CharlesKeller Beekman Professor of Law,Columbia Law School.The authorswould like to thankRichard A. Epstein,Robert A. Ferguson,Richard H. Helmholz,John H. Langbein,Henry E. Smith,James B. Speta,and John Fabian Witt for helpful comments and suggestions on earlier drafts,and to thankthe participants in facultyworkshops at theUniversity of Chicago,Colum- bia,and Yale law schoolsfor stimulating feedback. The authorsare also gratefulto a numberof librariansand archivistsfor their assistance, including Robert E. Baileyat theIllinois State Ar- chives,Steven M. Barkanat theUniversity of Wisconsin School of Law,Christopher Simoni at NorthwesternUniversity School of Law, Julia A. Wentzat LoyolaUniversity School of Law, and to thereference staff at theChicago Historical Society, Marquette University Law School,the NewberryLibrary, and theUniversity of ChicagoLaw School.Daniel L. Abelson,Andrew B. Armstrong,Cynthia J. Cole, David M. Marquez,Jeremy R. McKenzie,Eric D. Meyer,Christo- pherS. Norborg,Annie L. Owens,Megan E. Pullem,and Jeremy J.Westlake provided invaluable helpas researchassistants. 799

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INTRODUCTION The publictrust doctrine has alwaysbeen controversial. The general rulein Americanlaw favorsownership of naturalresources as privateproperty. The publictrust doctrine, a jarring exception of un- certaindimensions, posits that some resources are subject to a perpet- ual trustthat forecloses private exclusion rights. For environmentalists and preservationistswho viewprivate ownership as a sourceof the degradationof our naturaland historicalresources, the public trust doctrineholds out thehope of salvationthrough what amounts to a judiciallyenforced inalienability rule that locks resources into public ownership.'For those who view private property as thebulwark of the freeenterprise system and constitutional liberty, the doctrine looms as a vaguethreat. Althoughproponents and detractorsof thepublic trust doctrine disputemuch, all agreethat the leading case establishingthe doctrine in theUnited States-the "lodestar" of themodem public trust doc- trine3-isthe United States Supreme Court's 1892 decision in Illinois CentralRailroad Companyv Illinois.4The decisionarose out of a disputeover control of the bed ofLake Michiganeast of downtown Chi- cago.Four contestants wrangled over this resource: the Illinois Central RailroadCompany, the City of Chicago,the State of Illinois,and the UnitedStates government. Each had a plausiblelegal theory support- ingits claims,and each had reasonto fearthe consequences should anothergain supremacyover developmentof the lakefront.Their struggle,beginning in thelate 1860s,resulted in theenactment of the Lake FrontAct bythe Illinois legislature in 1869,which awarded the IllinoisCentral both a portionof thelakeshore for a newdepot and overone thousandacres of submerged land for the development of an

1 See, forexample, Charles F.Wilkinson, The Public TrustDoctrine in Public Land Law, 14 UC Davis L Rev 269, 299 (1980) (creditingthe public trustdoctrine with preserving public resources). 2 See, forexample, Lloyd R. Cohen, The Public TrustDoctrine: An Economic Perspective, 29 Cal W L Rev 239,275 (1992) (arguingthat the publictrust doctrine undermines the security of propertyrights); James L. Huffman,A Fish Out of Water:The Public TrustDoctrine in a Con- stitutionalDemocracy, 19 EnvirL 527,565 (1989) (statingthat "the doctrineoften permits non- democraticcourts to overrulethe decisions of theoreticallydemocratic legislatures"). 3 JosephL. Sax, The Public TrustDoctrine in NaturalResource Law: EffectiveJudicial In- tervention,68 Mich L Rev 471,489 (1970). 4 146 US 387 (1892). For examplesof testamentsto theimportance of Illinois Central, see Daniel R. Coquillette,Mosses froman Old Manse: AnotherLook at Some HistoricProperty Cases about the Environment,64 Cornell L Rev 761, 764, 810 (1979) (calling the case one of "threefamous cases on Anglo-Americanproperty doctrine" and notingthat "[tihe debate over the case has raged fornearly ninety years"); Carol Rose, The Comedyof theCommons: Custom, Commerce,and InherentlyPublic Property,53 U Chi L Rev 711,737 (1986) (describingIllinois Centralas the"most famous assertion of thepublic trust theory"); Gerald Torres,Seventh Annual Lloyd K GarrisonLecture on EnvironmentalLaw- Who Owns theSky?, 19 Pace EnvirL Rev 515,520 (2002) (notingthat the decisionis "one of [theSupreme Court's] most famous cases").

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 2004] TheOrigins of the American Public Trust Doctrine 801 outerharbor for Chicago. Just four years later, however, during the populistagitation known as theGranger Movement, the grant was repealed.For this and otherreasons the legal dispute continued, leading to thelitigation that eventually worked its way to theSupreme Court in 1892. The IllinoisCentral decision, as an exercisein disputeresolution, providedsomething for everyone. The Courtheld that the State of Il- linois,not the federalgovernment or the ownersof riparianlands abuttingthe lake, was giventitle to thebed ofLake Michiganwhen Il- linoiswas admittedto theUnion in 1818.5It confirmedthat the City of Chicagohad titleto thestrip of landknown as Lake Park(today ex- pandedand renamedGrant Park) abuttingthe lake in the centerof the City.6It acknowledgedthat the Illinois Central Railroad was the riparianowner north and southof Lake Park,and intimatedthat the railroad'sexisting landfills and improvementsin these areas as wellas itsright of way though Lake Parkwould be allowedto remainundis- turbed.7And it reaffirmedthat the federal government had complete controlover navigationin the harbor,to whichthe interestsof all otherproperty rights in thelakebed were subordinated.8 The mostdifficult issue -and the one whoseresolution was to have consequencesextending far beyond the specificcontroversy- concernedthe IllinoisCentral's claim that the 1869 Lake FrontAct had conveyedvested rights of propertywhich the legislaturewas powerlessto repealin 1873.This was a forcefulclaim in thenineteenth century,as the Courthad held in Fletcherv Peck9that the Contracts Clause protectedagainst repeal of a completedconveyance of prop- ertyby a stategovernment.10 Writing for a bare majorityof fourJus- ticesin Illinois Central(only seven participated in thedecision), Jus- tice StephenField deflectedthis claim by holdingthat the Statehad no powerto alienatethe land in the firstplace."1 Although the State held titleto the bed of the lake,Justice Field explained,this title - giventhe surpassing public interest in preservingthe lake fornaviga- tion-was held in trustfor the people.12The State had violatedthis

Illinois Central,146 US at 434-37. 6 Id at 462-63. 7 Id at 445-48. 8 Id at 463. 9 10 US (6 Cranch)87 (1810). 10 Id at 137.See also DouglasL. Grant,Underpinnings of the Public TrustDoctrine: Les- sonsfrom Illinois Central Railroad, 33 ArizSt L J849 (2001)(noting the importance of Fletcher to therailroad's argument and interpreting the Court's opinion as a responseto that argument). 11 IllinoisCentral, 146 US at 453 ("A grantof all thelands under the navigable waters of a Statehas never been adjudged to be withinthe legislative power; and any attempted grant of the kindwould be held,if not absolutely void on itsface, as subjectto revocation."). 12 Id at 452 (statingthat the State's "title to thelands under the navigable waters of Lake Michigan,within its limits," is "differentincharacter" from other types of titles, for " [i]tis a title

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 802 TheUniversity ofChicago Law Review [71:799 trustwhen it conveyedownership of the lakebedto therailroad in 1869.Justice Field wrote as follows: The Statecan no moreabdicate its trust over property in which thewhole people are interested,like navigable waters and soils underthem, so as to leave thementirely under the use and controlof private parties,... than it can abdicateits police powers in the administrationof governmentand the preservationof the peace.13 It followedthat "[a]ny grant of thekind is necessarilyrevocable, and theexercise of thetrust by which the property was heldby the State can be resumedat anytime." 14 Thuswas theAmerican public trust doctrineborn. IllinoisCentral is importantfor three reasons. Doctrinally, it was the firstprominent decision squarely to hold thatlands submerged undernavigable waters are subjectto a ruleof inalienability."5 Earlier decisionsand treatisessuggested that navigablewaters were im- pressedwith a publiceasement of access, assuring that the public could use suchwaters for transportation or fishing purposes. 6 Thus, the sov- ereigncould alienateland beneathnavigable waters, but a public easementwould attach to thegrant. The notion that the public interest in navigablewaters disabled the sovereignfrom engaging in certain kindsof alienations of submerged land was an innovation,giving rise heldin trustfor the people of the State that they may enjoy the navigation of the waters, carry on commerceover them, and have liberty of fishing therein freed from the obstruction orinter- ferenceof private parties"). 13 Id at 453. 14 Id at455. 15 See generallyGuido Calabresi and A. DouglasMelamed, Property Rules, Liability Rules, andInalienability: One View of the Cathedral, 85 HarvL Rev 1089,1093,1105-15(1972) (distin- guishinginalienability rules, which prohibit transfers of resources,from property rules, which permitonly consensual transfers, and liability rules, which permit forced transfers). The holding in IllinoisCentral was anticipated by an earlyNew Jersey decision (on whichthe Court relied, see 146US at 456) addressingtrespass on privateoyster beds under tidal waters. See Arnoldv Mundy,6 NJL1 (1821).However, Arnold had beeneffectively repudiated by the New Jersey courts,see Rose,53 U ChiL Revat 737(cited in note 4), a pointthat the Court did not acknowl- edgeand of which it quite possibly was not aware. The idea thattidal lands were impressed with a "trust"in favor of public use was also discussed in Martin v Waddell,41 US (16 Pet)367,411-14 (1842),but it is clearfrom that opinion that this trust was primarily understood to be a public rightof access to fish in navigable waters-that is, a publiceasement-not a ruleof inalienability. See id at 413.Justice Field's opinion in Illinois Central was thus the first important holding of inalienabilityto surviveand serve as theroot of a newdoctrine. 16 See PatrickDeveney, Title, Jus Publicum, and the Public Trust:An Historical Analysis, 1 Sea GrantL J13,36-52 (1976) (discussing the common law rule that the public had a rightto use thepublic land and statingthat "[t]here was no conceptof a publictrust in theearly common law-thatis, of the idea thatthe title of certain lands was held inalienably by the Crown for the commonuse"). See also JamesR. Rasband,The Disregarded Common Parentage of the Equal Footingand PublicTrust Doctrines, 32 Land & WaterL Rev 1,6 (1997) (arguingthat Illinois Centraltransformed a prima facie theory of public ownership into a ruleof strict inalienability).

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 20041 TheOrigins of the American Public Trust Doctrine 803 to a uniqueAmerican doctrine with no clearanalogue in commonlaw (or Romanlaw) antecedents."7 Second,Illinois Centralis importantbecause the factsof the case -or at leasthighly stylized versions of those facts-have been re- peatedlyinvoked in moderncases and commentaryas a justification forthe very existence of thepublic trust doctrine. In theirusual pres- entation,which draws heavily from Field's opinion, those facts assume the formof a classicalcautionary tale: a corrupt,or at least exceed- ingly short-sighted,legislature transferred invaluable natural re- sourcesto a smallbut influential interest group, with no identifiable benefitto the publicat large.What happened in IllinoisCentral, accordingto thestandard narrative, tells us thatelected officials cannot be trustedwith the power to disposeof certainkinds of resources.If we are to protectthe public interest in theseresources effectively, we mustresort to somekind of judicially enforced inalienability rule. And ifwe wantto knowwhy we need suchan unusualrule, we startby re- tellingthe story of Illinois Central. The IllinoisCentral decision plays yet a thirdand moreindirect rolein themodern public trust doctrine. A numberof serious ambigui- tiesafflict this doctrine. What resources are coveredby thedoctrine? Does thedoctrine rest on federalor statelaw? Is the doctrineabso- luteor merelya defaultrule subject to legislativemodification? Does the doctrinepermit intergovernmental transfers or transfersto non- profitcorporations? Who has standingto enforcethe doctrine? Nearly all theseambiguities inhere, and maybe said to have theirsource, in JusticeField's majority opinion in IllinoisCentral. In short,Illinois Central stands as an importantprecedent, as a powerfulcautionary tale, and as a sourceof multiple doctrinal uncertainties.Given the importance of thedecision, it is surprisingthat no one has undertakento investigatethe background of thecase in any detail.Such a study,for example, could shed importantlight on the nearlyuniversal use of thecase as an objectlesson in politicalfailure. Is it truethat the railroad sought the grant in orderto securemonop- oly controlover the harbor,as JusticeField's opinion intimates? Or werethere other, more sympathetic, motivations behind the railroad's lobbyingefforts? Is it truethat the Lake FrontAct conferredno plau- siblebenefits on thepublic, and hencemust be regardedas an example of a pure"giveaway" of publicresources?18 Or did some contem-

17 Fora comprehensivereview of American cases relying on themodem public trust doctrine,see RichardJ. Lazarus, Changing Conceptions of Property and Sovereigntyin Natural Re- sources:Questioning the Public Trust Doctrine, 71 Iowa L Rev 631,643-56 (1986) (documenting publictrust doctrine litigation since 1970). 18 See, forexample, Ralph W. Johnson, et al, ThePublic Trust Doctrine and CoastalZone Managementin WashingtonState, 67 WashL Rev 521,530 (1992) (statingthat Illinois Central

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 804 TheUniversity ofChicago Law Review [71:799 poraryobservers believe that the Act was genuinelyin thepublic interest?Is ittrue, as has longbeen maintained in Chicagofolklore and assumedby many commentators, that the legislation was procured by massbribery of thelegislature?19 Or was thisallegation fabricated by rivalclaimants of the resource to discreditthe railroad and secure the Act'srepeal? In thisArticle, we examinethe historical circumstances that gave riseto whatcame to be knownas the"Lake FrontSteal" of 1869,20 and its repealin 1873,in the hope of answeringat least some of these questions.We are fortunatein thata richdocumentary record exists thatmakes such a reconstructionpossible. That record includes not onlythe briefs and documentsgenerated by the marathon litigation, butalso, among other sources, extensive newspaper commentary from theperiod, the correspondence among key officials of the Illinois Cen- tralRailroad preserved at theNewberry Library in Chicago,contem- porarylegal opinions prepared for the various contesting parties, and an extensivereport on thelakefront controversy prepared for Con- gressby the U.S. Army Corps in the1880s. TheArticle proceeds as follows.Part I reviewsthe standard pres- entationof thefacts of Illinois Central,from Justice Field's opinion throughmodern commentary. Part II sets the stagefor a morede- tailedinquiry by reviewing the development of the Chicago lakefront up to thelate 1860s,and theuncertainties about the relevant back- groundlegal principles. Part III tracesefforts in theIllinois legislature in 1867to securea grantof the lakefront for private investors. Part IV reviewsthe public debate in 1868about the future of thelakefront. PartV recountsthe legislative history of the Lake FrontAct of 1869, and considersits implications for three key questions: What were the motivationsof theIllinois Central? Was therea perceivedpublic in- concerned"one ofthe more outrageous land giveaways of the 19th century"); Carol M. Rose, JosephSax andthe Idea ofthe Public Trust, 25 Ecol L Q 351,358(1998) (describing the statute at issuein IllinoisCentral as "a publicgiveaway to a railroad"). 19 Forexamples of the insinuation of bribery, sometimes but not usually stated as outright fact,see DavidP. Currie, The Constitution inthe Supreme Court: The Second Century 1888-1986 10 (Chicago1990) (stating, of Illinois Central, that "[t]he Illinois legislature, under shady circumstances,had granted the land under Chicago's harbor to a railroadand then attempted to take it back");Lois Wille,Forever Open, Clear and Free:The Struggle for Chicago's Lakefront 35-37 (HenryRegnery 1972) ("Withthe [civil]war's end came an era of legislativegraft-nation- wide-thatconnoisseurs consider without parallel. The Illinois General Assembly kept up with theworst of them.... In thissetting, the Illinois Central came to Springfield toplead for land to expandalong the lake."); A.S. Bradley,Report of the Present Status of the Claims of the Illinois CentralRailroad to theLake Front,and SubmergedLands Adjoining, under the "Lake Front Steal"of 1869 4 (IllinoisAnti-Monopoly League 1881) (stating of the Lake FrontAct's provenance,"the usual methods of monopolies, bribery, intimidation, log-rolling and obstruction ofall publicbusiness until their job wasaccomplished, were resorted to"). 20 See,for example, Bessie Louise Pierce, 3 A Historyof Chicago: 1871-1893 319 (Knopf 1957)(stating that the 1869 statute "was commonly known as the'Lake FrontSteal"').

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 2004] TheOrigins of the American Public Trust Doctrine 805 terestrationale for the Act? Did therailroad use corruptmeans to in- fluencethe passage of theAct? PartVI followsthe course of events from1869 to therepeal of the Lake FrontAct in 1873.Part VII briefly recapshow Illinois Centraland relateddecisions resolved the dispute overthe Chicago lakefront. Part VIII considersthe implications of our studyfor ongoing controversies about the public trust doctrine.

I. THE STANDARD ILLINOIS CENTRAL NARRATIVE Throughoutthe lively debate about the public trust doctrine, one predicatehas been almostuniversally assumed: the Lake FrontAct of 1869 reflectsa disturbingfailure of the democraticpolitical process. Nearlyevery commentator or courtto broachthe topic has seen the Act's grantof one thousandacres of land submergedunder Lake Michiganto theIllinois Central Railroad Company as thequintessen- tial exampleof whattoday would be calledrent-seeking behavior: a small,well-organized private interest procured legislation that gave it monopolyprivileges in orderto extractwealth from the diffuseand unrepresentedpublic. Thisstandard account is consistentwith, and no doubthas been highlyinfluenced by, Justice Stephen Field's opinion for the majority in Illinois Central.Every opinion writer must construct a narrativeof the factsto supportthe legal conclusionshe reaches.But Field had greaterleeway than most in thisregard. By the time the dispute reachedthe Supreme Court, the controversy was so multifaceted,and thecritical events had recededso farin memory,that a widerange of narrativescould be constructedfrom the materials at hand. Field's chosennarrative drew a pictureof a powerfuland privi- leged corporationendowed by a short-sightedlegislature with un- precedentedpowers over a traditionallypublic resource. He emphasized the statusof the railroadas the recipientof extensivegovern- mentland grants and charterprivileges.2 He concentratedon thepro- visionsof the Lake FrontAct that had theleast obvious public interest rationale,and hence made the Act seem like a giveaway.22And al- thoughField did not explicitlyaccuse the railroadof corruptingthe legislaturefor prospective gain, he notedat one pointthat "[t]he cir- cumstancesattending the passageof the act throughthe legislature"

21 See IllinoisCentral, 146 US at 440-44(describing the various privileges, permissions, and rightsthat the City of Chicagohad grantedto theIllinois Central even before the Lake Front Act). 22 See id at 448-51(discussing only certain aspects of the Lake FrontAct and concluding that"[a] corporationcreated for one purpose,the construction and operationof a railroadbe- tweendesignated points, is, by the act, converted into a corporationto manageand practically controlthe harbor of Chicago, not simply for its own purpose as a railroadcorporation, but for itsown profit generally").

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 806 TheUniversity ofChicago Law Review [71:799 had been "thesubject of muchcriticism." Although in contextthis couldbe readto referonly to certainalleged violations of state consti- tutionalprocedures, the language hinted at darkerallegations about themotivations of the legislature in agreeingto thescheme. ThatJustice Field wouldbe drawnto a narrativeof monopoly privilegesubverting the publicinterest is not at all surprising.As CharlesMcCurdy has pointedout, Field was a JacksonianDemocrat whothroughout his career was deeplysuspicious of legislatively conferred"special privileges"and "monopolies."24His dissentin The Slaughter-HouseCases,25 wherehe arguedthat the grant of a monopoly charterto a butcheringcompany violated the privileges and im- munitiesof ordinary butchers to pursuea commonoccupation,26 is the mostenduring monument to thisideology.27 Thus, we shouldbe alertto thepossibility that Field saw thedispute in IllinoisCentral through a worldviewthat was quickto detectand condemncapture of legisla- turesby powerful interest groups. For manydecades after Illinois Central, the public trust doctrine led a quietlife as a ruleof state law associatedwith navigable watercourses.2'This changed in 1970,when Joseph Sax publishedan influen- tialarticle advocating the use ofthe doctrine as a generalweapon for the buddingenvironmental movement.29 The IllinoisCentral story playeda keyrhetorical role in thisproposal. Sax describedthe deci- sionas "TheLodestar in American Public Trust Law," and drew upon

23 Id at 451. 24 See CharlesW. McCurdy, Justice Field and theJurisprudence of Government-Business Relations:Some Parameters of Laissez-FaireConstitutionalism, 1863-1897,61 JAm Hist 970,973 (1975).See also CharlesW. McCurdy, Stephen J. Field and PublicLand Law Developmentin California,1850-1866:A Case Study of Judicial Resource Allocation in Nineteenth-Century Amer- ica, 10 L & SocyRev 235,238-39 (1976) (notingtwin themes of protectionof propertyand equalityof opportunity inField's opinions on theCalifornia Supreme Court). 25 83 US (16Wall) 36,83-111 (1873) (Justice Field dissenting). 26 Id at 88-89,93-111 (noting that "[t]he act of Louisiana presents the naked case, unac- companiedby any public considerations, where a rightto pursuea lawfuland necessary calling, previouslyenjoyed by every citizen, and in connection with which a thousandpersons were daily employed,is takenaway and vested exclusively ... ina singlecorporation"). 27 To thesame effect, see Field'sopinions in Munn v Illinois,94 US 113,136-54(1877) (dis- sentingfrom a decisionupholding state power to regulate warehouse rates), and Powell v Penn- sylvania,127 US 678,687-99 (1888) (dissenting from a decisionpermitting the state to ban the saleof oleomargarine). 28 See, forexample, Shively v Bowlby,152 US 1,40 46,57-58 (1894); Appleby v Cityof NewYork, 271 US 364,381,395(1926). 29 Sax,68 MichL Revat 556-57(cited in note 3). On thetransformative role of Sax's article,see, for example, Susan D. Baer,The Public Trust Doctrine-A Tool to Make Federal Admin- istrativeAgencies Increase Protection of Public Land and Its Resources, 15 BC EnvirAff L Rev 385,392 (1988)("The public trust doctrine languished somewhat in theearly twentieth century. It wasnot until Professor Joseph Sax's seminal and oft-quoted 1970 article that the doctrine was activelyincorporated into modem jurisprudence. As a resultof Sax's article, a number of schol- arshave written articles about the public trust doctrine and arguments based upon trust imposed dutieshave appeared in both state and federal courts.") (footnote omitted).

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 2004] TheOrigins of the American Public Trust Doctrine 807 elementsin Field's renditionof the factsto portraywhat happened as the quintessentialexample of legislativesubversion by special interests.30 The mainpoint Sax advancedabout theIllinois Centralcontro- versywas thatthe 1869Lake FrontAct appearedto lack anypublic interestrationale. Although he acknowledgedthat in some circum- stancesthere may be "goodreasons" for governmental reallocation of propertyrights,31 Sax could findno such justificationfor the Lake FrontAct: Thereappears to have been no good reasonfor taxing the generalpublic in orderto supporta substantialprivate enterprise in obtainingcontrol of thewaterfront. There was no reasonto believe thatprivate ownership would have providedincentives for needed developments... ; and if the resource was to be main- tainedfor traditional uses, it was unlikelythat private manage- mentwould have producedmore efficient or attractiveservices to the public.Indeed, the publicbenefits that could have been achievedby private ownership are noteasy to identify.32 By depictingthe Act as one lackingany conceivable public interest rationale,Sax laid thegroundwork for his ultimate argument: the publictrust doctrine should not be limitedto problemsassociated withland undernavigable waters, but rather should apply "in a wide rangeof situationsin whichdiffuse public interests need protection againsttightly organized groups with clear and immediategoals."33 "In theideal world,"Sax wrote,"legislatures are themost representative and responsivepublic agencies."34 But because legislaturesare susceptibleto theinfluence of organized pressure groups, courts must "promoteequality of politicalpower for a disorganizedand diffuse majority."35In other words, the Lake FrontAct was merelyone example, albeita particularlyextreme one, of a muchmore general phe- nomenon:capture of government by industry, leading to thedegrada- tionof natural resources. Sax also portrayedthe publictrust remedy adopted by Illinois Centralas an anticipationof the types of solutions to industrycapture emphasizedin legalacademic circles beginning around 1970. What the Illinois CentralCourt did, according to Sax,was to exercise"judicial skepticism"in the face of "dubiousgovernmental conduct" in which

30 Sax,68 MichL Rev at 489-91(cited in note 3). 31 Id at 490. 32 Id. 33 Id at 556. 34 Id at 559. 35 Id at 560.

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 808 TheUniversity ofChicago Law Review [71:799 the legislature"infringe[d] broad publicuses in favorof narrower ones."96In IllinoisCentral, this judicial skepticism was reflectedin the judgmentthat the legislature was freeto repudiatethe original grant. Butthis was just one formof heightened judicial review authorized by thepublic trust doctrine. Other possible remedies would include judi- cialorders imposing increased rights of public participation, orjudicial remandsfor more careful legislative consideration of competingin- terests.37In effect, Sax characterizedIllinois Central as a precursorof themodem "hard look" doctrinein administrativelaw, which, at the timeSax wrote,was beingdeveloped by some federal courts in an effortto policeproblems of agency capture by industry.> Sax's accountof the factsunderlying Illinois Central has re- mainedinfluential among commentators, especially those who place morefaith in collectivethan in market-basedsolutions to problemsof environmentaldegradation.39 But to a remarkabledegree, an identical narrativealso underliesthe accounts of thepublic trust doctrine ad- vancedby scholars sympathetic to privateproperty and market order- ingand hence generally skeptical about the doctrine. RichardEpstein has authoredthe most interesting of theseac- counts,which we willtake as illustrativeof thepoint.40 Contrary to Sax, Epsteinargues that the transfer in theLake FrontAct was notneces- sarily"a losingproposition" in termsof efficientmanagement of resources.41Epstein in thisregard emphasizes several facts not men- tionedby Sax, including the provisions of theAct thatprevented the railroadfrom obstructing navigation and thatreserved power in the Stateto regulaterates charged by therailroad for the use of harbor facilities.42Epstein concludes that "[a] categoricaldenunciation of the grantis hardto establish,"a pointhe uses to supporta moregeneral proposition:there is no reason to adopt an absolute rule of inalienabilityfor public trust resources.43

36 Id at491. 37 Id at 560. 38 The thesisof agencycapture was muchin vogue at the timeSax wrote.See ThomasW. Merrill,Capture Theory and theCourts: 1967-1983,72 Chi Kent L Rev 1039,1043(1997). 39 See, forexample, Harrison C. Dunning,The Public Trust: A FundamentalDoctrine of AmericanProperty Law, 19Envir L 515,521-24 (1989); CharlesF. Wilkinson, The Headwaters of thePublic Trust:Some Thoughtson theSource and Scope of theTraditional Doctrine, 19 EnvirL 425, 452 (1989). For a critiqueof the idea thatperceived political failure serves as an adequate justificationfor the public trustdoctrine, see William D. Araiza, Democracy,Distrust, and the Public Trust:Process-Based Constitutional Theory, the Public TrustDoctrine, and theSearch for a SubstantiveEnvironmental Value, 45 UCLA L Rev 385 (1997). 40 RichardA. Epstein,The Public TrustDoctrine, 7 Cato J411, 422-26 (1987). 41 Id at 423. 42 Id. 43 Id.

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Epsteingoes on to argue,however, that the Lake FrontAct was flawed,and Illinois Central's applicationof a versionof the public trustdoctrine justified, because it is likelythe State did not receive adequatecompensation from the railroad in returnfor the grant." Ep- steinnotes that the Act calledfor the payment of $800,000 to theCity, andthat any revenues earned by the railroad from development of the harborwould be subjectto a 7 percentgross receipts tax.45 Although he admitsit is "extremelydifficult" today "to makea judgmentabout how the adequacyof considerationissue shouldbe ultimatelyre- solved,"in the end Epsteinthinks it likelythat "the cityhad been 'rippedoff' by the railroad."46 Whatis significantis Epstein'sexplanation for the allegedlyin- adequatelevel of compensation under the Act. This he explainsby invokingthe same phenomenonidentified by Sax: politicalfailure. In Epstein'sview, the publictrust doctrine should be reformulatedto functionas a judiciallysupervised liability rule rather than as a ruleof inalienability.In effect,it shouldoperate as a kindof mirror image of theJust Compensation Clause, authorizing courts to scrutinizetrans- fersof resourcesfrom public to privatehands to assurethat the dif- fusepublic has received"just compensation" for the patrimony that has been transferred.Both the JustCompensation Clause and the publictrust doctrine (as reformulated)would in thisway function to deterlegislatures "from colluding with the various 'rent-seekers' who attemptto use thepolitical process to redistributethe wealth of others to themselves."47In theend, therefore, Epstein, no less thanSax, uses thefacts of Illinois Centralto connectthe public trust doctrine to cap- turetheory: "When Justice Field struck down the grant to therailroad, he actednot to restrictthe power of ordinary conveyances, but to preventthe abuse of legislative power that might well have transpired."48 We can thussee howthe standard narrative of the Illinois Central case reflectsa convergenceof views from the left and right. Both sides

44 See id at 424-25. 45 Epstein'saccount creates the impression that the $800,000 was part of the consideration forthe grant of the submerged land under the outer harbor. See id at 424 ("[T]he 1869statute calledfor the payment of $800,000 in installments to the city for the submerged lands.") (emphasisadded). In fact,this payment to theCity was solely in return for the conveyance of north Lake Park,to be usedas partof a sitefor a newdepot. See textaccompanying notes 286-89. The con- siderationfor the grant of the submerged land underneath the outer harbor-extension of the 7 percentcharter tax to anyIllinois Central operations in theharbor-was, though not negligible, infact even less than Epstein implies. 46 Epstein,7 CatoJ at 425 (citedin note 40). 47 Rose,25 Ecol L Q at 357-58(cited in note18) (paraphrasingEpstein's arguments). For somefurther interesting observations on therelationship between the Just Compensation (or Takings)Clause and thepublic trust doctrine, see BartonH. Thompson,Jr., Judicial Takings, 76 Va L Rev 1449,1507-08,1520,1532-33(1990). 48 Epstein,7 CatoJ at 425 (citedin note 40).

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 810 TheUniversity ofChicago Law Review [71:799 agreethat ordinary political processes, insofar as theyapply to control overvaluable natural resources, frequently fail to protectthe interests ofthe diffuse public. Both sides invoke the facts of Illinois Central as evidencethat the body politic is so afflicted.The onlydisagreement is overthe severity of the malady, and the nature of the cure. Recently,signs of somethingof a revisionistunderstanding of whathappened in Illinois Central have begun to appear.Eric Pearson, followingJustice Harlan's analysis in thelower court, has arguedthat theLake FrontAct was intended to conveyonly a revocablelicense to improvethe harbor, not a transferof thefee. From this, he concludes thatIllinois Central's far-ranging ruling on thepublic trust doctrine was inappropriateon the factsof the case.49James Rasband has mountedan even morefundamental challenge to the conventional wisdom.50Drawing out the implications of a singlecomment by Justice Field,51Rasband suggests that Illinois Central reflects an applicationof nineteenth-centurymistaken-improver doctrine. Since the doctrine appliedonly when the improver acted in goodfaith, Rasband believes thatJustice Field did notin factbelieve the grant to be theresult of corruptlegislative activity.52 Theserevisionist views, like the standard account, appear to rest on a readingof thepublished opinions in thecase. Neither Pearson norRasband purports to haveprobed into the documentary record in investigatingthe backgroundof the controversy.The revisionistac- countsthus make it evenmore pressing to determinewhat really hap- penedin IllinoisCentral. Are thetraditional accounts associated with Sax andEpstein correct in drawingthe conclusion that the "the public trustdoctrine compensates for 'defects' in thedemocratic process"?53 Or arethe more recent revisionist accounts accurate in suggesting that whatwent on in theenactment of the Lake FrontAct of 1869 was little differentfrom ordinary politics, and thatallowing judges to reject legislationon thisbasis wouldmean "there is littlelegislation that

49 EricPearson, Illinois Central and thePublic TrustDoctrine in StateLaw, 15 Va EnvirL J 713,734-35(1996). 50 JamesR. Rasband,Equitable Compensationfor Public TrustTakings, 69 U Colo L Rev 331,333-34(1998). 51 See id at 333& n 12 (notingField's "suggestion that where a stateresumes control over a previouslygranted trust resource, the state 'ought to pay'for any 'expenses incurred in im- provementsmade under such a grant"'),quoting Illinois Central, 146 US at 455. 52 Rasband,69 U Colo L Rev at 354 (citedin note50), citing Field's dissent in Jackson v Ludeling,99 US 513,537(1878), which conditioned compensation for improvers on theirhaving actedin good faith. 53 Rasband,69 U Colo L Rev at 352(cited in note 50), quoting Michael C. Blumm,Public Propertyand theDemocratization of WesternWater Law:A ModernView of thePublic TrustDoc- trine,19 Envir L 573,580(1989), and referring toSax, 68 MichL Revat 509,521 (cited in note 3).

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couldnot be rejected,particularly from the last 30 yearsof thenine- teenthcentury"?54

II. SETrING THE STAGE The controversythat gave rise to the enactmentof the Lake FrontAct of 1869was fueledby a uniquecombination of local geography,physical improvements constructed by the Illinois Central Rail- road Company,and legal uncertainty.We beginwith the geography and theimprovements, and thenturn to thelegal uncertainty.

A. The Lay ofthe Land The sitethat is todayChicago was identifiedby explorers and fur tradersas earlyas the seventeenthcentury as a potentiallyvaluable port.The southend of Lake Michiganhad fewnatural harbors. The ChicagoRiver was one,at leastpotentially. The riverwas also intrigu- inglyclose to thewatershed of the Mississippi River, suggesting that a canal mightbe dug at thislocation that would connectthe Great Lakes to New Orleansand theGulf of Mexico.55 The principalproblem with using the Chicago River as a portwas the currentin Lake Michigan.The waterin the southernpart of the

54 Rasband,69 U Colo L Rev at 354n 101(cited in note 50) ("To theextent there was 'corruption'in thelegislative process, it wasprobably in [legislators']solicitude toward large aggre- gationsof capital with political clout, a problemthat remains part of democracyto thisday."). Variousmistaken premises about Illinois Central underlying some of the best public trust doc- trinescholarship also makea comprehensiverecounting desirable. Cohen, for example, asserts thatthe issue in Illinois Central was whether the railroad was entitled to compensationfrom the Statefor the repeal of the Lake FrontAct. See Cohen,29 Cal W L Rev at 246 (citedin note2). In fact,the litigation was in thenature of a quiet-titleaction to determinewhich of the four con- tendingparties had dominionand controlover the submerged land. No issueof compensation was presented.Similarly, Rasband states that the Lake FrontAct "was passedover the gover- nor'sveto, and by a supermajorityofthe state legislature." Rasband, 69 U Colo L Rev at 354 (footnoteomitted). Actually, the Illinois Constitution ofthe day required only a simplemajority to overridea gubernatorialveto. See Ill Constof 1848Art IV, ? 21.The legislature'saction to overridethe particular veto of the Lake FrontAct would have been insufficient under either a two-thirdsor evena three-fifthssupermajority requirement: the House vote,52-30, would have satisfiedonly the latter requirement, and theSenate vote on override,14-11, would have satis- fiedneither. See textaccompanying notes 358-59. Another mistaken premise can be seenin the suggestionthat the public trust doctrine arose in a contextwhere "navigable waters and their wa- terfrontrepresent a natural,physical bottleneck through which much commerce must pass." Daniel R. Fischeland Alan 0. Sykes,Governmental Liability for Breach of Contract,1 Am L & Econ Rev 313,341(1999). In fact,the outer harbor contemplated by the Lake FrontAct would nothave been a bottleneck,as theexisting harbor facilities along the Chicago River would have remainedopen to laketraffic. See textaccompanying notes 374-78. 55 See Wille,Forever Open, Clear and Free at 5-7 (citedin note 19) (describingthe glowing accountsby Father Marquette and Louis Jolietin 1673-1674of theChicago River harbor and theshort portage over Mud Lake to theDesplaines River); Harry Hansen, The Chicago 127-35 (Farrar& Rinehart1942) (tracing briefly the history of interest in a canalfrom the late seventeenthcentury to 1836).

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 812 The Universityof Chicago Law Review [71:799 lake tendsto circulatein a counterclockwisedirection. As depictedin Figure1, reproducing a map of Chicagoas it existedin 1834,this had createda long sand bar at the mouthof the ChicagoRiver curving south.It also meantthat the water at themouth was oftentoo shallow forall but the mostinsignificant craft to enterthe riverwithout be- cominggrounded. 56

FIGURE 1

Chicago Histoncal Society

56 See Douglas Schroeder,The Issue of theLakefront:An Historical Critical Survey 2 (Prai- rie School 1964).

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Soldiersstationed at FortDearborn, which was locatedon the southbank of theChicago River, made a numberof attemptsto im- proveaccess to the riverby cuttinga channelthrough the sandbar. But thesandbar always silted in againafter winter storms. Some time after1834, Army engineers more or less solvedthe problem by building pierson the northand southbanks of the river.The twinpiers functionedlike a spoutdischarging the river's waters at a rightangle intothe lake,and therebyreduced the formation of sandbarsat the entranceto theriver.57 Once the ChicagoRiver became functional for use as a harbor, watertraffic in and outof Chicago grew at exponentialrates. Much of thisgrowth was due to the completionof the Erie Canal in 1825, whichcreated a continuouswatercourse from New YorkCity on the eastvia Buffaloto Chicagoon thewest.58 To a lesserextent, it was also due to thelong-delayed completion of the Illinois and Michigan Canal in 1848,linking the Chicago River with the Mississippi.59 Water traffic continuedto growuntil by 1889 Chicagowas said to be the busiest portin the world.60After that, water traffic began a slow but steady decline,as othermodes of transportation, especially railroads, gained a comparativeadvantage. The significantpoint for present purposes is thatthroughout the middledecades of the nineteenthcentury, Chi- cago was an increasinglyimportant port, and theChicago River was thesole harborfor loading and unloadingtraffic. Not surprisingly,the riverbecame incrediblycongested, with water craft of all sizes and shapesjostling to enterthe wharvesand pierslining the northand southbranches of the river. 61 The landthat was to becomeChicago, like the rest of Illinois, was partof the Northwest Territories ceded by Virginia and other States to thegeneral government during the Revolutionary War.62 Thus, all titles to landin theChicago area derivefrom grants by the federal government.One earlysource of Chicagoland grants was federallegislation enactedto promotethe construction of theIllinois and MichiganCa- nal.63Congress granted odd-numbered sections of land along the route

57 See William Cronon, Nature's Metropolis:Chicago and the Great West55-56 (Norton 1991). 58 See Harold M. Mayer and Richard C. Wade, Chicago: Growthof a Metropolis12-13 (Chicago 1969). 59 See Bessie Louise Pierce,1 A Historyof Chicago:1673-1848 70-72, 118-23 (Knopf 1937); Bessie Louise Pierce,2 A Historyof Chicago:1848-1871 37-40 (Knopf 1940); Cronon,Na- ture'sMetropolis at 33 (cited in note 57). 60 See Schroeder,Issue of theLakefront at 9 (cited in note 56). 61 For some sense of the congestionon the riverin the mid-nineteenthcentury, see Libby Hill, The Chicago River:A Naturaland UnnaturalHistory 90 (Lake Claremont2000). 62 See PaulW. Gates, History of Public Land Law Development49-57 (Zenger 1968). 63 See Illinois Central,146 US at 394-97.

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 814 TheUniversity ofChicago Law Review [71:799 ofthe canal to certainCanal Commissioners,who subdivided and sold theland to fundconstruction of thecanal. One of thesesections, sec- tion9, formed the onrginal area plattedas thetown of Chicago. It was boundedon theeast by State Street, on thewest by Halsted Street, on thesouth by Madison Street, and on thenorth by Kinzie Street. An- othercanal section, developed somewhat later, was fractionalsection 15, whichextended from Madison Street on the northto Twelfth Streeton thesouth, and from State Street on thewest to theshore of Lake Michiganon theeast.64 A platof fractionalsection 15, drawn up bythe Canal Commis- sionersin 1836for purposes of sellinglots, is reproducedhere as Fig- ure2.65 Notice that the strip of land east of Michigan Avenue abutting Lake Michiganwas not subdivided into lots. The plat does not indicate what,if anything, was theintended purpose of this strip. Within a few years,the strip came to be knownas "Lake Park.""Surviving accounts fromthe middle years of thenineteenth century vary as to whether thestrip served more as an informalpark or as a garbagedump.67 Most likely,it was some of both -a classiccommons.

64 It was knownas a "fractional"section because Lake Michigancovered its easternpor- tion,preventing it frombeing subdivided over itsentire range. 65 Figures2 and 3 are takenfrom the statementof the case set forthin Illinois Centralby the SupremeCourt's Reporter of Decisions.See IllinoisCentral, 146 US at 392,397.Figure 2 was theredenominated Map B and was an exhibitfrom the record in the case, id at 397; Figure3 was Map A in the case, id at 392.The Reporteressentially lifted the statementof the case itselffrom JusticeHarlan's opinionin the CircuitCourt. See id at 390 n 1 (statementof thecase). 66 See Dennis H. Cremin,Building Chicago's FrontYard: Grant Park 1836 to 1936 36-39, unpublishedPh.D. dissertation,Loyola UniversityChicago (1999). 67 See id; Pierce,2 Historyof Chicago at 340 (cited in note 59).

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The area north of Madison Street and east of State Street, known as fractionalsection 10, has a slightlymore complicated provenance. Originally,this area was reservedfrom the public domain for the use ofFort Dearborn. After treaties were signed with area NativeAmeri- cans, and the threat of invasion from Canada subsided, the Fort lost its militaryrationale and fellinto disuse. In 1837,as a kindof early base- closingexercise, the Army decided that the reservation would be bet- terdevoted to civilianpurposes."8Thus, the area was openedto public sale as the"Fort Dearborn Addition to Chicago."~ An 1839plat of theFort Dearborn subdivision is reproducedas Figure3. Noticethat the area northof Randolph Street along the lake was subdividedinto lots forsale. Southof Randolph,however, the area nextto thelake bearsthe notation: "Public Ground. For Ever to Remain Vacant of Buildings.,69

68 See UnitedStates v IllinoisCentral Railroad Co, 154US 225,236(1894). 69 A notein the margin of the plat signed by Matthew Birchard, the federal agent who ne- gotiatedthe sale and recordedthe plat, says: "The public ground between Randolph and Madi-

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FIGURE 3

"1"0WSg STI-r

Z4AKE-> srWE'r

2 0 Ic,,llAl'?i7W'Ootw > 3TAeEt1 X 1Si1~It >~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~;

This plat notation of ambiguous legal import,was to play a major rolein disputesover the use ofthe lakefront for the remainder of the City'shistory. The "PublicGround" in fractionalsection 10 soonwas assimilatedto thestrip of land east of Michigan Avenue in fractional section15, and the whole of the strip of land from Randolph Street on the northto Park Row (just northof TwelfthStreet) on the south cameto be knownas "Lake Park."70 Althoughonly the portion of the stripin section10 fromRandolph Street to MadisonStreet contained a plat notation restrictingbuilding, the idea somewhat imprecisely tookhold in thepublic mind that all ofLake Parkwas to remainopen and undeveloped."In themeantime, the platted lots in fractionalsec-

son streets,and frontingupon Lake Michigan,is not to be occupied withbuildings of any de- scription."Illinois v IllinoisCentral Railroad Co, 33 F 730,734 n 1 (ND Ill 1888). 70 See Pierce,2 Historyof Chicago at 340 n 119 (citedin note 59). 71 See textaccompanying notes 161-62 (reflectingthe Chicago Tribune'sdescription of an 1863 state statute);Evidence on Behalf of Complainant(Apr 8, 1887), in Record,No& 14,135, 14,414,14,415, & 14,416:Illinois CentralRailroad Co 232, 233-34, 247 (United States Supreme Court) (reproducingtestimony of JonathanYoung Scammon) (notingthat Scammon and other MichiganAvenue propertyowners in the 1840s built a fence along the east side of Michigan Avenue,from Randolph Streetsouth to Park Row,and agreeingthat the area lyingbetween the

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 2004] TheOrigins of the American Public Trust Doctrine 817 tions15 and 10 weresold (and resold),as partof thefrenetic real estate speculationthat characterizedChicago, like otherAmerican boomtowns of the era. 72 It soon becameclear that the relentless currents of Lake Michi- gan had not been tamedby the piers thatchanneled the Chicago River-onlyredirected. On thenorth side of thenorth pier, the cur- rentsof the lake began creatingnew land by accretion.Title to this land was greatlydisputed, and the area,known first as "The Sands" and lateras "Streeterville,"became a shantytown that served as the City'sprincipal red light district.73 South of the south pier, the currents of thelake had theopposite effect-subtracting land by erosion.74 By 1850,it was estimatedthat twenty of Lake Park'soriginal thirty-five acreshad washedaway. The west side of Michigan Avenue was, by that time,lined with fine residential structures, sometimes referred to as "TerraceRow," where many of the City's elite lived. The watersof the lake had encroachedso farthat these properties were in potential jeopardy.In theearly 1850s, the sidewalk east of Michigan Avenue be- tweenRandolph and Washington Streets was supported on posts,75and on occasionresidents had to sandbagthrough the night to preventthe streetfrom collapsing into the lake. 76 The solutionto theerosion problem south of the river was widely perceivedto be theconstruction of a breakwateroffshore in thelake. Three attemptsto build such a structurewere undertakenin the 1840s.77The firsttwo proved inadequate to withstandthe force of the lake.The thirdfoundered in a disputeover funding.The preferred methodof paying for local improvementsat thattime was thespecial assessment,78 and manyChicagoans believed that a breakwatershould be financedby an assessmentimposed on residentsof Terrace Row, whowould be uniquelybenefited. But manyof these residents argued fenceand the lake "was merely public ground, and anyperson could walk in itas theypleased," andthat "[t]he understanding was it was to remainvacant of buildings"). 72 See RobinL. Einhorn,Property Rules: Political Economy in Chicago,1833-1872 28-32, 42-44(Chicago 1991). 73 Forexamples of title disputes, see Banksv Ogden,69 US (2 Wall)57 (1864);Johnston v Jones,66 US (1 Black)209 (1862);Jones v Johnston,59 US (18 How) 150(1856). 74 For an exampleof a titledispute stemming from erosion, see Batesv IllinoisCentral RailroadCo, 66 US (1 Black)204 (1862). 75 See JohnN. Jewett,The Lake FrontLitigation-Part I, 3 JohnMarshall L Q 23, 30 (1937). 76 See Evidenceon Behalfof Complainant at 232,240(cited in note71) (reproducingtes- timonyof Jonathan Young Scammon). 77 See RobinL. Einhorn,A TaxingDilemma: Early Lake ShoreProtection, 18 ChiHist 34, 35 (Fall 1989). 78 See Einhorn,Property Rules at 75-103(cited in note72) (recountinghow Chicago re- designedits municipal government to facilitatethe use of thespecial assessment, "a one-time paymentby a propertyowner [or property owners] to defraythe cost of a specificimprovement project,"as a toolof municipal finance).

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 818 TheUniversity ofChicago Law Review [71:799 thata breakwater,by preservingand possiblyenhancing Lake Park, wouldprovide significant benefits to theentire City. They insisted that the projectbe fundedout of generalproperty taxes. The matter reachedan impassein 1851,with no solutionin sight.79 At thispoint, the Illinois Central Railroad Company appeared on thescene. The IllinoisCentral was thecreation of a two-stepfederal and statelegislative process. The firststep was theenactment of federallegislation in 1850granting a two-hundred-foot right of way and alternatesections of land on eitherside, in checkerboardfashion, to theState of Illinois to facilitatethe construction ofa north-southrail- road.8The totalgrant comprised nearly three million acres, including whatwas to become some of the richestfarmland in the United States.8'The secondstep was theenactment by Illinois of a corporate charterauthorizing the creation of the Illinois Central Railroad Com- panyand conveying the granted lands to thenew railroad to subsidize itsconstruction.82 The statecharter specified that the railroad line would generally followa "Y" shape,with its southern terminus at Cairoon theOhio Riverand running north to theend of the Illinois and Michigan Canal nearthe town of Centralia, then splitting into two branches, one head- ingnorthwest to Galenaand Dubuque,Iowa, and theother northeast to Chicago.8The chartercontained several provisions bearing on how therailroad would acquire the needed right of way. Most of Illinois at thistime remained federal public domain land. So byconveying to the railroadthe two-hundred-foot right of way granted to theState by the federalgovernment, the charter assured that the railroad could locate itsright of wayon anyavailable public domain land. In addition,the charterconferred on therailroad the power of eminent domain, which wouldallow it to acquireby condemnation any land that had already been transferredinto private ownership by sale or preemption,upon

79 On thesematters, see Einhom,18 ChiHist at 35-36,47-49 (cited in note77); Einhom, PropertyRules at 21-22,91-94(cited in note 72). 80 See ActGranting the Right of Way, and Making a Grantof Land to the States of Illinois, Mississippi,and Alabama,in Aid of theConstruction of a Railroadfrom Chicago to Mobile (Sept 20, 1850), in 9 Statutesat Large and Treatiesof the UnitedStates of America466 (Little, Brown 1862) (George Minot,ed); JohnF. Stover,History of theIllinois CentralRailroad 15-30 (Macmillan 1975). See also David P. Currie,The Constitutionin Congress:The Public Land 1829-1861,70 U Chi L Rev 783,797-803 (2003) (discussing the congressional debate over the landgrant's constitutionality). 81 See Paul Wallace Gates,The Illinois Central Railroad and Its ColonizationWork 280-302 (Harvard1934) (discussing the land grant and thesignificance of therailroad for agriculture); Stover,History of theIllinois CentralRailroad at 20-22 (cited in note 80) (discussingthe land grant). 82 See Actto Incorporatethe Illinois Central Railroad Company (Feb 10,1851) (Illinois CentralCharter), in PrivateLaws of theState of Illinois 61 (Lanphier& Walker1851). 83 IllinoisCentral Charter ? 2 at 61 (citedin note 82).

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payingjust compensation.4 Finally, the charter provided, rather imprecisely,that the railroad could "enter upon and takepossession of, and use all and singularany lands, streams and materialsof everykind" thenowned by the State,for purposes of constructingdepots, shops, and otherrailroad facilities, other than right of way.85These powers weresubject to theconstraint that, with respect to landwithin the ju- risdictionof anymunicipality, the railroad was requiredto obtainthe consentof the municipality to itslocation of right of way.86 Thislast provision effectively gave the Chicago Common Council thepower to vetowhere the IllinoisCentral could locate its rightof waywithin the City of Chicago.The railroadinitially favored a route thatwould lead to thesouth branch of the Chicago River, where most of thegrain elevators were then located.87 This posed a problem,however,in termsof crossing the lines of other carriers then entering Chi- cago fromthe south and east.The IllinoisCentral therefore proposed to theCity that it be allowedto locateits right of way along the lakefront.As an inducement,the railroad offered the City a solutionto the controversythen raging over how to save Lake Park:the railroad wouldbuild and payfor a breakwater. MostTerrace Row residentsstrongly opposed the idea of a railroad enteringalong the lake.m A railroadwould be noisy,smelly, and ugly,and hencewould compromise their property values.89 But a majorityof the CommonCouncil was moresympathetic, and evidently saw therailroad's proposal as a fittingsubstitute for a specialassess-

84 Id ? 3 at 61-62. 85 Id. 86 Id ? 8 at 64. 87 Thiswas thebeginning of theera in whichChicago served as thedominant transfer pointfor grain harvested in the upperMidwest. The grainwas shippedby rail to Chicago, unloadedat storageelevators controlled by the railroads, and thenreloaded on lake vesselsfor shipmentto theEast. See EdmundW. Kitch and Clara Ann Bowler, The Facts of Munn v. Illinois, 1978S Ct Rev 313,320-21. Since the Chicago River was the only port at Chicago,it was vital for anyrailroad serving Chicago to have terminal facilities abutting the Chicago River. 88 Thiswas notthe first such controversy. In 1848, a numberof leading citizens protested againsta proposalto run a railroad"along the park east of Michigan avenue, for the reasons that itwould destroy the park, impair the value of property on Michiganavenue, endanger the build- ingsby fire, &c." Railroadsand StreetRailways; A Chapterof the History of Municipal Legisla- tion;All Actsof theCommon Council on TheseSubjects Arranged in ChronologicalOrder, Chi Trib2 (Dec 8,1866). See also Remonstranceof N.B. Judd and Others against the Passage of Rail Road Ord.for Eastern Branch of R.R. along Mich. Ave. (submitted to ChicagoCommon Council on May 12,1848), available in IllinoisRegional Archives Depository, Northeastern Illinois Uni- versity(objecting that "said ordinance would greatly impair the beauty of and advantageto be derivedfrom said park"). 89 Undevelopedlots fronting on MichiganAvenue with direct views of the lake sold in the late1830s "for two or three, perhaps four, times as much"as lotsone blockto the west. Evidence on Behalfof Complainantat 248 (citedin note71) (reproducingtestimony of Jonathan Young Scammon).The appealof lake viewsand lake breezeshas beena constantthroughout Chicago history.

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 820 TheUniversity ofChicago Law Review [71:799 mentimposed on thewell-heeled residents. As theleading student of thisepisode has written:"If theMichigan Avenue owners would not pay forlake shoreprotection in cash,they would be forcedto pay some otherway."90 In negotiationswith the railroad,the Common Councilinitially demanded not just a breakwater,but also thatthe railroadlandfill the area betweenthe shoreline and the breakwater to enlargeLake Park.The railroad,however, refused to haveanything to do withcreating a "publicpromenade" for Chicago, which it viewed as "a perversionof [company]funds, as thoughthe same amountwere donatedto the cityfor planking streets or endowinginstitutions of Charity."91The breakwateritself presumably was different,because it was necessaryto protectthe railroad's improvements, and onlyinci- dentallyprovided a publicgood for the City. Althoughthe mayorsided with the Terrace Row residentsand vetoedthe plan, the council overrode the veto."' Thus, on June14,1852, Chicagoenacted an ordinancepermitting the Illinois Central to enter theCity along the lakefront.93 From this point on, the railroad's opera- tionsand theCity's desire for public parks and publicaccess to Lake Michiganwere inextricablyintertwined. The ordinancealso estab- lishedan importantprecedent for the Lake FrontAct of 1869:local authoritiesgranted property rights to therailroad, and in returnthe railroadagreed to supplypublic goods that the local authoritieswere unwilling-or unable-to supplythemselves. The 1852ordinance is keyin termsof fixingthe location of the railroadand establishingits powers and obligationson thelakefront. The ordinancegranted the railroad the right to enterthe City where itssouthern boundary (then Twenty-Second Street) met the shore of thelake.4 The line would then proceed north, first along the lakeshore toTwelfth Street, then across the "open space known as Lake Park"to RandolphStreet, and finallyon to suchgrounds between Randolph and theChicago River as therailroad might obtain to builda terminal.95The ordinanceauthorized the railroad to "enterupon and use in perpetuityfor its said lineof road" a three-hundred-footright of way fromTwelfth Street to RandolphStreet." This, of course, was one hundredfeet wider than the right of wayspecified in thefederal grant

90 Einhorn,18 Chi Hist at 49 (cited in note 77). 91 Id (internalquotations omitted). 92 See Stover,History of theIllinois CentralRailroad at 43-44 (cited in note 80). See also HenryJustin Smith, Chicago:A Portrait287 (Century1931) (brieflydescribing political pressure in favorof the railroadfrom other parts of the City). 93 OrdinanceConcerning the IllinoisCentral Railroad (June14, 1852),in Charterand Or- dinancesof theCity of Chicago348 (Cooke 1856) (George W. and JohnA. Thompson,eds). 94 Id ? 1 at 348-49. 95 Id at 349. 96 Id ? 2 at 349.

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 2004] TheOrigins of the American Public Trust Doctrine 821 and thestate charter.97 The reasonfor the difference is unclear, and the ordinancedid not explainthe source of the City'sauthority to grant therailroad a three-hundred-footright of waywhen the federal and statelegislation authorizing the creation of therailroad gave it onlya two-hundred-footright of way. The ordinancefurther specified that the western edge of this right ofway from Twelfth Street to RandolphStreet was to be locatedfour hundredfeet east of thewest line of MichiganAvenue.98 Because of theerosion previously described, Lake Parkwas by thistime a fairly narrowstrip of land. At itssouthern edge at ParkRow, Lake Parkwas aboutfour hundred feet in width(including Michigan Avenue), but it graduallydiminished in widthas it rannorth, until at thefoot of Madi- son Streetit was onlyninety feet wide." By itsnorthern boundary at RandolphStreet, it widened slightly to 112 1/2feet.1?? The effectof the ordinance'slocation of theright of way, therefore, was thatat Twelfth Streetthe railroad would be locatedat thevery edge ofthe water, but as itran north it would be in thewater-indeed, more than three hundredfeet offshore at MadisonStreet. The Chicagoordinance stipulatedin effectthat the railroad was to be builtin thelake. Withrespect to the portionsof the line southof TwelfthStreet and northof RandolphStreet, the ordinancecontemplated that the railroadwould acquire the necessary rights on itsown, either through purchaseor condemnation.With respect to thecritical area northof RandolphStreet and southof theChicago River, the ordinance gave therailroad the authority, starting with whatever riparian lands it acquired,to "extend[its] works and fillout into the lake" to a pointfour hundredfeet west of the east end of where the south pier was thenex- tended.101It was expresslyunderstood that upon this landfill "shall be locatedthe depot of said railroadwithin the city, and suchother buildings,slips or apparatus,as maybe necessaryand convenientfor the businessof said company."'9The ordinancemade no mentionof land- fillsor otherimprovements by the railroad south of Twelfth Street. For itspart, the railroad agreed to erectwithin three years, and thereaftermaintain along the eastern edge of its right of way, a continuouswall or structureof stone masonry,pier-work or othersufficient material ... of sufficientstrength and magnitude to protectthe entire front of [Chicago]between the north line of Randolphstreet and its southernboundary [at Twenty-Second

97 See textaccompanying notes 80-82. 98 OrdinanceConcerning the Illinois Central Railroad ? 2 at 349 (citedin note 93). 99 See Illinois Central,146 US at 403 (statementof the case). 100 See id. 101 OrdinanceConcerning the Illinois Central Railroad ? 3 at 349 (citedin note 93). 102 Id ? 1 at 349.

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Street]from further damage or injuryfrom the action of the watersof lake Michigan.'3 In deferenceto theinterests of theTerrace Row residents,the ordi- nanceexplicitly prohibited the railroad from constructing any build- ingsor otherimprovements in front of Lake Parkthat might obstruct viewsof thelake fromthe shore, or evenfrom allowing its locomo- tivesor carsto remainstanding on thetracks in this area.104 The IllinoisCentral moved quickly to completethe improve- mentsauthorized by theordinance. Although the ordinance did not specifyhow a railroadwas to be constructedin a lake,the railroad solvedthe problem by driving piles into the lakebed, which supported a doubleline of track on trestles."05The railroadinitially used only two hundredfeet of the authorized right of way both to buildthese tracks and constructthe breakwater.iNorth of RandolphStreet, the rail- roadacquired some unsold riparian lots directly from the federal government,purchased others from private owners, and acquiredstill othersby condemnation. The railroad began almost immediately tofill thelake eastof this area, by walling it offand dumping earth and de- brisinto the enclosed area.10 The companybegan constructing an im- posingterminal structure on partof this fill, approximately where the PrudentialInsurance building is locatedtoday.'m Known as theGreat CentralStation, it was the largestbuilding in Chicagowhen it was completedin 1856.'9South of Lake Park,between Twelfth Street and SixteenthStreet, the railroadalso did some fillingof the lake,on whichit "built an enginehouse and some repair shops."110 Soon afterthe Illinois Central commenced service from its lake- frontfacilities, it becameclear that the configuration of rightsspeci- fiedin the1852 ordinance presented some operational difficulties. In 1855,the Common Council enacted an ordinancepermitting the railroadto curveits tracks westward as theyapproached Randolph Street fromthe south."' This was to improveease of accessto theterminal

103 Id ? 7 at 351. 104 Id ? 8 at 352. 105 See Stover,History of theIllinois CentralRailroad at 44-45 (citedin note 80). 106 See B.F.Ayer, Rights of theIllinois CentralRailroad Companyon theLake Front5 (Dec 1884)(Ayer Opinion Letter). Not until 1882 did the railroad seek to occupythe additional one hundredfeet allowed under the 1852 ordinance; this, in fact,was the action that was to precipi- tatethe Illinois Central litigation. See textaccompanying notes 524-30. 107 See Schroeder,Issue of theLakefront at 4 (citedin note 56). 108 See id. 109 See Alan R. Lind, Limitedsalong the Lakefront:The Illinois Centralin Chicago 5 (TransportHistory 1986). 110 AyerOpinion Letter at 8 (citedin note 106). 111 See OrdinanceGranting Right of Way for Approach to Passenger Depot (Sept 10,1855), in Charterand Ordinancesof theCity of Chicago IV (cited in note 93).

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 2004] TheOrigins of the American Public Trust Doctrine 823 building.In return,the Illinois Central promised to createa newstreet (named CentralAvenue) in the landfilledarea northof Randolph Street,and agreedto fillthe triangular area wherethe curved tracks werelocated."2 One yearlater, the Common Council enacted a similar ordinancepermitting the railroad to curveits tracks eastward as they approachedRandolph Street from the south."3 This gave therailroad betteraccess to thegrain elevators that were being constructed on fur- therlandfill jutting east alongthe line of the south pier. As in thecase of the1852 ordinance's grant of an extraone hundredfeet of right of wayto therailroad, neither the 1855 nor the 1856 ordinance explained thesource of the City's authority to conveyto therailroad these addi- tionalrights to developand fill portions of the lakebed. The panicof 1857and theCivil War resulted in a pausein further developmentof the IllinoisCentral operations along the lakefront. Withthe end of the war and the returnof prosperity,however, the lakefrontagain became the focusof attentionin Chicago.Growing watertraffic caused many to call forthe construction of a new"outer harbor"in thearea to theeast of the breakwater constructed by the Il- linoisCentral in 1853,in orderto relievethe intense congestion in the ChicagoRiver.'14 Growing volumes of passenger traffic on theIllinois Centraland affiliatedlines gave riseto plansfor a largerdepot, perhapsin thearea southof Randolph Street between Michigan Avenue and the IllinoisCentral right of way.To accommodaterising trans- shipmentsof grainand othercommodities, the railroad forged ahead withnew piers and sidingsin thelandfill area northof Randolphand east of its existingterminal building. Finally, both Terrace Row residentsand publicadvocates wanted Chicago to followin thefootsteps of citiessuch as New York and Philadelphiaand createa systemof publicparks, including an improvedpark along the lakefront.

112 See id atV. 113 See Ordinance Concerningthe Illinois CentralRailroad (Sept 15,1856), in Charterand Ordinancesof theCity of Chicago 539 (cited in note 93). 114 These mattersare takenup in considerabledetail in Part IV.

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Figure4, adaptedfrom a map used as an exhibitin theIllinois Centrallitigation,"' shows the configuration ofthe lakefront as it was bythe late 1860s.

FIGURE 4

~~~ ~~~~~~~~~~~~~~~~~Il11_a I ElJ Iu

C0 f1 U

I Li.plJ i.t

115 Figure4 is ouradaptation of theMorehouse map. See note523 (discussingFigure 7, whichis theMorehouse map)

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Figure5 is a photographof the lakefronttaken in 1868-1869, lookingnorthward along Michigan Avenue. Terrace Row can be seen at the left.The narrowstrip of land knownas Lake Park is on the right,with the Illinois Central tracks standing on pilesin thelake and leadingto theGreat Central Station and therailroad's grain elevators northof Randolph in thedistance.

FIGURE 5

48.Michigsii~~~~~~~ .fo...... sHsf ..t ...... Ch.cag H ...caSociety. .

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B. LegalUncertainty over Property Rights in SubmergedLands In 1902,John N. Jewett,the first Dean ofthe John Marshall Law Schoolin Chicago,gave a seriesof lectures at thatschool on constitu- tionallaw. In an earlierphase in hiscareer, Jewett had servedas one ofthe principal lawyers for the Illinois Central Railroad Company. He was,for example, the railroad's leading advocate in Springfieldin 1873 opposingthe repeal of the Lake FrontAct, and he representedthe railroadin theSupreme Court in IllinoisCentral. Two of his lectures, entitled"The Lake FrontLitigation," were published many years later in theJohn Marshall Law Quarterly.116The moststriking thing about theselectures is wherethey began. Jewett felt that to explainthe Illi- noisCentral case to hisstudents, he hadto startwith an accountof the rightsof the King in tidal lands under the common law of England."17 Jewettwas right.Without some understandingof the shifting sandsof nineteenth-centurylaw regarding ownership of submerged lands,one cannotcomprehend the sequence of eventsthat led to the constructionof theIllinois Central Railroad on trestlesin thebed of Lake Michiganin the 1850s,the motivesof the variousactors who playeda rolein theenactment of theLake FrontAct of 1869,or the legal theoriesadvanced in the IllinoisCentral litigation. Indeed, it wouldnot be an overstatementto say that the ultimate cause of both theLake FrontAct and theIllinois Central decision was legaluncer- taintyabout who had dominionand controlover Lake Parkand the land beneaththe waters of Lake Michiganeast of thepark. This uncertainty,at bottom, was createdby the difficulty of assimilatingcer- tainfeatures of English common law to thecircumstances ofthe New World. UnderEnglish common law, the concept of navigability was critical to resolvingfour distinct questions: (1) theright to travelby vessel on a bodyof water;(2) the rightto fishin a bodyof water;(3) the ownershipof land beneath a bodyof water; and (4) thejurisdictional linebetween the common law courtsand theadmiralty courts.118 The decisionallaw withineach ofthese categories was thin,and there was considerableuncertainty about how far a determinationin one con- textthat a bodyof waterwas "navigable"would extend to another context,and, if so, what the consequences of that extension would be. Perhapsbecause of the sparse decisional law, treatises took on an especiallyprominent importance in thisarea. The firstand mostim-

116 Jewett,3 JohnMarshall L Q 23 (cited in note 75); JohnN. Jewett,The Lake FrontLitiga- tion-Part II, 3 JohnMarshall L Q 221 (1937). 117 Jewett,3 JohnMarshall L Q at 23-24 (cited in note 75). 118 See Daniel J.Hulsebosch, Writs to Rights:"Navigability" and the Transformationof the CommonLaw in theNineteenth Century, 23 Cardozo L Rev 1049,1055,1066-67(2002).

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portantof these was MatthewHale's De JureMaris,19 which was writtenin thelate seventeenthcentury but not published until 1787. Hale presenteda moretidy and integrated view of the law than the case law perhapsjustified.'20 But it was Hale's restatementof Englishlaw that appearsto have servedas the startingpoint for American writers, mostnotably Joseph Angell and James Kent.1 As summarizedby Kentand Angell,English law withrespect to the ownershipof submergedlands -the matterrelevant to our inquiry-was relativelysimple. The King as sovereignowned the submergedland under navigable waters. Navigable waters, however, were narrowlydefined to meanthose waters subject to theebb and flowof thetides. 22 Consequently,submerged land underrivers and lakes not affectedby the tides was subjectto privateownership. In thatcircum- stance,absent a grantto thecontrary, the owner of riparian land -that is,land borderingon a bodyof water-ownedthe submerged land to the threadof thecurrent, or centerline,of theriver or lake to which the land abutted.'23Importantly, however, all waters,whether tidal or not,were subjectto a generalpublic easement of freenavigation.124 Thus,neither the King (as ownerof submerged tidal lands) nor private riparians(as ownersof lands abutting nontidal waters) could use their ownershipof submerged lands to createobstructions that would block freenavigation.

119 MatthewHale, De JureMaris et Brachiorum ejusdem, in FrancisHargrave, ed, 1 A Col- lectionof Tracts Relative to the Law ofEngland 1 (T.Wright 1787). See Hulsebosch,23 Cardozo L Rev at 1070-71 (cited in note 118) (describingthe treatise'sinfluence on Americanwater law). 120 See Hulsebosch, 23 Cardozo L Rev at 1071-74 (cited in note 118) (analyzing Hale's arguments). 121 See JosephK. Angell,A Treatiseon theCommon Law in Relationto Water-Courses: In- tendedMore Particularly as an Illustrationof theRights and Duties of the Owners and Occupants ofWater Privileges 14-20 (Wells & Lilly1824); James Kent, 3 Commentarieson AmericanLaw 342-62 (0. Halsted 1828) (discussingEnglish and American commonlaw withrespect to waterways). One especially well-done recentcommentary has questioned whetherEnglish common law clearlyequated "navigable waters"with "tidal waters."See Hulsebosch,23 Cardozo L Rev at 1071-74 (cited in note 118). But whateverthe truestate of Englishlaw, this was the understanding of English law reflectedin the workof the leading earlyAmerican commentators.See id at 1083, 1090 n 162 (explainingthat both Kent and Angell relied on Hale's scholarship).Thus, for our purposes,the statementsthat follow in the textcan be assumed to be the startingpoint for the developmentof American law on the subject. 122 See Angell,Treatise on theCommon Law in Relationto Water-Coursesat 17 (citedin note 121) (statingthat "the uniformmode of ascertaining[navigability], as well in thiscountry as in England,(with one exceptionin thestate of Pennsylvania [ ]) has beenby the flowing of the tide"); Kent,3 Commentarieson AmericanLaw at 344 (cited in note 121) (linkingthe conceptof navigabilityto the factof tidal waters). 123 See JohnM. Gould,A Treatiseon theLaw ofWaters 15, 111 (Gallaghan 1883) ("Accord- ing to recentdecisions in England, the titleof the riparianowners extendsto the centreof all non-tidalstreams."). 124 JosephK. Angell,A Treatiseon theLaw ofWatercourses 207-13 (Little & Brown3d ed 1840).

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In Martinv Waddell,125the United States Supreme Court took an importantfirst step in adaptingthese understandings to the American context.The Courtheld that the original colonies succeeded to thepo- sitionof theEnglish crown with respect to ownershipof submerged landsunder tidal waters.'16 Thus, after the colonies gained independ- ence,title to theselands vested in thestate governments. Soon there- 127 after,in Pollard v Hagan, theCourt extended this reasoning to sub- sequentlyadmitted States created out of federalterritory. Given the "equal footing"language of thesestatehood grants, the Courtrea- sonedthat States carved out of federalterritory inherited the same ownershiprights to submergedlands under tidal waters as theoriginal Statesowned by direct inheritance from the British crown.'28 These decisionsaddressed only lands under tidal waters, which Kentand Angell understood to be thefull extent of "navigable" wa- tersunder English law. In England,with its long coast line and short rivers,the equation of navigablewaters with tidal waters did notdo greatviolence to commercialrealities. The North American continent, in contrast,contains a largenumber of waterwaysthat are nottidal butare navigablein fact,including of course the Great Lakes. By the 1840s,if not before, it was clear that these waterways were to playa vi- talrole in thedevelopment of American commerce. AfterMartin v Waddell and Pollard v Hagan, thecourts of the variousStates divided over how the principlesof thosedecisions shouldapply to landunder waters that were not tidal but were navigablein fact. A majorityof States adhered to theEnglish common law, and heldthat state ownership was limitedto landunder tidal waters, whilelands under other waters-including nontidal waters that are navigablein fact-wereowned by adjacent riparian landowners (subject,of course,to a publiceasement or trustof freenavigation).'29 A significantminority of States, however, concluded that the English law was unsuitedto conditionsin NorthAmerica. These courts adopted whatcan be calledthe American view: submerged lands under all watersthat are navigable in fact are ownedby the State as sovereign.'I0

125 41 US (16 Pet) 367 (1842). 126 Id at 416-17. 127 44 US (3 How) 212,229 (1845). 12 Id at229-30. 129 See JosephK. Angell,Law of Watercourses607-09 (LittleBrown 5th ed 1854) (counting New York,Massachusetts, New Hampshire,Connecticut, Maine, Maryland,Virginia, Ohio, and Indiana as havingadopted thisposition). 130 See id at 609-11 (countingPennsylvania, Tennessee, Alabama, South Carolina, and NorthCarolina as embracingthis view). In 1856,Iowa joined these States.See McManus v Car- michael,3 Iowa 1,22 (1856).

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In its firstconfrontation with the issue,the IllinoisSupreme Court,in Middleton v Pritchard,.3.cast its lot firmly with the traditional Englishview. The case involvedthe right to gathertimber on an island locatedon theIllinois side of the centerline of the Mississippi River."' The courtheld that the owner of the land on theIllinois shore had full ownershiprights to all resourcesassociated with the bed of theriver, includingtimber on an island."'These rights, the court cautioned, were subjectto theparamount interest of the public in navigation.Thus, the riparianowner could cut and removethe timber, but had to do so in a waythat avoided interfering with navigation on theriver.1'4 Illinoiscontinued to adhereto the Englishview with respect to ownershipof submergedland throughoutthe balance of the nineteenthcentury -at leastwith respect to landunder navigable rivers.131 To take butone example,in Cityof Chicago v Laflin,'-6the court re- jectedan attemptby the City to abate as a nuisancea wharfbuilt out intothe ChicagoRiver from riparian land on the rivernot farfrom Lake Michigan.Citing Middleton and interveningdecisions, the court said thatthe rule was wellsettled, that the title of a riparianowner extends to themiddle threadof the stream if it is calledfor as a boundary,and ifhe is the owner... thereis no imaginablereason why he maynot

131 4 Ill 509 (1842). 132 The trialjudge was SidneyBreese, who had previouslybeen involved in effortsto put togethera private undertaking for a centralrailroad from Cairo to Galenaand was later to lobby forthe federal grant in supportof such a railroadas UnitedStates Senator (along with and in ri- valrywith his considerably more famous counterpart, Stephen A. Douglas).See Gates,Illinois CentralRailroad and Its Colonization Work at 24,26-27,29-30,32,41,58(cited in note 81) (discussingthe involvement and activitiesof Breeseand Douglas);Stover, History of theIllinois CentralRailroad at 7-8,12, 16-17, 23 (citedin note80) (describingthe participants in lobbying effortsto foundthe Illinois Central Railroad Company). This circumstance makes it especially likelythat the Middleton decision was known to thepromoters and earlyofficers of the Illinois Central.Middleton is also theonly pre-Lake Front Act decision mentioned by name in Jewett's 1902lectures. See Jewett,3 John Marshall L Q at 25-26(cited in note 75). It is perhapsof passing interestthat, decades later, Breese would, as ChiefJustice of the Illinois Supreme Court, author an importantdecision in favorof the Illinois Central. See note514, discussing People v Ketchum, 72 Ill 212 (1874). 133 See Middleton,4 Ill at 519-22. 134 See id at 521-22.Later, the Iowa SupremeCourt adopted the American definition of navigabilityfor use in determiningrights to submergedland underthe Mississippi.See McManus,3 Iowa at 22-23.Thus, with respect to thesegment of the Mississippi that divides Illi- noisand Iowa,the private riparian owned the submerged land to thecenter on theIllinois side, whereasthe State of Iowa ownedthe submerged land to the center on theIowa side.Jewett spe- cificallynoted this anomaly in his 1902 lecture, see Jewett,3 John Marshall L Q at 25-26(cited in note75), and it undoubtedly lent an auraof uncertainty to the status of submerged lands in both States. 135 See Ensmingerv People, 47 Ill 384,385, 388-89 (1868); Board of Trusteesof the Illinois and MichiganCanal v Haven,11 II 554,556-57 (1850). Illinois switched to theAmerican rule withrespect to lakes in 1896.See note154. 136 49 Ill 172(1868).

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use andenjoy it as hisown in anylegal manner, provided he does notobstruct or impairthe enjoyment of the easement [of navigation]by the public.137 Ifthis were all ofthe law bearing on thequestion of ownership of the lakefrontin Chicago,then the relevant legal principle would be clear,even if difficulties would arise in itsapplication. The sole ques- tionwould be this:Who owns the land on theshore? Lake Michiganis notregarded as tidalwater. Hence, under the English view, the owner of riparianland would own the submerged land to thecenterline of thelake. Somecircumstantial evidence suggests that this was in fact the as- sumedlegal rule aboutownership of the bed of Lake Michiganup throughthe 1850s. To takeone tellingexample, in thedeeds transfer- ringa rightof way to theIllinois Central south of Chicago over riparian landsowned by SenatorStephen A. Douglas,it was "distinctly stipulatedand understoodbetween the said partiesthat the said Douglasexpressly reserves and the said Company expressly concedes to [Douglas]all titleright and ownershipto theland and waterbe- tweenthe Eastern line of said Road and theCentre of Lake Michi- gan."138In otherwords, Douglas-a renownedlawyer-assumed that at leasta crediblelegal claim existed that he, as theowner of riparian landson Lake Michigan,owned "all titleright and ownership"to the "Centreof Lake Michigan."Consequently, he wantedit made clear thatby grantinga rightof wayto therailroad along the edge of the lake he was nottransferring ownership of the submerged lands to the 139 railroad. Soon,however, discordant elements began to emergein thelaw that would eventuallyundermine any confidencelegal observers mighthave had aboutthe ownership of submerged lands under Lake Michigan.These elementsarose in legal contextsone stepremoved

137 Id at 176. 138 Articleof Agreement between Stephen A. Douglasand theIllinois Central Railroad (Sept29, 1852) (handwritten deed). This deed and the other Illinois Central documents cited in thisArticle are, with some exceptions, available in a specialcollection at the Newberry Library in Chicago.The exceptions are a fewinstances in which the material is availableat the Chicago His- toricalSociety or the Illinois State Archives. 139 The assumptionthat the riparian landowner owned the bed ofthe lake is alsoreflected inthe following account from an earlyhistory of Chicago: In 1853,James H. Collins,one of the able and early lawyers in the city, applied to the Cook CountyCourt of Common Pleas, presided over by Judge Skinner, for an injunctionagainst theIllinois Central railroad company. Mr. Skinner [sic] owned a lotabutting the lake, and claimedownership to themiddle of the lake, and contested the right of way .... Thelitiga- tionresulted in a compromiseby which the railroad company paid Mr. Collins damages, andsecured the right of way over his land. JohnMoses and Joseph Kirkland, 2 History of Chicago Illinois194 (Munsell 1895).

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 2004] TheOrigins of the American Public Trust Doctrine 831 fromthe precise question of ownershipof submergedlands; not surprisingly,therefore, their implications were not immediately general- ized to the problemof ownershipof submergedlands. Nevertheless, bythe late 1860s,interested legal observers might well have concluded thatif and when the issue were presentedin litigation,the courts wouldlikely hold thatlands overflowed by the GreatLakes, no less thanlands under tidal waters, are ownedby theState rather than by riparianlandowners. The firstdiscordant element emerged in 1851,when the United StatesSupreme Court, in The Propeller Genesee Chief v Fitzhugh,'40 overruledan earlieropinion by Justice Story and heldthat the admi- raltyjurisdiction of thefederal courts was notlimited to tidalwaters butextended to all watersthat are navigablein fact.'4'In so ruling,the Courtcited many of the same factors,including the greaterimpor- tanceof inlandrivers and lakes to commercein NorthAmerica than in England,that had convincedsome state courts to rejectthe English definitionof navigability in disputesover the ownership of submerged lands.142Although the Courtcautioned that its decision involved only jurisdiction,not property rights,'43 in retrospect The Genesee Chiefun- doubtedlytipped the balance for the remainder of the century in favor of the Americanview regardingownership of submergedlands, at least in thosejurisdictions and circumstanceswhere the issue was open.'44 The seconddiscordant element emerged more gradually from the 1840sonward, and concerneda ruleof boundaryconstruction. It was well establishedthat when a deed specifieda riveror streamas the boundaryof property,courts would presume that the propertyex- tendedto thecenterline of the watercourse, unless the deed expressly statedthe contrary.This of coursewas consistentwith the English viewof ownershipof submergedlands under nontidal waters. Appar-

140 53 US (12 How) 443 (1852),overruling The ThomasJefferson, 23 US (10 Wheat)428 (1825). 141 TheGenesee Chief, 53 US (12 How) at 457. 142 Id at 453-58. 143 Id at 458-59. 144 Iowa adoptedthe American view in 1856,see note134 (discussingMcManus), and the SupremeCourt held that this was consistent with the principles of Martin v Waddelland Pollard v Haganin Barneyv Keokuk,94 US 324 (1876).Wisconsin adopted the American view with respectto lakesin 1877.See Delaplainev Chicago& NorthwesternRailway Co, 42 Wis214, 226 (1877) (holdingthat "the water's edge is theboundary of the title of the riparian proprietor"). See also RailroadCo v Schurmeir,74 US (7 Wall)272, 283-86 (1869) (construingActs of Con- gressreferring to navigablerivers as meaningnavigable in factrather than navigable in the commonlaw (English)sense, and on thisbasis ruling that a claimantdid not own the bed ofthe MississippiRiver in Minnesota).For an instructiveSupreme Court opinion recognizing the evo- lutionof thelaw in thedirection of theAmerican rule, and stressingthe importance of The GeneseeChief in this process, see Packerv Bird,137 US 661(1891) (Justice Field).

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 832 TheUniversity ofChicago Law Review [71:799 entlythere were no earlydecisions, English or American, applying this ruleof constructionto a deed naminga nontidalpond or lake as a boundary.But as Americanprecedents about boundarydisputes slowlybegan to accumulate,courts began to differentiatebetween the rulesof construction applicable to riversor streams,on theone hand, andponds or lakes,on theother. We can tracethe evolution of views on thistopic through succes- siveeditions of Joseph Angell's influential treatise on theLaw ofWa- tercourses.The secondedition, published in 1833,noted the general rulepresuming ownership to thecenterline, and statedsimply that it appliedto any"grant of land described as beingbounded by a watercourse."'145In the third edition, published in 1840,Angell introduced a noteof caution about deeds that describe land as boundedby a pond as opposedto a riveror stream.He describeddecisions in NewYork and Maine thattreated such a deed as inherentlyambiguous, and notedthat the Maine Supreme Court had cautioned against extending thegeneral rule of construction to a deed naminga pondor lake as a boundary."4With the fourth edition, published in 1850,Angell added a newsubsection devoted entirely to the"Difference between a Bound- aryon a Watercourse,and a Boundaryon a Lake or Pond.",147Here he expoundedmore fully on theproblematic nature of ponds as bounda- ries.With respect to lakes,he statedemphatically: "The law ofbound- ary,as appliedto rivers,is withoutdoubt inapplicable to thelakes and otherlarge natural collections of fresh water in thiscountry."'48 Citing decisionsof New York and New Hampshirecourts, Angell suggested thatwhen a deed describesa lake as a boundary,the riparian land- owneris presumedto ownonly to theshore or edge of the lake, and is presumednot to ownthe submerged land to thecenterline unless such an intentionappears clearly in the deed.149 In 1860,the Illinois Supreme Court, in Seamanv Smith,'50adopted theconstructional rule set forthin thefourth (and succeeding)edi- tionsof Angell in interpretinga deed thatnamed "Lake Michigan"as a boundary.The court held that "Lake Michigan"meant the shoreline, notthe centerline, of thelake. The courtobserved that lakes are differentfrom rivers and streamsbecause they lack a current,and that becauseof the"circular shape" of mostlakes, "it would be foundex-

145 JosephK. Angell,A Treatiseon theCommon Law, in Relationto Watercourses4 (Hilliard Gray2d ed 1833). 146 Angell,Treatise on theLaw of Watercoursesat 10-11(cited in note 124). 147 JosephK. Angell,A Treatiseon the Law of Watercourses35-38 (Little & Brown4th ed 1850). 148 Id at 37.This sentence carried over without change in theFifth Edition, published in 1854.See Angell,Law of Watercoursesat 40 (cited in note 129). 149 Angell,Treatise on theLaw of Watercoursesat 38 (citedin note 147). 150 24111521(1860).

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ceedinglydifficult, ifnot impossible, to ascertainwhere the boundary shouldbe fixed,or theshape it shouldassume" if anything other than theshoreline were chosen."'5 No questionwas presentedin Seamanabout who in factowned the bed of Lake Michigan.But the same considerationsof logicand practicalitythat caused the courtto adopt a differentrule forcon- structionof boundarieswhen expressed in termsof lakes ratherthan riverswould also seemto suggesta differentrule for ownership of the lakebed itself.Certainly after 1860, a carefullawyer reviewing the stateof the law in Illinoiswould have reasonto doubtwhether the Englishview of riparianrights to submergedlands, endorsed in Mid- dletonv Pritchardwith respect to navigablerivers, would be extended to riparianlands abutting Lake Michigan. As it turnedout, the answer to thislegal question was to remain unresolvedfor most of the remainderof thenineteenth century. Au- thoritativeword on thesubject did notcome until the Illinois Central litigationitself. Both the circuitcourt decision, authored by Justice Harlanas CircuitJustice, and theUnited States Supreme Court opinion,authored by Justice Field, ruled that the State of Illinoishad title to theland under Lake Michigan.152 But thiswas far into the future. Al- thoughlegal observers would become increasingly confident that this would be the outcomeafter 1860,153 the issue remainedshrouded in uncertaintyuntil some time after 1892.154

151 Id at 525. 152 See Illinois CentralRailroad Co, 33 F at 755-56; Illinois Central,146 US at 434-37. 153 Afterthe Lake FrontAct was passedin 1869,the Illinois Central unequivocally em- bracedthe position that the State owned the bed ofLake Michigan.See textaccompanying note 372.Lawyers for the railroad continued to maintainthis position after the Act was repealed. See Letterfrom B.F. Ayer, General Solicitor of theIllinois Central Railroad Company, to Robert ToddLincoln, Secretary of War (July 25, 1881), reprinted in Encroachmentsupon the Harbor of Chicago,Ill., HR Rep No 95, 47th Cong, 1st Sess 19 (1882) (Encroachmentsupon the Harbor). The UnitedStates Attorney for the Northern District of Illinois,in a particularlypenetrating analysisin 1882,concurred in thisassessment. See JosephB. Leake,Report of the United States Attorneyfor the Northern District of Illinois (Jan 7,1882), reprinted in Encroachmentsupon the Harbor at 27. 154 Althoughit is unclearwhether the federal courts in Illinois Centralwere applying Illi- noislaw, the Illinois Supreme Court moved quickly after 1892 to embracethe position that the Americanrule would henceforth be followedwith respect to lakesin Illinois.Thus, in Peoplev Kirk,162 Ill 138(1896), the court upheld a statestatute authorizing the landfill of Lake Michigan to createthe construction ofLake ShoreDrive between the Chicago River and Oak Street(that is,Streeterville). The courtsaid: "Where a navigableriver is calledfor as a boundaryline the granteewill take to thethread of the current of the stream. But the rule that governs our rivers hasno applicationto ourgreat lakes." Id at 146-47.The courtcited Seaman v Smithand Illinois Centralas authorityfor this proposition. Id. In Fullerv Shedd,161 Ill 462,489-90 (1896), the courtextended the new rule regarding navigable lakes to a non-navigablelake (WolfLake on theborder between Chicago and Indiana). In Revellv ThePeople, 177 II1 468, 488-91 (1899), the courtupheld an injunctionrequiring a riparianlandowner on Lake Michiganto teardown two piersextending two hundred feet into the lake. The courtdisavowed the proposition, taken for

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If therule of law thatwould determine ownership of thebed of Lake Michiganwas uncertain, the identity of the riparian owner of the landknown as Lake Parkwas evenmore so. This is revealedby a re- markableeditorial and follow-on letters to theeditor published by the ChicagoTribune in thesummer of 1867.The editorial,entitled "Who OwnsLake Park?,"speculated that the park "is perhapsworth a mil- lionand a halfof dollars today, and its inevitable connection with the futurecommerce of the city will increase its value hereafter to a price thatwould now be consideredgrossly exaggerated."'55 The purposeof theeditorial was to demonstratethat although "[i]t has been supposed thatthe city of Chicago had an unquestionabletitle to thisimportant piece of property,. . . an examinationof the subject will show that thereare some interesting, ifnot doubtful, points in the case." 156 In fact, it was unclearwhether "the title to thisland [is] in thecity, the Trus- tees[of the Canal], the State, or theUnited States."''57 The papercommenced its analysis with Congress's 1827 grant of landsto theCanal Commissioners,which the paper characterized as a grantconditional upon the fulfillment ofcertain legal requirements."8 Withrespect to fractionalsection 15, where Lake Parkwas primarily located,one ofthe conditions was that the section be "firstlaid off and subdividedinto town lots, streets and alleys."159Noting that "it is per- fectlyapparent that a publicpark is neithera 'townlot,"'street,' or 'al- ley,"'the Tribunewondered whether it was "illegal[for the Canal Commissioners]to setthis ground aside as a park"and, if so, what the effectwould be: "Wouldit not appears [sic] that the vital condition of thegrant has been unfulfilledby Illinois,and wouldnot the land re- vertto theUnited States for conditions broken?""o Laterin theeditorial, the Tribune considered the effect of a stat- uteenacted by the state legislature in 1863,evidently at thebehest of ownersof lots on MichiganAvenue. This statute began by reciting, er-

grantedin IllinoisCentral, that a riparianhas as an incidentof his land ownership the right to "wharfout" into the lake. Id at 489. 155 WhoOwns Lake Park?, Chi Trib 2 (June23,1867). 156 Id. 157 Id. 158 Id. 159 Id. 160 Id. The case forthe City's ownership was thatthe strip of land had beendedicated to publicuses by the recorded plats of fractional sections 15 and10. An 1833statute of Illinois providedthat land on a platdesignated for "streets, alleys, ways, commons, or other public uses" was to be "heldin thecorporate name" of the city or townin whichit was located, "in trust to, and forthe uses and purposes set forth, and expressed or intended."An Act,Providing for the Re- cordingof Town Plats (Feb 27,1833) ? 5, in RevisedLaws ofIllinois 600 (Greiner& Sherman 1833).Relying on thisstatute, the Illinois Supreme Court had ruled that cities held title to streets andthe like in fee, subject of course to the trust obligation to devote the space "for the uses and purposesof the public." Haven, 11 II at557.

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 2004] TheOrigins of the American Public Trust Doctrine 835 roneously,that "the State of Illinois, by its Canal Commissioners,[had] declaredthat the public ground east of said lots should forever remain vacant."'16'As the Tribunerecognized, the Canal Commissionershad neverincluded such a recitationin theplat to fractionalsection 15; the United Stateshad includedthe restrictionin the plat forthe Fort DearbornAddition in fractionalsection 10. Nevertheless,the 1863 statutewent on to providethat "neither the Common Council of Chi- cago,nor any other authority, shall ever have thepower to permiten- croachmentsthereon, without the assent of all thepersons owning lots or landon said streetor avenue."'62The Tribunethought that the effect of thisstatute, although founded on a mistakenpremise, was to estop theState from asserting title to Lake Parkas againstthe City. At theconclusion of theeditorial, the Tribunemade clearthat it was not merelyseeking to raise questions.The newspaperhad per- suaded itself,based on its discussionof the factsand law,that "[i]f therebe anyadverse title to thatof the city it would seem to be in the UnitedStates."'63 Therefore, the editorial closed by "suggesting the ex- pediencyof applyingto Congressfor an actceding to theCity of Chi- cago all theright, title and interestof theUnited States in and to the land in question,without reservation as to itsuse, except that it shall notbe sold."1" The Tribune's1867 editorialelicited some legallysophisticated responsesfrom readers. One, who signedhis letter"Index," thought thatthe newspaper had drawnexactly the wrong inference from the 1863 statute,and thatthe statuteshowed that title remained in the State.'65Another reader, who signed"R," vigorouslyargued that title remainedwith the Canal Commissioners,and thattheir sole authority was to sell the land in aid of constructionof a new canal.'66R concludedthat the Canal Commissionersowned not only"the stripbe- tweenMichigan avenue and therailroad, 5,000 feet front and 200 to 400feet deep, of an averagevalue of above $500 per foot, making over $2,500,000in theaggregate, but also, all beyondto a distanceof a nau- ticalleague fromthe shore."'67 At the end of thisletter, the editor of theTribune appended the following comment: "QUERY. -Where does

161 WhoOwns Lake Park?,Chi Trib at 2 (citedin note 155). 162 Id. 163 Id. 164 Id. 165 See Letterto theEditor, Who Owns Lake Park?,Chi Trib 3 (June25, 1867) ("So far fromabandoning its title, the State asserts that title very clearly by prohibiting the city and oth- ersfrom permitting encroachments, without the consent of all theproperty holders owning land or lotson theavenue. The Statetherefore retains the title to theland, but is pledgedto maintain itas vacantground."). 166 See Letterto theEditor, Who Owns Lake Park?,Chi Trib 2 (June27,1867). 167 Id.

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 836 TheUniversity ofChicago Law Review [71:799 ourcorrespondent find any authority for the assumption that the title to thebottom of the lake, to a distanceof one leaguefrom the shore, or anyother distance, (unless it be a naturalaccretion), is vestedin the riparianowner?9''68 The answer,of course, (which was not published in thepaper) was thatthe Illinois Supreme Court's Middleton doctrine providedthe authority.'oBut by 1867,at leastinsofar as newspaper editorswere concerned, this answer was too implausibleto be taken seriouslywith respect to Lake Michigan. In short,by 1867 the legal titleto the Chicagolakefront was deeplyvexed. First, it was unclearwhether the strip of land known as Lake Parkwas owned by the City, the Canal Commissioners, the State, or thefederal government. Second, it was unclearwhether the Illinois courtswould apply the English rule of riparian ownership to thelands submergedunder Lake Michiganor theAmerican rule. If theAmeri- can ruleapplied, then the submerged lands were owned by the State, subjectto whatever rights the Illinois Central had acquired through its charterfrom the State in 1851.(The rightsthe railroad had obtained fromthe City would be ofno value,unless the State had firstgranted itsrights to theCity, which it had notdone.) If theEnglish rule applied,then the submerged lands were owned by whoever was determinedto be theowner of Lake Park-the City,the Canal Commis- sioners,the State, or thefederal government-subject, again, to whatever rightsthe railroadhad acquiredfrom this party. It was a fine mess.

C. Implicationsfor the Lakefront In thenext Part of theArticle, we describethe opportunistic be- haviorunleashed by this morass of legal uncertainty. Before doing so, however,it is worthpausing to notehow thelegal storyilluminates someof the behavior of the City and the Illinois Central in theforma- tiveperiod from 1851 to 1867. As we have seen,in the 1850sa knowledgeablelegal observer, followingthe Illinois Supreme Court's embrace of the English view of ownershipof submergedlands in Middleton,would most likely as- sumethat the bed ofLake Michiganwas ownedby riparian landowners.With respect to thesubmerged lands north of Randolph Street to theChicago River, and south of Twelfth Street to SixteenthStreet, the riparianlandowner was theIllinois Central. Thus, under the English view,the IllinoisCentral also ownedthe submergedlands offshore fromthese properties. This meant it presumably could use theselands forany purpose, including landfilling to buildwharves and piers, pro-

16 Id. 169 See textaccompanying notes 131-39.

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 2004] TheOrigins of the American Public Trust Doctrine 837 videdthese uses did notinterfere with the public right of navigation.170 With respectto the area betweenRandolph Street and Twelfth Street-Lake Park-the ownershipissue was murkier.But thedomi- nantassumption in the 1850swas, as we have seen,that the Cityof Chicagowas theriparian owner. Once we understandthe assumptions about the law and theown- ershipof riparianlands that were current in the 1850s,a numberof aspectsof the early development of the Illinois Central that otherwise seem bafflingbecome understandable. First, we can understandhow the Chicago CommonCouncil believed it could conveya three- hundred-footright of way to therailroad for the portion of its operationsin thelake, when the railroad was limited to twohundred feet by federallaw and itsstate charter. The factthat explains this anomaly is thatthe Councilassumed the Cityto be the ownerof Lake Park. Hence,under the English view of riparian rights, the City also owned thebed ofLake Michiganoff Lake Park,and could convey an interest in thislakebed to therailroad (provided it did notinterfere with the public rightof navigation).Similarly, we can understandhow the Council,in 1855and 1856,believed that it could grant additional rights to therailroad to curveits tracks in a westerlyand easterlydirection outsidethe three-hundred-foot right of way south of Randolph. As the ownerof thesubmerged land in question,it was freeto authorizethe railroadto engagein additionalfilling of these areas. Likewise,we can understandhow it was thatthe Illinois Central feltfree to engagein aggressivelandfilling both north of Randolph Streetand southof Twelfth Street, and whyit sometimesdid so without regardto whetherit had the officialblessing of the Common Council.The railroadwas the ownerof the riparianlands in these segmentsof the lakeshore, and underthe English view it wouldbe allowedto "wharfout" or otherwiseengage in fillsand improvements, providedit did not impairthe publicright of freenavigation on the lake.

170 The rightof a riparianowner to "wharfout" to reach navigable water was reasonably well establishedat thistime. See, forexample, Yates v Milwaukee,77 US (10 Wall) 497,504 (1870) (statingthat among the rightsavailable to "a riparianproprietor whose land is bounded by a navigable stream"is "the rightto make a landing,wharf or pier forhis own use or forthe use of the public"); Dutton v Strong,66 US (1 Black) 23, 31 (1861) (statingthat "[b]ridge piers and landingplaces, as well as wharvesand permanentpiers, are frequentlyconstructed by the riparian proprietoron the shoresof navigable" waters,and "where theyconform to the regulationsof the State,and do not extendbelow low-watermark, it has never been held thatthey were a nui- sance, unless it appeared thatthey were an obstructionto the paramountright of navigation"). AfterIllinois Centralwas decided, however,the Illinois Supreme Court curtailedthe rightwith respectto riparianland on Lake Michigan.See Revell,177 Ill at 489 (holdingthat riparian owners do not have a rightto "wharfout in orderto protectthe shore of theirlands fromerosion").

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By thelate 1860s, however, the legal assumptions that explain this behaviorhad begunto crumble.Given the UnitedStates Supreme Court'sdecision in The GeneseeChief, and the IllinoisSupreme Court'sdecision in Seaman v Smith,the drift of the law was strongly in thedirection of recognizingthe American view of ownershipof submergedlands, at leastwith respect to largenavigable lakes. This would mean thattitle to the lakebedhad been givento the Statein 1818 whenit entered the Union, not to theriparian landowners. Iftitle had beengiven to theState, then arguably it remainedwith the State, because therehad been no grantby the Stateof submergedlands for purposesof constructing the Illinois Central's right of way, and at best onlyan ambiguousgrant for purposes of constructingterminals and otherrailroad facilities. In effect,the legal uncertainty meant that the lakebedwas in the"public domain" -open to captureby the first person to convincethe General Assembly to conveythe bed of thelake to him."71This meant that the right to constructa new outer harbor for Chicagowas up forgrabs. Indeed, it was possible that even the Illinois Central'svaluable improvements were up forgrabs.

III. 1867:THE LAKEFRONTIN PLAY The firstmanifestation of thislegal uncertaintyemerged in the 1867session of theIllinois General Assembly. At thattime, the Gen- eralAssembly met in odd-numberedyears, typically from January to Marchor April.When the 1867 session commenced, the Illinois Cen- tralappeared to haveno particulardesire or apprehensionregarding thelegislature. We cantrace the attitude of the railroad during this pe- riodthrough the surviving correspondence between John M. Douglas, Presidentof the Illinois Central, who maintained his office in Chicago, and WilliamH. Osborn,a formerPresident who held the titleof Chairmanof the Executive Committee of the Board of Directors, and whokept his office in NewYork. Douglas wrote to Osbornat theend of1866, "I do notknow of anything that we wantof the legislature this winterexcept its good will.",lf Indeed,he allowed thathe did "not be- lievethis Company has anyenemies in the legislature or outof it" and thathe was "inclinedto thinkwe are on good termswith the world generallylegislature included."173 It soonbecame clear that this assessment was much too sanguine. In earlyFebruary 1867, a billwas introduced in theHouse to incorpo-

171 Compare Yoram Barzel, EconomicAnalysis of PropertyRights 5-6 (Cambridge2d ed 1997)(distinguishing assets subject to individualclaims from assets in the public domain, which aresubject to a ruleof capture). 172 Letterfrom John M. Douglas,President, toWm. H. Osborn,Chairman, Illinois Central (Dec 27, 1866). 173 Id.

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 2004] TheOrigins of the American Public Trust Doctrine 839 ratean entitydescribed as "theChicago Harbor, Pier and Dock Com- pany."174 The namedincorporators of theproposed company included a numberof Chicago's leading citizens,lawyers being especially prominent.75 These includedJonathan Young Scammon, who had in- terestsin MichiganAvenue real estate and would be involvedin virtu- allyall lakefrontintrigue up throughthe decision in theIllinois Cen- tralcase, and MelvilleW. Fuller, the future Chief Justice of the United StatesSupreme Court. 176 The bill'ssponsor in theHouse wasHenry M. Shepard,Fuller's law partner.The proposedcompany would have the power"to encloseand protect,occupy and use,possess and enjoy,so muchof the bed andwaters of Lake Michigan"as layeast of Michigan Avenuefrom Sixteenth Street to theChicago River."' The purposeof thegrant was to allowthe incorporators to constructa new outer harborfor Chicago, and to connect"the same by roadways across railroad tracks"to MichiganAvenue, using the powerof eminentdomain if necessary.178 The ChicagoHarbor, Pier and Dock Companycan onlybe describedas a classic rent-seekingscheme. The proponentsof the schemedrew up articlesof association to governtheir lobbying activities.79 The articlesexpressly stated that the purpose of the association was "to secureby legislative, and other grants" the right to developthe submergedland east of Chicago."*They further provided for pro rata assessmentsof themembers to payfor the lobbying campaign, expul- sionof anymember who failed to payassessments, and pro ratadivi- sionof any property rights obtained from the legislature.181

174 See TheChicago Dock Bill,Chi Trib 1 (Feb 15,1867)(reproducing the bill in full). 175 Butsee note206 (notingthe suggestion that some individuals' names were misappropri- ated). 176 Fullerwould recuse himself in Illinois Central on theground that he had"been of counsel in thecourt below." 146 US at 476 (explainingwhy two justices "did not take any part in the considerationor decisionof these cases"). This was true-Fuller had representedthe City in the CircuitCourt. See Illinoisv IllinoisCentral Railroad Co, 33 F 730,732(CC ND Ill 1888).But it gaveno hintof Fuller's much more extensive involvement in theearly history of the controversy in seekingto securethe same resource for a groupof private investors. 177 ChicagoDock Bill,Chi Trib at 1 (citedin note 174) (quoting section 5 ofthe bill). 178 Id (same). 179 The charterfor an associationformed by articles of agreement in 1866called the "Chi- cago Harbor-and-ImprovementCompany" is reproducedin WilliamK. Ackerman,Historical Sketchof the Illinois Central Railroad 96-98 (Fergus 1890). It seemsreasonably clear that this is thesame entity that sought to incorporatein 1867as theChicago Harbor, Pier and Dock Com- pany.Ackerman describes the members of theassociation as "manyof theleading citizens of Chicago,"id at 96,which is consistentwith the identities of the named incorporators ofthe Chi- cagoHarbor, Pier and Dock Company.We have found no explanationfor why the name changed slightlybetween 1866 and 1867. 180 Id. 181 Id at 97-98.

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Reactionby theChicago newspapers to thebill was fierce.The Chicago Tribuneran an editorialentitled "A MagnificentFraud."'12 Employingwhat may be thefirst use ofthe word "steal" in connection withlakefront legislation, the newspaperasserted that "a bolderor moreinfamous attempt to steala vastproperty belonging to thepublic has neverbeen attempted."'8'The paper said thatthe proposed grantwould give the companythe right"to builda citywith water privilegesupon the site belongingto Chicago,and not renderany compensationtherefor."'84 The Chicago Timeswas but a stepbehind in its condemnation.Focusing on a provisionin thebill that permitted the Cityof Chicagoto purchasethe Harbor,Pier and Dock Com- pany'sworks at a futuredate, at costplus 10 percentannual interest, theTimes predicted that the company would do justenough to obtain theland and then attempt to resellit to theCity for cash.185 The bill'ssponsor, Henry M. Shepard,was a busyman during the session.He also introducedand obtainedpassage in the House (thoughnot the Senate) of anotherbill thatbecame known as the SkatingPark Bill. According to one unfavorablereview, this, too, was designedto securethe rights to thelakefront for its sponsors; it was characterizedas "givingthe Michigan Park basin in the city in fee to a companyof privatespeculators, under the pretenceof cuttingice, skating,yachting, and otherfestive employments."16 In terms that wouldbe soundedsimilarly in 1869,the Chicago Timesreferred to the matteras the"Michigan Park Steal.""" Thus, by February 1867, it had becomeclear that substantial efforts were underway to wrestcontrol ofChicago's lakefront via the mechanism of a grantfrom the state legislature. The IllinoisCentral reacted to theseevents with understandable alarm.Its primaryconcern at thetime was ensuringthat its physical improvementsand its right to use thelakefront were not imperiled by a grantof thesubmerged land to someother entity. On February16, the railroad'spresident, Douglas, sent an apprehensivenote to the company'sSpringfield representative: Does bill1037 affect the title in thelake or basin-Devoteyour- selfentirely to lake matter.See thatnothing is pendingon the subjectexcept what you makepublic-Better stay and see that nothinggoes through surreptitiously-

182 A MagnificentFraud, Chi Trib2 (Feb 12,1867). 183 Id. 184 Id (brandingthe grant a "prodigioustheft"). 185 See The GreatHarbor Swindle, Chi Times 4 (Feb 13,1867). 186 The MichiganPark Steal, Chi Times 4 (Feb 13, 1867) (advisingthe Illinoislegislature againstthe bill). 187 Id.

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Make thecity keep a strongdelegation there till the close of the sessionand see itout. It willbe a hardfight."" So thatthere could be no doubtabout the importance he attachedto thismatter, Douglas closedthis correspondence by calling off any ef- fortsby the railroad on whatup to thenhad beenits focus in thelegislature:defeating a bill to enacta statetax on certainIllinois Central lands.189 Throughoutthe balanceof the 1867legislative session, the railroad'sposture remained entirely defensive. For example,on February 19, 1867,Douglas telegraphedhis lobbyistin Springfield,reacting to yetanother bill that Shepard had introduced, this one backon January 31.The instructionswere succinct: "Defeat bill no. 888-Chicago Ele- vatorCompany if it is to be locatedon theLake."'9 Another telegram fromDouglas that same day gave instructions to "[d]efeatany bill that confersauthority upon any companyto build anythingin the lake southof the river."191 Indeed,just as it had seemedcontent with the status quo before thelegislature convened, the railroad now threw its support behind an effortto securegreater control over the lakefrontfor the City.The meanstoward this end was a bill introducedin boththe House and theSenate: "An actto establishthe rights of the city of Chicago in and overthe harbor thereof.t"1 Douglas opined to hisagent who had taken up residenceat theLeland Hotel in Springfield,"I thinkit wouldbe wellto pass thebill introduced .. . yesterdaygiving the city control."'93 As a defensivestrategy, there was considerablelogic in thisposition.If the City'sgrants to therailroad in 1852,1855, and 1856were defectivebecause the Citylacked title to thebed of the lake,then a grantof suchtitle from the Stateto the Citypresumably would cure thedefect. Although there would be uncertaintyabout what the City mightdo in the way of constructingan outerharbor, the railroad seeminglywould at leastbe securein theknowledge that its existing improvementswould not be isolatedby a grantto rivalinterests.

188 Telegramfrom John M. Douglas,President, Illinois Central, to C.C.P.Holden, at the LelandHotel, Springfield, Feb 16,1867. 189 Id. 190Telegram from John M. Douglas,President, Illinois Central, to C.C.P.Holden, at the LelandHotel, Springfield, Feb 19,1867. 191Telegram from John M. Douglas,President, Illinois Central, to C.G.P.Holden, at the LelandHotel, Springfield, Feb 19,1867. 192 See Journalof the Senate of the Twenty-Fifth General Assembly of the State of Illinois 810 (1867) (S 658,introduced Feb 18,1867);Chi Times 4 (Feb 27,1867)(lauding an analogousbill in theHouse andlamenting its poor prospects for enactment). 193 Telegramfrom John M. Douglas(cited in note 191).

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Intrigueover the lakefront continued throughout the 1867 legislativesession. In theend, however, none of the bills became law, albeit notfor lack of efforton thepart of Shepardand others.For instance, even afterthe Harbor,Pier and Dock Companybill died in the House-withone newspaperboasting that "[t]he first blast from the TRIBUNE trumpetsealed its fate"""-another bill was introducedthat was dubbedby the same newspaper "The New Pierand Dock Bill."'95 Its contents,as summarizedby the Tribune,appeared to bearout the claimthat "[t]he bill is almostidentical with the one whichhas been so unanimouslycondemned by thepeople of Chicago."'%The Tribune's predictionthat this bill,too, would not gamer sufficientsupport provedcorrect. As the 1867 legislativesession drew to a close,the railroad breatheda sighof relief. The president particularly noted in a letterto thechairman that "[n]othing [had been] done to interferewith us in thelake.""'1 While the matter was costlyin termsof time and effort- Douglasreported that he had been"so engagedwith this troublesome matterthat I havepretty much neglected everything else" -he would soonthereafter report that he couldturn some of his attention to "our contemplatedimprovements inthe lake here."'"

IV. 1868:DEBATING THE FUTuRE OF THE LAKEFRONT The 1867legislative session, with its multiple attempts to secure grantsof land associated with Lake Parkand thebed ofLake Michi- gan,had theeffect of stimulatinga more wide-ranging public debate aboutthe future of thelakefront. To facilitateunderstanding of this debate and the proposalsthat eventually led to the passageof the Lake FrontAct, it willbe usefulto referto the areas depictedon Figure6.19

194 TheChicago Dock Swindle Buried, Chi Trib 1 (Feb 17,1867). 195 TheNew Pier and Dock Bill,Chi Trib 2 (Feb 19,1867) (predicting that the new bill wouldhave little success). 19 Id. 197 Letterfrom John M. Douglas,President, toWm. H. Osborn,Chairman, Illinois Central (Feb21, 1867). 198 Letterfrom John M. Douglas,President, to Wm.H. Osborn,Chairman, Illinois Central (Mar22,1867). 199Figure 6 is an adaptationof the Morehouse map from Illinois Central. See note523 and accompanyingtext (discussing Figure 7, the Morehouse map). Compare note 115 (discussing Fig- ure4, another adaptation of the Morehouse map).

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FIGURE 6

rvg~~~~~~~~~~~~~~~~~~~~~~~~~.l...ga ..I.I...

"NorthLake Park"(sometimes called "the three blocks") refers to thesolid land portion of the park from Monroe Street on thesouth to RandolphStreet on thenorth, together with the submerged land lyingbetween the solid land and the iliois Centralnight of way. "South Lake Park"refers to thesolid land portion of the park south of Mon- roe Street,together with the submerged land lying between the park and the rightof way."Site of ProposedOuter Harbor" refers to the area to theeast of therailroad's right of way, extending an indefinite distanceinto the lake, where it was assumeda newouter harbor would

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 844 TheUniversity ofChicago Law Review [71:799 be built,supplementing the Chicago River as a facilityfor loading and unloadingcommercial vessels plying the lake. One concernthat emerged early in 1868was howto preventfu- turegiveaways by the General Assembly of Lake Parkor thesite for an outerharbor. In an editorialentitled "The FutureHarbor of Chi- cago,"the Tribune again urged the City to make [a]n applicationto Congressfor a grantof the title to all landly- ingeast of thepresent frontage of thecity, and extendingupon thebottom of Lake Michiganthree miles into the lake, subject to all theconditions of the unobstructed navigation of theChicago harborand Lake Michigan .....00 Thenewspaper explained: It has notbeen more than a yearsince a billtransferring all the landeast of Michigan avenue, and for one mileeastward into the lake,and lyingbetween Madison and Twenty-secondstreets, to halfa dozenprivate persons, to be heldby them and theirheirs forever,was introduced into the Legislature of Illinois, and failed to pass onlybecause this journal sounded the alarm in time.But thereis nota daywhile the Legislature is in sessionwhen such a billmay not be pushedthrough corruptly, and itwill then be too late to takethose proper precautionary steps which ought to be takennow. The cityof Chicagohas too muchat staketo submit to havea citytwo miles long and one milewide planted between it and Lake Michigan,particularly when that city will be the propertyof a privatecorporation, having an irrepealablechar- ter.20' Thiswas to be thefirst of many pleas throughout 1868 for federal legislationto forestallstate legislation granting private rights in the lakefront.The legal understandingunderlying these pleas was mud- dled at best.On theone hand,if the problem was thepossibility that Lake Parkand thelakebed had beenreserved by the federal govern- mentwhen it agreedto thesale of landin fractionalsections 15 and 10,then federal legislation would clear the matter up. But it was hard to see how,on thisview of theproblem, a grantof landby thestate legislaturewas anythreat; the State could not sell landbelonging to thefederal government. On theother hand, if the problem was that titleto thebed ofLake Michiganhad alreadybeen conveyed from the federalgovernment to the Statein 1818 by operationof the equal

" TheFuture Harbor of Chicago,Chi Trib 2 (Jan1, 1868).The paperhad alreadyurged federallegislation toward this end. See textaccompanying notes 155-68 (discussing the paper's 1867editorial exchange with its readers concerning ownership of Lake Park). 201 Id.

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footingdoctrine, then it was hardto see howfederal legislation would providea solution.The federalgovernment presumably could not ret- roactivelyrevoke the grant after statehood and confertitle on someone else. On thisview of the problem,only the GeneralAssembly could clearup the City'stitle by conveyingthe appropriaterights to theCity through state legislation. For most of 1868, however, although the participantsin the debate clearlyunderstood that uncertainty aboutproperty rights was at theroot of the controversy, they showed littlesign of agreeingon or evencomprehending the exact nature of theproperty rights problem. Anotherissue that came to thefore about this time and compli- catedthe debate was thedesire for more Chicago parks. According to one source,it was "a generallyconceded fact that Chicago is remarkably destituteof breathingplaces forits population."2"2The biggest stumblingblock was money,both to acquireland and to makeit suit- able forpublic recreation.203 Lake Parkwas seen bymany as presentinga possible solution to thedearth of parkland.Interestingly, north Lake Park-the area that theFort Dearborn Addition plat had declaredto be a "publicground" forever"vacant of buildings"-wasnot at thistime thought to be fit forpark purposes. As one accountput it: The limitedarea, and thenoisy surroundings of thisproperty, to- getherwith the receding movement of population, have rendered it almostuseless as a pleasure-ground.In fact its only public util- ity has been that of a dumping-placefor cellar excavations, street-sweepings,coal-ashes and otherrefuse material ....20 It was,however, possible to envisionsouth Lake Park servingas a greenspot forpublic recreation. Thus, the Tribune,among others, proposedthat north Lake Park,augmented by landfillbetween the easternedge of theexisting park and theIllinois Central right of way, be sold,and theproceeds (which it was assumedwould go to theCity) used to augmentsouth Lake Park.Such a sale,as the Tribunesaw it, would "net a magnificentsum whichwould amplysuffice to give Chicagothe finestpublic park west of New York."205Thus, even that newspaper-itscredentials as a defenderof thelakefront established fromits oppositionto Shepard'slegislative efforts in early1867206

202 ImportantPark Project;Proposition to Sell a Portionof theLake Park forBusiness Pur- poses, ChiTrib 4 (Dec 10,1867). 203 See,for example, The Lake Park Report,Chi Trib 2 (Jan15, 1868). 204 The Park Question,Chi Trib 2 (Dec 4,1868). 205 ImportantPark Project,Chi Trib at 4 (citedin note 202). 206 See textaccompanying notes 182-84 and 195-96. Although we standby the statement in thetext, it is worthnoting that the Chicago Timesregarded its rival the Tribune as vulnerableon lakefrontand parkmatters. In particular,the Times in 1867delighted in notingthat William

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 846 TheUniversity ofChicago Law Review [71:799 thoughtit "probablethat the property will be offeredfor sale at an earlyday."2' Theproposal to sellpart of Lake Parkwas not idle chatter. Some timein late1867 or early1868 the City entered into negotiations over a possiblesale of northLake Parkto theIllinois Central and other railroadsfor purposes of constructinga new passenger depot. Three railroadswere involved in thediscussions, since the Illinois Central by thistime had grantedtrackage rights to theMichigan Central Rail- roadand theChicago, Burlington & QuincyRailroad, and each of the threecarriers used the lakefront entrance and theIllinois Central depotand terminal facilities. The matterunderwent extensive consideration by a specialcom- mitteeof the CommonCouncil. In January1868, the committee reportedthat two meetings had takenplace withofficers of theIllinois Centraland otherrailroads, which had offered$800,000 for north Lake Park.2%The committee'sreaction was positivebut carefully hedged:"our opinionwould be thatif thecity could legally sell the aforementionedstrip of land for what it is worth,without doing injus- ticeto privateinterests, she oughtto do so ....*,20 The committeerea- sonedthat the land would never be ofmuch value for park purposes,

Brosswas among those interested in a SouthSide park project. See, for example, The Proposed Park;The Imbroglioabout It at Springfield,Chi Times8 (Feb 20,1867). Bross was a partowner of theTribune and served as lieutenantgovernor of Illinois during 1867, and by virtue of the latter positionpresided over the Senate during that time. Bross's name arose in Shepard's 1867 efforts as well,but it is unclearwhether his name (along with that of Scammon and others) had been in- cludedonly in an attemptto give the initiative credibility, as the Tribune maintained, see Chicago Dock Bill,Chi Trib at 1 (citedin note174) ("Mr.Scammon, Mr. Bross and Mr. Walker, and, we believe,one or twoothers, disclaim any participation in the preparation of this fraud upon the public,and denounceit roundly.").The Tribunecontended that "the real corporators are Mr. MelvilleW. Fuller, and his immediate circle." Id. This response of the Tribune is unsurprisingbe- cause,unlike Bross, a Republican,future Chief Justice of the United States Fuller was a Democ- rat(and thus more likely to receivefavorable treatment from the Chicago Times than from the Tribune).See generallyPart V.A (observingdifficulties associated with extracting reliable informationfrom partisan nineteenth-century newspapers). For a lookinto the fierce rivalry between the two newspapers,see FrederickFrancis Cook, BygoneDays in Chicago:Recollections of the "GardenCity" of the Sixties 51-58 (A.C. McClurg1910), which recounts the brief military sup- pressionof the Chicago Times during the Civil War and the consequent threat from its support- ersto publicationof the Chicago Tribune. President Lincoln himself rescinded the suppression order.See id. 207 ImportantPark Project,Chi Trib at 4 (citedin note 202). 208 The railroadsactually made two proposals. Under the first, for which the railroads of- feredto pay the City $400,000, the railroads would acquire north Lake Parkfor a newdepot, and wouldundertake to fill in, bring to grade, and otherwise improve south Lake Park.The railroads estimatedthat this project would take four to fiveyears. Under the second, for which the rail- roadsoffered to paythe City $800,000, the railroads would acquire north Lake Park,and the Citywould undertake any renovations to southLake Parkon itsown. Lake Park;The Report of theCommittee Appointed by theCouncil; Offer by theRailroad Companiesto Fill theBasin, and Buyfrom Randolph to Monroe, Chi Trib 2 (Jan15,1868) (reproducing the committee report). 209 Id.

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 2004] TheOrigins of the American Public Trust Doctrine 847 givenits location in a commercialarea; that,with the proceeds of the sale,the Citycould make "out of whatis nowalmost a barrenwaste and stinkingpond [south Lake Park],a beautifullakeshore park"; and thatthere would be enoughmoney left over to purchasegrounds for parksin outlyingareas of the City,"without adding to our bonded debtor increasingthe taxes for these necessary objects.",210 The principalstumbling block identified by the special committee was whetherthe City had authorityto sell theland northof Monroe Street.The committeefound it "doubtfulwhether the city has a right to sell,even by quitclaim," the land in question;indeed, it conceded thatthe City'sclaim to the titleof any partof Lake Parkwas ques- tionable.21Accordingly, the committee "urge[d] that steps be takenat an earlyday forsuch legislationas shall be necessaryto place the city'stitle to the propertybeyond all question."212As to price,the committeeregarded the railroads' $800,000 offer for north Lake Park as beingmerely an openingbid. 213 In mid-January1868, the Common Council held a specialmeeting calledby Alderman Wicker, who served on thespecial committee, to considerendorsing a proposedbill to be introducedin Congress.The purposeof thebill was "to securethe harbor interests of Chicago",214 byproviding "[t]hat all theright, title and interest of the United States in and to the lands and groundsconstituting the bottomof Lake Michigan lyingon the easternfrontage of the cityof Chicago ... for thespace of one marineleague eastwardfrom the shore line of said lake"be cededand conveyedto Chicago.215 In a letterto theeditor of the Tribunelater that month, Wicker summarizedthe case forthe proposed federal legislation. 216 Such legis- lationwas a necessarystep in securinga new depot,which "will not onlybe an ornamentto thecity, but a prideand convenienceto our citizens....,217 Morebroadly, clarifying the City's title to thelakefront

210 Id. 211 Id (limitingits discussion of the City's rights to theland to raisingthe issue). 212 Id. 213 See id ("[W]e do notsay that the offer ... is sucha one as thecity ought to accept."). 214 CommonCouncil; Special Meeting- The Harborand Lake Shore,Chi Trib4 (Jan16, 1868). 215 Id (quotingsection 1 ofthe draft bill). The permitteduses and purposes included "con- structingdocks or enlargingthe harbor accommodations ofsaid city," with the Secretary of War andthe Corps of Engineers to supervisethe project, and "reserving or laying out [portions of the land]as a publicpark." Id (quotingsections 2 and3 ofthe draft bill). The restrictionswere that theentrance to theChicago River could not be obstructed,that any construction of"docks, piers, breakwaters,orother works" had to be undertakenin "the manner most serviceable to thenavi- gationof Lake Michigan,"and thatnone of theconstruction expense could devolve upon the UnitedStates. Id (quotingsection 2 ofthe draft bill). 216 See Chas.G. Wicker, The Lake ParkQuestion, Chi Trib 2 (Jan26,1868). 217 Id.

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 848 TheUniversity ofChicago Law Review [71:799 wouldlay the foundation for a newouter harbor whose development wouldbe securelycontrolled by the City and wouldyield "a revenue of hundredsof thousandsof dollarsa year"in leases.2"Finally, the proposedlegislation was imperativeto head offattempts by private adventurersto wrestcontrol of the site of the futureharbor away fromthe City: Twicewithin a fewyears bills have passed one branchof our StateLegislature, granting to individualsthe whole of Lake Park and outwardharbor privileges.... The menthat have been en- gagedin gettingup thesebills understand the wholequestion, and so longas itsownership is undecided,it willbe a tempting baitfor them.219 As ifto punctuateWicker's concerns, the publicity about a possible sale of northLake Parkcaught the attention of thesame forces thathad sought to securegrants of the lakefront in the 1867 legislative session,with the result that a kindof bidding war broke out. Henry M. Shepard,Fuller's law partner, who had beenso activein effortsto obtainthe submerged land as a memberof thelegislature in 1867,pub- liclyoffered to purchasenorth Lake Parkfor $1,000,000, or $50,000 annuallyfor a ninety-nine-yearlease.220 Two weeks later, another lawyer(making explicit reference to Shepard'soffer) upped the ante, offering"for the fee of said premises,the sum of $1,250,000in cash,or fora ninety-nineyears' lease thereof, an annualrent of $60,000." 221 Someothers dissented from the idea ofa sale ofany part of Lake Park.A groupof leading citizens -including a formermayor, John C. Haines,and such legendarynames as ThomasHoyne, John Wen- tworth,and PotterPalmer-signed a remonstrancesent to theCom- monCouncil opposing any sale. The remonstranceincluded perhaps thefirst invocation of theidea of a publictrust with respect to the lakefront:it asserted that public grounds of the City "ought to be held foreversacred as theproperty of the public in trustfor the enjoyment anduse ofall conditionsand classes of poor, as wellas therich, among

218 Id. 219 Id. 220 See CommonCouncil; Proposition from H.M. Shepard,Esq., to Buy a Partof Lake Park for$1,000,000, Chi Trib 4 (Feb 11,1868) (quoting a letterfrom Shepard to theMayor and Com- monCouncil). Shepard was careful,as a legalmatter, to notethat his offer was conditioned "uponthe city being able to give a satisfactorytitle to the property named." Id. And he was careful,as a politicalmatter, to statethat the offer was "made only upon the assumption ... ofits beingthe declared policy of thecity authorities to disposeof the property in questionfor other thanpublic uses." Id. 221 Common Council;... AnotherProposition to Buy a Portionof Lake Park,Chi Trib 4 (Feb25, 1868).

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 2004] TheOrigins of the American Public Trust Doctrine 849 our people."22This trustwas said to extendto "futuregenerations," which"have in thisregard far higher claims of property than whatever demandmay arise out of the business necessities of railroad and other corporatemonopolies .... '9221 The remonstratorsacknowledged the importanceof parkland for the City, but thought that this counseled in favorof retaining all ofLake Park,as opposedto sellingpart of it with theproceeds to be usedfor other parks: [I]t wouldseem thata soundpolicy imperatively demands that theLake Park,on thefront of ourcity, should be heldaccording to the originalconditions of the grantby the State and the UnitedStates, forever free and open,the principal and crowning naturalbeauty in thecity we occupy-an open reservoirof fresh air amongthe otherwisecrowded thoroughfares and compact massesof buildings.224 The remonstratorseven opposed legislationconferring title on the City,for in theirview "the titleof said propertyis by operation of law accordingto thenature of suchdeductions, now clearly vested in the generalpublic or whole people,and not the corporationof

Chicago .... .922 No side had enoughforce entirely to prevailin the Common Councilin early1868-not thoseseeking to supportfederal legislation,nor those seeking to sell a portionof Lake Parkto therailroads (therewas someoverlap in thosegroups), nor those opposed to either action.This stalemategreatly frustrated the editorsof the Tribune, who continuedto presstheir case forthe need forfederal legislation perfectingtitle in theCity (whether some portion would then be sold to therailroads or not).They reminded their readers that "[l]ast win- tercertain parties went to Springfieldwith two or threecunningly de- visedbills to stealthe ground constituting the lake basin,and to take away fromthe publicthe entirelake frontoutside of the breakwater."226They predicted similar efforts in the1869 legislative session, and saw federallegislation perfecting title in the Cityas "at least render[ing]it moredifficult for the light-fingeredtribe to securetheir

222 CommonCouncil, Chi Tribat 4 (citedin note220) (quotingthe remonstrance to the Mayorand CommonCouncil) (italics in original).This was a relativelynovel use of theterm "trust."The trustoriginated as a conveyancingdevice, see JohnH. Langbein,The Contractarian Basis of the Law of Trusts,105 Yale L J 625, 632 (1995) (discussingthe medieval originsof the trust),and onlyin relativelyrecent times has cometo be usedas a termto describea varietyof fiduciaryobligations, including duties owed by government tothe general public. 223 CommonCouncil, Chi Trib at 4 (citedin note 220). 224 Id. 225 Id.The word "deductions" here probably should have been "dedications." 226 The Lake Front,Chi Trib 2 (Feb 12,1868).

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 850 TheUniversity ofChicago Law Review [71:799 booty."227The paper had no use forthe signers of the remonstrance, in- sofaras theyopposed the legislationout of fearthat it wouldthen lead to a portionof the land's being sold; the Tribune thought that in- actionwas morelikely to resultin Fuller'sand his cohorts'gaining controlof the lakefront. The paper wrote of the remonstrance: If it had beena petitionto investthe eminent law firmof Fuller & Shepardwith the title to thelake basinand everythingeast of it,it wouldprobably have been signed with equal alacrity,and it couldnot have been framed more effectually to putthe title into thehands of private parties. Is itlikely that the framers and bene- ficiariesof the Harbor and Dock bill,and of the Skating Park bill of last winterwould leave thelake frontopen forpurposes of ventilation,ifthey should ultimately carry their measure through the Legislature?... [D]oes anybodysuppose that they went to Springfieldlast winter to securea breathing-placefor the people ofChicago?2 The newspaperheld out hope thatthe Council "will maintain its pro- priety,notwithstanding this display of fireworksand gymnastics,and quietlydo itsduty."> As 1868drew to a close,the Mayor and the Common Council began to bestirthemselves. In earlyDecember 1868, prompted by the Mayor,a committeeof theCommon Council recommended that the Cityobtain from the State and from Congress "such legislation as will placethe city's title to [LakePark] beyond all controversy,and secure also the submergedland, or the bottomof Lake Michigan,lying in frontthereof, for the distance of one marineleague from the shore." The proposalwould have affordedthe Citythe abilityto lease the submergedland and to sellat leastpart of Lake Park,the latter condi- tionedupon approval of three-fourths ofthe Common Council. Here we see forthe first time the faintest glimmer of comprehension ofthe fullcomplexity of the property rights problem. If theCity were to ob- tainboth federaland statelegislation confirming the City'stitle to Lake Park and the bed of Lake Michigan,this presumably would coverall thebases, which reveals that someone advising the Cityfi- nallyunderstood that there were a numberof bases thathad to be covered.23

227 Id. 228 Id. 229 Id. 230 Lake Park,Chi Trib2 (Dec 9,1868). See also The Council;Regular Meeting of theBoard ofAldermen; ... The Titleto Lake Park-A Communicationfrom the Mayor, Chi Trib4 (Dec 1, 1868) (quotingMayor's request that the council so recommend). 231 Defenders of the proposed legislationsounded several by now familiarthemes. First, theyhearkened back to the 1867 legislativeefforts on the part of privateparties to secure the

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Yet althoughthe committee of theCommon Council was willing to seek federaland statelegislation securing title to thelakefront in theCity, it was notprepared to endorsethe proposed sale to therailroads.This caution seems to have been bornpartly from negotiating tacticsand partlyfrom political concerns. Those associatedwith the Cityhad been reluctantthroughout the year to namea pricefor the transaction.Undoubtedly, no one on the committeeof the Common Councilwanted it said that the railroads had gottena "steal"from him in obtainingthe land on termsthat turned out to be too favorable. Further,with numerous prominent citizens being firmly on recordas opposedto thesale of anyportion of Lake Park,there was littlemar- ginin beingthe first to favora sale. At the end of 1868,the CommonCouncil adopted the committee's recommendationthat the City seek federaland statelegislation securingChicago's control over the lakefront.232Like the committee, the Councildeferred any action on whetheror on whatterms north Lake Parkmight be soldto therailroads.233 As the first step in itslegis- lativeefforts, the Cityprepared to send to Springfielda deputation, headedby Alderman Joshua Knickerbocker, who also servedin theIl- linoisHouse of Representatives,to seek thedesired legislation in the upcominglegislative session. Whatwas the attitudeof the IllinoisCentral toward the public debatein 1868about the future of thelakefront? Unfortunately, the survivingcorrespondence for 1868 sheds little light on theviews of the railroad.Some thingsare clear,however, either explicitly from the CommonCouncil documents or implicitlyfrom newspaper articles and editorials.On theone hand,we knowthat the railroad was eager to obtainnorth Lake Parkfor depot purposes,234 that it was directlyin-

sameland, with the Tribune reporting that "[w]e are nowable to stateas a factthat the scheme whichfailed then will be renewedthis winter, and that a powerfulcombination has beenformed to getpossession of thisland." The Lake Front,Chi Trib 2 (Dec 2, 1868).Second, they empha- sizedthe need for the construction ofan outerharbor, and one whoserevenue went to theCity, notprivate parties. See id. See also TheFuture Harbor of Chicago,Chi Trib2 (Nov 25, 1868). Third,they linked the sale to therailroads of any portion of Lake Park(and legislationperfect- ingtitle in theCity was a conditionprecedent to anysuch deal) withthe opportunity to secure fundsfor parkland throughout the City, which "is nowpractically destitute of park privileges." ParkQuestion, Chi Trib at 2 (citedin note204). The Tribunecompared Chicago unfavorably, withrespect to theavailability of park grounds, with eastern cities such as NewYork and Phila- delphia.It acknowledgedthat "[t]he advantages afforded by a beachof unsurpassed beauty give promiseof a magnificentfuture for Lincoln Park," but noted that "it is notadapted to satisfythe wantsof the South and West Divisions of the City." Id. 232 See TheCouncil; Regular Meeting of the Board of Aldernen;Another Park Project- The ProposedSale ofa Portionof Lake Park,Chi Trib 2 (Dec 29,1868). 233 See id. 234 Theresurvives in the archivesof the CommonCouncil a petitionfrom the railroads seekinga sale ofthe land in question.Petition of I.C. R.R. Co.,C.B. & Q. R.R. Co. andM. C. R.R.

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 852 TheUniversity ofChicago Law Review [71:799 volvedin negotiationswith members of the CommonCouncil con- cerninga pricefor the proposed transfer, and thatit was awareof the effortsof others to obtaintitle to or a lease ofthis land. On theother hand,there is no evidencebased on thesesources that the railroad had anyinterest at thistime in anythingother than north Lake Park no evidence,in particular,that it had anydesigns on thesubmerged landthat was envisioned for an outerharbor. The failureof the CommonCouncil to reachan agreementon pricewith the Illinois Central, combined with the unsettling prospect of a biddingwar forthe rightsto northLake Park,undoubtedly causedthe railroadto rethinkits situationalong the lakefront,and moreparticularly its support for the City's efforts to obtainlegislation clarifyingthe City's title to thelakefront. The Tribune,in a remarkable analysisat theend of 1868that appears to havereflected the views of theofficers of the Illinois Central, warned the City's political leaders thattheir failure to nail downan agreementwith the railroad might induceit to turnto Springfield,not as an allybut as a competitor: The committeereported that it was inexpedientto takeany ac- tionon theproposed purchase of thesethree blocks by the railroads.We thinkthis was a mistake,for, if the railroads should go to theLegislature direct, instead of dealing with the Council, they could,perhaps, get the property for a gooddeal lessmoney than theyare willingto paythe city for [it].... Therehas beena good deal of unnecessaryshivering over this question. Probably some Aldermenare afraidthat their motives will be misconstrued.... The philosophyof thecase, as we understandit, is this:The rail- roadsneed the ground very much. The city does not need it at all. The railroadmanagers believe that it is cheaperin thelong run to havea fairand squaretransaction with the city, consummated in theface of the whole world, rather than to incurpublic odium and hostilityby goingto Springfieldthis winter as competitors withthe city in theeffort to obtaina titleto theground. In our viewthe onlypoint to be consideredis the one of price.Here therewill, perhaps, be a disagreement,and if the railroad men are notwilling to pay whatthe ground is worth,there will be good reasonsfor ending the negotiation.35 Withthis commentary, the Tribunehad gone halfwaytoward unlockingthe logic that impelled the Illinois Central to seekthe Lake FrontAct of 1869.Two issueswere on thetable: the future of north Lake Park,and the future of the outer harbor. With respect to bothis-

Co. (Nov 30, 1868), available in Illinois Regional ArchivesDepository, Northeastern Illinois University. 235 Lake Park,Chi Tribat 2 (cited in note 230).

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 2004] TheOrigins of the American Public Trust Doctrine 853 sues,the railroad's general position theretofore had beenthat the City shouldget clear title, and then deal withthe railroad on termsthe rail- roadregarded as fair.But what if the City got clear title, and then held up the railroad?Or worse,what if the Citygot clear titleand then dealtthe property to a rivalgroup of entrepreneurs? If the City could not be reliedupon to deal withthe railroadon advantageousterms, thenwould not the railroad be betteroff going to thelegislature in an effortto getboth sets of rightstransferred to therailroad directly? It is unclearwhen exactly the Illinois Central reached this conclusion. 36 However,once the new legislativesession began in January1869, it soonbecame apparent that this was therailroad's intention and plan.

V. 1869:CHICAGO AND THE ILLINOIS CENTRAL Go TO SPRINGFIELD A. A Noteon Newspapersand State Legislatures in the Mid-NineteenthCentury Beforeturning to thecritical events of the 1869 Illinois legislative session,we offersome preliminaryobservations about the sources on whichwe primarilydraw in reconstructingthose events, and the institutionin whichthose eventstranspired -the Illinois General Assembly. Our principalprimary sources are contemporarynewspaper accounts.237These include not only the daily Chicago newspapers, which had a specialinterest in legislativematters touching upon the lakefront,but also theDaily Illinois StateJournal, published in Springfield, as wellas certainother downstate newspapers. Two relatedproblems arise foranyone who seeks to use mid- nineteenth-centurynewspapers in an effortto reconstructa historical event.The firstis thatthe papers of the day were overwhelmingly partisan.They perceived their role as beingnot just to informbut also to persuade,and thislatter purpose suffused reporting and editingdeci-

236 One intriguinglyambiguous letter from Douglas to CharlesJoy, President of theChi- cago,Burlington & QuincyRailroad, dated November 21, 1868,may suggest that the railroad chieftainshad settled upon the plan by that date: MyDear Sir: I haveyour letter of the 19' Inst.,and am delighted with its import. You willnot be embarrassedby our attitude; we shallmaintain this upon its own merits. I see theposture of [the] Michigan Central interests. Again I sayI amgratified by your letter beyondexpression. Yoursvery truly JohnM. Douglas Pres. Theletter to which Douglas was replying has been lost. 237 See textfollowing note 20 (notingvariety of sources).

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 854 TheUniversity ofChicago Law Review [71:799 sionsto a muchgreater extent than today. Today's newspapers are structuredso thatreaders can easilydifferentiate among news articles, officialeditorials, op-ed pieces,letters to the editor,and advertise- ments.All of thoseformats existed in thenineteenth century, but the distinctionsamong them were less perceptibleto the reader-and probablyto thoseproducing the newspaper as well.Thus, it is notun- usual,in readinga newspaperof the period, to findoneself uncertain whethera particularpiece was intendedto be a factualaccount of eventsin Springfield,or an expressionof thenewspaper's hopes and desiresas to howa particularmatter would come out, or some of both. The partisannature of the newspapers affected the style of writing,which was oftenshrill and accusatory.This is ofparticular importanceto us becauseof the local tradition of referring to the1869 Lake FrontAct as the"Lakefront Steal," and theinferences that some au- thorshave drawn from this.2 The descriptionof theAct as a "steal" can be tracedto contemporarynewspaper reporting. For example, an 1869article reported that the then-pending lakefront bill was "under- stoodto be thebiggest 'steal' and outragethat has everbeen perpe- tratedupon any city, Chicago being in this case thevictim, and the Illi- noisCentral the thief."239 And an 1873newspaper article cried, in part, "TheLake FrontSteal -Let It Be Repealed!"2` It turnsout, however, that the word "steal" was rather commonly usedby mid-century Illinois newspapers to describedisfavored legis- lativeproposals. Sometimes the word was employedto suggestthat a legislativeenactment had been procuredthrough corrupt means. Othertimes the word suggested that a law was passedsurreptitiously, or withoutadequate public debate or consideration.241At yet other times,all thatwas meantwas thatthe measure would result in someone'sgetting unduly favorable treatment -what is todayoften termed a "sweetheartdeal."242 In fact,this last meaningof theword "steal"

238 See note19 and accompanying text (collecting sources). 239 TheIllinois Legislature, Peoria Daily Transcript 1 (Feb 23,1869). This would not be this newspaper'sultimate view of the Lake FrontAct. See note363 and accompanying text. 240 TheLegislature and Mr.Reynolds; The Lake FrontSteal-Let It Be Repealed!,Inter- Ocean(Chicago) 2 (Mar4,1873). 241 Forexample, in discussingthe so-called Skating Park Bill of 1867,the Chicago Times termedit the "Michigan Park Steal." Michigan Park Steal, Chi Times at 4 (citedin note 186). Yet whiledenouncing the bill's leading proponent, Henry M. Shepard,in harsh terms, and suggesting thathe wasattempting to secure the land without adequate public consideration ofthe matter, thenewspaper did not suggest that Shepard had resorted to bribery or other corrupt means. The idea,instead, seemed to be thatthe measure was illegitimate because of the surreptitious way in whichit was introduced and promoted. 242 In 1867,the Illinois legislature debated whether to build a newstatehouse in Springfield, as opposedto movingthe statehouseto anothercity. As describedby one iratenewspaper, Springfieldhad maneuvered to pay$200,000 for the existing statehouse ("which is saidby good judgesto be lessthan half what the property is actuallyworth at thepresent time"), and then made "a conditionof thepurchase that the stateshall erect a new state-houseat a costof

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 2004] TheOrigins of the American Public Trust Doctrine 855 continuesin use todayin commercialsettings, as in thesentence, "At thisprice, the car is a steal!" A second and related difficultypresented by newspapersas sourcesis thatsometimes they simply made things up.243 For example, it appearsthat newspapers would occasionally invent interviews with individualsthat had notoccurred, or evenreport interviews with people whodid not exist.244 In an accountof these practices, a Washington, D.C. correspondentfor the Tribunecalled upon readersto stamp everyinterview of "greatand littlemen" coming out of the nation's capital"as threeparts lie and one parteavesdropping," and proceeded to provideevidence that other publications had fabricatedinterviews and statementsof those said to havebeen interviewed.245 To be sure,there was considerablereason to doubtthe integrity of some elected officialsin the Gilded Age. The CreditMobilier scheme,revealed in theearly 1870s, which had involved,among other things,efforts of some associatedwith the Union Pacific Railroad to line the pocketsof variousCongressmen, is but one well-knownex- ample.24'But the reality remains that fabricated stories and overheated rhetoricwere endemic to thenewspapers of theera and requirethat muchreporting be takenwith a largegrain of salt. It is also usefulto say a fewwords about the cultureof Spring- field,for whichwe draw upon the same sources-contemporary newspapers-withthe same caveats.The menelected to servein the IllinoisGeneral Assembly would descend upon Springfieldgenerally onlyonce or twiceduring their term of office, and usually for only two or threemonths early in the yearin whicha sessionwas held.They camefrom a varietyof walks of life, with the practice of law probably beingthe most common. It appearsthat many members did not stand forreelection; consequently, for these members their legislative ex- perienceconsisted of one relativelybrief interlude. Upon theirarrival

$3,000,000."Chi Times 1 (Feb 9, 1867).The unsympatheticnewspaper denounced this as "a real estate'steal' of no ordinarysize." Id. 243 See Mark W. Summers,The Press Gang: Corruptionand the IndependentPress in the GrantEra, 17 Cong& ThePresidency 29,32 n 9 (1990)(collecting examples). 244 Thisis notto suggestthat similar events never occur today. See, for example, Daniel A. Levin and Ellen BlumbergRubert, Promises of Confidentialityto News Sources afterCohen v. CowlesMedia Company:A Surveyof NewspaperEditors, 24 GoldenGate U L Rev 423,458 n 123 (1994) (recountingan infamous1981 incident in whichWashington Post reporter Janet Cookefabricated an eight-year-oldheroin addict and won a PulitzerPrize for the reporting beforethe fabricationwas uncovered);Howard Kurtz,N.Y Times UncoversDozens of Faked Sto- riesby Reporter, Wash Post Al (May11, 2003) (recounting the Jayson Blair saga at theNew York Timesand alluding to the Stephen Glass affair at TheNew Republic). 245 Washington;... The Abuses of Interviewing,Chi Trib 2 (Nov 26, 1870). For other evidenceof the practice of attributing statements to individualswho had not made them, see James Parton,Falsehood in the Daily Press, Harper's New Monthly Mag 269 (July1874). 246 See David Haward Bain, Empire Express:Building the FirstTranscontinental Railroad 675-711(Penguin 1999).

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 856 TheUniversity ofChicago Law Review [71:799 in Springfield,the legislators took up lodgingsin boardinghouses or at theLeland Hotel. During the day, they would run into lobbyists at nearlyevery turn-on the floorof the legislativechambers, in the hallwaysof the capitol. In theevenings, released from their daily rou- tineand, in manyinstances, the watchful eye ofwives and neighbors, liquorflowed freely, and cigarswere consumed with equal gusto,in thedining room and bar at theLeland. The consumables-andper- hapsa fewother vices as well-werealmost certainly underwritten by thelobbyists. The lobbyists,many of whomwere former legislators or elected local officialsfrom throughout the State, constituted an integralpart of the legislativeprocess. Springfield was a citywhere there was moneyto be made,given the types of matters with which the legislaturewas dealing-charteringcorporations, approving railroads, estab- lishingpark districts.247 How muchinfluence did thelobbyists wield? The issueis addressedat lengthin a storypublished by the Chicago Tribuneduring the height of a pitchedbattle in 1867over a proposed billto regulatewarehouses.m The newspaper'sSpringfield correspondent,who signed his piece "A Lookeron inVenice," purported to re- countan eveningconversation with "[a]n old and experiencedlobby- ist,who is retainedby the elevator gang to helpdefeat the bill .... *249 Accordingto thisaccount, the lobbyistallowed that legislators "aremerely men, mostly poor-generally living on theirwits; a majorityof them lawyers, whose profession and practice require them to re- ceivefees for advocating and defending wrongs as wellas rights."He statedthat "some of themare 'retained'to moveamendments to the bill proposedto be beaten,under pretence of makingit moreper-

247 The importanceof thelobby is capturedin thefollowing short article from an 1869 newspaper(which is instructiveas well with respect to our previous discussion of the liberal use ofthe word "steal" in the newspapers); itis entitled,appropriately enough, "The Lobby": Installmentstothis brench [sic] of the legislative department ofIllinois have been unprece- dentedlylarge this week. Every train brings fresh arrivals of old faces.The hotels, the bar rooms,the lobbies of both houses; in fact, in every place are tobe seen,the manly and classic physiquesof thesedisinterested public servants descanting to an overwhlemed[sic] statesmanof one ofthe other houses on thepopularity and importance of "my little bill," that"does notaffect the interests of anyone's constituents."St. Louis,Belleville, Alton, Carlinville,Jacksonville, Bloomington, Champaign, Quincy, Ottawa, Chicago and other "in- terior"towns have sent their "committees" torepresent park measures, the Northwestern & Milwaukeeand otherrailroads, gas, insurance companies, the Chicago baggage and omni- busmonoply [sic], Normal, Industrial and other universities, state institutions, court houses, countyseats, ferries, etc., etc., until it is "railroads,""parks," "ferries," "'bills," "'d-d schemes,""4steals," etc., on everyside. The Lobby,Ill StRegister (Springfield) 1 (Feb 4,1869). 248 Springfield;...How LegislatorsAre Manipulatedby the Lobby;A PowerfulCombination to DefeatAnti-Monopoly Measures, Chi Trib2 (Feb7,1867). 249 Id. 250 Id.

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 2004] TheOrigins of the American Public Trust Doctrine 857 fect."251This was said to be "one of [the]favorite tactics" of Senator AlonzoW. Mack (on whom,more momentarily), as was gettingmat- tersrecommitted for smothering or theaddition of a hostileamend- ment.252 Withrespect to thespecific matters of "honesty and bribery,"the unnamedlobbyist analogized legislators to "the metalsand some othersubstances.",253 Justas differentdegrees of heat were required to meltiron, zinc, tin, or copper,at one endof the continuum, and gold or silver,at theother end, so weredifferent amounts of moneyrequired to movelegislators. To thequestion whether he could"buy the vote of anymember" -"Are thereno diamondsamong them?" -the lobbyist is reportedto have said,"Yes. We can purchaseany member'svote; butthere are somewho are likethe diamond, and to buythem costs farmore than their votes are worth.Even thediamond givesway be- foreintense heat."254 Of course,to saythat a "cheapvote" was as useful in a roll-callvote as a "dear vote"was notto denythat "it is necessary to securethe services of someshrewd, sharp, experienced rascals, like Senator - -, (you know who I mean,) to pilot our bills,amendments, motionsand parliamentarymanoeuvres; else thewhole craft might be shipwreckedand go to the bottom.,'255The correspondentreported thatthe conversationended when, "after reaching the fourthpot of punchand thethird 'Havana,' my lobby friend said thathe guessedI had takendegrees enough for one sitting,and thatit wasn'tbest to learntoo manythings at one time."9256 Whatis one to makeof this report? It is possiblethat the reporter faithfullyrecounted an actualconversation. It is possibleas wellthat no suchconversation ever occurred. We musttake fromthis report, and others,what can be corroboratedelsewhere and be cautiouswith theremainder. It is also usefulto discussthe background of the Illinois Central's principal lobbyistin 1869, one Senator/Colonel/Captain/Doctor Alonzo W. Mack,and his role at the sceneof muchimportant back- stage lobbyingactivity, the Leland Hotel. Mack was a nativeVer- monterwho had movedwest in stages,arriving in Illinoisafter com- pletingmedical studies.257 He becameinvolved in Republicanpolitics as welland tookup thepractice of law. He also servedfor a brieftime

251 Id. 252 Id (attributingsuch tactics to otherlegislators as well). 253 Id. 254 Id. 255 Id. 256 Id. 257 See NewtonBateman and Paul Selby,eds, Historical Encyclopedia of Illinois 348 (Mun- sell1902) (providing a brief biography).

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 858 TheUniversity ofChicago Law Review [71:799 as theeditor of the Chicago Republican. In 1862,Mack helped to or- ganizeat Kankakeethe 76th Regiment Illinois Volunteers for partici- pationin the CivilWar. Commissioned a colonel,he servedas com- manderuntil early 1863.m Mack was electedto theIllinois House in 1858and thento the Senatein 1860and again in 1864.During the 1867 session of the legislature-hislast term as a member-Mackplayed a centralrole in ensuringthat the growing populist sentiment did not result in lawsregu- latingthe railroads.-9He was sufficientlyimpressive and influential thathe receivedextraordinary committee assignments-so much so thatthe Chicago Times (a Democraticnewspaper and thusnot well- disposedtoward Mack duringhis legislative career) expressed alarm overthe extent to whichhe seemedto chairor serveon everysignifi- cantcommittee. His chairmanshipof thecommittee on railroadswas especiallyconcerning, as the Timesregarded a majorityof thatcom- mittee'smembers as "[m]enwho, on accountof a plentifullack of brains,will interposeno argumentativeobstacles which Doctor AlonzoW. Mack will not find the way to overcome."260The newspaper wenton to notethat Mack was also on thenext-most important committee,that on banksand corporations(where oversight by another memberwould be futileas "[n]o one man is capable of a taskso great"as "doingall thewatching which Mack needs")and thecom- mitteeon swamplands.261 "In fact,Mack is on all the committees wherethere is anyselling or tradingto be done,or anymoney to be made.... ,262 In 1869,Mack was no longera memberof the Senate, but the Illi- noisCentral retained him to representits interests with respect to the Chicagolakefront. He set up shopat theCapitol during the day and

258 See id. 259 See GeorgeH. Miller,Railroads and theGranger Laws 68-70(Wisconsin 1971). The 1867legislative session was especiallysignificant because it was thefirst full session since the CivilWar had ended. See JohnH. Keiser,Building for the Centuries: Illinois, 1865 to 1898 39 (Illi- nois1977) (noting post-war social and economic pressures on thelegislature to passprivate laws suchas thosechartering corporations). 260 SignificantIndications, Chi Times 4 (Jan9,1867). This newspaper may have held particu- larenmity toward Mack because he "wasone ofthe leading spirits in theestablishment of'The ChicagoRepublican,' in May,1865" and briefly worked for that rival publication before resum- ingthe practice of law in Chicago.Bateman and Selby, eds, Historical Encyclopedia of Illinois at 348(cited in note 257). 261 SignificantIndications, Chi Times at 4 (citedin note 260). 262 Id. Lestthat statement be toosubtle, the newspaper added this: Thereis talkabout appropriating $500 to each member, in addition to salary, to enable him to paywhisky bills, and possibly in thehope of keeping him reasonably honest. There will be no needof any such appropriation tothe chairman of the committee on railroadsfor the first-mentionedpurpose, and as tothe second, it would be botheffort and money wasted. Id.

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 2004] TheOrigins of the American Public Trust Doctrine 859 residenceat the Leland Hotel duringthe evening.One newspaper's correspondentdescribed the latter scene thus: Now,you mustunderstand that there is no jumblingand mixing up ofpeople at theLeland House dinner-tables.Each one is ten- antedby a peculiarset, and, when a manleaves one and goes to another,it is understoodthat he has abandonedone class of opinionsand adopteda differentone. This is veryconvenient, and saves embarrassingmistakes. Thus there are a coupleof tables reservedfor the ladies. Of theseI saynothing, since there is nothingto be said.At otherssit strangers, chance visitors; at others,men who have business-legitimatebusiness-with the Leg- islature;at another,members who claim to be honest;at another, menwho are in themarket. Of course,there is no signout, but it is understoodthat "every article at thistable is unconditionally offeredfor sale." Then there is anotherfor special lobbymen, at which presides-sicutinter ignes, Luna minores-Dr. Mack. Whena personleaves the "honest men's" table and goes overto thatof the"corruptibles," it is an intimationthat he is readyto listento proposals.As somevirgin, hitherto shy and coy,courting thedomestic shade, plain in herattire, and flyingthe advances of men,suddenly becomes bold and forward, gaudy in herapparel, a frequenterof parties,and a pursuerof a husband,so does some member,forsaking his accustomed seat and thewaiter he so long has feed[that is, tipped], seek a newtable and new associates, and thereare vestigianulla retrorsum -ne'er a one ofthem goes back again.263 Thisdescription is of particularinterest because it is set forthin the contextof discussingone SenatorCoy, from Kendall County, whomthe newspaperdenounced for supporting the lakefrontbill. Shortlyafter the foregoing excerpt, the newspaper account continues concerningSenator Coy: The businessof the session commenced, and I beganto see more nearlythe course pursued by my man. The Lake Frontbill came up, and he supportedit, supported it zealously,for he had en- joyedthe privilege of diningat Dr. Mack'stable, and oflearning fromthat person, just precisely how things stood. He was one of thefirst recruits -no eleventhhour convert, but an earlybeliever in the doctrineof the poet: "Heaven sentus here to vote and trade."264

263 Springfield;Coy; Coy in theDining Room-Like SeekingLike; Coy in theLegislative Hall and on Bills;Coy on Coy;Coy on theTribune, Chi Trib 2 (Mar 10,1869). 264 Id.

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One can see in thisdescription the way in whichnewspapers could insinuatedishonesty, although in thisone instancethe correspondentallowed that "[i]t would be wrongto say[Senator Coy] was bought,for I am confidenthe has receivedno money."265 By wayof apparentexplanation, however, it was notedthat "[t]he Legislature has notyet adjourned, and thebill has notpassed the Senate."266In otherwords, the railroad was notgoing to pay foranything short of thefinished product.

B. TheLake FrontAct of 1869 The Cityof Chicago made the opening bid for control of the lakefrontin 1869.On January13, Representative Knickerbocker, who, as notedpreviously, served also as an aldermanon theCommon Council, introducedHouse Bill 373,a billdesigned to transferwhatever rights theState held in Lake Parkand the submerged land east of Lake Park to the City.26The firstsection would have giventhe Cityall of the State'sinterest "in andto thesubmerged lands and grounds constitut- ingthe bottom of Lake Michigan,lying on theeastern frontage of the cityof Chicago ... for the space of one league eastwardlyfrom the shoreline of said lake."2"' The second section authorized the City, after consultingwith the federal government, "to enterupon the said submergedlands and grounds,and buildand constructany such docks, piers,breakwaters or otherworks or cause the same to be so con- structedand built,"so as to "enlargethe harbor of said city,and pro- moteand encouragethe commerce upon, and thenavigation of the said lake."269The thirdsection specified that the lands so granted"are to be heldin trustforever for the uses andpurposes aforesaid"; more specifically,the City was forbidden to alienatethe lands (although cer- taintypes of leases up to ninety-nineyears would be permitted).270The fourthsection ceded to the Cityany interest the Statehad in Lake Park.27This section of the bill also permittedthe City to sellall orpart of Lake Park,so long as a supermajorityof its aldermen(three-

265 Id. 266 Id. 267 See 1 Journalof the House of Representatives ofthe Twenty-Sixth General Assembly of theState of Illinois 239 (Springfield1869) (1 1869Illinois House Journal) (reflecting the introductionof "[a]n Act to enablethe city of Chicago to enlargeits harbor, and to grant and to cede all therights, title and interest in andto certainlands lying on andadjacent to theshore of Lake Michigan,on theeastern frontage of said city"); The Lake Park, Chi Republican 1 (Jan14,1869) (providingthe text of the legislation). 268 LakePark, Chi Republican at 1 (citedin note 267). 269 Id. 270 Id. 271 See id.

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 2004] TheOrigins of the American Public Trust Doctrine 861 fourths)concurred and the City advertisedany proposedsale in newspapersfor thirty consecutive days in advance.272 The City'snewspapers were encouraged. Without predicting victory,the Tribune opined on January16 thatthe City had not"acted an hourtoo soon":"Had thecity delayed action, or had therebeen any seriousdivision on thepart of the Common Council, the probabilities are thatat theadjournment of theLegislature, the Lake Park,as well as thebed ofthe lake threemiles in front,would have passed into the handsof a Wallstreet corporation."273 After explaining that the City's proposalsonly perfected the City's title and "do not,as manypeople suppose,relate to thesale ofany part thereof to railroadcompanies or others,"the editors of the Tribune exhorted Cook County'sdelegation to vigilanceand invokedthe specter of 1867: "If the representatives of thiscounty will vigorouslyguard the cityagainst secret legislation, suchas was attemptedtwo years ago, until these bills are made laws, theywill render the public a servicewhich will be of perpetualvalue to thiscity."274 Meanwhile,the Illinois Central was busyplotting its own strategy. At the beginningof the year,Douglas had reportedto Osbornthat "[w]e are hardat workon thesubject of the lake shore,and whilethe matteris undecided,the prospects are favorable."275It is not entirely clearwhether this referred to continuingefforts to cometo termswith the City,or to newlyhatched plans for separate legislation granting thelakefront directly to therailroad. 276 The firstvisible sign of opposition to theCity came not from the IllinoisCentral, but fromlegislators serving areas outsideChicago. Withindays afterthe introductionof Knickerbocker'sbill, "down- state9277members began to questionwhy such an economicallyvalu- able resourceas thefuture harbor of Chicagoshould be reservedfor the City.As the Tribunereported, some membersof the legislature were opposed to the Chicagobill "on the groundthat the harbor

272 See id. Sectionfour of the bill also authorizedleases, but provided that they could not extendany longer than twenty years. Id. 273 TheLake Parkand Front Bills, Chi Trib 2 (Jan16,1869). 274 Id. 275 Letterfrom John M. Douglas,President, to Wm.H. Osborn,Chairman, Illinois Central (Jan4, 1869). 276 Thereis someindication that the railroad had notyet abandoned hope for a deal with theCity. One of thenewspapers reported-only a weekafter Knickerbocker's bill was introduced-thatthe Illinois Central was "offering the city of Chicago $80,000 in cash for a quitclaim deed forthe property of the Lake Parkfrom Randolph to Monroestreets." Lake Park,Chi Re- publican1 (Jan23,1869). The offermay have been genuine, or-given the low amount (even for a quit-claimdeed) andevents that would soon be revealed-itmay have been a feint. 277 In good Chicagotradition, we use theterm "downstate" to referto anythingoutside of northeasternIllinois, by which we meanChicago and thesurrounding six-county area ofCook, DuPage,Kane, Lake, McHenry, and Will Counties.

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 862 TheUniversity ofChicago Law Review [71:799 rightson theeast front of the city belong to theState, and that if they possessany value theyought to be madea sourceof revenueto the State."278Indeed, within a week,Representative Merritt (of thesouth- ernIllinois town of Marion)introduced a competingmeasure in the House.279The Merrittbill, which was expresslypremised on the assumptionthat the State owned the submergedland underLake Michigan,provided for the appointment of commissioners to appraise the value of the submergedland, determine the legal rightsof the Stateto disposeof suchlands, and reportback at thenext session of thelegislature, to theend of "secur[ing] to all thePeople of the State, all benefitthereof." 2M For thenext two weeks, downstate legislators increasingly spoke out againstthe City'sbill.281 By January25, the day thatKnicker- bocker'sbill was scheduledfor discussion in theCommittee on Mu- nicipalAffairs and Insurance,the ChicagoRepublican could report that"[s]hould this bill pass thecommittee it willprobably meet with strongopposition by somecountry members, who have an idea that thebottom of Lake Michiganopposite the city belongs to theState of Illinois,and not to thecity of Chicago."M The IllinoisCentral appears to havesupported -and possiblyor- ganized-thisopposition to the City'sbill. The ChicagoRepublican notedthat "[t]he Illinois Central Railroad is hardat workthrough its lobbyiststrying to convincethe members of theLegislature that the cityof Chicagohas no titleto thebottom of Lake Michiganopposite Chicago."28Here we haveone ofthe first explicit suggestions that the railroadhad designson theentire harbor, as thepaper speculated that if it succeededat thatpersuasion, the IllinoisCentral's next move wouldbe "to tryand convincethe same men that the State of Illinois has no titlein thelake" and thatthe railroad's final step would be to "thenattempt to prove,by virtue of its contract with the city of Chi- cago, [that]it owns the riparianright on the lake east of its own tract."284

278 ChiTrib 2 (Jan18, 1869). 279 See 1 1869Illinois House Journal at 266 (citedin note267) (reflectingintroduction of HouseBill 464, "An act to protect the State of Illinois in her rights to the soil covered by water of LakeMichigan in said State"). 280 HB 464,"An act to protect the State of Illinois in her rights to the soil covered by water ofLake Michigan in the State of Illinois," 26th General Assembly (1869), available in the Illinois StateArchives, Springfield, Ill. 281 See Chi Tribat 2 (citedin note278); The ChicagoLake-Front, Chi Times 2 (Jan20, 1869);Lake Michigan, Chi Republican 1 (Jan23,1869). 282 Springfield,Chi Republican 1 (Jan25,1869). 283 Springfield,Chi Republican 1 (Jan24,1869). See also ChicagoLake-Front, Chi Tumes at 2 (citedin note281) (arguingthat the Common Council's decision not to sellland to therail- roadsfor depot purposes compelled the railroads to appeal to the legislature). 28 Springfield,Chi Republican at 1 (citedin note 283).

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But theIllinois Central was notcontent to playdefense and rely on dubiousclaims that its rightof way in the lake gave it riparian rightsto all submergedland east ofthe right of way.285 In lateJanuary, a substitutebill that the Illinois Central had drafted-and thatessen- tiallyconstituted the Lake FrontAct as finallyenacted-was introducedin theHouse Committeeon MunicipalAffairs and Insurance.m The substitutebill largely tracked the structure of theKnickerbocker bill,with four major exceptions. First, rather than giving the City title to the submergedland outsidethe breakwaterfor construction of a newouter harbor, the substitute bill conveyed this land to theIllinois Central,subject to the same prohibitionson alienationor impairing navigationas in theCity bill. 27 Second, rather than giving the City title to northLake Park,under the substitutebill the State quit-claimed anyinterest it had in thisland to the IllinoisCentral along with the othertwo railroads, and furtherdirected that the Citywas to convey itsinterest in northLake Parkto therailroads, upon payment by the railroadsto theCity of $800,000 in fourinstallments.m Third, the sub- stituteadded a provisiondirecting that the Illinois Central was to re- mitto thestate treasury 7 percentof the gross receipts from all leases or improvementsto Lake Parkor thesubmerged lands, in perpetuity,

285 Underthe 1852 Ordinance, the right of way was clearly just an easement.It was highly implausibleto suggestthat an easementholder could claim riparian rights to submergedlands adjacentto theeasement. The railroadrevived the argument in theIllinois Central litigation, however,and it was specifically but rather summarily rejected by the Supreme Court. See Illinois Central,146 US at 445 ("Nordid the railroad company acquire by the mere construction ofits roadand other works any rights as a riparianowner ...."). 286 See Lake Park,Chi Trib 1 (Jan26, 1869) (reporting that the Illinois Central intended to submita substitutebill to thecommittee considering the City's bill and thatthe railroad representatives-"menwho have the reputationof understandingwhat they are about"-claimed "thatthey have a surething against the city of Chicago"); Lake FrontBill, Chi Times 1 (Jan27, 1869)(setting forth reports of the contents of the Illinois Central's substitute bill, which as ofthe writinghad notyet been submitted); Municipal Park Bill, Chi Republican1 (Jan27,1869) (re- portingMack's handingIllinois Central's substitute for Chicago's bill to thechairman of the committee,who then read it, and Mack's speaking in its favor with the committee's permission). We knowfrom the Illinois Central correspondence that the substitute bill was prepared in great secrecy.As Douglasreported to Osbornseveral days later: I am in themidst of the lake shorematter; it is importantand requiresclose attention

Thisis a greatundertaking and will be a greatsuccess if accomplished. It lookspromising now;-we havereached the present point with as muchsilence and successas couldhave been looked for, and I thinkwill get through the Legislature. I mustexcuse myself for not having written more punctually within a fewdays, by saying thatI havebeen almost constantly engaged in consultation, and my time more than usually engrossed. Letterfrom John M. Douglas,President, to Wm.H. Osborn,Chairman, Illinois Central (Jan 30, 1869). 287 HB 373,Amendment, ? 3,26th General Assembly (1869), handwritten copy available in theIllinois State Archives, Springfield, Ill. 2m Id ?? 5-6.

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 864 TheUniversity ofChicago Law Review [71:799 just as it was requiredby its charterto pay on its otheroperations withinthe State.m Fourth and finally, the substitute contained a provision that"confirmed" the rightsof the IllinoisCentral to operate along the lakefrontin accordancewith its originalcharter, and to maintainthe various facilities constructed inaccordance with its riparian ownershipalong the lakefront.% By theend ofJanuary, it was reasonablyclear to outsideobserv- ers thatthe Illinois Central had theupper hand in thestruggle.' To the extentMack and othersrequired direction, Douglas was calling the shotsfrom Chicago. Thus, he telegraphedto J.WWalker, one of therailroad's lobbyists in Springfield, on February3 that"[tlhere is no objectionto thefollowing[:] 'The grantsto theIllinois Central Rail- road Companyby thisact are madeupon the express condition that thesaid Companyshall forever pay intothe State Treasury annually the sevenpercent upon its grossearnings as stipulatedin its charter."'2

289 Id?3. 290 Id. 291 See, forexample, Chi Times 2 (Jan29, 1869). See also The Lake Front,Chi Republican2 (Feb 4,1869). 292 Telegramfrom John M. Douglas, President,Illinois Central, to J.W.Walker, at the Leland Hotel,Springfield, Feb 3,1869. 293 Id. Bailey evidentlywanted to use the railroad'seagerness for the Lake FrontAct to exact an expressrecommitment by the railroadthat its obligationto pay the State the chartertax of 7 percentof the company'sgross receipts was a perpetualone. In an intriguingconclusion to his telegram,Douglas stated(the scratchingout and the insertsrefer to thehandwritten copy of the telegramin Douglas's correspondencebook) as follows:"Saw W [scratchedout] our friend [inserted]last nightand arrangedmatter allright." Id.

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I willsend you thebill when it passesthe House, and whenit is securefrom further amendments. My greattrouble has been to keep quiet about this-not to overstateits importance-notto letthese people know prematurely the estimate we placeupon it, and above all to confinewithin our own knowledgethe steps takento secureit.2% Douglas was correctin hisassessment of favorable prospects. On the eveningof February2 (even beforehis letterto Osborn),the House Committeeon MunicipalAffairs concluded its third three-hour sessionon thelakefront matter. It agreedto reportthe substitute bill to the fullHouse. The committeewas willingto waituntil Thursday, February4, so thatKnickerbocker might prepare a minorityreport. Yet there was no doubt about the outcome:Knickerbocker was "standingalone upon the committee."295 Whenthe bill arrivedfor debate on the House floor,beginning on February9, themembers discussed other, related matters as well. One was a proposalby RepresentativeSmith of McLean to sell the northportion of Lake Parkto certainprivate individuals in Chicago for $1,200,000-$800,000 forthe Cityand $400,000for the State.296 Anotherwas thedistribution of a remonstrancefrom Jonathan Young Scammonand ThomasHoyne, who protestedagainst the proposed sale ofthe lakefront land based both on theirstatus as ownersof residences on the west side of MichiganAvenue and on broader grounds.29A thirdwas RepresentativeMerritt's effort to offeras a substitutefor the committee's bill his proposal for appointing commissioners.29Ultimately, no votewould be takenthat day. On February10, Merritt'sproposal for the appointmentof commissionerswas defeatedby a vote of forty-nineto twenty-four.29

294 Letterfrom John M. Douglas,President, to Wm. H. Osborn,Chairman, Illinois Central (Feb 3, 1869). 295 TheLake ParkBill, Chi Evening J 2 (Feb 4,1869).TheTribune printed Knickerbocker's minorityreport in full.See The ChicagoHarbor Bill; The Title to theLake Frontage;Report of Mr.Knickerbocker, Chi Trib 2 (Feb 10,1869). 296 The ChicagoTimes charged that Knickerbocker was involvedin Smith'sproposal. See TheLake-Front Bill, Chi Times 4 (Feb 6,1869). 297 Letterfrom J. Young Scammon and Thomas Hoyne to Hon. Franklin Corwin, Speaker of the IllinoisHouse of Representatives(Feb 8, 1869) (criticizingthe Illinois Central Railroad), availablein theIllinois State Archives, Springfield, Ill. The ChicagoTimes reported wryly concerningthe remonstrance, which was submittedby individuals who both were property owners alongMichigan Avenue and, whether with their consent or not,had been listed as incorporators inthe 1867 bill to establish the Chicago Harbor, Pier and Dock Company.See SomeMore Disin- terestednessRelative to the Lake Front,Chi Times 2 (Feb 10,1869). See also note206 (noting the suggestionof the Tribune that some individuals' names had been used in 1867without their consent). 298 See textaccompanying notes 279-80 (discussing Merritt's bill). 299 1 1869Illinois House Journal at 876 (citedin note 267).

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This was regardedas demonstratingthe strengthof the railroads' forces."Representative Bailey successfullysought to have the bill amended,as per the agreementwith Douglas, so thatacceptance of theland deal committedthe Illinois Central to continueto pay7 percentof its gross receipts to theState.' TheHouse also adopteda proposed amendmentthat permitted municipal taxation of anylands in questionthat the Illinois Central ultimately leased to otherentities.'O Late in theday, the House voted(by a marginof forty-nineto twenty-nineas then roughly expected) to adoptthe substitute bill in favorof therailroad, and bya similarvote (fifty to thirty)to set the bill fora requiredthird readin 303 Victoryfor the Illinois Central could now be predicted,but still theopponents did not capitulate. On February16, with the legislature temporarilyadjourned, proponents of the City's position decided that a morevisible show of public opposition was needed.A call wentout fora "GREAT MASS MEETING!" to be held at FarwellHall of "citizensof Chicago who are opposed to givingaway the Lake front."4The notice(evidently an advertisement)decried "The Great Swindle!"and the "Confiscation of Public Property and Private Rights WithoutConsideration!"M The newspapersin theircommentary on therally saw thematter largely as a questionof theadequacy of the consideration,with one notingthat "[tjhere is a deep feelingof oppositionto themeasure now before the Legislature for giving the Illinois CentralRailway Company so muchof thisvaluable property, with equallyvaluable privileges, for a merelynominal sum."3 Variousspeakers addressed the Farwell Hall rally,and a variety of resolutionswere adopted,including one authorizingthe chair (ThomasHoyne) to appointa committeeof sevenindividuals, "to be delegatedto go to Springfieldto representthe action of thecitizens, andto use theirinfluence to prevent, if possible, action on thebill now

" See TheChicago Lake-Front, Chi Times 5 (Feb 11,1869) ("This was the first vote show- ingthe relative strength of thefriends of different propositions."). 301 See 1 1869Illinois House Journal at 877-78(cited in note267). See also notes292-93 and accompanyingtext (discussing Douglas's statement that the railroad would accede to such an amendment). 3 See 1 1869Illinois House Journal at 906-08(cited in note 267). 303 See id at 910}11. 304 PublicMeeting; Great Mass Meeting.l; Lake ShorePark.l; The Great Swindle.l; Confisca- tionof Public Property and PrivateRights without Consideration!, Chi Tumes 5 (Feb 16,1869). Signatoriesincluded a numberof prominent citizens, such as JohnC. Haines,John Wentworth, JosephMedill, M.D. Ogden,Samuel W. Fuller, and scores of other named individuals, along with "fifteenhundred [unnamed] others." Id. 305 Id. 306 OurLake Front, Chi Evening J 2 (Feb 16,1869).

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 2004] TheOrigins of the American Public Trust Doctrine 867 pending." But therally did not quiteprovide the spark its sponsors had hoped.Even a sympatheticnewspaper allowed that "[t]he meet- ingshould and mighthave been larger,and givena widerrepresenta- tionof viewsand interests."wNewspapers supportive of the Illinois Centralposition, both within and outsidethe City,were dismissive, withone notingthat "the meeting did not comprisemore than one- thirdas manypersons as (accordingto Mr.Knickerbocker) signed the call forit."3"9 This newspaper maintained as wellthat the Farwell Hall rally"has greatlystrengthened the chances of the success of the bill, as it demonstratedconclusively that the feelingof oppositionto it in Chicagois neitherso intensenor widespread as LittleKnickerbocker has endeavoredto makethe legislature believe."310 On February20, the substitute (that is, the railroad's) bill passed theHouse bya voteof fifty-two to thirty (three members being absent or notvoting).3"' The correspondentfor the Tribuneexpressed grudg- ingadmiration for Mack, noting that a monthpreviously, when the bill scarcelyhad been seen by any memberof eitherhouse, Mack had statedthat he had securedfifty-five votes in theHouse and fifteenin the Senate,"and thatno logiccould change them." 312 The correspondent observedthat "[t]he recordof the House to-dayshows how closely,shrewdly and intelligently[Mack] arranged his plan, and how faithfullyhis men fulfilled their agreement to standby him," particu- larlygiven that "[t]wo at least,if not all threeof theabsentees would have votedfor the successfulbill had theybeen present.""33Douglas

307 The Lake-Front;The Questionof a Cessionof a Portionof theProperty to theIllinois CentralRailroad; Mass-Meeting of Citizensat FarwellHall; Speechesby Messrs. Knickerbocker, Miller,Bross, Wentworth, and Anthony, Chi Times 2 (Feb 18,1869).See also TheLake Front;The Schemefor Ceding the Property to theIllinois Central Railway; Strong Protest Against It-Mass Meetingof Citizensin FarwellHall, Chi EveningJ 4 (Feb 18,1869). 30 TheLake Front,Chi Republican 2 (Feb 18,1869). 309 The KnickerbockerMeeting, Chi Times 4 (Feb 18, 1869) ("It was remarkablefor being the dullest,dryest, stupidest gathering of indifferentspectators that was ever seen in Chicago. Even Michigan avenue did not come out in force.Mr. JonathanYoung Scammon was present only by proxy,and 'Terrace Row' had no more importantrepresentative than his excellencythe deacon and ex-lieutenantgovernor [Bross]."). See also The Lake Front Bill, Ill St Register (Springfield)1 (Feb 19,1869) (downstatenewspaper stating that the FarwellHall rally"proved to be, as the politicianssay, an immensefizzle"); The Chicago Meeting,Daily Ill St J (Springfield) 2 (Feb 20,1869) ("We assumed,from the mannerin whichthe meetingwas heralded [in Chicago newspapers],that it would be an almostunanimous protest of the people of thatcity against the proposition;and thereforewe are astonishedto learn thatthe meetingwas in all respectsa complete failure,the whole numberpresent at the same not being more than a hundred,all told."). 310 Springfield;...Probability That the Chicago Lake-Front Bill Will Be PassedTo-Day, Chi Times 6 (Feb 20,1869). 311 See 2 Journalof theHouse ofRepresentatives ofthe Twenty-Sixth General Assembly of theState of Illinois 62-63 (Springfield1869) (2 1869 Illinois House Journal). 312 StateLegislatures; Saturday's Proceedings in the Illinois General Assembly; Passage of the IllinoisCentral Lake ParkBill in the House, Chi Trib 1 (Feb 21,1869). 313 Id.

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 868 TheUniversity ofChicago Law Review [71:799 dutifullysent telegrams to Osbornand others, reporting the success in theHouse. Althoughattention was aboutto shiftto theSenate, the House had not yet finished.One of the substitutebill's opponents,Mr. Strawn,introduced the following dramatic resolution: WHEREAS,Various reports are in circulationconcerning supposed corruptionof membersof the GeneralAssembly, which reports,if true, ought, in justiceto thepeople of theState, to be established,and if untrue, ought, in justice to themembers of the GeneralAssembly, to be refutedand disproved; therefore,

Resolved by theHouse of Representatives,the Senate concurring herein,That a committeeof threeon thepart of theHouse and twoon thepart of the Senate, be appointedto investigate,ascer- tain,and reportat theearliest practicable time, whether any im- properinfluence, pecuniary or otherwise,has been used or of- fereddirectly or indirectlyto anymember of the GeneralAs- semblyto inducethem or anyof them to votefor or againstany bill,resolution or measure,pending or heretofore pending before thisGeneral Assembly.314 As one mightimagine, the readingof the resolution"created somesensation in theHouse," and "friendsof theLake Frontbill al- lege thatthe objectis not to investigate,but to delayand interfere with,the passage of thebill in the Senate."315One newspaper,which was hostileto theLake FrontAct, reported "a generalbelief here, in thelobby and in theHouse, that a largeamount of moneyhas been successfullyused forthe passageof the bill."3"6Notwithstanding the rancorit generated,the resolution passed the House withoutany re- cordeddissent. 317 The Senateturned to thelakefront matter on February22. One of itsfirst acts of businesswas to adoptthe House resolutionto appointa joint committeeto investigatewhether corrupt means had been deployedwith respect to anymeasure in thelegislature. The votewas againunanimous. Although both houses had thusconcurred unanimouslyin theneed to appointa jointcommittee to investigate allegationsof bribery,it is unclear,based on the officiallegislative journalsand newspaper accounts, whether such a committeeever met

314 2 1869 IllinoisHouse Journalat 155 (citedin note311). 315 From Springfield;An InvestigationOrdered into Alleged Briberyand Corruptionin the Legislature,Chi EveningJ 1 (Feb 22,1869). 316 Id (discussingpassage of theresolution). 317 See 2 1869 IllinoisHouse Joumalat 155 (cited in note 311). 318 See 1 Journalof theSenate of theTwenty-Sixth General Assembly of theState of Illinois 711-12 (1869) (1 1869 IllinoisSenate Journal).

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 2004] TheOrigins of the American Public Trust Doctrine 869 or indeedwas evenappointed.319 In anyevent, the matter of a legisla- tiveinvestigation of corruption quickly dropped from sight. The Senate'sattention then turned to thelakefront bill itself. As the Tribuneput it, "Captain Mack moved his headquarters to theSen- ate chamberto-day, . . . and maintainedit fromearly morn to dewy eve."320The Senatedetermined in shortorder, by a vote of fifteento ten,to orderthe bill to a secondreading.321 The Tribune'scorrespon- dentcould not resist noting that fifteen was thenumber of votes that Mack had told him at the beginningof the legislativesession that Mack had securedin the Senate.322Opposition continued in Chicago, withthe Tribuneadding to otherarguments against the bill thatit "does notrequire the Illinois Central Railroad Company to construct a harborat all."323The newspaperdoubted that this was a mereover- sight,and it maintainedthat the bill "ought to containa provisionre- quiringthat the harbor be builtwithin a certainspecified time under penaltyof forfeiture of the whole property."324 To this the paper added the inevitablesuggestion that failure to includesuch an amendment wouldprove the dishonesty of the bill's supporters.32' Laterin theweek, the bill was read forthe second time and referredto theCommittee on theJudiciary. Some supportersof thebill opposedthe referral, because the chairman of that committee, Senator Ward,was knownto be opposedto thebill. The newspaperskept up a runningcommentary, with the Tribunenow focusingon ideas to improvethe bill and to someextent also lookingpast the Senate to the possibilityof a gubernatorialveto.326

319 Upon beinginformed of theSenate's concurrence in theresolution, the House tabled thematter. See 2 1869Illinois House Journal at 165-66(cited in note311). It thusappears that althoughSenators Munn and Ward were named to thiscontemplated joint committee, no House memberswere ever appointed. But see AnotherCharge of Bribery and Corruption,Daily Ill St J 1 (Feb 25, 1869) (statingthat an investigativecommittee had been appointed,"consist[ing] of SenatorsWard and Munn and Representatives Bond, Merritt, and Kinyon"). 320 Lake Park,Chi Trib 1 (Feb 23,1869). 321 1 1869Illinois Senate Journal at 736-37(cited in note 318). 322 Lake Park,Chi Trib at 1 (citedin note 320). 323 TheBig Thingat Springfield,Chi Trib 2 (Feb 24,1869). 324 Id. 325 Id. 326 It editorializedthus: AnyLake Frontbill which may be passedby thepresent or anyfuture Legislature must embodyand securethe following points: 1. The constructionof a harbor,under sufficient penaltiesto securea fulfillmentof the conditions by thegrantee, within a specifiedtime; 2. Commonand equal rightsto thepublic in the harbor so constructed,subject to theestab- lishedcharges, which charges shall be subjectto Statecontrol and regulation;3.The paymentof a fairpercentage of thereceipts to theState for the use of theproperty; [and] 4. Municipaltaxation of the property so created. ChiTrib 2 (Feb 25,1869).The Tribuneallowed that it did not "believe that Governor Palmer will eversign a billwhich does not embrace these provisions." Id.

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The SenateJudiciary Committee met on February26, a Friday evening.After hearing from an opponentof thebill as wellas from Mack in support,the committee determined by a marginof one vote (fiveto four)to recommendpassage of the bill.327 Views on bothsides remainedsufficiently strong that the minority as wellas themajority electedto preparereports on thematter. While supporters' hopes for immediatepassage of the bill by the Senate the next day were dashed, thiswas notfor want of efforton theirpart. A specialdispatch to the Tribunecaptured the scene: Mr.Ward on behalfof the Judiciary Committee reported back a largenumber of House bills,recommending their passage. Dur- ing the readingof the report,the chieflobbyist for the Lake Frontbill, Dr. Mack,was seen runningfrantically between the seatsof Senators Boyd and Woodson, while the latter came over to Mr.Ward and demanded that he reporton theLake Frontand Harborbill. He [Ward]replied that he wouldreport it whenhe came to it,at thesame timeexhibiting a pile of billsthat were ahead of it.The maneuverso manifeston thepart of the lake frontlobbyist Mack and his friendswas occasionedby the knowledgethat a specialorder was on theslate for half-past 10, whichwould likely consume the balanceof the day,and thus postponethe desired report. During the suppressed "altercation" betweenMessrs. Ward and Woodson, which was carriedon while theformer was reportingbills at a twoforty rate, the Speaker's gavelthumped upon his desk, while that functionary announced the specialorder. Messrs. Boyd and Woodsonrose simultane- ously,and moved a postponementof the special order, which, on being put to a vote,was declaredlost by the Speaker.The Speakerat thesame time called the attention of the Sergeant-at- Armsto a rule of the Senate whichprohibited ex-members of the Legislaturefrom coming within the bar of the Senate.After the Speakerhad calledthe Senate to order,the Lake Frontlobbyist Mack,seems to have takenthe hint, as he was not seen in the chamberduring the balance of the forenoon. Despitethe result of this particular skirmish, even the hopeful Tribune correspondentthought the bill still likely to pass:"Captain Mack is at hispost, and is as vigilantas ever.He willbe a cleverman that can out trickhim."329 Whetherscripted by Mack or on theirown initiative, the Senators supportingthe railroad did whatwas necessaryto getaround the re-

327 TheChicago Harbor Bill, Chi Trib 2 (Mar1, 1869). 328 Id. 329 Lake FrontBill, Chi Trib 1 (Mar1, 1869).

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 2004] TheOrigins of the American Public Trust Doctrine 871 maininglegislative roadblocks. The nextMonday, March 1, Senator Boydsubmitted the bill for a thirdreading "during the temporary ab- sence,from their seats, of SenatorsWard, Dore, and Fuller,who have been on the lookoutfor several days" against any such effort.330 The joustingcontinued in the newspapers,with the Times continuingto advocatein supportof the bill,33' and newspapers less hospitable to the billpublishing remonstrances and othermaterial against the bill.332 The Senatespent the entiretyof March8 on the bill.Ward was one of thosewho spokeagainst it. "It was a legal argument,in which he attemptedto showthat the title to theriparian right existed in Chi- cago,and he readnumerous extracts from authorities in supportof his theory."333Even proponentsof the bill thought it a powerfulargument, butit did notprevail. The Senatevoted fourteen to elevento pass the lakefrontbill already passed by the House.3 The battlewas stillnot over.Even in reportingthe Senatevote, the Tribunenoted that "there seems to be a feelingcreeping over the peoplehere that Governor Palmer will veto this Lake Frontbill."335 Its correspondentallowed that "Dr. Mack does notfeel that he is safely outof the woods."336 Duringthe wait for the governor's veto decision, there emerged certainarguments that resembled the publictrust doctrine that the SupremeCourt would adopt in Illinois Centralalmost a quarter-

330 StateLegislatures; Proceedings at SpringfieldYesterday; The Lake FrontBill Ordered to a ThirdReading in the Senate, Chi Trib 1 (Mar2,1869). 331 See,for example, The Great Harbor, Chi Times 4 (Mar2,1869). 332 See,for example, The Lake Front;Argument of the Hon. L. L. Bondagainst the Railroad Companys'Bill; The Argument of the Illinois Central Railroad Company- Their Reasons for Its Passage;A Citizen'sView of theOutside Harbor, Chi Republican1 (Mar 2, 1869)(reproducing Bond'sspeech in theHouse, a protestagainst the bill signed by twenty-seven members of the House,and an argumentby the Illinois Central in favor of the bill). See also Protestagainst Lake ParkBill, Chi Trib2 (Mar 3, 1869) (similarlyprinting House members'protest); The Chicago Harbor;Interesting Communication from ES. Chesbrough,the City Engineer, Chi EveningJ 4 (Mar 4, 1869)(reprinting a report of E.S. Chesbrough,City Engineer, concerning various ques- tionsthat had beenposed to himconcerning the feasibility and necessity of constructing an out- sideharbor); The Outside Harbor: Report on theSubject by City Engineer E.S. Chesborough[sic], Chi Republican2 (Mar 5, 1869) (reprintingthe Chesbrough report); Chi Trib 2 (Mar 4, 1869) (toutingChesbrough's report and notingthat "[w]hile entertaining confidence in thepresent managersof the Illinois Central Railroad, he thinksthat wise policy requires that this property be keptwithin public control"). But see Mr.Chesbrough's Opinions, Chi Times 4 (Mar 5, 1869) ("Onlyone of thefour questions put to Mr.Chesbrough came within the range of hisprofes- sionalknowledge. The threeothers might as wellhave been propounded to an intelligentsign- printer,whose opinion would have been just as valuableas thatof the ablest engineer."). 333 Springfield;The Lake FrontBill in theSenate;A Vigorous Debate and a Triumphfor the Railroads,Chi Republican 1 (Mar9,1869). 334 See 2 Journalof the Senate of the Twenty-Sixth General Assembly of the State of Illinois 345 (1869)(2 1869Illinois Senate Journal). 335 StateLegislatures; Proceedings at SpringfieldYesterday; Passage of the Lake FrontBill in theSenate, Chi Trib 1 (Mar9,1869). 336 Id.

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 872 TheUniversity ofChicago Law Review [71:799 centurylater. A writerto theChicago Tribune developed this theory at somelength, conceding the State's ownership of the submerged lands butdenying its right to disposeof thelands. The writerpointed out thatthe Supreme Court had neverdetermined "the manner in which theState was theowner, whether it was a proprietaryright or sover- eignright."337 After a somewhatconvoluted analysis, the unidentified writerconcluded that "[t]he shores of navigablewaters and thesoils underthe water can neverbe grantedby the United States, nor by the severalstates, to individuals,it beinga sovereignand politicalright, andnot a proprietaryright," and that "navigable waters and rivers are neverthe subject of sale, but are inseparablefrom sovereignty.,933 The ChicagoRepublican endorsed a similaranalysis, specifically criticizing a separateTribune article that apparently had contendedthat submergedlands could be grantedto individuals.339 The newfoundclaim of inalienabilitywas unquestionablya changeof strategyon thepart of those opposed to thelakefront bill. One writerto theRepublican wryly responded as follows: [Thearticle entitled "No Rightin the State to Sellor GrantAway theNavigation"] has setme to wonderingwho could have been itsauthor. It couldnot have been one ofthe aldermen, nor even our worthy Mayor,for they have, individually and collectively,declared, in wordsand acts,that the right in questiondoes residein theState. Did notthe city formerly ask of the State a grantof this right?

Lastly,I am positivethat the article does notreflect the view of the eminentlegal gentlemenof our city-Hon.J. Y. Scammon, Hon.Thomas Hoyne, or Hon. MelvilleW Fuller,who, with their associates,set theirsignatures to the contractto constructthe privateoutside harbor for themselves IF THEY COULD GET THE RIGHT FROM THE STATE. Well,they did notget it, and thatwas probablythe milk in the recent Farwell Hall cocoanut. Thusit willbe seen thatit is too late,in theface of all theemi- nentauthorities, to denythat the State has theright to do as it has done-locate itsright where the people of Illinois can receive

337 Letterto the Editor,Has theState the Right to Sell the Lake Front?,Chi Trib2 (Mar 13, 1869). 338 Id. 339 See The Lake Front:No Rightin theState to Sell or GrantAway the Navigation, Chi Re- publican2 (Mar 14,1869).

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seven per cent.of all the profits,whereof Chicago will get its share. Afterweeks of speculationabout whathe woulddo, Governor Palmervetoed the lakefront bill on April14, 1869, returning it to the House alongwith a lengthyexplanation of hisobjections.m Those ob- jectionsdid notgo to fundamentalquestions of constitutional author- ityor legal titleto submergedlands. In particular,Palmer did not questionthat the State had titleto the submergedlands, or thatit couldalienate these lands. Nor did he deny"that this property must be improvedand preparedto subservethe purposesof commerce,"or thatit was correct"to saythat neither the State of Illinois nor the city of Chicago will undertakethe work of improvement."Tm2Rather, Palmerfocused on "[t]hepecuniary value of the public property which it is proposedto disposeof by this bill, and thegrave questions of pol- icyand good faith,on thepart of the State, that underlie it"43-the lat- terseemingly a veiledreference to theallegations of corruptionsur- roundingthe Act. Withrespect to northLake Park,Palmer stated that "the obliga- tionsof prudence and good faith require that the property shall not be soldfor less than its full market value."3" The governorconcluded that the bill as presentedto himfailed to satisfythose obligations, as he had been "assuredby thehighest authorities upon the subject of the valueof real estate in thecity of Chicago, that the property [offered to the railroads]for the sum of eighthundred thousand dollars, has a marketvalue of two millions, six hundred thousand dollars."TM5 Palmer was thusnot averse to a sale,but suggested the desirability of naming an independentcommission to determinethe proper price.346 Turningto thesubmerged lands, Palmer focused on theprovision "confirm[ing]"the rights of theIllinois Central under the grant from the Statein its charterand by virtueof its riparianownership.TM7 He characterizedthis as too "vaguelyenumerated" and subjectto future

340 TheLake Front:No Rightin the State to Sell or GrantAway the Navigation, Chi Republi- can 1 (Mar 15,1869). 341 See 3 Journalof theHouse ofRepresentatives ofthe Twenty-Sixth General Assembly of theState of Illinois 517-28 (1869) (3 1869Illinois House Journal) (reprinting the April 14, 1869 messageof Governor John M. Palmerreturning House Bill373 to theHouse of Representatives withouthis signatureand approval).The billwas returnedto theHouse becauseit originated there.See id at 517.Palmer's veto message was also reprintedin fullin variousnewspapers. See, forexample, The Lake Front;Gov. Palmer's Veto Message of the Lake FrontBill; He Objectsto theBill on theGround of Expediency, Chi Republican 2 (Apr15,1869). 342 3 1869Illinois House Journal at 526 (citedin note 341) (vetomessage). 343 Id at 517. 344 Id at 522. 345 Id at 523. 346 See id at 524. 347 Id.

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 874 TheUniversity ofChicago Law Review [71:799 mischiefand dispute.-w "Without some more precise information as to thenature, character and measureof thesesupposed rights, I am unable to concurin a propositionto confirmthem."`m9 Echoingsome of the recentcriticisms leveled by the Tribune, Palmeralso criticizedthe bill for failing to "require the Illinois Central RailroadCompany to do any act or thingwith respect to the im- provementof these navigable waters."350 In addition, "[s]ome power of supervisionand controlover the prosecution and progress,as wellas the plan of the works,to be constructed,should be reservedto the State,"and in particularthe State should be able to regulatethe net profitsto be earnedfrom operation of theharbor.351 Finally, the land shouldbe subjectto stateand municipal taxation.352 The matterseemed ripe for a compromise.And in fact,there appear to havebeen effortsat reachingone, at leaston thepart of the City.The Tribunereported "a longconversation on thesubject" be- tweenMayor Rice and IllinoisCentral President Douglas.313 That paper also reportedthat even if theyoverrode the veto, the railroad's supporters"will then presenta supplementalbill" respondingto Palmer'sobjections. MayorRice and a majorityof the legislators weresaid to be infavor of such a bill.355 Thereis less evidencethat the railroad had anyreal interest in a compromise.No railroadcorrespondence related to Palmer'sveto survives,perhaps because Douglas went to Springfieldto tendperson- allyto theoverride efforts.3M But thenewspapers reported the Illinois Central'sconfidence that the legislaturewould simplyoverride Palmer'sveto, without any compromise. For example, the Tribunere- ported,after describing the City'sproposed compromise, that "Dr. Mack,who is hereas managerof the affair,says he has counted56

348 Id at 524-25. 349 Id at 525. 350 Id at 526. 351 Id at 527. 352 See id. 353 Springfield;Reassembling of theState Legislature; A Large Batch of Veto Messages Sent in;A Numberof the Vetoed Bills Fail to Pass; The Lake Parkand Tax Exemption Vetoes Held for FutureConsideration, Chi Trib 1 (Apr15,1869) (discussing possible aspects of the matter, includ- inga constructiontimeline, Illinois Central profit-making limitations, taxation provisions, and the appointmentofCommissioners). 354 Springfteld,-ArrivalofLegislators; Outline of the Govemor's Veto on theLake Front Bill; Courseto Be Takenby the Friends of the Bill, Chi Trib 4 (Apr14,1869). 355 See TheChicago Harbor Bill, Chi Tumes 4 (Apr15, 1869) (discussing plans for a compromise). 356 See Springfield,Chi Trib at 4 (citedin note354) ("Messrs.Walker, Douglas, Mack and otherrepresentatives ofthe Central Railroad are here in the interest of the bill ... andare mak- ingpreparations toput the bill through both houses, notwithstanding theobjections of the Gov- ernor.").

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 2004] TheOrigins of the American Public Trust Doctrine 875 membersof the House forit, four more than it had on itspassage, and 15 in theSenate, one morethan before."357 In all events,the legislatureoverrode Governor Palmer's veto. The House actedfirst, on Thursday,April 15, 1869. W The Senatewas notfar behind. Hastening to finishand adjourn,the Senate voted for thebill by the same margin-fourteen to eleven-as ithad beforethe governor'sveto.359 The reporterfor the Tribune noted that this was one voteshort of CaptainMack's prediction and allowedthat "[o]ne sena- tormust have deceived him."3"o Therewas no formaleffort to considera supplementalbill. As the Tribunereporter observed: The supplementalbill, which it was saidwas to followthe passage of thisLake Frontbill, whereby its wrongfeatures were to be righted,has notbeen heardfrom, and I supposewill not. The introductionof such a bill was,probably, never contemplated by thefriends of thelake front,and it was talkedover as a sortof soothingsyrup to certainenemies of the measure to quietthem.361 Adjournmentfollowed the next day, and all seemedready for it. The Tribune,for its part,did not regretthe prospect, and soundeda bitternote about the Lake FrontAct. Terming the legislature "reckless beyondprecedent," and decryingparticularly both a provisionrequir- ingthe Stateto assumemunicipal debts related to railroadsand the Lake FrontAct, the Tribuneconcluded an editorialanalysis with the "hope thatnothing may occur to keep the Legislaturetogether any longer":"Having seized upon the State revenuesfor ten yearsto

357 Springfield,Chi Tribat 1 (cited in note 353). This same newspaperstated that "Dr. Mack says nothingabout a ring,but it looks as ifone was formingembracing the tax-cheatingrailroad bill and the lake front,by whichboth will be sure of success."Id. 358 The eventwas not withoutits moments. The readingof the governor'sveto message was interruptedin the afternoonbecause, as the Tribuneexplained: This being the anniversaryof the death of Lincoln by the assassin's hand,the two Houses, by joint resolution,adjourned at 4 o'clock this afternoonfor the purpose of visitingthe martyr'stomb at Oak Ridge.The SpringfieldHorse Railroad Companytendered the use of theircars to convey the membersto the cemetery,and full one hundredpersons availed themselvesof the opportunity.After reaching the sacred groundsand gazing for a time upon itssurroundings in silence,at the suggestionof Mr. Speaker Corwin,Rev. Mr. McLean, of the city,offered up a shortand ferventprayer. The visitorsthen passed over to the tomb of GovernorBissell, and, afteradmiring that beautifulstructure, entered the officeof the Lincoln MonumentAssociation, placed theirnames in the register,and quite a numberde- positedhandsome notes in the treasury.... FinalAdjournment toTake Place on Saturday;Legislative Visit to the Tomb of Lincoln, Chi Trib 1 (Apr 16,1869). 359 See 2 1869 Illinois SenateJournal at 922 (cited in note 334). 3 Springfield;Yesterday's Proceedings in theState Legislature; Final Passageof theTax- Stealingand Lake FrontBills, Chi Trib 1 (Apr 17,1869). 361 Id.

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come,and attemptedto sell twomillion dollars' worth of real estate forhalf its value, there is no available[pl]under in sight,and, hence, nothingto remainin sessionfor."` The downstatePeoria Daily Tran- scripthad a differentreaction, stating that "[t]he present Legislature is one whichin pointof talent,will compare favorably with any of its predecessors,and thebusiness done has been of themost important andgenerally of the most satisfactory character."m The IllinoisCentral, in thewords of Osborn'sresponse to Doug- las's telegramfrom Springfield, was "muchrejoiced at yourfinal success." For Douglas,there was a senseof reliefas well.His letterto Osbornenclosing the Lake FrontAct as passedallowed that he was "glad"that this "very difficult" matter had beensatisfactorily ended: "Amendmentswere being made from time to timewhile the law was on itspassage, and we werenever able to tellwhat it would be untilit wasfinally passed."" He promisedto writethe chairman "more punc- tuallynow that this troublesome business is over."`Osborn, upon see- ingthe final law, responded by reiterating his pleasure, noting that "afterall thedelay and difficultyattending its final passage-it is so muchsimpler and more comprehensive that I supposedit possible for you to obtain,"and that"[i]t has caused a good deal of comment here."37 As we shallsoon see, theIllinois Central's euphoria was short- lived.In retrospect,the railroad probably committed a fatal-and all too familiar-errorin turningits back on the City'sovertures for a compromiseafter Governor Palmer issued his veto. If the railroad had movedeven partway toward meeting the concerns of the City at that time,most likely the carrierwould have proceededto buildits new depotand probablyalso somekind of outer harbor, and theChicago lakefrontwould look a good deal differenttoday. But as oftenhap- pens,the victorious party succumbed to hubrisat themoment of its triumph,thereby sowing the seeds of destructionof whatit had gained.Due in largepart to theenmity of the City, no depotwas ever builtsouth of Randolph Street, no partof Lake Parkwas ever sold, no outerharbor was ever constructed, litigation dragged on untilthe final

362 TheLegislature, Chi Trib 2 (Apr17,1869). 36 TheLegislature, Peoria Daily Transcript 2 (Apr 19,1869) (referring tothe Lake Front Act,among other laws). 364 Letterfrom Wm. H. Osborn,Chairman, to JohnM. Douglas,President, Illinois Central (Apr19,1869). 36 Letterfrom John M. Douglas,President, toWm. H. Osborn,Chairman, Illinois Central (Apr20,1869). 366 Id. 367 Letterfrom Wm. H. Osborn,Chairman, to JohnM. Douglas,President, Illinois Central (Apr 23, 1869).The Lake FrontAct is reprintedin thestatement of thecase in theSupreme Court.See IllinoisCentral, 146 US at 405-08n 1.

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decadeof the nineteenth century, and theSupreme Court created the publictrust doctrine to legitimizethe undoing of the railroad's victory.

C. The Motivesof the Illinois Central Whatmore can be specificallygleaned from the newspaper com- mentaryand theIllinois Central correspondence from 1869 about the motivationsof the railroad in seekingenactment of the substitute bill? We have alreadyseen how the Tribune,writing in late 1868, speculatedthat the Chicago Common Council's reluctance to commit to sellingnorth Lake Parkto theIllinois Central might force the railroadto go directlyto thelegislature.368 Newspaper commentaries from earlyin 1869continue and confirmthis theme. The Chicago Times,for example,attributed the lakefrontcontroversy to the"illiberal action of the commoncouncil, in refusingto consentto the use of a small portionof the land involved, for necessary depot purposes .... .9369 That paperalso offereda sympatheticaccount of therailroad's substitute bill,observing that the IllinoisCentral "stands in constantperil of somelegislative grant to a privatecorporation, which, if sustained by thecourts, would divest it ofits riparian rights in thisproperty, -some threeseparate attempts having already been made,at differentses- sionsof the legislature, to procurea grantof this property to a private corporation.930 These accountssuggest that, up throughlate January1869, the railroad'smotivations were seen by manyoutside observers as being largelydefensive-to protectthe railroad'sextensive investments along the lakefrontin the face of a potentiallegislative grab made possibleby the uncertain status of property rights in submergedlands. As theseobservers saw it, the railroad concluded that it was necessary to securea transferof rights directly from the legislature, rather than fromthe City, because it couldno longertrust the City to respectits existinginterests along the lakefrontin the eventthat the Citywon thoserights. Only after the substitute bill passed the House (or it becameclear that this was imminent),and theCity's forces grew desper- ate,did thecries of "steal" and "fraud"emerge, conveying by implication the notionthat the railroadwas motivatedby the prospectof earninglarge profits from gaining control over the outer harbor. Even moreinstructive on thesubject of the Illinois Central's mo- tivationsare twoletters written by Osborn,the chairman residing in

368 See textaccompanying note 235. 369 The Titleto theChicago Lake-Front,Chi Times 5 (Jan 15, 1869). 370 Springfield;... The Chicago Lake-Front-Bill to Be Reportedin the House; The Fee of All theSubmerged Lands Outsideof theTrack to Be Vestedin theIllinois CentralRailroad Com- pany,Chi Times 2 (Jan26,1869).

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NewYork, to Europeaninvestors.371 The firstwas writtenshortly after thegovernor's veto was overridden,and conveysthe happy news of theenactment of theLake FrontAct. The letterattempts to explain thesignificance of thislegislative victory to theultimate owners of the railroad.Its body reads in full as follows: Our Presidenttelegraphs that the Lake ShoreBill has becomea law.It is concededupon all sidesthat the State of Illinois held the waterrights upon the Lake bya titlesuperior to theCity of Chi- cagoor ofindividuals owning property adjacent to theshore. Our Companyis not interestedin the questionwhether the sover- eigntyof theLake watersis vestedin theGeneral Government or in theState of Illinois,inasmuch as theoriginal Act of Con- gressrelinquished to theState the right (if any)of theGeneral Government.The Companyhas obtainedfrom time to timecon- cessionsfrom the City of Chicago, giving it authority to extendits depot-groundsinto the Lake, and we have in thisway made aboutfifty acres of land with great economy and admirablysitu- atedfor the objects of our Railway. The Presidenthas addressed himselffor several years past to securing legislation from the City of Chicagoin harmonywith legislation from the State which wouldconfirm the title to thatwhich we havehitherto acquired andwhich would authorize the Company to takepossession of so largea surfacefrom the shore of theLake thatany other indi- vidualsor corporationswould be preventedfrom getting possessionof thiskey to theouter harbor which the growing commer- cialimportance of Chicago will demand at a veryearly day. It is prematureto estimatethe outlay which it may be expedient to incur.The undertakingwill be veryremunerative, and is probablythe most important step in theCompany's affairs since theAct ofCongress originating our Enterprise. Chicago is nowa cityof threeor fourhundred thousand population. The naviga- tionupon the Lakes makes it one ofthe most important ports of entryand thisouter harbor is a matterof necessityas apparent and willprobably prove as conduciveto theinterests of Chicago as yoursplendid docks have proved conducive to theinterests of London.37

371 On the importanceof European investorsto the undertakingthat was the IllinoisCen- tral,see Stover,History of theIllinois Central Railroad at 32-38 (citedin note 80) (notingan 1871 estimate"that over halfof the stockwas held by Englishmen,more than a quarterby Dutch investors,and perhapsless than15 percentby Americans"). 372 Letter fromWm. H. Osborn, New York, Chairman,Illinois Central,to Cunningham Borthwick,London (Apr 20,1869).

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The predominanttheme here, even in theflush of victory,is defensive.Osborn stresses the problem of titlesecurity, and theneed to "harmonize"the various permissions obtained from the City with the understanding(which was relativelynew, a pointOsborn does not make)that the State held title to thesubmerged land. Only in thesec- ondparagraph does Osbornturn to theprospect that the grant will be "veryremunerative," comparing the outerharbor to the "splendid docks"of London.But even here the talkis rathervague, with the cautionthat "[i]t is premature"to considerhow much investment ex- penditurethis might entail. The secondletter to Europeanstockholders, sent in earlyJune, was evidentlyprompted by concerns shareholders had expressedafter readingaccounts of thelakefront controversy in newspaperclippings sentto themby Americancorrespondents. It appearsfrom a cover noteto Douglas enclosingthe letter that the tenor of theseclippings was highlycritical of therailroad, and theyapparently reported that litigationhad alreadycommenced against the carrier. In thismissive, therefore,we findOsborn alreadyreferring to the matteras "the case,"a statusit would retain, off and on,for the rest of time: Inasmuchas it is probablethat enquiries will be made of you fromtime to timeregarding the position of theIllinois Central propertyon the Lake frontat Chicagoand theeffect of there- centAct passed by theLegislature authorizing our Companyto makeimprovements near their Depot, I have thoughtit wellto writeyou of the present aspect of the case. As you are aware,our Railwayapproaches Chicago on themar- ginof the Lake. Under the Charter, by permission of the City and bypurchase we haveextended our grounds into the waters of the Lake and have endeavoredto maintainour positionas riparian owners.Endeavors have frequentlybeen made by individuals, latterlyby parties professing to representthe City of Chicago,to obtainthe privilege of filling up and makingland outside of that now occupiedby us.These effortshave now been defeated.The Stateof Illinoishas vestedin the Companya perfecttitle to all theproperty it has acquiredor appropriatedfrom the water and has furthergranted it the privilegeof constructingworks for a milefurther into the Lake. This is opposedby the City of Chicago and theCity may probably test in thecourts the authority of the State to conferthis privilege. We have no doubtthat the State possessedentire sovereignty or proprietorshipin thesewaters and thatthe title will be fullyconfirmed by the Courts. Until this is done,no expensewhatever will be incurred.Our presentDe- potgrounds are amplefor the probable growth of the Company's

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businessfor the coming ten or fifteenyears. What we werede- terminedto preventwas thetaking possession by anyone else of theLake outsideof us. In viewof thepresent and futurecom- merceof Chicago the grant is ofvery great value.373 Severalpoints are worthy of comment about this letter. Note first thatthe justification for the Lake FrontAct was nowcouched almost exclusivelyin defensiveterms. The objectivewas to defeatefforts by rivals,including those "professing to representthe City of Chicago," to grabthe submerged land east of therailroad's operations, thwarting itsability to continueto functionand certainlyto growin thefuture. The thingthe railroad was "determinedto prevent"was "thetaking possessionby anyone else ofthe Lake outsideof us." Second, Osborn was confidentthat the State had theright to alienatethe land to the railroad,and thatthe grant "will be fullyconfirmed by theCourts," perhapson a vested-rightstheory. Third, Osborn downplayed any urgentneed to developthe outer harbor or thedepot, noting that existingfacilities were adequate to handleanticipated traffic for "ten or fifteenyears." Fourth and finally,only as a minorafterthought did Osborn mentionthe potentialfuture value of the grantto the company. In short,the available evidence suggests that the Illinois Central's principalmotive was to protectand defend its existing investments on the lakefront.Given the uncertaintyabout property rights to Lake Parkand the submerged lands that emerged in thelate 1860s,and the repeatedefforts by othersto exploitthis uncertainty to securethese resourcesfor other enterprises, the railroadsought to have titleto northLake Parkand thesite of the proposed outer harbor conferred on therailroad itself. This was thesafest way to avoidhaving its exist- inginvestments stranded. Only as a secondarymatter, as theIllinois Centralofficers began to contemplatethe significance of successin theirlegislative effort, did theybegin to museabout the possible fu- tureprofits to be earnedfrom control of the outer harbor. As soonas theirlegislative success faced legal challenge, however, they reverted immediatelyto thedefensive justification. The pictureof theIllinois Centralas a graspingplutocratic corporation, such as emergesin Jus- ticeField's opinion and is carriedforward by implicationin modern publictrust accounts, is thusa caricatureof a morecomplicated reality. The adageabout fear's being a morepowerful motivator than greed in explainingeconomic behavior would seem to be fullyapplicable to theIllinois Central.

373 Letter fromWm. H. Osborn, New York, Chairman,Illinois Central,to Cunningham Borthwick,London (June9,1869).

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D. The PublicInterest We are also interestedin what light the archival materials shed on the questionof whetherparticipants in the legislativedebates per- ceivedany public interest rationale for the Lake FrontAct. In thisregard,two preliminary observations are in order. First,it is commonlyassumed today that the Lake FrontAct gave the IllinoisCentral monopoly control over the entireChicago harbor.374Justice Field's opinion is no doubtresponsible for this assumption.Early in his opinion,Field recognizedthat the ChicagoRiver servedas theexisting harbor of Chicago,and thatthe growth of business and commercehad stimulatedplans forthe creationof a new "outerharbor for Chicago."37'5 But when he cameto considerthe grant of submergedland to the IllinoisCentral in Section3 of the Lake FrontAct, he wroteas ifit encompassedthe entirety of theharbor of Chicago.371This was simplynot true.The northernlimit of the grant was "thesouth line of thesouth pier" of theChicago River.377 Conse- quently,the railroad would have no controlover the entrance to the ChicagoRiver -and henceno controlover access to the entiretyof the existingharbor facilities located along the ChicagoRiver. The practicaleffect of theLake FrontAct, in termsof the market for har- borfacilities in Chicago,was to authorizethe creation of a large,pri- vatelyowned harbor facility in the lake thatwould act as a supple- mentto theharbor facilities that already existed and wouldcontinue to existalong the river.These existingfacilities, from all accounts, formeda reasonablycompetitive market, as anyriparian owner abuttingthe rivercould construct a pieror dock,provided it did not ob- structnavigation.378 Thus, the Lake FrontAct did not createa giant monopoly;it was moreanalogous to a bill authorizinga privatetoll roadto be builton a routeparallel to an existing(if congested) public highway. Second,although Sax in hisfamous article could discern "no reason to believethat private ownership would have provided incentives

374 See,for example, note 54 (discussingFischel and Sykes). 375 IllinoisCentral, 146 US at 437. 376 See, forexample, id at 451 ("A corporationcreated for one purpose,the construction and operationof a railroadbetween designated points, is, by the act, converted into a corporationto manageand practicallycontrol the harbor of Chicago."); id at 452 (framingthe issue as whetherthe legislature could deprive the State of "the submerged lands in theharbor of Chi- cago");id at 453 (indicatingthat the case involved"a grantof the whole property in whichthe publicis interested"). 377 See Lake FrontAct ? 3,reprinted in Illinois Central, 146 US at 406n 1 (statementof the case). 378 See textaccompanying notes 136-37, discussing City of Chicagov Laflin,49 Ill 172 (1868).

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 882 TheUniversity ofChicago Law Review [71:799 forneeded developments,"379 it was in facta universalassumption in 1869that a newouter harbor could be builtonly with private invest- mentcapital. No one in thedebates suggested that the State of Illinois couldor wouldundertake such a projectitself. The skeletalstate gov- ernmentof that era lacked both the resources and the engineering and administrativecapacity for any kind of majorpublic works project. The Cityof coursewanted a grantof the submerged land in orderto assumecontrol of the project. But it was widely understood that what thismeant in practicewas long-termleases to privateentrepreneurs (suchas theFuller group), who would in turnraise the money and do theactual construction work, remitting rents to theCity for the right ofoccupancy. The federal government was perhaps the most plausible candidateto undertakepublic construction of a new harbor.As we shall see, Congresswould shortlyappropriate money for a new breakwaterfor this purpose in the early1870s.38 But it is unclear whetherthis was foreseeable;there is no mentionof federal constructionof a new outerharbor in thelegislative debates in 1869.More- over,even after the federal breakwater was constructed, itwas univer- sallyassumed, at leastup to thetime of theSupreme Court decision, that any constructionof docks,piers, or wharvesinside the new breakwaterwould have to be doneby private enterprise. Certainly, thefederal government made no moveto makesuch improvements duringthis time period. Giventhese shared assumptions, the debates make it abundantly clearthat many if not most of those voting for the Lake FrontAct sin- cerelyperceived it to be in thegeneral interest. The argument reduced to a simplechoice between the only two realistic candidates for future developmentof the lakefront:the Cityof Chicagoand the Illinois Central.The Chicagoproposal would enrich Chicagoans and, in particular,the aldermen of Chicago who would determine who was to be awardedthe leases and contracts, but it would provide no directfinan- cial benefitsfor persons living outside Chicago. The IllinoisCentral proposal,in contrast,would result in expandedIllinois Central operations,which would be subjectto a 7 percentgross receipts tax, all of whichwould go into the State's coffersto be used for projects

379 Sax,68 MichL Revat 490(cited in note 3). 380 See textaccompanying notes 342 and 387. See alsoBrief and Argument for Appellant at 84-88(filed by Jno. N. Jewett), Illinois Central, 146 US 387. 381 See note472 and accompanying text. 382 See Reportof Board of Engineers (Aug 3, 1871), in Record: Illinois Central Railroad Co at 643-44(cited in note 71) (reporton thelakefront by the board of engineers stating that "the objectsof the [federal] breakwater now in progress of construction at Chicago are, first, to afford thenecessary anchorage grounds and, second, to enable owners of property on thelake shore to constructwharves and slipson thewestern side of the basin, which could not be donewithout suchprotection, and thus relieve the crowded condition of the river").

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 2004] TheOrigins of the American Public Trust Doctrine 883 throughoutthe entireState. For the typicaldownstate legislator, the * ~~~~~~383 choicewas easy. The outlinesof thisargument are discerniblein an editorialin Springfield'sDaily Illinois StateJournal, written even before the Illi- nois Centralrevealed its substitute bill. Specifically responding to an editorialin the Tribunein supportof Knickerbocker's bill, which edi- torialhad suggestedthe bill was simplyan attemptto quiettitle in the City,the editorsof the Daily Illinois StateJournal wrote that "[t]he Tribuneis unfortunatein itsassumptions," because the State, not the City,was therightful owner of the harbor: Under these circumstanceswe are not surprisedthat "certain membersof the Legislatureare opposedto the Chicagoharbor bill."We shouldsuppose that all of themwould be opposedto sucha measure.The propertyreferred to is or maybe valuable; and it shouldnot be partedwith by the GeneralAssembly for nothing. If possibleit shouldbe made a sourceof revenueto the State; and we believethe time will come when such disposition can be made of thewater privilege as willreturn a largeand constantly increasingper cent.to the State Treasuryfrom wharfage and dockage.No suchthing as thisis contemplatedby the"Chicago harborbill," and hence the opposition to it.384 Once the IllinoisCentral substitute was unveiled,even some in Chicagocould perceive why downstate members might prefer it over theCity bill. As a correspondentfor the Times observed: [I]t is notoriousthat the harbor facilities of Chicagoare becom- ing inadequate to its growingbusiness . . .. The opening of the Pacificroad, and the developmentof the vast interiorregions traversedby the great railroad lines . . . will soon demand im- mensewarehouse and wharfagefacilities.... How muchmore to the advantageof thestate, then, to vestthis property in theIlli- noisCentral Railroad company, under conditions that 7 percent. ofthe gross receipts of these docks and warehousesshall be paid intothe statetreasury, than to vestit in a privatecorporation,

383 Some legislatorsalso doubtedthe City's ability to builda harborand evenits attitude towardthe Illinois Central.See State Legislatures;Proceedings at SpringfieldYesterday; The Illi- nois CentralLake Park Bill Passed in theHouse, Chi Trib4 (Feb 11, 1869) (summarizingdown- stateRepresentative Parker's floor argument as follows:"A harborought to be builtthere, and theycould look with confidence to therailroads alone to do it.... He wasopposed to leaving the questionopen, so thatChicago could ever get control of the harbor. Chicago seemed opposed to theCentral railroad, which had done so muchto build it up"). 384 The Lake Front,Chicago, Daily Ill StJ (Springfield) 2 (Jan 26,1869).

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or in the cityof Chicago,which proposes to pay the state nothing.... To be sure,there were many voices in Chicagodissenting from thisanalysis. Yet eventhe Chicago Republican, which expressed great- est unhappinesswith the downstate legislators, appreciated the force of theargument in supportof the Illinois Central bill from their perspective.Its correspondent wrote thus: Withintelligent members of both Houses, the question seems to assumethis shape -Chicago vs.the State. If to Chicagois given the immensefranchise contemplated in the privilegeof constructingan outside harborwith its systemsof docks and wharves,yielding an incalculablerevenue, the Statereaps only thatindirect benefit which a greatmaritime city yields to the people at large.If, on theother hand, the franchise be givento theIllinois Central railroad, seven per cent. of the entire revenue derivedtherefrom will flow into the State Treasury. Stripped of itslegal bearings, the question is thusargued. We are notlimited to newspapercommentary to see theappeal and powerof thisargument to the typicaldownstate legislator. The sentimentsof one RepresentativeDinsmoor in supportof thebill, as summarizedin a newspaper,are illustrative: The Statenot beingable to availitself of thisproperty for any commercialpurposes he saw no otherroad out,except the one proposedby thebill. It lookedas ifit was thebest proposition eversubmitted to theHouse bya railroadcompany. It proposed to convertproperty into capital, which was idleand must be idle forall timeto come;and it proposedto paythe state seven per centon theincreasing value of thatproperty. It proposedto in- vestmoney where the State could not invest money. These great commercialinterests override all minorclaims.3 Dinsmooralso addressedthe arguments of the private property owners of Chicagowho were opposedto the railroad'sbill,3 and con- cludedwith a rhetoricalflourish that should not be lost to history: "Theprivate gentlemen who remonstrated against the bill may shed a tear at partingwith their splendid residences. He sympathizedwith them.But theHouse couldnot say to thegreat State of Illinois,you

385 Springfield;... The Chicago Lake-Front-Bill to Be Reportedin theHouse, ChiTimes at 2 (citedin note 370). 386 Springfield;... Lake Park Harbor Bill,Chi Republican 1 (Feb 1,1869). 387 The Lake Front,Daily Ill StJ (Springfield) 1 (Feb 10,1869). 388 See,for example, text accompanying note 297 (Scammon and Hoyne remonstrance).

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 2004] The Originsof theAmerican Public TrustDoctrine 885 shallstand still because Mr. Scammonwants to catcha breezefrom Lake Michigan."389 In effect,then, the Lake FrontAct was an earlyexample of a phenomenonthat would become familiar in lateryears: a fightbe- tweenthe City and downstateinterests, in thiscase wonby the downstateinterests. An analysisof thepattern of voting on thefinal bill in each house,as summarizedin the table below,confirms the City- downstatedichotomy.

TABLE Analysisof Final Voting on Lake FrontActof 1869

House Senate Y N Y N All Voters 52 31 14 11 PoliticalParty Democrat 24 4 7 0 Republican 28 27 7 11 Lawyers 15 7 7 5 Geography Cook County 2 5 0 2

Other countiesin six- 3 3 1 2 countynortheastern Illinois Downstate 47 23 13 7 Statusof Illinois Central(downstate districts) Served district 15 14 7 4 No IC service 32 9 6 3 Statusof competition(downstate districts)

Districtserved by IC and 11 14 7 4 anotherRR Served by onlyIC 4 0 0 0 Served by RR but not IC 29 8 6 3 Served by no RR 3 1 0 0

389 Lake Front,Daily Ill StJ (Springfield) at 1 (citedin note 387).

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As can be seen,two factors appear to havesome relationship to supportfor or oppositionto theLake FrontAct. One is Chicagover- sus downstateinterests. Cook Countylegislators opposed the substitutebill by a lopsidedmargin of more than three to one,and the other legislatorsfrom northeastern Illinois also votedagainst it, though by a narrowermajority. By contrast,all otherlegislators (that is, those from downstateIllinois) supported the bill by a two-to-onemargin. This is consistentwith the divide we perceivein thedebates and commentary overthe public justification for the two bills, with downstate interests tendingto verbalizesupport for the Illinois Central bill, and city inter- eststending to oppose. The otheris politicalparty: Republicans divided essentially evenlyon thebill, whereas Democrats overwhelmingly supported it. We are less certainwhat this means. One possibilityis thatit reflects greaterhostility within the Democratic Party at thistime toward gov- ernmentintervention in economicaffairs, which was thoughtto lead to oppressiveaggregations of wealthand corruption.'The modern reader-conditionedby Justice Field's depiction of theAct as ampli- fiedby the treatments of Sax, Epstein, and others-is likely to assume that those opposed to government-sponsoredmonopolies would recoilfrom the grant of thelakebed to therailroad. But, as we have noted,the Lake FrontAct in fact did not confer a monopolyover harbor facilitiesin therailroad. Thus, it is possiblethat in 1869the De- mocrats(as reflectedin theviews of the Chicago Times, for example) perceivedthe Illinois Central proposal to be the"private enterprise" solutionto thelakefront problem, whereas the Chicago proposal was seen as a "governmentalsolution" presenting greater dangers of special interestintrigue. To be sure,if the Democrats' support was based on a preferencefor private enterprise because it was presumedto be less corruptingthan state enterprise, this support was vulnerableto quicklyevaporating if Democrats became convinced that the Act had beenprocured by the railroad through corrupt means. Some such per- ceptualshift very likely did occur between 1869 and 1873,which may helpaccount for the fact that Democrats overwhelmingly favored repeal in 1873. In anyevent, no matterwhat the subjective motivations that in- duceda strongmajority of legislators to votefor the Lake FrontAct in 1869,there is no doubtthat such legislators could look theircon- stituentsin theeye and providea highlyplausible public interest ra- tionalefor casting such a vote.Except for a fewwealthy real estate ownerson MichiganAvenue, and someChicago aldermen, the argu-

390 See generallyJohn Gerring, A Chapterin theHistory of AmericanParty Ideology: The NineteenthCentury Democratic Party (1828-1892), 26 Polity729,747-53 (1994).

E. The Questionof Corruption By farthe hardest question to answeris whetherthe enactment of theLake FrontAct was in factfacilitated by briberyor othercor- ruptaction on thepart of the Illinois Central and itsagents. In sorting throughthe evidence here, it is firstnecessary to distinguishbetween thefrequent charges of "fraud," "swindle," and "steal" -used as color- fulexpressions for private interest legislation- and actualcharges of corruption.Allegations in theformer category were plentiful, but for reasonsalready discussed one cannotsimply take all thelurid charges of"frauds" and "steals"bandied about in mid-nineteenthcentury Illi- noispolitics at facevalue.39' In anyevent, these sorts of hyperbolic charges were by no means confinedto one sidein thedebate. As thedebate reached its climax in theHouse, for example, Knickerbocker took to thefloor and madean extensivespeech attacking the IllinoisCentral bill as "a stupendous fraud,and whenhe characterizedit as stupendous,he failedto riseto themagnitude of thesubject."392 Yet aftera similarspeech by another opponent,Taylor, a supporterof the measure, offered commentary describedby the Chicago Republican: He was surprisedthat his colleague,who was a memberof the CommonCouncil of Chicago,should talk about fraudulent and swindlingschemes. The onlyscheme that he (Taylor)had seen thatlooked like a fraud,was the schemeby whichit was proposed to giveto thirty-twoaldermen in the cityof Chicagothe unprecedentedprivilege of inauguratinga ten or fifteenmillion dollardock system,with its attendantschemes of plunderand robbery.393 If "corruption"means lust for gain, there was amplebasis to hurlthe chargeat partisanson all sidesof the issue. Allegationsof actual briberywere farfewer in number.These tendedto appearlater in thelegislative process, after it was clearthat theIllinois Central bill would pass in theHouse. Although this timing perhapssuggests that embittered Chicago forces manufactured the charges,it is also possible,of course,that the chargesemerged only oncethe railroad's calumny became evident to close observers.In any

391 See PartV.A. See also textaccompanying notes 182-83 and 226. 392 Lake FrontBill Again, Daily Ill StJ 5 (Feb 10,1869). 393 AnotherRailroad Bill bySenator Fuller; Yesterday's Proceedings in theLegislature, Chi Republican1 (Feb 10,1869).

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 888 TheUniversity ofChicago Law Review [71:799 event,the specificcharges of briberyare obviouslyof muchgreater significancefor our purposes. One ofthe first occurred as theLake FrontAct was aboutto be takenup in theSenate. An opponentof themeasure, Senator Ward, statedthat "he had been told thatvast sumsof moneyhad been broughthere to be usedby gentlemen who had been seen aboutthe lobby."39Although he didnot say so explicitly,incontext it is clearthat he wasreferring to thelakefront bill.395 Similarly, when the House took up considerationof an overrideof the governor's veto, Mr.Knickerbocker rose and objected,amid dead silence,to the voteof Mr. Bailey on thebill, because it was in evidence that Bai- ley'slaw partner had received money to securethe passage of the bill.Mr. Bailey, after a moment,arose, and declaredthat any in- sinuationthat he had receivedmoney for that, or anyother purpose,was utterlyuntrue. The debatepromised to becomevery exciting;but other members insisted on thecall of the roll, and so thestorm passed away, and the bill was passed, by 52 to 31.3 Noticethat Bailey did not directly refute Knickerbocker's charge that theIllinois Central had givenmoney to hislaw partner; Bailey denied onlythat he had personallytaken any money. Although this episode had no effecton the outcome,Bailey-who had steeredthe Illinois Centralbill through committee and negotiatedwith Douglas through therailroad's intermediary-ended up votingagainst override of the veto. Knickerbocker'sinsinuation that the Illinois Central carried out itscorruption, at least in part, through the payment of bogus legal fees was to becomea majortheme of thedebate over the repeal of the Lake FrontAct in 1873. In orderto considerthe possibility that the

394 Springfield;The Chargesof Corruptionagainst the Assembly, Chi Republican4 (Feb 23, 1869). 395 Wardwas reported to have stated as follows: Mr.Ward again said that legislation of a mostextraordinary character was pending, which involvednothing more nor less than the surrender by the State of its right and title to propertyof vastvalue, to a privatecorporation.... The valueof thisproperty was incalcula- ble.... He lookedupon the measure as an attemptto take the property of the State to swell theprofits of a privatecorporation .... Id.Ward made his comments during the Senate's discussion of the House's resolution to appoint a jointcommittee to investigatecorruption and bribery.See textaccompanying notes 314-19. TheHouse resolution itself was introduced and passed only after the Lake Front Act had passed theHouse, and many regarded it as intendedas a sortof in terroremdeterrent to legislativeen- actmentof the Act. See textaccompanying note 315. 396 The Lake-FrontBill, Chi Times 2 (Apr16,1869). 397 See PartVI.C. A pamphletwidely distributed by an organizationcalled the "Illinois Anti-MonopolyLeague" in 1881alleged that the Illinois Central had securedpassage of the Lake FrontAct in part by "the retaining of divers 'attorneys' in thecounties of this State, shortly beforethe election, ostensibly for legitimate business of the company, but really to pack the Leg-

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IllinoisCentral was usingretainers of lawyers(or theirpartners) to securepolitical support, we gathereddata on howmany members of the 1869 legislaturewere lawyers,and comparedthis to how they votedon theAct. As reportedearlier in theTable, the members of the Senateand House whowere lawyers divided over the Lake FrontAct in proportionsessentially indistinguishable from non-lawyer members.398In neitherthe House nor the Senate do the smalldisparities appearto havebeen significant.'" Aside fromdirect charges of bribery, what are we to makeof the enactmentby boththe House and Senate,immediately after passage ofthe lakefront bill by the House, of a resolutionto createa commit- islature."Bradley, Report of the Present Status of the Claims of the Illinois Central Railroad to the Lake Frontat 4 (citedin note 19). 398 See Tablefollowing note 389. 399 We reliedon the1869 version of what might today be calledthe legislative "blue book" forinformation with respect to thelegislators' occupations (and formuch of the other informa- tionconcerning the legislators). See JohnR. Howlett,ed, Manualof theTwenty-Sixth General Assemblyof the State of Illinois 58-63 (Howlett & Adair1869). Our separateresearch through the IllinoisSupreme Court suggests that, at leastin the House,a smallhandful of members whose"occupation" was not listed as "lawyer"in the1869 manual nonetheless were admitted to thebar. In lightof both some uncertainties with respect to theinformation provided by the Illi- noisSupreme Court and our interest in the assertion recounted in the text that fees to practicing lawyerswere a meansof corruption, itseemed better to us touse theinformation inthe manual. As theTable reveals, we also consideredthe relationship between a legislator'ssupport for theAct and whether his district was served by the Illinois Central or other railroads. (To sharpen theinfluence of these variables, we considered only members from downstate legislative districts, wherethe presence of one or morerailroads was likelyto be ofgreat economic significance to thedistrict.) If one assumesthat the Act was the product of the political influence of the Illinois Central,then one mightexpect that members from districts served by the Illinois Central (where themembers and Illinois Central officials would have many opportunities for reciprocal interac- tion)would support the Act to a greaterdegree than members from districts not served by the Il- linoisCentral. But, in fact,we foundthe opposite. Especially on theHouse side,members from districtsserved by theIllinois Central were less likely to supportthe Act thanwere members fromdistricts not served by the Illinois Central. Overall, downstate House memberssupported theAct by a twoto one margin;House members from districts not served by the Illinois Central supportedthe Act by about 3.5 to one.We are unsurewhat the explanation for this result might be.At thevery least, however, the result is difficultto reconcilewith the theory that the Act was simply"bought" by payments by the Illinois Central. We cannot think of any reason why it would be easierto makepayments to membersfrom districts not served by the Illinois Central than to membersfrom districts served by the Illinois Central. Althoughthe following information is not reflected in the Table, we also examinedthe votes ofthose legislators whose place of boarding during the legislative session was the Leland Hotel, whichenjoyed the largestnumber of legislatorboarders and was also the headquartersof AlonzoMack, the Illinois Central's principal lobbyist. See textfollowing note 246 andaccompa- nyingnotes 257-66. Among House members boarding at theLeland, the vote was fifteen to eight in favorof the Act. If one excludesthe Cook Countylegislators staying there, the vote was thir- teento threein favorof the Act in theHouse. Senators staying at theLeland voted five to four in favorof theAct, although two of thefour opposing the bill were from Cook County.These findings,although suggestive, are ambiguous.Even if legislatorsboarding at theLeland were morelikely to supportthe Act thanother legislators, it is unclearwhether this is becausethey weremore likely to receivefavors from the Illinois Central, or becausethey had been exposed morefully to Mack'sarguments on behalfof the legislation.

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 890 TheUniversity ofChicago Law Review [71:799 tee to investigate"whether any improper influence, pecuniary or otherwise,"had beenused to induceany member of the General Assem- blyto votefor or againstany bill? Surely,one wouldthink, such an extraordinaryresolution lends inferential support to theproposition thatsome kind of foulplay was at workin thepassage of theLake FrontAct. One problemwith this interpretation is the fact that the resolutionpassed both the House and Senateunanimously. This is perhaps notwhat one wouldexpect if certain members of eitherbody had in facttaken bribes and would be afraidof being exposed by such an investigation.The Tribune,however, offered an explanationfor the una- nimity,which was consistent with the hypothesis of corruption: The lobbynever pay their money until a job is perfected.It must go throughboth houses and over the Governor'sveto before greenbackschange hands. No cureno pay,is therule of those as- tutegentlemen who practice before committees and among legislators.There are a goodmany bills "which have money in them" in variousstages of progress, but no cashwill be forthcomingun- tilthey are pronouncedenacted. Hence, an investigationat this stageof legislation, where few or noneof the bills "having money in them"are yetlaw, will discover no "corruptionof members," and a verdictof "not guilty,"or the Scotchverdict of "not proven"must be returnedby the committee." In effect,the Tribunewas suggestingthat the investigation resolution was a cleverploy on thepart of the proponents of the bill to coverup promisesof payoffs that would be madelater in thespring-after the measurewas signedinto law. The paperdid notexplain how legisla- torscould ensure payment in thosecircumstances. The correspondentfor the Chicago Times had a differenttake on theresolution, suggesting that its purpose was "solely to frighten timid senatorsinto voting against the lake-front bill, for fear their motives mightbe misconstruedifthey supported it."4 This reporter went on to expressdoubt whether any money had in factexchanged hands in the House,noting that if it had, it was at mosta "verysmall" amount.43 A betterexplanation for "[t]he liberal support the bill has received,"he suggested,"is due to themerits of the bill itself."N

4m See textaccompanying note 314. 401 AllegedLegislative Corruption, Chi Trib2 (Feb 22,1869). 4( The CorruptionInvestigating Committee, Chi Times 6 (Feb 23,1869). 403 Id. 40 Id. The Chicago Tribunequoted the Times'sstatement in fulland said that"[w]e should like to see a photographof the countenanceof Dr. Mack and E.S. Taylor,of Cook, whilereading thisparagraph." Chi Trib2 (Feb 24, 1869). The Tribuneagreed thatlegislators had yetreceived little:"Liquor and cigars,and perhapsa fewadvances on account,are all thatmembers have re-

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A potentiallymore reliable source of informationis the corre- spondenceof the officers of the Illinois Central, including both Doug- las's regularreports to Osbornin New York and Douglas's instruc- tionsto his lobbyistsin Springfield.Based on informationgleaned fromthis correspondence, there is no doubtthat the Illinois Central, likeother railroads of the era, sought to cultivatethe goodwill of state politicians.For example,the IllinoisCentral routinely provided free passesto electedstate officials during their service in office.Z5And the Governorof Illinois routinely was appointeda memberof the corporation'sboard of directors(although it was expectedthat he would givehis vote by proxy to thechairman)." We also stronglysuspect, in

ceived."Id. Butit reiterated its statement that payoffs would come later. "The three to five thou- sanddollar pecuniary acknowledgments forfavors are reserved for distribution after the 'friends of a bill' havebeen investedwith some valuable right or propertyfilched from the people by theirfaithful legislative agents." Id. 405 See, forexample, Letter from John M. Douglas,President, Illinois Central, to General JohnM. Palmer,Governor of Illinois(July 16, 1868) (enclosinga pass and explainingthat in makingup thelist of recipients at thebeginning of the year "[y]ours was accidentally omitted"). An evenmore intriguing example is an 1873request from Greenbury Fort. See Letterfrom G.L. Fort,Congressman-Elect from Illinois, to JohnNewell, President, Illinois Central (Jan 17, 1873). Fortthanked Newell for sending him a pass,requested one forhis wife as well,and askedthat Newellpass alonga similarrequest for passes for Fort and hiswife for the Michigan Central Railroad.More intriguingly, Fort stated in apparentsupport of his requests that he hadenclosed a copyof a letterhe received"[w]hile I was a memberof the State Senate [from] A.W. Mack, whoseemed to haveR.R. interestin charge."Id. The Mackletter appears not to havesurvived, but,given that Mack himself served in the Senate through 1868 and died at thebeginning of 1871 (beforethe 1871 legislativesession was held),was almostcertainly written during the 1869 session. Other,more mundane examples of the Illinois Central's dispensing free passes exist as well. See,for example, Letter from John M. Douglas,President, Illinois Central, to Col.A.C. Babcock, Canton,Illinois (Aug 12,1868) (sending a freepass "[i]n recognition of past obligations"); Letter fromJohn M. Douglas,President, Illinois Central, to Hon. John Rosette (Feb 23,1869)(sending a freepass "as per yourrequest"). The controversialpractice was outlawedby Congressin the 1906Hepburn Act, which "specifically forbade the continued issuance of free passes to politicians,newspapermen, and otherpossible friends of theindustry." Stover, History of the Illinois CentralRailroad at 260 (citedin note80). Forsome recollections of the role of legislators' free passesin animating the Granger Movement in Illinois, see EdwardF. Dunne,2 Illinois: The Heart ofthe Nation 128-29 (Lewis 1933). For further confirmation that there is nothingnew under the sun,see RobertBecker, State Trims Illini Passes from Legislative Perks; Even Blagojevich Sought Out[Football] Tickets, Chi Trib Cl (Mar2,2003). 406 In thisregard (and particularlyin lightof Palmer'sveto of theLake FrontAct just a fewmonths later), the following excerpt of a letterfrom Osborn to Douglas in early1869 is instructive: Whenyou see GovernorPalmer again, please get his written authority for my acting as his proxy.I haveacted in thiscapacity but it is betterto havehis expressed permission. Some- timesit is notconvenient to makeup thequorum of seven without this proxy. My holding theauthority does not of course preclude his presence and participation at our Board meet- ingswhen he is in town.You maymention that I haveheld the proxy of every Governor of Illinoissince Governor Bissell's term-say for 14 years. Letterfrom Wm. H. Osborn,Chairman, to JohnM. Douglas,President, Illinois Central (Jan 12, 1869).

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 892 TheUniversity ofChicago Law Review [71:799 keepingwith the newspaper account previously described about the "diningtable" system at the Leland Hotel,that the IllinoisCentral pickedup thetab for a largenumber of libations consumed by legisla- torswilling to take theirmeals-and theirmarching orders-from AlonzoMack.< More probatively,the correspondencefrom 1869 containstwo passages,both in lettersby Douglas to Osborn,that provide some in- ferentialsupport for the propositionthat the railroadused illicit meansto procureenactment of the Lake FrontAct. The first is froma letterwritten in early January: In case we getthrough with our business on thelake to oursatis- faction,it mayrequire more money than contemplated in the resolutionpassed by the Board. HoweverI shallproceed as economicallyas possiblein matter, acceptingsuccess at almostany reasonable expense if we can'tdo better. Thefirst sentence, standing alone, could be explainedon innocent grounds.If Douglas had decidedsome timebetween late December and earlyJanuary to seek a legislativegrant of the outerharbor as wellas thedepot site, this clearly would "require more money" than merelybuilding a newdepot.4 The secondsentence is moredamning. It clearlysuggests that Douglas is referringto additionalexpenditures thatmust be incurredwithout delay based on his owndiscretionary authority.Constructing a new outer harbor obviously could await the board'sreview and approvalof additionalfunding. The "reasonable expense"to be incurredin connectionwith "our business on thelake" thereforerefers to somethingelse. The mostlikely supposition is that itrefers to expensesto be incurredin procuring the legislation itself. The secondpassage is fromthe letter of February3, previously quoted.Recall that Douglas wrote in that letter: "My great trouble has been to keep quietabout this-not to overstateits importance-not to let thesepeople know prematurely the estimate we place uponit, and above all to confinewithin our own knowledgethe steps taken to secureit.,,410 Conceivably,the italicized passage could refer simply to someof the tactics employed by Mack, such as stimulatingdownstate

407 See textaccompanying note 263. 408 Letterfrom John M. Douglas, President,to Wm. H. Osborn,Chairman, Illinois Central (Jan14,1869). 40 It would be usefulto examinethe Board resolutionreferred to by Douglas in evaluating thissentence, but unfortunatelythe IllinoisCentral did not transfercustody of the Board resolu- tionsto the NewberryLibrary when the originalgift of papers was made,and it appears thatthe resolutionsof thisgeneral era have now been destroyed. 410 Letterfrom Douglas to Osborn (Feb 3,1869) (cited in note 294) (emphasisadded).

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 2004] TheOrigins of the American Public Trust Doctrine 893 oppositionto theChicago bill and perhaps even encouraging the Mer- rittbill, and thenspringing the substitute bill as a "compromise"betweenthe Knickerbocker bill and theMerritt bill. But therevelation of anysuch tactics would be at mostmildly embarrassing. Such a dis- closurewould not be one thatthe railroad must "above all" makesure does not take place.It is moreplausible that the "steps taken to secure"passage of the bill were ones entailing some illegality or immor- ality,and thusones thatwould be deeplydamaging to thereputation ofthe Illinois Central (and itsofficers) if made public. A finalintriguing bit of evidenceis thatsome time after the Act was passed,Mack "broughtsuit against one or moreof the railroad companiesinterested, for his 'services' in connectionwith the passage ofthe bill."41' Unfortunately, we do notknow anything more about the suit,since Mack died before it went to trial,and it was discontinuedby his representatives.412The originalcomplaint, if it was preserved,was destroyedin theChicago Fire of 1871. Whetherthe suit supports or undercutsthe allegations of bribery is ambiguous.On theone hand,Mack providedother legal services to theIllinois Central later in 1869in connectionwith litigation seeking to enjoinimplementation of the Lake FrontAct,413 and it is possible thatthe suit was simplya disagreementover his fee forrepresenting therailroad in thatlitigation. On theother hand, there is someindica- tionthat Mack was in financialstraits and possiblyin failinghealth whenthe suit was filed.414 In thesecircumstances, he mighthave per- ceivedno prospectof a continuingrelationship with the railroad, and mighthave been willing to threatenthe railroad with public disclosure ofits chicanery in thehope of exacting a significantsettlement from it. In the end,although the documentaryrecord from 1869 cannot be said definitelyto establishthat the IllinoisCentral used corrupt meansto facilitatethe enactmentof theLake FrontAct, it probably leansin thatdirection. We do notmean to suggestthat corruption was the sole or even thepredominating factor in securingthe passage of theAct. Consider, for example, the role of RepresentativeBailey. We have seen thatKnickerbocker accused Bailey's law partnerof taking moneyfrom the Illinois Central in returnfor Bailey's support for the

411 Investigationsat Springfield,Chi Trib4 (Mar 20,1873). 412 See id. 413 See The Lake Front;Argumentsbefore Judge Druminond, Chi Trib1 (Aug 15,1869) (list- ing Mack as one of the attorneysrepresenting the IllinoisCentral in the case filedby the United States afterthe Lake FrontAct was passed, discussedin textaccompanying notes 431-41). 414 Accordingto one account writtenmany years later,Mack died on January2,1871, "in abject poverty,and withoutfriends." D.W. Lusk, EightyYears of Illinois Politicsand Politicians 430 (H.W. Rokker 3d ed 1889). But see Dr. A. W Mack, Chi Trib2 (Jan5,1871) (obituaryreflect- ing a mixed opinion of Mack, but statingnonetheless that "[t]he news of his death will be received withsadness by thousandsof friends").

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Act.415But we havealso seenhow Bailey used his position as chairof theHouse railroadcommittee to extracta concessionfrom Douglas aboutthe Act, to whichDouglas reluctantly agreed. 416 Thislatter fact, whichwas presumably not known by Knickerbocker, suggests that the passageof the Act was notsimply dictated by the railroad, but rather was accompaniedat leastto a degreeby theordinary give-and-take thatcharacterizes nearly all legislationenacted by democratic legislatures.So therole of corruption is notonly difficult to prove,but hard to assess.We willreturn to theissue of corruptionin PartVIII, after reviewingadditional evidence that comes to lightfrom the 1873 legislativesession.

VI. AFrERTHE Acr Once theLake FrontAct becamelaw, the Illinois Central began almostimmediately to planfor expansion of its existing facilities and developmentof the outer harbor. Osborn directed Douglas to obtain informationfrom "the topographical bureau at Washington[concerning]plans of all theimportant harbor improvements and breakwaters of Europe."417He explainedthat "[s]everal of theBoard are veryde- sirousto be possessedof some practical view or plan in relation to this improvement[and] the extent of thework demanded," and indicated thathe expectedto hear Douglas's viewson thesematters during Osborn'supcoming annual visit to Chicagoin mid-May.418 The exuberanceof the IllinoisCentral over the passageof the Lake FrontAct was quicklytempered, however, when it becameap- parentthat the matter was headedto thecourts. On thelast day of May 1869,Douglas wrote Osborn with the news that "the City is pre- paringfor litigation on a largescale, which will probably be com-

415 See note 396 and accompanyingtext. 416 See notes293,301, and accompanyingtext. 417 Letterfrom Wm. H. Osborn,Chairman, to JohnM. Douglas, President,Illinois Central (Apr 23,1869). 418 Id. Several sources indicatethat the Illinois Centralprepared a formalplan fordevel- opmentof the outerharbor, but if thatplan was embodied in a writtendocument, we have not founda copy of it.This is a descriptionof the plan froman opinionletter written by the Illinois Central'sGeneral Solicitorin 1884: In 1869,soon afterthe passage of the Lake Frontact, a plan was preparedby the railroad companyfor the constructionof an outerharbor within the limitsspecified in the grant.It was proposed to constructa seriesof pierssix hundredfeet wide, separated by intervening slips one hundredand fiftyfeet wide, to be throwninto the lake fromthe company's breakwateras a base, to the distanceof about 3,225 feetfrom the west line of Michigan avenue,and extendingfrom the riveron the northto the southernlimit of the grant.Four hundredfeet beyond the ends of the piers,an exteriorbreakwater was to be constructedin frontof the whole work,sufficient to make a secure harborin any stateof the weatherfor vesselslying inside. AyerOpinion Letter at 13 (cited in note 106).

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 2004] TheOrigins of the American Public Trust Doctrine 895 mencedwithin a fewdays."'419 He conceded,"This I did notlook forso soon!"420Given the impending threat of litigation,Douglas canceleda plannedJune trip to Europe to see investors,and recommendedthat the railroadlie low "fora time"with respect to developingthe harbor.421As we haveseen, Osborn's contemporaneous correspondence to Europeaninvestors announced that until the litigationwas resolved, "no expensewhatever will be incurred"in developingthe lakefront.422

A. 1869-1870:North Lake Park Whenlitigation commenced, it camefrom an unexpectedsource. The firstsuit was filednot by the City,but by CyrusH. McCormick. The industrialistand MichiganAvenue resident sought an injunction againstthe City of Chicagoand thethree railroads to preventthe oc- cupationof the threeblocks intended for depot purposes(that is, northLake Park).Although the Illinois Central was notunconcerned aboutthe matter, Douglas emphasized to Osbornthat "[t]his proceeding relatesentirely to the threeblocks and has nothingto do with whatlies East ofthe breakwater."423 The railroad'sfocus instead was on itsupcoming payment to the City.Under the terms of the Lake FrontAct, the three railroads were requiredto makefour staggered payments of $200,000for the depot land.424The cityclerk received the initial check from the railroads for thatamount. After seeking instruction about what to do,he accepted the check,but onlyafter the CommonCouncil passed a resolution statingthat his actionwas notbinding on the Cityand thatit would notreceive any money from the railroads "until forced to do so bythe courts."425The clerkplaced the money in a special-depositaccount in a bank (whereit remaineduntil 1874, when the railroads finally asked thatit be returned).426 Severaldays later (in thesummer of 1869),a deputationconsist- ingof the Mayor and twoaldermen called upon Douglas. As Douglas characterizedthe meetingprivately in a letterto Osborn,the City's representatives"wished to ascertainwhether an adjustmentcould be

419 Letterfrom John M. Douglas,President, to Wm. H. Osborn,Chairman, Illinois Central (May31,1869). 420 Id. 421 Id ("It is [in]our interest to letthe excitement originating in thepassage of the law sub- side-and withthat view take no stepsfor a time."). 422 See textaccompanying note 373. 423 Letterfrom John M. Douglas,President, to Wm. H. Osborn,Chairman, Illinois Central (July1, 1869). 424 See textaccompanying note 288; Lake FrontAct ? 5, reprintedin IllinoisCentral, 146 US at 407n 1 (statementof the case). 425 Illinois Central,146 US at 408 (statementof the case). 426 See id.

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 896 TheUniversity ofChicago Law Review [71:799 had upon the basis of arrangingupon fairterms, the matterof the threeblocks."427 The IllinoisCentral insisted that the only matter that mightbe negotiatedwas the price. Osborn advised from headquarters inNew York that, so longas Douglascould get another interested railroadto sharein an increasedpayment, he should"commence by sub- stituting$900,000 for $800,000 and dickerwith them [the City] for sometime."428 Osborn was optimisticof ultimate success, reporting his beliefthat "they will take a million-andbe gladto getit."429 This con- fidencedid notwane throughout the summer. While Douglas did not doubtthat there would be a bumpor twoin theroad ("as thereis abouteverything ofany importance in this world"), he also viewedthe matteras proceeding"as well[as] or betterthan expected."4V Beforenegotiations could proceedfurther, however, the local UnitedStates Attorney, G.O. Glover,filed a newand apparentlyun- expectedlawsuit in federalcircuit court on behalfof the United States.431This suit, like the McCormick action, sought a preliminaryin- junctionbarring the Illinois Central from commencing any construc- tionin northLake Park.The theorywas thatthe United States gov- ernmentwas still the owner of the portion of fractional section 10 east ofMichigan Avenue, that this land was subjectto a specialdedication to thepublic that the land would remain forever free of buildings, and thatthe United States, either as ownerof the land or as trusteefor the publicbeneficiaries of thededication, had standingto seekan injunctionagainst violation of the terms of the dedication. DistrictJudge Drummond acted with dispatch in grantingthe re- questedpreliminary injunction in August1869, and issueda substantial opinionjustifying his action.432 Withrespect to the questionof ownership,Drummond reasoned that the plat dedication did not create a "statutorydedication," because "all theprovisions required by law do notseem to havebeen complied with."433 If it werea statutory dedication,Drummond acknowledged that its effect would have been "to vestin thepublic the fee to thestreets and public grounds named

427 Letterfrom John M. Douglas, President,to Wm. H. Osborn,Chairman, Illinois Central (July17,1869). 428 Letterfrom Wm. H. Osborn,Chairman, to JohnM. Douglas, President,Illinois Central (July19,1869). 429 Id. 430 Letterfrom John M. Douglas, President,to Wm. H. Osborn,Chairman, Illinois Central (July26, 1869). 431 A political pamphletcirculated in 1881 stated that the suit was filed afterThomas Hoyne, the chair of the FarwellHall rally,"having exhausted every other means of prevention and redressof thisgigantic villainy, as a last resort,applied to the United States Government." Bradley,Report of the PresentStatus of the Claims of theIllinois CentralRailroad to the Lake Frontat 5 (cited in note 19). 432 UnitedStates v IllinoisCentral Railroad Co, 26 F Cases 461 (CC ND III 1869). 433 Id at 462.

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 2004] TheOrigins of the American Public Trust Doctrine 897 and designatedupon the plat as such."434Rather, Drummond concludedthat the UnitedStates had made a commonlaw dedication. The consequence,he reasoned,was that the federalgovernment "hold[s]the title in feeto theland subject to thededication which had been affixedto it."435 Giventhe ruling that the United States owned north Lake Park, subjectto the dedicationto the publicthat it wouldremain forever freeof buildings, Drummond concluded that the only way the State or theCity could redirect the use ofthe land was by bringing a formal action in eminentdomain to condemnthe land and the dedication. Drummondcited severalNew York and Massachusettsauthorities holdingthat, in thecase ofland owned by an individual,the legislature could not transforma dedication for one purpose(for example, for use as a publicstreet) to anotherpurpose (for example, partly for a railroadtrack) "without accountability to the ownerof the [property]."43The same principlehe thoughtapplied to land ownedby the UnitedStates. And it was clear thatthe Lake FrontAct, which di- rectedthat the land in questionbe transferredto therailroads in returnfor a paymentof $800,000 to theCity, did not qualify as a regular exerciseof thepower of eminentdomain such as wouldlegitimately takethe rights of theUnited States and thepublic. A properexercise ofeminent domain "must be, not alone byan applicationto thelegislature,but by an applicationin conformitywith the law, and where the rightsof the parties can be ascertained."437 The onlyremaining question was "whether the United States is in a positionto applyto a courtof equity to preventthose acts from being done whichthe railroadcompanies seek to do underthis law."4m Drummondacknowledged that "[t]his is a questionabout which there maybe, and is,some considerable difficulty."439 But he concludedthat thesounder view was thatan ownerwho dedicates his property to the publicupon a specialcondition can applyto a courtof equityto en- forcethat condition,and that the principleshould extendto the UnitedStates."40 He also alludedto a similarbill "filed by the owner of a lot abuttingupon this ground" (presumably the McCormick action), and noted"I do notdoubt the right of such owner to applyto a court ofequity to preventsuch a diversionas is contemplatedhere . .. , and

434 Id. Indeed,under an Illinoisstatute (not cited by Drummond), such dedications within a municipalityresulted in the transfer of the fee to thecity. See IllinoisCentral, 146 US at 440. 435 Illinois Central,26 F Cases at 462. 436 Id at 463. 437 Id at 464. 438 Id. 439 Id. 440 Id.

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I supposeit is notvery material in whichcase theorder of the court is made,whether in thisor theother.""'1 The Drummondinjunction had the effectof freezingplans to constructa new depot on thenorth Lake Parksite -as thingsturned out,for all time.The archivalrecord does notindicate why the Illinois Centraldid notappeal. We can onlyconjecture that the railroad con- cludedit was betterserved putting off the matter of a newdepot, and concentratingon preservingthe grant of the outer harbor. Osborn had writtento shareholdersin Junethat the railroadcould get by with GreatCentral Station for another ten or fifteenyears."' On theother side ofthe ledger, acquiring the north Lake Parksite was goingto be expensive,however one cut it. If the Drummonddecision were re- versedon appeal,it would be necessaryat a minimumto pay$800,000 to theCity under the terms of the Lake FrontAct, or, if the City per- sistedin resistingthe transferand threateninglitigation, something alongthe lines of $1 millionor more. If the Drummond decision stood, it wouldbe necessaryto use thepower of eminentdomain to condemnthe site, and the cost might well be evenhigher. The benefits and costsof securingthe grant of theright to developthe outer harbor mayhave appeared to be moreauspicious. In thebiennial legislative session that commenced in Springfield in January1871, some attempt was madeto addressthe Drummond injunction.Senator Jackson (of Lawrence) introduced a bill to authorize municipalauthorities, so longas thefederal government agreed, "tosell, lease, or otherwise dispose of any tract of land lying within the limitsof suchcity or townwhich has been heretoforededicated or cededby the General Government to suchcity or town,in trustfor a publicuse," and furtherprovided that any inconsistent acts were repealed."3The purposeof thisbill was describedas "to givepower to thecity of Chicago to sellthe lake front."44 The newspaperspredicted thatthe bill would "no doubtcreate something of a flutteramong the residentsof Michigan avenue,""5 but the bill did not progress very far

441 Id.This aspect of Judge Drummond's decision foreshadowed the famous Ward cases de- cidedby the Illinois courts later in the century and early in the next. These cases saw Montgom- eryWard, who owned property on MichiganAvenue, obtain repeated injunctions against the constructionof buildingsin GrantPark based on thelanguage of thededication on theFort DearbornAddition plat. See Cityof Chicago v Ward,169 Il 392,48NE 927(1897); Bliss v Ward, 198 Ill 104,64 NE 705 (1902); Wardv Field Museumof NaturalHistory, 241 Ill 496, 89 NE 731 (1909); SouthPark Commissionersv MontgomeryWard & Co, 248 Il 299,93 NE 910 (1910). 442 See textaccompanying note 373. 443 State Legislatures;Business Transactedat SpringfieldYesterday;... Disposal of Federal Land Grants,Chi Trib 1 (Feb 8,1871). 444 Springfield;Proceedings of theGeneralAssembly on Yesterday;Proposal toAuthorize the Sale of theChicago Lake Front,Chi Tumes2 (Feb 8,1871). 445 Id.

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 2004] TheOrigins of the American Public Trust Doctrine 899 in thelegislative session. It is unclearwhether the Illinois Central was behindor evensupported the measure. So mattersstood with respect to northLake Parkuntil the dra- maticevents of October8 and 9, 1871,when unusually dry weather and highwinds set the stage forthe worstfire in Chicagohistory. About one-thirdof the City,including most of the downtownarea, was consumedby the flames."6After devouring the mansionsalong TerraceRow on MichiganAvenue, the firejumped easily onto the roofof theGreat Central Station north of RandolphStreet, reducing it to a mereshell.447 But themain line of the Illinois Central tracks was spared-an unforeseenbenefit of a railroadin thelake -and thisal- lowedmost of the rolling stock to be rescuedby moving it south of the City.And thefortuitous presence of a fireengine on a flatcar destined forWisconsin allowed one ofthe two grain elevators to be saved.44 Of greatersignificance for our storyis whathappened immedi- atelyafter the Great Fire. In determiningwhat to do withthe massive debris,Mayor Roswell B. Mason-a formerchief engineer of theIlli- nois Central-together with other leading citizens quickly decided thatit shouldbe used to fillin Lake Michiganin the area between Lake Parkand theIllinois Central breakwater. Thus, "[s]lowly the wa- terarea westof thetracks, which had been extensiveenough to pro- videsailing room for small craft, was filledin. Within months the tres- tle workwas completelyfilled in, and thetracks of therailroad were on solidground.""9 Thisunexpected event evidently changed the cost-benefit calcu- lus about buildinga new depotsouth of RandolphStreet. Not only was some sortof new depotnow badlyneeded, but the costs of con- structingsuch a facilityin northLake Parkhad been reducedsignifi- cantly,since the landfilling had alreadybeen done by the City with the aid ofa largelyvolunteer work force. The immediateproblem was that thetime to appeal JudgeDrummond's injunction against building in thethree blocks had longpassed. The railroad'sresponse was to prepare an elaboratepetition to the AttorneyGeneral of the United States,asking that he directthe United States Attorney to withdraw therequest for injunctive relief, thereby eliminating any federal court impedimentto movingforward with a new depot.4'0For reasonsthat

446 See Pierce,3 Historyof Chicagoat 3-6 (citedin note20) (discussingthe course of the GreatChicago Fire). 447 See HermanKogan and RobertCromie, The GreatFire: Chicago 1871 113,203 (G.P. Putnam'sSons 1971); Stover, History of the Illinois Central Railroad at 182(cited in note 80). 448 See Stover,History of the Illinois Central Railroad at 182(cited in note 80). 449 Id at 184.For a glimpseof how this area had previouslyappeared, see Figure5 (preced- ingnote 116). 450 See Statementand Argument Addressed to theAttorney General in Referenceto Dis- missalof theBill in Case of The UnitedStates v. TheIllinois Central Railroad Co. and Others

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 900 TheUniversity ofChicago Law Review [71:799 do not appear in the archivalrecord, however, the petitioneffort failed,and the preliminary injunction remained undisturbed. Theupshot was that the Illinois Central and affiliated lines had to makedo withoutusing the north Lake Parksite for a newdepot. The IllinoisCentral first operated out of a temporarystructure at Twenty- SecondStreet, then reopened a depoton SouthWater Street north of RandolphStreet in 1872.This depot, hemmed in bylimited space, was deemedinadequate by the affiliated lines, with the result that some of thememployed a varietyof temporarystations of dubiouslegality southof Randolph Street throughout the 1870s and 1880s.4' In 1878,to relievesome of thepressure on thedepot, the City adopted an ordinancepermitting the Illinois Central to builda smallbrick passenger depotin Lake Parkat Van BurenStreet.452 Finally, in 1893the Illinois Centralopened a granddepot and generaloffice building on landit ownedat ParkRow and MichiganAvenue just southof Lake Park (soonrenamed Grant Park). Known as CentralStation, this remained a majorChicago landmark until it was razed in 1974.453Today, the Metra commuterstations serving the Illinois Centraltracks at RandolphStreet and Van BurenStreet are discreetlytucked below groundlevel. What was northLake Parkis nowChicago's new Mil- lenniumPark. Its features include the McCormick Tribune Ice Rink- ironicallylocated exactly where the Skating Park Bill of 1867,which the Tribunehad denounced,would have created a privateenterprise devotedto similarends454-and a flamboyantoutdoor music pavilion designedby Frank Gehry.

B. 1870-1872:The Outer Harbor Whilethe Illinois Central equivocated about whether to seek to utilizethe Lake FrontAct's grant of thethree blocks, it displayedno hesitationabout the value of the grant of submerged land for an outer harbor.In part,this may have been due to a perceptionthat, legally speaking,the path towardachieving secure property rights in the outerharbor seemed more straightforward. Osborn's letters indicate thatthe railroadwas now whollycommitted to the idea thatthe Americanview of ownershipof submergedland would be appliedto

(Nov5, 1872) at 5 (arguingthat after the "great fire of October last" a "newpassenger depot is nowabsolutely required"). 451 See Lind,Limiteds along the Lakefront at 5-6 (citedin note109) (describingthe constructionof new stations following the Chicago fire). 452 OrdinancePermitting the Illinois Central Railroad Co. to Erecta Fenceon theEast Line ofLake Park,Etc. (Nov 22, 1878), in Journal of the Proceedings of the City Council of the Cityof Chicago for Municipal Year 1878-9, Being from Apr. 29,1878, to Apr. 28,1879 284-85,294 (Dunn& Heggie1880). 453 See DavidLowe, Lost Chicago 56 (HoughtonMiffin 1975). 454 See,for example, text accompanying notes 186-87 and 226-27.

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Lake Michigan.455Once thispremise was accepted,then the fact that the UnitedStates might be deemedto be the ownerof northLake Parkwould not affectthe State'sownership of thesubmerged lands, or its powerto conveythem to the railroad.Moreover, the vested- rightsdoctrine of Fletcher v Peck seemedto saythat as longas theIl- linoisCentral accepted the grant of the outer harbor, and especiallyif it tooksteps to actin relianceon thatgrant, the courts would not per- mitthe legislature to changeits mindand repealthe grant.456 Finally, theouter harbor was withoutdoubt the bigger prize, both in termsof protectingthe railroad's existing investments along the lakefront from somefuture grant to anothercorporation and in termsof future revenue growth. The railroad'scorrespondence reveals that virtually from the date of enactmentof theLake FrontAct, the outer harbor was thehigher priority.457For example,in reportingon his settlementnegotiations withthe mayorand aldermen,Douglas relatedthat one elementof theCity's proposal was to divideauthority over the outer harbor. Spe- cifically,the City proposed that it would"conced[e] to theIll. Central whatlies outsideof thebreakwater north of MonroeSt. [and]the Ill. Cent. conced[e]what lies southof Monroe St. and northof Park Row."458Douglas had responded"that the matter of thethree blocks concernedthe three companies and mustcome up separatelyfor ne- gotiationand adjustment"but in his view"the outsidecould not in anyway be connectedwith that negotiation."459 "[O]f course," Douglas wroteto Osbornsoon thereafter,in thesummer of 1869,"we cannot relinquishone foot,and can neverlisten to anynegotiations proceed-

455 See Letterfrom Osborn to Borthwick(June 9,1869) (citedin note373) ("The Stateof Illinoishas vested in theCompany a perfecttitle to all theproperty ithas acquiredor appropriatedfrom the water and has further granted it the privilege of constructing works for a milefur- therinto the Lake.... We haveno doubtthat the State possessed entire sovereignty or proprietorshipin these waters and that the title will be fullyconfirmed by the Courts."). 456 Fletcherhad also involveda stateland grantfollowed by a repealwhen the original grantwas discredited by allegations of corruption. See 10US (6 Cranch)87. Although exceptions to ContractsClause protection were increasingly recognized as thenineteenth century advanced, see generallyBenjamin Wright, The ContractClause of theConstitution ch 8 (Harvard 1938), the IllinoisCentral could take comfort that the core holding of Fletcherseemed secure in thisera. See,for example, Davis v Gray,83 US (16 Wall)203,232 (1873) (holding that Texas could not re- scindthe grant of public land to a railroadwithout violating the Contracts Clause). 457 Thiswas also theperception of some of the railroad's political opponents, looking back on its behavior duringthis era. See Bradley,Report of thePresent Status of the Claims of theIlli- noisCentral Railroad to the Lake Frontat 8 (citedin note 19) (notingthat the Illinois Central for tenyears had borne"the risk and inconvenienceof the slab shanties which have sufficed for its maindepot ... ratherthan waive its claim to thesubmerged lands"). 458 Letterfrom John M. Douglas,President, to Wm.H. Osborn,Chairman, Illinois Central (July17, 1869). 459 Id.

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ingupon such a basis."WIn September,Douglas reported to Osborn that"[w]e have had somelittle litigation about the three blocks, but I have encounteredno seriousdiscouragement in theway of our lake shorematters."461 It also appearsthat the IllinoisCentral embarked on a plan to fortifyits claim that the grant of theouter harbor was a vestedright, perhapsin anticipationof futurelitigation. Thus, the Illinois Central undertooka numberof initiatives during 1869 and 1870that required constructionactivity outside the existing breakwater. For example, the companylaid the groundworkfor buildingnew piers northof RandolphStreet, "by laying a newtrack on pilesdriven into the lake on a linea shortdistance outside that part of the breakwater then ex- tendingsouthwesterly from Randolph street."< About the same time, therailroad constructed a new breakwater from Park Row to a point two blockssouth.i The importanceto the railroadof theseinvest- mentscan be seenin theemphasis that management placed on movingforward with them in 1870,even in themidst of economiccondi- tionsthat Douglas found increasingly "alarm[ing]."4 Thus, New York headquartersissued a generaldirective to operationsin Chicago"to cutyour construction expenses right down," but specified that this was "withthe exceptionof the Lake Shore protection,which must be prosecuted."465One possiblemotivation for pressingforward with theseimprovements was to establishthat the railroad had actedin relianceon thegrant of rights to theouter harbor under the 1869 Act. Thereis also the matterof the"acceptance" of theLake Front Act by the IllinoisCentral. On July6, 1870,the Board of Directors adopteda resolutionformally accepting the Lake FrontAct. TheAct didnot itself require any such action. The delayed acceptance (and the furtherdelay in communicatingthe acceptance until November 1870) mayhave been prompted by a perceivedneed to complywith a provi- sionof thenew Illinois Constitution adopted in 1870.4Whatever the

46 Letterfrom John M. Douglas,President, toWm. H. Osborn,Chairman, Illinois Central (July26,1869). 461 Letterfrom John M. Douglas,President, toWm. H. Osborn,Chairman, Illinois Central (Sept20,1869). 462 AyerOpinion Letter at 13-14(cited in note 106). 463 See id. 464 Letterfrom John M. Douglas,President, toWm. H. Osborn,Chairman, Illinois Central (Apr20, 1870) ("This is thehardest time in trafficI have ever seen. There has probably never beenin this state, according to the area planted, such an entirefailure in the corn crop. I ammy- selfalarmed for our own affairs."). 465 Letterfrom Wm. H. Osborn,Chairman, to JohnM. Douglas,President, Illinois Central (Apr14,1870). 466 See IllinoisCentral, 146 US at 408-09(statement of the case). 467 Thisprovision stated: All existingcharters or grantsof special or exclusiveprivileges, under which organization

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 2004] TheOrigins of the American Public Trust Doctrine 903 reasonsfor the delayedacceptance, it is interestingto note thatthe resolution"direct[ed] the President of thecompany to givenotice to the Stateof suchacceptance, and thatthe companyhad commenced workupon the shore of the lake at Chicagounder the grants referred to."4"8It is thuspossible that the formal acceptance was also motivated in partby a desireto buttressthe railroad's claim that its rights under the1869 grant were fully vested. The IllinoisCentral had good reasonto be apprehensiveabout thestatus of the grant of the outer harbor. The legislativesession that commencedin thewinter of 1871brought a renewedchallenge to the railroad'sinterests in thelakefront. Senator Woodard of Cook County introduceda bill thatwould have repealedthe Lake FrontAct outright.i69While the railroad undoubtedly noticed this bill, little evidence survivesof the company's response.470 In anyevent, Senator Boyd, who had championedthe Lake Front Act in 1869,reported unfavorably on thebill on behalfof theJudici- aryCommittee. The committee'sview was that"rights had actuallyac- cruedunder that law whichmade it wrongto attemptto repealit," and a majorityof theSenate concurred.47' Newspaper coverage of the

shallnot have taken place, or whichshall not have been in operationwithin ten days from thetime this constitution takes effect, shall thereafter have no validityor effectwhatever. Ill Constof 1870Art 11, ? 2. The Constitutiontook effect on August8, 1870,so anygrant that couldbe characterizedas a "specialor exclusiveprivilege" had to be "in operation"by August 18,1870, or riskforfeiture. The Stateof Illinois,in itsbrief in IllinoisCentral, argued that the Board'sresolution of July 6, 1870,was inadequate for technical reasons to placethe grant in the Lake FrontAct "in operation." See Briefon Behalfof the State of Illinois at 78-93,Illinois Cen- tral,146 US 387.Justice Field did not address this argument in his opinion. 468 AyerOpinion Letter at 12 (citedin note 106) (discussingIllinois Central's adoption of a resolutionaccepting grants made to thecompany under the Lake FrontAct). 469 See StateLegislatures; Business Transacted at SpringfieldYesterday; ... Lake FrontBill, ChiTrib 1 (Feb 10,1871) (predicting Woodard's submission of such a bill);Springfield;. . . The ProposedSale ofthe Chicago Lake Front;The Chicago Lake Front,Chi Times 1 (Feb 13,1871) (quotingthe bill in full);Journal of theSenate of theTwenty-Seventh General Assembly of the Stateof Illinois 211 (1871) (1871Illinois Senate Journal) (reflecting Woodard's introduction of thebill and its referral to the judiciary committee). 470 See Letterfrom Wm. H. Osborn,Chairman, to JohnNewell, President, Illinois Central Railroad(Feb 13,1871)("I noticethat Senator Woodard presents a bill to repeal the Lake Shore. Thisagitation will be usedto affectour stock. Please sendme thenewspapers giving the debate on hismotion and anyfurther allusions to it whichmay appear in thepress to enableme to an- swerthe questions which will soon be madein thisoffice on thesubject."). The only other possible referenceto thematter in survivingIllinois Central correspondence is a crypticstatement in earlyMarch, which may or may not have concerned the Lake FrontAct. See Letterfrom Wm. H. Osborn,Chairman, to JohnNewell, President, Illinois Central (Mar 8, 1871)("Senator Jewett's newsis extremelygratifying, and [has]taken quite a load offmy mind-we have enough to do to geta fairreturn from our lines -even withoutbeing pestered and affectedby such adverse legislation."). 471 StateLegislatures; Business Transacted at SpringfieldYesterday; The Lake FrontBill Ta- bledin theSenate, Chi Trib 2 (Apr6, 1871).See 1871Illinois Senate Journal at 498 (citedin note 469).

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 904 TheUniversity ofChicago Law Review [71:799 proposedrepeal was relativelyscant, which may reflect the fact that theopposition to therailroad's development of theouter harbor re- mainedweak at thistime. Butthe Illinois Central had little time to savorits success in stav- ingoff legislative repeal. In July1871, United States Attorney Glover broughtyet another civil action against the railroad, this time concerningthe outer harbor. The theoryof this action was thatthe railroad's constructionwork in theouter harbor was threateningnavigation in thelake, authority over which was committedexclusively to thefed- eralgovernment. The actionseems to havebeen precipitated, in part, by an appropriationof $150,000by Congressin 1870to theUnited StatesArmy to drawup plansfor "enlargement of harbor facilities at Chicago,Illinois" and forconstruction of "a harborof refuge."472This appropriation,the first of many over the years to come,essentially in- jecteda federalagency -the U.S.Army Engineers-into the mix along thelakefront. The informationfiled by the United States Attorney alleged(1) thatthe U.S. Army had exclusive authority under the federal appropriationslegislation to establishthe lines of the outer harbor at Chicago;(2) thatthe railroad was filling with earth part of that harbor and had builta railroadtrack on pilesin thenavigable waters of the lake;(3) thatthe company intended to continuethe work of filling to a pointat leastsix hundred feet east of the land it had alreadymade; and(4) thatthis would obstruct the navigation of the lake and damage thenew outer harbor.473 The parties apparently agreed to a preliminary 474 injunction. Afterthe Great Fire intervened, the case was settled,in January 1872,pursuant to a stipulationfiled with the court.The settlement drewan imaginaryline, "[c]ommencing at the pier on thesouth side of theentrance to theChicago River, 1,200 feet west of the Government breakwateraforesaid; thence south to an intersectionwith the north lineof Randolph street extended eastwardly; thence due west 800 feet; andthence south to theeast and west breakwater proposed to be con- structedby the United States 4,000 feet south of thepier first above mentioned."475Inside this line, the IllinoisCentral was permittedto constructdocks and wharves consistent with the authority granted by the Lake FrontAct, provided that it followed"the directions which mightbe givenin referenceto theproper construction of said docks

472 Appropriationfor Public Works on Riversand Harbors(July 11, 1870),41 Cong Ch 240, 16 Stat223,226 (1870). 473 See Information,United States v Illinois CentralRailroad Co (filed July3, 1871), reprintedin Encroachmentsupon theHarbor at 22 (cited in note 153). 474 See AyerOpinion Letter at 14-15 (cited in note 106). 475 Stipulation,United States v Illinois CentralRailroad Co (Jan 1872), reprintedin En- croachmentsupon theHarbor at 23 (cited in note 153).

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 2004] TheOrigins of the American Public Trust Doctrine 905 and wharvesby the properofficers of the EngineerBureau of the UnitedStates."476 Outside the line, it was forbiddento undertakeany constructionwithout the express consent of the United States. The settlementhad far-reachingeffects. It effectivelyfixed for twentyyears the line of divisionbetween open accessrights and private exclusionrights along the Chicagolakefront: outside the settle- mentline, a ruleof open accessand freenavigation would apply; inside theline, the Illinois Central could potentially exercise private exclusionrights. It thushad the effectof greatlyreducing the scope of privaterights conferred by theLake FrontAct. Although discussions of theAct to thisvery day emphasizethe extraordinary scope of the grantin theoriginal Act-over one thousandacres in total-the set- tlementessentially trimmed the area underIllinois Central control back to a modestcurtilage around its existingimprovements. Com- binedwith the effectiveabandonment of plansto developthe north Lake Parksite as a new depotsite after 1872, the practical import of theLake FrontAct was now but a shadowof whatit had seemedin 1869. During1872 and thefollowing year the railroad resumed at least some of itsconstruction activities within the now-reduced outer harbor.For example, the company continued its work on PierOne, east of itsexisting warehouses and adjacentto theriver, although this was not completeduntil after the Lake FrontAct was repealedin 1873.The railroadalso filledin a triangularpiece ofland between Madison and WashingtonStreets to allowa bettercurve of its tracks and thus better accessto theexpanding terminal facilities. All in all,the railroad was said to have expendedsome $230,000between 1869 and 1873in de- velopingvarious facilities in the outerharbor area along the lakefront.r477

C. 1873:Repeal The early1870s were a timeof great economic distress in theru- ral Midwest.Falling crop prices made manyfarmers unable to meet expenses,including what the farmersperceived to be unreasonable and unfairrailroad charges for shipping grain and livestock to market. The resultwas theGranger Movement, a formof rural populism that maderailroads a particularfocus for political agitation.48 Although re- gionalin itscomposition and nationwidein itsinfluence, the Granger

476 Id. 477 See Evidenceon Behalfof Defendant Illinois Central Railroad Company (May 5,1887), in Record:Illinois Central Railroad at 350,355-56 (cited in note71) (reproducingtestimony of L.P.Morehouse). 478 Foran excellentstudy of this movement and theconditions that inspired it, see Miller, Railroadsand the Granger Laws (citedin note 259).

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Movementwas nowhere more important than in Illinois.79The Illinois Constitutionof 1870,the impetusfor which came in partfrom the movement,had declaredthe authority of the State to regulatethe ser- vicesand rates of railroads. The IllinoisCentral was theobject of par- ticularscrutiny, a clause even being included in the1870 Constitution to prohibitthe company's release, ever, from any contract or obligation"to pay any money into the state treasury."4 Given the widespreadpopular distrust and clamorfor further regulationof therailroads, it is inconceivablethat, with the advent of the1873 legislative session, the Illinois Central could have been indif- ferentto whatmight transpire in Springfield.Yet virtuallyno direct evidenceof the railroad's reaction exists. The railroad's new president, JohnNewell, was muchless given to confidingabout political matters in correspondencewith Osborn. In any event,when the legislature convenedin 1873,it didnot take long before Senator Reynolds introduceda billto repealthe Lake FrontAct of 1869.48'The billwas referredto theCommittee on Municipalities.

479 See id at 59-76. 480 Ill Constof 1870, sections separately submitted. 481 See Journalof the Senate of the Twenty-Eighth General Assembly of the State of Illinois 185 (1873)(1873 Illinois Senate Journal) (reflecting introduction ofSenate Bill 180,"An act to repealan act entitled'an act in relationto a portionof thesubmerged lands and Lake Park groundslying in andadjacent to theshore of Lake Michigan,on theeastern frontage of the city ofChicago,' in force April 6 [sic],A.D., 1869"). 482 See id at 188. 483 See Letterfrom George W. Wall, writing from the Leland Hotel in Springfield,to John Newell,President, Illinois Central (Feb 25,1873).

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A briefaccount in theInter-Ocean, which supported repeal, is in- dicativeof the new tone.The Chicagopaper reportedthat former RepresentativeMerritt, whose bill to appointa commissionto considerthe lakefront had beensoundly defeated by the Illinois Central's forcesin 1869,made a returnappearance at theCapitol. He report- edly"gave an amusingaccount of the wayin whichthe Lake Front swindlewas passed by the Legislatureof 1869.He statesthat some Chicagopapers received $75,000 to keep quiet.The highestsum paid fora voteand influencewas $20,000,and thelowest $25."48 This brief comment,appearing in a partisanpaper (whose proprietor was Jona- thanYoung Scammon) and purportingto quote one of the losersin 1869,should be takenwith all thequalifications about newspapers as sources.Whatever the truthof the account,however, the storyillus- tratesthe tenor of the public argument in supportof repeal. In thisenvironment, it is not surprisingthat the IllinoisCentral tookthe high road, meaning in thiscase argumentsgrounded in con- stitutionallaw. Rather than relying solely on formerlegislators as lobbyists,the railroad dispatched its counsel, John Jewett, to Springfield. Althoughthe municipalities committee had alreadyvoted to recom- mendrepeal, Jewett was able to persuadeits chairman not to report the bill back to the Senate beforehe could addressthe committee. Jewettappeared before the committee on March9 and had a considerable effect.Taking up whatone skepticalnewspaper described as "thatold familiarstrain about the Dartmouth college, and theother worn-outtune about 'vested rights,"'6 Jewett was variouslyreported as "seem[ing]to convincesome of the Committeethat it wouldbe simplyabsurd to pass an act thatwould be null and void" and as makingthe committee "afraid to do anything."Thus, notwithstand- ingits previously having voted unanimously to reportthe bill favora- blyto theSenate, the committee deferred final action on thebill until itsnext meeting. One senator'smotion to have the bill reportedim- mediatelydid not even receive a secondingrequest. The proponentsof repeal began to look to theHouse fora more sympatheticaudience, shifting their attention back and forthbetween the two legislative chambers.On March 11, Representative Herringtonof Kane Countyintroduced a measurein theHouse to re-

48 Lake Front,Inter-Ocean (Chicago) 1 (Mar 12,1873). 485 Id. 486 Lake Front,Chi Times 2 (Mar 13,1873). The reference is tothe famous decision holding thatcorporate charters are contractsprotected by theContracts Clause against legislative im- pairment.See Trusteesof Dartmouth College v Woodward,17 US (4 Wheat)518 (1819). 487 TheState Capitol; The Railroad Bills-Passage of the Lake Front Repeal Bill Very Doubt- fiul,Chi Trib 5 (Mar 10,1873). 48 Lake Front,Chi Times at 2 (citedin note 486).

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 908 TheUniversity ofChicago Law Review [71:799 peal thelaw. 48 It wasreferred without opposition to theCommittee on Railroads.490Back in the Senate,meanwhile, Reynolds threatened to introduceanother measure if the Committee on Municipalitiesdid not reportback his bill. The nextday, on March12, more than two weeks afterit had agreedunanimously to reportthe repeal bill back favorably,the Senate's Committee on Municipalitiesfinally discharged the bill-but did so withoutrecommendation.491 The Chicago Times reportedthat "the committee appeared to be veryglad to getrid of it in anyway. A few days later,the House railroadcommittee took up Herrington'sbill. Jewett's brother-in-law, a member of the committee, requestedthat the committee defer action on thematter until Jewett couldreturn to Springfieldto testifybefore the House committee.493It wasagreed to holdthe matter temporarily. On March18, a memberof the House "causeda littleexcitement in theHouse byintroducing a bill providing for the appointment of a specialCommittee of threeSenators and fourRepresentatives to investigatethe means used to passthe Lake-Front bill through the Leg- islatureof 1869."494The workwas to be "forthe guidance of this Gen- eralAssembly, in legislatingupon the repeal of said Lake FrontBill." Underthis proposal, the committee of investigationwould have full subpoenapowers and by the fall would provide the General Assembly a report"contain[ing] a full and detailedstatement of the history and passageof said Lake FrontBiil, so faras thesame can be ascertained, withthe means and influences used to accomplishthe same."496 The motivationbehind the investigation bill, as in 1869,was ambiguous.On theone hand,some evidence suggests that the investigationwas devisedby the proponents of repealas a sortof in terrorem deviceto inducethe railroad to dropits opposition to therepeal effort in exchangefor the dropping of the investigation bill. Thus, the propo-

489 See Journalof the House of Representatives ofthe Twenty-Eighth General Assembly of theState of Illinois341 (1873) (1873Illinois House Journal) (reflecting introduction of House Bill483, "An act to repealan actentitled 'an actin relationto a portionof the submerged lands and lake parkgrounds, lying on and adjacentto theshore of Lake Michigan,on theeastern frontageof the city of Chicago,' in force April 16,1869"). 490 See id. 491 See 1873Illinois Senate Journal at 307-08(cited in note 481). 492 LakeFront, Chi Times at 2 (citedin note 486). 493 See TheLake Front Steal, Inter-Ocean (Chicago) 2 (Mar17,1873). 494 TheState Capital; ... TheLake-Front Act, Chi Trib 5 (Mar 19,1873). See 1873Illinois HouseJournal at 402 (cited in note 489) (reflectingthe introduction ofHouse Bill 525). 495 A Billfor an Actfor an Investigationinto the Means Used to Securethe Passage of an Actentitled "An Act in Relationto a Portionof the Submerged Lands and Lake ParkGrounds, lyingon andAdjacent to the Shore of Lake Michigan,on theEastern Portage of the City of Chi- cago,"in forceApril 16, 1869, commonly called the Lake FrontBill, HB 525,28th Assem, ? 10 (1873),available in the Illinois State Archives, Springfield, Ill. 496 Id.

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 2004] TheOrigins of the American Public Trust Doctrine 909 nentof the investigationalso was a supporterof therepeal, and the railroadlobbied activelyagainst the investigation.497On the other hand,the bill may have served as a delayingtactic by opponents of repeal, giventhat the investigationwas intendedin partto determine "thepresent value of the property granted [and] the value of the same at thetime said grantwas made"-inquiries that could not have been completedduring the currentlegislative session. 498 One newspaper thus averredthat the investigationbill was a smokescreen"under coverof which the repealing bill may be fatallystabbed."499 Whateverthe truthconcerning the investigationbill, it became clearthat the railroadwould be hardpressed to staveoff the forces favoringrepeal. By the timeJewett arrived to addressthe House committee,it was too late:the committee had reportedthe repeal bill favorably.500Largely conceding the matterin the House,the railroad refocusedits attentionon the Senate.The vested-rightsargument, whichhad succeededin promptingthe Committeeon Municipalities to back offits favorablerecommendation of the repealbill, was expectedto geta morefavorable reception in theSenate because of the numberof lawyersin the upperbody. Consistent with this view, the railroadsought to have therepeal bill referred to theSenate's Com- mitteeon the Judiciary.One of its lobbyists,who had alreadyleft Springfieldthinking he had done all he could,received a telegram fromNewell in Chicago,apparently instructing him to returnto the capital.He thenresponded to thepresident that "you should send all theforces at your commandto Springfieldat once -for it will require an immenseinfluence to make a successfulfight in an open field."50O The lobbyistconcluded that he was "stronglyinclined to thinkwe can smotherthe Bill ifwe can getit to theJudiciary Committee."52 The Tribuneobserved these machinationsand reportedthat "[t]heprogramme of theanti-repealers is to recommitthe bill to the SenateJudiciary Committee, where it is expectedMr. Jewett's argu- mentswill overwhelm his legal brethren."503 Others thought that some- thingother than the quality of the IllinoisCentral's legal arguments was causingmovement among the senators.The ChicagoEvening Journal,for example,contended that, "by-and-by, when a vote is

497 See 1873 Illinois House Journalat 445-46 (cited in note 489); The Lake FrontRepeal Bill Passed in theHouse, 127 to 5, Chi Trib5 (Mar 28,1873). 498 HB 525 ? 10 (cited in note 495). 499 The Lake FrontRepealing Bill; No Prospectof Its Passage; The Railroad Lobby;... The Lake FrontBill, Chi EveningJ 2 (Mar 24,1873). 500 See Lake Front,Chi Trib5 (Mar 21, 1873). 501 Letterfrom George W. Wall,writing from Du Quoin, Ill, to JohnNewell, President, Illi- nois Central(Mar 23,1873). 502 Id. 503 Lake Front,Chi Tribat 5 (cited in note 500).

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reached,if ever, we mayascertain how many of theSenate's twenty- fivelawyers are thepaid attorneysof the railroads."" Based on this,it concluded:"The bill will pass theHouse, but not the Senate, for there aretoo many lawyers there. Mark the prediction."-55 The predictionconcerning the House was correct.On March26, theHouse tookup thematter and, after a bitterdebate, overwhelm- inglyrejected an effortto referthe repealer to itsjudiciary committee.506The next day, by an evenmore overwhelming vote (127 to 5),the House votedto repealthe Lake FrontAct.%7 The predictionconcerning the Senate was almostcorrect. The upperbody took up thematter the day afterthe vote by theHouse. One newspaperobserved that "[t]he fight waxes warm, and, by the middleof the week, will be quiteexciting."5" This paper predicted that "[w]hateverchance there is forthe Repealing bill, the Investigation billwill hardly pass, on accountof a repugnanceon thepart of many to 'rakingup deadmen's bones."'" Thefight waxed warm, indeed. One senatormoved for referral of the bill to the JudiciaryCommittee.510 The referralwas opposedby SenatorWhiting from Bureau County, who argued that theact shouldbe wipedoff the statute books as a rebuketo the corruptionby whichit was passed.He knewthe Legislature in 1869was filled with the elite of the bar of the State, all infavor of the bill.The pressof the State was muzzled,and it was run 511 throughthe Legislature with money. Warmingto the subject,the senatorroundly denounced the Lake FrontAct: "Inequitypresided over the conceptionof the scheme, fraudwas presentat itsbirth, and honestywould rejoice at itsdeath. Thiswas worse than Credit Mobilier, salary steal, and all theinequities perpetratedby Congress."5"2Referral, that is, anti-repeal, had itspro- ponentsas well,many of whom sought to defendthe Judiciary Com- mitteeagainst the charge (or at leastthe implication) that its members werelargely attorneys in the employ of the railroad. The ultimate vote wasclose: nineteen senators voted in favor of referral, and twenty-two

504 LakeFront Repealing Bill, Chi Evening J at 2 (citedin note 499). 505 Id. 506 See 1873 Illinois House Joumal at 440-41 (cited in note 489) (reflectingdefeat of the motionto referby a vote of 109 to 14). 507 See id at 445-46. 508 The State Capital;The Lake FrontRepeal Bill Passed in theHouse, 127 to 5, Chi Trib5 (Mar 28, 1873). 509 Id. 510 See 1873 IllinoisSenate Journal at 448-49 (cited in note 481). 511 The StateCapital; Exciting Debate on theLake-Front Repeal Bill in theSenate, Chi Tnb 1 (Mar 29,1873). 512 Id.

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 2004] TheOrigins of the American Public Trust Doctrine 911 votedagainst."' A swingof twovotes would have caused the repeal billto be referredto theJudiciary Committee, which very likely would havemeant its defeat. Now, most observers predicted its passage. In fact,the railroad appears at thispoint to havefocused its ener- giesrather more on defeatingthe investigation bill.514 When this latter bill came up fordiscussion in the House,its receptionwas different fromthat for the repeal bill, which had passedwith more than 95 percentof thevote. The House considereda motionto strikeout thein- vestigationbill's enacting clause -a motionthat was madeby a repre- sentativewho had votedin favorof repeal. The essentialargument in favorof the motionwas thatthe legislature"should not takeup the timeand moneyof theState to go back fouryears to washthe dirty linenof a precedingLegislature," and that the representatives "had al- readydone morethan was askedby the people in passingthe repealing bill throughthe House."515 It was also allowedthat "[t]hose who wantedinvestigation were disappointedin stealingthe land themselves."516 To be sure,the investigationbill had proponents.One member "thoughtthe men who werebought like steersin themarket should be exposedand held up to publicscorn, especially as some of them sincewere candidates for office."517 Another maintained that the questionof whether the Lake FrontAct had beenprocured by fraud would continueto have practicalimportance, even ifthe repeal bill passed. The railroadargued "vested rights" with respect to thelakefront grant, he noted,but "[flraud violated [sic] all contracts."9518The motion to defeatthe investigation bill resulted in a raretie and thusfailed to carry theHouse bya singlevote out of the eighty-eight cast.519 Withits lobbyist advising that the investigation bill would even- tuallyrun aground, the railroad made a finaleffort to forestallthe repeal billin theSenate. It dispatchedJewett once againto Springfield, and alongwith some former senators, he workedagainst the bill. The

513 See 1873Illinois Senate Journal at 449 (citedin note 481). 514 The railroadalso had otherconcerns in this Granger-era legislature. For example, it lob- bied againsta bill enactedon March28, 1873,entitled "An Act to compelthe trustees of the landsgranted the Illinois Central to executetheir trust." The law required the railroad twice an- nuallyto offerfor sale in each countyall itslands located therein until all had beensold and to acceptany bid of $2 ormore. The railroad ultimately triumphed on thematter when the Illinois SupremeCourt refused to grantthe writ of mandamus that the law contemplated.See Peoplev Ketchum,72 1I1212 (1874)(Chief Justice Breese); Gates, Illinois Central Railroad and its Coloni- zationWork at 307-08(cited in note 81) (describingthe court's decision). 515 TheState Capital; The Lake-Front Investigation Bill Orderedto a ThirdReading in the House;... Lake FrontInvestigation Bill, Chi Trib 5 (Apr1,1873). 516 Id. 517 Id. 518 Id. Based on therest of the article, the word probably should have been "vitiated." 519 See 1873Illinois House Journal at 477-78(cited in note 489).

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 912 TheUniversity ofChicago Law Review [71:799 bill'sopponents maintained both that to repealthe Lake FrontAct wouldbe implicitlyto chargethe 1869 legislature with corruption and thatrights had vestedin favorof therailroad under the 1869grant, whichcould not be repealed. Thesearguments were not availing. On April9, 1873,the Senate votedthirty-one to elevento repealthe Lake FrontAct.:" On April 15 one dayshy of four years after it had beenenacted over a prede- cessor'sveto-Governor John L. Beveridgesigned the repeal bill into law.521

VII. THE LAKEFRONT CASE The immediatepractical effect of the repeal was negligible. Constructionof a new depotin northLake Parkhad alreadybeen frozenby a federalcourt injunction premised on theproposition that theUnited States had a retainedproperty interest in thisland. Devel- opmentof theouter harbor had alreadybeen restrictedby a settle- mentagreement stipulating that the Illinois Central could undertake constructiononly inside a harborline establishedby theU.S. Army, and onlyso longas theArmy did notobject. Other than the Army's newbreakwater, no progresshad beenmade in constructingan outer harbor.No docksor piershad beenestablished east of the existing Il- linoisCentral tracks, and therepeal did not designateany entity to takethe place ofthe Illinois Central in developingsuch facilities. The repealwas basicallysymbolic legislation: a rebuke to therailroads for all theydid thatwas resented,including charging high rates for the transportof grainand livestockto marketand generalhigh-handed behavior.522 It did notoffer any alternative vision as to howto create thepublic goods that the 1869 Act, however imperfectly, had sought to bringforward-a new depot,an outerharbor, and moreand better parks. All the Grangerlegislature of 1873really accomplished by re- pealingthe Lake FrontAct was furtherto muddyan alreadyconvo- lutedlegal picture. By its terms, the repeal nullified any clarification of rightsaccomplished in 1869,and returnedmatters to wherethey had stoodbefore the Lake FrontAct's enactment.As we have seen,this statusquo antewas a confusingmelange of argumentsover whether the Englishrule or Americanrule appliedto ownershipof lands underneathLake Michigan,combined with at least fourdifferent

520 See 1873 IllinoisSenate Journal at 505 (cited in note 481). 521 See 1873 IllinoisHouse Journalat 570 (cited in note 489). 522 For a general introductionto these matters,see JosephD. Kearney and Thomas W. Merrill,The Great Transformationof RegulatedIndustries Law, 98 Colum L Rev 1323,1330-34 (1998), and sourcescited.

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 2004] TheOrigins of the American Public Trust Doctrine 913 theoriesas to whowas theowner of the now-enlarged Lake Park(five ifone givesany credence to theIllinois Central's occasional claim that itsright of waymade it a riparianowner). To this,the repeal added a newargument about whether the legislature could constitutionally ab- rogatewhatever rights the Illinois Central had obtainedin 1869. Lookingback, it seemssurprising that a fulldecade would elapse beforethe matter erupted into litigation among the contesting parties, and thatmore than another full decade would pass beforethat litiga- tionwould be finallyresolved. Part of the explanation for the long delay is theeconomic collapse that occurred in theearly 1870s. The Illi- noisCentral was fullypreoccupied for much of the decade rebuilding itsterminal facilities destroyed by theGreat Fire and tryingto cover itsdividend, and had fewresources left over to investin constructing anythinglike a new harbor.Another part of the explanationis the completionof thenew breakwaterby theArmy outside the original breakwaterconstructed by the Illinois Central. Although this did not provideadditional docks and wharvesfor lake traffic,it did allow shipsto sitat anchorin a shelteredenvironment outside the Chicago Riveruntil space openedup alongthe river,and thusrelieved river congestionto a degree.A thirdpart of theexplanation was thesheer intractabilityofthe legal issues as theystood after 1873. Eventually,the economyrecovered, commercial traffic resumed its growth,and congestionbecame an irritantboth in the riverand withinthe rail yardsand operationsof theIllinois Central. Figure 7, whichis theso-called Morehouse map introducedin theIllinois Cen- trallitigation, shows the Illinois Central operations and theimprove- mentson thelakefront as theyexisted in theearly 1880s.523

523 TheMorehouse map, Figure 7 here,was denominated Map C inthe Supreme Court. See IllinoisCentral, 146 US at 412-13(statement of the case). Compare note 65 (discussingFigures 2 and3 here,respectively denominated Maps B andA in theSupreme Court). See also notes115 and 199(discussing Figures 4 and6 here,which are ouradaptations of the Morehouse map).

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FIGURE 7

) Cj7~qcjC.

!wLII1~~~~~~~0 .1 I

' !41

T'hespecific bottleneck that precipitated litigation was the Illinois Central'sdouble track that originally sat on trestlesin thelake and now was more firmlysupported by landfillfrom the Chicago Fire. This trackutilized only two hundred feet of the three hundred feet of right of waythe railroad was authorizedto occupyunder the 1852 city or- dinanceallowing it to enteralong the lakefront. By 1880,the track was used not onlyby the IllinoisCentral and its originalpartners (the MichiganCentral and theChicago, Burlington & Qumncy)but also by theBaltimore & Ohio Railroadand theNickel Plate Railroad. Up to

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170 trains,90 transfertrains, and numerouslocomotives and switch enginesused thissegment every day.5' Frustrated by theoperational delaysassociated with funneling all thistraffic into just two tracks, in 1881 the IllinoisCentral began drivingrows of piles parallelto, and outside,the existingtracks in orderto beginfilling in the additional one hundredfeet of right of way for a thirdline of track. In a matterof hours, the Army engineer in chargeof the Chicago harbor,one Major G.J.Lydecker, ordered a haltto the projectuntil thelegality of sucha movecould be reviewedby authorities in Wash- ington.There ensued an elaborate,military-style inquiry to determine whetherthe IllinoisCentral would be allowedto fillthe additional one hundredfeet.'25 The Secretaryof War,Robert Todd Lincoln(the latePresident's son), asked the Attorney General for his legal opinion aboutthe Illinois Central's right to engagein thefill. Attorney Gen- eral Brewsteradvised that the question of titlewas of no concernas faras theUnited States was concerned.The criticalquestion, he said, was one of factfor the War Department to decide:whether "the constructionof the'dock line' willobstruct, encroach upon, or interfere withthe harbor improvement, and thus injuriously affect its usefulness in theinterest of navigation."526 Lincolnthereupon appointed a formalboard of inquiry,consist- ingof threegenerals, to considerthe facts. After holding hearings in Chicago,the board reported in June1882, outlining a planthat would have allowedadditional landfilling both to expandthe IllinoisCen- tral'sexisting track and to constructnew piers in a newouter harbor. Lincoln,however, disapproved the report,finding that it would re- quirethe War Department to imposeconditions it did not have au-

524 Letterfrom Ayer to Lincoln (July25,1881) at 18 (cited in note 153) (describingthe "ur- gent"need foradditional track). 525 Most of the relevantdocuments, from Major Lydecker'sstop order to the finaldecision of the Secretaryof War, are collected in a reportthat the War Departmentsubmitted to Con- gressabout the episode. See Encroachmentsupon theHarbor (cited in note 153). The eventsaf- ter the congressionalreport are describedin Ayer Opinion Letterat 18-22 (cited in note 106). These particularmatters are also taken up in the railroad's centennialhistory. See Carlton J. Corliss,Main Line of Mid-America: The Story of the Illinois Central 165-67 (Creative Age 1950). 526 Letter fromAttorney General Brewsterto Secretaryof War Lincoln (Feb 6, 1882), in Encroachmentsupon theHarbor 71 (cited in note 153). Before offeringhis opinion,the Attorney General had referredthe matterto JosephLeake, the United States Attorneyfor the Northern Districtof Illinois.Leake had concluded that the question of titledid matter,and had drafted one of the more penetratinganalyses of the vexingproperty rights problem. His opinionwas that only the State,not the City,had authorityto grantthe Illinois Centralproperty rights in the bed of Lake Michigan;since the State had grantedthe railroadonly a two-hundred-footright of way in its charter,the City'sattempt to authorizea three-hundred-footright of way in 1852 was ultra vires. See Report of the United States Attorneyfor the NorthernDistrict of Illinois,in En- croachmentsupon the Harbor 25,25-32.

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thorityto make,and thatit presupposedthat the railroad had titleto thesubmerged land, which was in dispute.5 The IllinoisCentral and otheradvocates of a newouter harbor wereobviously disappointed with Secretary Lincoln's decision. With lake trafficreaching record levels, expansion of Chicago harbor facilitieswas perceived by many to be moreimperative than ever. Yet given thelegal imbroglio over title to thelakebed, it was impossiblefor the IllinoisCentral -or anyoneelse- to moveahead with development of theouter harbor. The Chicago Tribune,writing with obvious frustra- tion,concluded that litigation was the only answer: [E]itherState authoritiesor officersof the Illinois Central [should]take steps to bringthe question of ownership before the propercourt in orderthat the title to thesubmerged lands may be judiciallydetermined and that the work of construction, in accordancewith some plan ... [,]may be commencedat once."8 The wishfor litigation was soon fulfilled,even if thedesire for constructionof a harborwas not.On March1, 1883,the Attorney Generalof Illinoisfiled suit againstthe IllinoisCentral Railroad Company,naming also theCity of Chicagoand theUnited States as partiesdefendant. The IllinoisCentral answered and filed cross claims againstthe other parties. The case was removedto thefederal circuit court,on theground of the presence of federal questions."9 The United Statesrefused to enteran appearancein thecase, but filed its own complaintagainst the Illinois Central and affiliatedrailroads, seeking bothpermanently to enjoinany constructionof buildingsin Lake Parkand a declarationthat the United States could veto any construc- tionin theouter harbor that might interfere with public navigation. Thematters were consolidated before Justice Harlan, sitting as Circuit Justice."

527 See AyerOpinion Letter at 20-21(cited in note 106) (summarizing the board of inquiry reportand Lincoln's decision rejecting it). 528 Corliss,Main Line of Mid-America at 167(cited in note 525) (quoting the newspaper). 529 See Illinoisv IllinoisCentral Railroad Co, 16 F 881(CC ND Ill 1883).The "federal questions"related to possible issues of construction ofthe act of cession creating the Northwest Tern- toriesand the act admitting Illinois as a Statein 1818,together with the Illinois Central's vested- rightsdefense grounded in thefederal Constitution. See id at 886-87.This, of course, was before theCourt's adoption of the "well-pleaded complaint" rule for the exercise of federal question ju- risdictionin Louisville& NashvilleRailroad Co v Motley,211 US 149(1908), under which ap- proachit is doubtfulthat federal court jurisdiction would have been proper in Illinois Central. 530 Theonset of litigation unleashed a roundof legal opinion letters as variousparties tried to sortthrough the issues and comeup witha coherentlegal position. We uncoveredfive such opinionletters dating from about this time in various archives: Ayer Opinion Letter (cited in note 106)(opinion by the general solicitor of the Illinois Central); Lyman Trumbull, Rights of the Illi- noisCentral on ShoreWaters of Lake Michigan(1884) (commissioned by the Illinois Central); JohnNelson Jewett, Letter to JamesC. Clarke,Esq., Prest. of 11l. C. R. R. Co. (1884)(commis- sionedby the Illinois Central); Richard S. Tuthill, Opinion and Suggestions tothe Secretary of the

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In the circuitcourt, each of the claimantsset forthsweeping claimsin supportof itscontrol and authorityover the lakefront. The Stateclaimed that it ownedthe submerged land under the equal footingdoctrine and thatthe grant by theState to therailroad had been validlyrepealed in 1873.Thus, any landfilling by therailroad beyond thatnecessary for railroad purposes as authorizedin the1851 charter was unlawfuland should be enjoined.531The Cityclaimed that it owned Lake Parkand therebyenjoyed all therights and privileges of riparian ownershipwith respect to theportion of the lake offshorefrom Lake Park.Hence, the Cityhad controlover development of theharbor.532 The IllinoisCentral claimed that the 1869 Lake FrontAct represented a validtransfer of the State'sproperty rights in thesubmerged land and that,under the vested-rights doctrine, the State was powerlessin 1873 to repeal thiscompleted grant of property.Thus, the railroad ownedthe submerged land and had theright to controlthe harbor.533 The UnitedStates claimed, only slightly more modestly, that it owned Lake Parkas an impliedreservation from the sale of publicdomain landin fractionalsections 10 and 15-essentiallythe theory accepted byJudge Drummond in 1869-and thatit couldenjoin any constructionof buildingson thissite; in addition,the UnitedStates asserted theright to vetoany filling or constructionof works in thelake that, in its opinion,would constitute an interferencewith the public right of navigation.'A The circuitcourt appointed a magistrateto presideover an elabo- ratetrial, featuring as itsstar witness Jonathan Young Scammon, testi- fyingin hiscapacity as theoldest inhabitant of Chicagowith personal

TreasuryTouching Alleged Encroachments by theIllinois Central Railroad upon the Lake Front at Chicago(1886) (opinionby the local United States Attorney commissioned by the Secretary ofthe Treasury); Lawrence, Campbell, and Lawrence, Opinion upon the Title to That Part of Frac- tionalSection 15, 39, 14, Lying East ofthe East Lineof Michigan Avenue (1879) (commissioned by theBoard of Canal Commissioners).Even apartfrom these formal analyses, the lakefront litigationattracted a significantamount of attention from some of the most important quarters ofChicago's growing bar. See, for example, James W. Ely, Jr., The Chief Justiceship ofMelville W Fuller11 (SouthCarolina 1995) (describing Fuller's prominence in thelocal bar and hisrepre- sentationof Chicago in thelakefront litigation in thecircuit court); Herman Kogan, Traditions and Challenges:The Storyof Sidley& Austin34-35, 48-51 (R.R. Donnelley& Sons 1983) (recountingthe undertakings of JohnLeverett Thompson, initially at therequest of J.Young Scammon,on behalfof civic groups that were opposed to theLake FrontAct and supportiveof itsrepeal). 531 See Information(Mar 1, 1883),in Record:Illinois Central Railroad Co at 3, 10-11,15 (citedin note 71). 532 See Amendmentsto theAnswer of theCity of Chicagoto theAmended Information (June20,1887), in Record:Illinois Central Railroad Co at 104,106-07(cited in note 71). 533 See The SeparateAnswer of the Illinois Central Railroad Company, One ofthe Defen- dants,to theInformation in [Illinois v IllinoisCentral Railroad Co] (Apr7,1883), in Record: Illi- noisCentral Railroad Co at 17,26-29(cited in note 71). 534 See UnitedStates v IllinoisCentral Railroad Co, 154US 225,225-27(1894) (summariz- ingthe information filed by the United States in thecircuit court).

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 918 TheUniversity ofChicago Law Review [71:799 knowledgeof the development of the lakefront stretching back to the 1830s.535In 1888,Justice Harlan issued a comprehensiveopinion re- solvingall issues.5-MThe Statewas giventitle to thesubmerged lands. The Citywas giventitle to Lake Park.The railroadwas allowedto keepall ofits existing track, facilities, piers, and wharves, largely as an incidentto itsriparian rights north of RandolphStreet and southof TwelfthStreet (Park Row). The UnitedStates was deniedstanding to blockconstruction ofany buildings in Lake Park. Withrespect to thecritical vested-rights argument raised by the railroad,Harlan offeredtwo responses,neither entirely persuasive. The firstwas thatthe doctrine of Fletcher v Peck-prohibitinglegisla- tiverepeals of completed grants of property -was limitedto suits filed bysubsequent good-faith purchasers for value, and hence did not applyto an originalgrantee such as theIllinois Central that did not give valuableconsideration for the grant.537 The suggesteddistinction was consistentwith the facts of Fletcher,but would seem to justifyrepeal onlyif the State had demonstratedsome cause thatwould justify re- scissionof the grant, such as fraud.Although the legislative history of the1873 repeal, with its many allegations of corruption in 1869,would suggestthat such proof might have been offered, it was not.The second argumentwas thatthe Lake FrontAct had conveyedonly a li- censeto theIllinois Central to developthe harbor, and it is inherentin thenature of a licensethat it can be revokedby thelicensor at any time.53This, however, flew in theface of the language of the Act conveyingthe harbor to therailroad in "fee,"539and failedto accountfor therailroad's argument that it had relied to itsdetriment on thegrant in makingexpenditures to improvethe area outsidethe original breakwater. The Harlan ruling,intvitably, was appealed to the Supreme Court.7Only seven of thenine Justices participated in thedecision. The reporternoted that "The CHIEF JUSTICE,having been of counsel in the courtbelow, and MR. JUSTICEBLATCHFORD, being a stock- holderin theIllinois Central Railroad Company, did not take any part inthe consideration or decision of these cases."4'Justice Harlan's right

535 Evidence on Behalfof Complainantat 232-58 (cited in note 71) (reproducingtestimony of JonathanYoung Scammon). 536 Illinoisv IllinoisCentral Railroad Co, 33 F 730(ND Ill 1888). 537 Id at 774-75. 538 Id at 775- 539 See Illinois Central,146 US at 407 n 1 (statementof the case), quotingLake FrontAct ? 4. 540 IllinoisCentral, 146 US 387. 541 Id at 476.

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 2004] TheOrigins of the American Public Trust Doctrine 919 to sitin judgment of his own decision rendered on circuitpassed with- outquestion.542 JusticeField, writing for the majority, made a valianteffort to un- tanglethe knot of legalissues in coherentfashion. He beganwith the backgroundunderstanding about ownership of the submerged land of Lake Michigan.The Courtin previousdecisions had acknowledged thatthe choice between the English and American views was a matter of statelaw,543 and had specificallyrecognized that Illinois had chosen to followthe Englishrule.5" Yet withoutadverting to whetherthe questionwas governedby federal or statelaw, Justice Field proceeded to declaimon titleto all lands under"the Great Lakes,"implicitly treatingthis as a sui generiscategory.'5 Relying especially on The GeneseeChief, he concludedthat the Great Lakes wereindistinguish- able in all relevantrespects from land undertidal waters, which Pol- lard v Hagan had said belongto the state.Consequently, the Court held,the same doctrineas to thedominion and sovereigntyover, and ownershipof, submerged lands applied to theGreat Lakes.6 In short, theState of Illinois had ownedthe bed ofLake Michigansince 1818. JusticeField thenturned to thequestion of whetherthe Illinois Central'sexisting two-hundred-foot right of wayand thevarious de- pots,docks, piers, wharves, elevators, and enginehouses it had builton landfillin thelake had encroachedon theState's property rights. He concludedthat, for the most part, they had not.He reliedin parton thebroad powers the State had giventhe railroad in its 1851charter, andin particularon theprovision conditioning the location of the railroad withina cityupon the city's consent. The Cityof Chicago'scon- sentingto thelocation of the Illinois Central's right of way in thelake thereforeconstituted constructive permission from the State. With re-

542 Thiswould not have been the case eitherearly in the Court's history or today. See David P. Currie,The Constitutionin the Supreme Court: The First Hundred Years 1789-1888 76 n 88 (Chicago1985) (noting that in the nineteenth century "[t]he Justices were soon to abandontheir earlypractice (now required by [statute]) of refusing to reviewtheir own decisions," but also ob- servingthat "in England judges habitually sat in reviewof their own decisions"). 543 See Barneyv Keokuk,94 US 324, 338 (1876) (opiningthat the Americanrule is "sound[er],"but whether to abandonthe English rule "is forthe several States themselves to determine"). 544 See Hardinv Jordan,140 US 371,386 (1891);Packer v Bird,137 US 661,669 (1891). Bothdecisions are ofinterest from the perspective of our story. In Hardin,the Court split six to threeover the question of whether Illinois was still committed to theEnglish rule with respect to navigableponds and lakes.Writing for the majority, Justice Bradley concluded that Illinois re- mainedamong the common law faithfulas to lakesas wellas rivers.But twice in dictahe sug- gestedthat Lake Michiganshould be regardedas beingin a specialcategory as an "internalsea," see 140US at 386,391,thereby clearly anticipating Illinois Central. Packer is ofinterest because itwas authored by Justice Field, who wrote that the "courts of Illinois" had adoptedthe English view"to its fullest extent." 137 US at 669. 545 IllinoisCentral, 146 US at 435-37. 546 Id at 436-37.

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 920 TheUniversity ofChicago Law Review [71:799 spectto thedepots, docks, piers, wharves, elevators, and engine houses constructedboth north of Randolph and south of Twelfth Street, Field concludedthat these were encompassed within the common law right of a riparianowner to "wharfout" to reachnavigable waters.547 The onlydoubt on thisscore was whether the railroad had extended its fa- cilitiesbeyond the point of "practical navigability."-w The case wasre- mandedwith specific directions to conductfurther proceedings to re- solve thisparticular question.549 Withrespect to thedifficult vested-rights contention, Justice Field solvedthe problem by invokingthe idea thatthe State's title to the submergedlands was held in trustfor the public. The idea wasnot en- tirelynew. As we have seen,a similarnotion had been raisedocca- sionallyin remonstrancesand in lettersto newspapersby thoseop- posed to furtherexpansion of the IllinoisCentral along the lakefront.550The basicsubstance of the argument, and the authorities relied upon,were drawn from the brieffiled by JohnS. Miller,the City's CorporationCounsel.551 But Fieldgave the idea hisown unique Jack- sonian-Democrattwist. The core of his argument was a distinctionbe- tweengrants of submergedland forwharves, piers, and docksthat serveas an aid to navigation,and thegrant of an entireharbor, which he suggestedby implication was whatthe Lake FrontAct had done. The formergrants were permissible because they advanced the purposesof the trust obligation -assuring publicaccess to navigablewaters.The latterwas impermissible,because it representedan abdica- tionof the trust.55' Field admitted that he couldnot "cite any authority wherea grantof this kind has been held invalid."553 But he thoughtthis was becausesuch an extremegrant had never previously been consid- eredby the courts. He characterizedthe Act as an attemptby the Illi- nois GeneralAssembly to conveythe entire harbor of Chicagoto a

547 Id at 445-46. 548 Id at 464. 549 Id at 446-47,464. This disposition of the railroad's improvements failed to accountfor twoparcels: the triangles created by the curvature of tracks east and west approaching Randolph Streetfrom the south, as authorizedby city ordinances in 1855and 1856.See notes111-13 and accompanyingtext. Field ratified these by ipse dixit: "[W]e do notperceive any valid objection to [therailroad's] continued holding of the same for the purposes declared-that is, as additional meansof approaching and using its station grounds." Illinois Central, 146 US at 448. 550 See notes222-25,33740. 551Brief and Argument for City of Chicago at 42-67, Illinois Central, 146 US 387.The State AttorneyGeneral's brief also includeda versionof the public trust argument, but it was buried nearthe end of the brief and less well developed. See Briefon Behalfof State of Illinois at 130- 54,Illinois Central, 146 US 387. Remarkably,although the Illinois Central filed two lengthy briefs,neither offered a rebuttalof the public trust argument. See Brieffor Appellant (filed by BenjaminF Ayer),Illinois Central, 146 US 387;Brief and Argument for Appellant (filed by Jno. N. Jewett),Illinois Central, 146 US 387. 552 IllinoisCentral, 146 US at 455-56. 553 Id at 455.

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privatecorporation; this was clearlya breachof trust,the reasoning went,and hence could be revoked at any time by subsequent legislation. Appendedas a kindof coda to thediscussion of the trust obliga- tionwas a longparagraph addressing Justice Harlan's theory in the courtbelow that the Lake FrontAct had conveyeda mererevocable license.54It wouldnot be accurateto describethis as an alternative holding;the theorywas described,but not expresslyendorsed. Per- hapsthe passage was addedin orderto secureJustice Harlan's agree- mentto join in makinga baremajority for the Field opinion, although thisis speculationon ourpart. Turningfinally to the claimsof Chicago,Justice Field concluded thatunder Illinois law all land markedon platsas beingreserved for publicuses is ownedby the city where the land is located.555Thus, Chi- cago had titleto Lake Park.As a riparianowner of this land, it too had a commonlaw rightto wharfout and developthe harbor outside the park,including the right to expandLake Parkby filling in thearea to theoriginal breakwater, as had happenedafter the Great Fire in 1871. The Citythus had good titleto Lake Park,as againstthe State and the IllinoisCentral. The outcomeof the case was close,especially as to thecentral issue whetherthe State had acted unconstitutionallyin repealing the Lake FrontAct in 1873.Three Justices joined in a dissentingopinion by JusticeShiras which argued that the Lake FrontAct was a valid conveyanceof propertyto theIllinois Central and therepeal an un- constitutionalinterference with vested rights.551 Justice Shiras did not disagreewith the "able and interestingstatement" by JusticeField about"the rights of the public in thenavigable waters, and of the limi- tationof the powers of the State to partwith its control over them."557 But he doubtedthe "pertinency"of thatdiscussion, given that the Lake FrontAct had prohibitedthe railroad from interfering with the publicright of navigation and had preservedthe power of the State to regulatethe railroad'sconstruction of improvementsin the harbor. The dissentconcluded, "It willbe timeenough to invokethe doctrine

554 Id at 460-62. sss The relevantstatute was ambiguouson thispoint, providing that title was to be held"in thecorporate name" of the city "in trust" for the stated public purposes. See note160. But Justice Field citedIllinois Supreme Court authority interpreting the statute as conferringfee simple ownershipon thecity in whichthe public dedication was located. See IllinoisCentral, 146 US at 462,citing Board of Trusteesof the Illinois and MichiganCanal v Haven,11 Ill 554 (1850),and Cityof Chicago v Rumsey,87 1I1348 (1877). 556 Oddly,neither the majority nor the dissent cited Fletcher v Peck,an omissionthat may haveobscured for later generations of commentators the key legal issue in the case. 557 IllinoisCentral, 146 US at 474 (JusticeShiras dissenting).

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 922 TheUniversity ofChicago Law Review [71:799 of theinviolability of publicrights when and ifthe railroad company shallattempt to disregardthem." 51% The Courtin IllinoisCentral did not addressthe claimsof the UnitedStates, apparently because the SolicitorGeneral moved that theUnited States be excludedfrom the case sinceit was nottechni- callya party.559But theUnited States also filedits own writ of error fromHarlan's circuit court decision, which had resolvedthe claims of theUnited States together with those of theother three parties in a singleopinion. After an unexplaineddelay of twoyears, the Court in 1894finally got around to disposingof thefederal government's appeal.5 Writingagain forthe majorityin a divideddecision, Justice Field rejectedthe Drummondtheory of retainedfederal rights in Lake Park.The dedication of public ground in fractional section 10 by theUnited States, Field reasoned, sufficed under Illinois law to trans- ferthe fee to theCity of Chicago. Because the United States had con- veyedaway its entire interest in theproperty, the federal government did nothave standingto enforcethe limitation that the land was to remainforever free of buildings.`6With this ruling, the last cloud on theCity's title to Lake Parkwas lifted. In 1896,the federal circuit court in Cook Countyconcluded the trialon remandfrom the decisionin Illinois Centralto determine whetherthe railroad's landfills had extendedso farinto the lake as to interferewith navigation.Sitting as a judge in chancery,Judge Showalterhad takenextensive evidence from experts about how far out intothe lake a pierwould have to be constructedin orderto ac- commodatethe deep draftcommercial vessels then plying the waters of Lake Michigan.Based on thisevidence, he concludedthat the Illi- noisCentral's extensive piers and wharvesnorth of RandolphStreet and itspier south of Twelfth Street did notextend "into the lake be- yondthe point of practicalnavigability, having reference to theman- ner in whichcommerce in vesselsis conductedon the lake."52This

558 Id. 559Id at 433("The United States were also named as a partydefendant, but they never ap- pearedin the suit."). See Motionto Strike Out, Etc., Illinois Central, 146 US 387(filed on behalf ofthe United States on October11, 1892) (requesting an orderthat "none of the rights of the UnitedStates may be affected"pending a determinationofwhether itis a partyto the action). 560 UnitedStates v IllinoisCentral Railroad Co, 154 US 225(1894). 561 Id at 238.The Courtstated in dictumthat "[t]he owners of abuttinglots may be presumedto havepurchased in partconsideration ofthe enhanced value of the property from the dedication,and it maybe concededthey have a rightto invoke,through the proper public authorities,the protection of the property inthe use forwhich it was dedicated." Id at 238-39.This dictum,along with the 1871 injunction decision of Judge Drummond, fueled the chain of rulings bythe Illinois Supreme Court, in actionsbrought by Montgomery Ward, enjoining the constructionof any buildings in the area that became Grant Park. See note441. 562 Illinoisv IllinoisCentral Railroad Co, 184US 77,90 (1902)(quoting the circuit court judgment).

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 2004] TheOrigins of the American Public Trust Doctrine 923 judgmentwas affirmedby the Courtof Appeals for the Seventh Cir- cuitin 1899.-%3 The IllinoisCentral railroad was notgoing to giveup itsclaim to furtherdevelopment of its facilities in the lake without one morefight. Soon it commenceda newlawsuit against the State, based on thethe- orythat the 1873 repeal was an unconstitutionalimpairment of its contractualrights under its original 1851 corporate charter.5 e rail- roadobserved that, under section 3 ofits charter, itwas empoweredto "take possessionof and use all and singularany lands,streams and materialof every kind" owned by the State for the construction of stations,repair shops, and otherfacilities, and thatthe charterfurther providedthat "[a]ll such lands, waters, materials and privileges belongingto the Stateare herebygranted to said corporationfor said purposes.",565The IllinoisCentral argued that since the State was now deemedto ownthe bed ofLake Michigan,this resource was necessar- ilyincluded in thegrant of "lands, waters, materials and privileges."566 The charterwas a contract,the argument went, and anyaction by the Statepreventing the railroad from using the lakebed to constructrail- road facilitieswas an unconstitutionalimpairment of this contract. In 1900,the Supreme Court, speaking now through Justice Brown, put an end to thiscollateral litigation. The Courttreated the contractim- pairmentargument with due respect,but determined,after a close readingof the charter language and thehistory of its implementation, thatthe charter was notintended to conveyto therailroad any grant ofrights in thebed ofLake Michigan.-%7 The finalchapter of this litigation epic was writtenin 1902,when the SupremeCourt affirmed the decision on remandthat the Illinois Central'svarious piers and wharvesdid notextend beyond the point of practicalnavigability.- In a fittingbookend, the Court spoke throughJustice Harlan, who had writtenthe original decision of the circuitcourt in theopening round of litigation back in 1888.Since the questionwas "largely, if not entirely," one offact, Justice Harlan wrote, it wouldnot be disturbedunless clearly in conflictwith the evidence.569 No suchconflict being found, the judgment that the railroad's existing improvementsdid not interfere with navigation was affirmed.57Justice Harlancautioned that the railroadcould not go anyfarther into the

563 Illinoisv IllinoisCentral Railroad Co, 91 F 955 (7thCir 1899). 564 See IllinoisCentral Railroad Co v Chicago,176 US 646 (1900). 565 Id at 657 (emphasisremoved) (quoting section 3). 566 Id. 567 Id at 657-67. 568 Illinoisv IllinoisCentral Railroad Co, 184 US 77 (1902). 569 Id at 98. 570 Id at 97.

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 924 TheUniversity ofChicago Law Review [71:799 lake:his original decree of 1888had enjoinedthe railroad from erect- ingstructures or fillingwith earth or othermaterials any portion of the bed of Lake Michigan,and thishad not been disturbedby the 1892Supreme Court decision in Illinois Central,except as to existing structuresand improvementsprovided that they did not go beyond thepoint of practicalnavigability.571 In short, everything the railroad had done in the past was grandfathered.As to the future,the un- touchedareas of the lakebed were to be underthe exclusive control of thepublic authorities. Withthis judgment, the vexing legal issues that had givenrise to thelakefront controversy were settled, at leastfor the time being, by thefederal courts. Thirty-three years had elapsed since the Lake Front Acthad been adopted; it had taken a merenineteen years since litigationhad commenced to confirmthe validity of the Act's repeal.

VIII. WHATILLINOIS CENTRAL REALLY TELLS US ABOUT THE PUBLIC TRUST DocrRINE It remainsto considersome of theimplications of ourinvestiga- tion forbroader questions about the publictrust doctrine. As we statedin the Introduction,Illinois Central is importantfor at least threereasons: as a fontof new doctrine, as a justificationfor that doctrine,and as a sourceof confusionabout the doctrine. A morecom- pleteunderstanding ofthe case shedslight on all threescores. First,we can see howthe central doctrinal innovation of Illinois Central-transforminga public easement in navigablewaters into a rulethat the State cannot alienate the bed ofthe lake -was primarily a productof theexigencies of litigation.The reasonthe public trust idea emergedas the dominanttheme in JusticeField's opinion was thathe neededsome doctrinalbasis to defeatthe IllinoisCentral's powerfulvested-rights argument. Absent the peculiar circumstances ofthe enactment and repeal of the Lake FrontAct, there would have been no cause to investthe State's ownership of thelakebed with a rule of inalienabilitythat made the transferin the Lake FrontAct voidable. We can also see howthe public trust doctrine was not deployed in thelitigation in order to forestall development of the lakefront. Justice Field did notthink that submerged land shouldremain frozen in its originalcondition. He was all in favorof isolatedgrants of landsfor wharvesand docks.What he opposedwas what he imaginedto be the conferralof a monopolyover the Chicago harbor on a privatecorporation.His publictrust doctrine was designed to preserveaccess to the

571 Id at 98.

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 2004] TheOrigins of the American Public Trust Doctrine 925 lake for commercialvessels at competitiveprices, not to preserve Lake Park or the shorelinefrom further economic development. Moreover,Justice Field was notalone in thesepreferences among the federaljudges who ruled on aspectsof the controversy. When the dust finallysettled, all of the IllinoisCentral's massive landfills and im- provementshad beenratified by the federal courts as beingconsistent withthe nebulous trust identified in IllinoisCentral. Thus, the public trustdoctrine, as invokedin theIllinois Central litigation, was scarcely an anti-developmentdoctrine. To be sure,the preservationist position was notentirely absent in therun up to thelitigation. The residentsof Terrace Row, anxious to preservetheir views of the lake and actingin alliancewith some of the local leaderswho wanted to see moreand betterparks, did fromtime to timeinvoke the idea ofa publictrust in theirefforts to forestallfur- therlandfilling by the Illinois Central. This was almostcertainly a mi- norityposition. A widespreadconsensus existed in thesecond half of the nineteenthcentury about the need fora new depot and a new outerharbor. The mainpoint of controversywas overwhat form the developmentwould take and whowould control it, not whether there shouldbe anydevelopment of thelakefront at all.The argumentthat thepark should take precedence over further development was often greetedwith sarcasm by otherparticipants in the debate,who re- gardedit as a cover forthe selfishnessof wealthyresidents lucky enoughto liveon MichiganAvenue. Of course,the fact that the preservationists were a smallminority in thelate nineteenth century does notmean that they were wrong. As thingsturned out, they were probably right: the highest and bestuse ofthe Chicago lakefront today is probablyas an openpublic park. But whetherthe public trust doctrine is responsiblefor the large quotient of parklandon the Chicagolakefront relative to othercities is less clear.The doctrine,from its inception in Illinois Central down to today, has been a ruleprohibiting alienation of trust lands, not a ruleprohib- itingdevelopment of those lands.572 Because theCity and the Park Dis- trictface complicated political and financial constraints, public owner- shiphas probablymeant less developmentthan what would have oc- curredif privatizationof theselands had been permitted.Neverthe- less,significant development has occurredin recent years, as witnessed

572 The Illinoiscourts applying the publictrust doctrine have placed greatweight on whethera public entity retains legal title to the property. So longas titleremains in public hands, ratherextensive development of trust resources is permitted.See Friendsof the Parks v Chicago ParkDistrict, 203 Ill 2d 312,786 NE2d 161(2003) (upholdingthe rebuilding of Soldier Field on publictrust land to thespecifications ofthe Chicago Bears, primarily on theground that the Chi- cagoPark District retained legal title to the stadium, and distinguishing Illinois Central as involv- ingtransfer of title to a privateentity).

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by thenew Navy Pier, the rebuilding of SoldierField, and thecon- structionof Millennium Park. But this takes us wellbeyond our story here. Whatis lessclear is whyJustice Field felt compelled to reachfor theblunderbuss of the public trust doctrine to defeatthe Illinois Cen- tral'svested-rights claim, rather than a morefact-specific argument, suchas JusticeHarlan's characterization ofthe grant of the outer har- boras a revocablelicense. We canonly speculate that Justice Field was incensedby what he imaginedto be a powergrab by a privilegedcor- poration,shutting out all competitionfrom potential rivals. One reason he had thisreaction to thecase was thatnone of therailroad's briefsor argumentsexplained the railroad's motivations for seeking the Lake FrontAct in 1869,or whya reasonablelegislator in 1869 wouldlikely have supported the Act. And perhaps one reasonthe railroad lawyersdid not offersuch an explanation-here we are really speculating-mayhave been thatso muchtime had elapsedthat the railroad'slawyers did not knowabout thesethings. Thus, the Lake FrontAct and its repealwere presented as an abstractexercise in vested-rightsdoctrine, not as partof a desperatestruggle that threatened the railroad'sexisting investments and pittedthe Cityagainst downstateinterests. The excavatedstory also shedssignificant light on theuse ofthe factsof Illinois Centralas a justificationfor the very existence of the publictrust doctrine. According to thestandard account, the Illinois Centralsought to obtaina grantof thesubmerged lands in orderto earnmonopoly profits from control over the Chicago harbor. As we have seen,Illinois Central officials were not immuneto ruminating aboutthe potential profitability ofthe grant. But the basic reason they wentto suchlengths to securethe grant, and foughtso hardto pre- serveit, was to securetheir existing investments against being expro- priatedor isolatedby a grantof theharbor to someoneelse. Econo- mistsoften say that out-of-pocket losses are no differentfrom forgone opportunities.573Human actors, however, consistently seem to regard out-of-pocketlosses as the morealarming prospect.574 Courts follow suit,weighing "reliance interests" more heavily in equitablebalancing thanthe loss of prospectivebenefits. Thus, the fact that the railroad was largelymotivated to protectits longstandinginvestment in the lakefrontmakes its positionseem muchmore sympathetic than the caricaturethat comes through in the standard account.

573 This is a key assumptionof the Coase Theorem.See generallyR.H. Coase, The Problem of Social Cost,3 J L & Econ 1 (1960). 574 See Elizabeth Hoffmanand MatthewL. Spitzer,Willingness to Pay vs.Willingness to Ac- cept:Legal and EconomicImplications, 71 Wash U L Q 59,66-85 (1993).

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The standardaccount, as reflectedfor example in theseminal articleof Joseph Sax, also depictsthe Lake FrontAct as havingno public interestrationale. This, as we haveseen, is untrue.The typicallegis- latorwho voted for the Lake FrontAct was sympatheticto thepleas of Chicagofor a newdepot, a newouter harbor to relievecongestion in theChicago River, and moreand betterparks. The Knickerbocker Bill supportedby the Citywould have providedthese things,but wouldhave done so in a waythat provided no materialbenefit to citizens of Illinoisliving in otherparts of the State.The substitutebill sponsoredby the IllinoisCentral also promisedto providethese things,and in additionwould generateadditional revenue for the Stateby applicationof a 7 percentgross receipts tax to therailroad's additionalearnings. Small wonderthat downstatelegislators over- whelminglypreferred the Illinois Central bill. Once we understandthe publicinterest rationale for the Lake FrontAct, it becomes impossible to continueto characterizethe statute as an exampleof pureprivate interestlegislation of the sort that cries out for a judicialcorrective. Finally,the standard account strongly implies that the Lake Front Act was adoptedbecause of bribery or othercorrupt acts undertaken by the IllinoisCentral. Here, we thinkon balancethat this conven- tionalaccount is morelikely than not correct.We have alreadyde- scribed,in PartV.E, how the evidence from the 1869 legislative history leanstoward this conclusion. Several aspects of the post-1869 story re- inforcethis judgment. First, there is the factthat serious proposals weremade in twoseparate sessions of theIllinois General Assembly (1869and 1873)to launcha formalinvestigation of bribery in connectionwith the Lake FrontAct. We can imaginehow sucha proposal mightbe used strategicallyonce to tryto intimidatesupporters of a measure,or to cause delay.But it is harderto imaginesuch a trick's beingused twice. It is morelikely that the idea didnot die becausethe proponentsof an investigationhad genuinereasons to suspectmis- conduct.Second, the legislativehistory of the 1873 repeal suggests thatthe Illinois Central was deeplyconcerned about the prospect of a formalinvestigation, and foughtto defeatit. This, too, tends to suggest thatthe railroadhad somethingto hide.Third, the allegationsabout theexact nature of thecorruption-such as RepresentativeMerritt's claimsof hush money paid to newspapersand cashpayments ranging as highas $20,000to legislators-becamemore specific after 1869. The likelihoodthat the Lake FrontAct was procuredcorruptly does notvitiate our previousconclusions. One can have sympathetic reasonsfor seeking something and yet use illegalor immoralmeans to achieveit. Indeed,people desperatelytrying to preservewhat they have maybe morelikely to cheatthan people anglingfor some new advantage.And it is notat all unusualfor legislators to havesincerely

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 928 TheUniversity ofChicago Law Review [71:799 held policyreasons for taking a particularposition, which are rein- forcedby purelyvenal considerations such as promisesof contribu- tionsfrom interest groups. To be sure,the strong odor of corruption surroundingthe Lake FrontAct is highlysignificant. It helps explain, we think,why a majorityof the Supreme Court in IllinoisCentral was hostileto therailroad's vested-rights argument, in an era otherwise sympatheticto suchclaims.575 But thepossibility of corruption in pro- curingthe Lake FrontAct does notsupport a generalizedbelief that all proposalsto privatizenatural resources are inherentlysuspect, or thatthey require a specialtype of judicial supervision of legislatures. JusticeField's development of a ruleof inalienabilityto defeatthe vested-rightsargument appears from this perspective to be a classic case ofoverreacting to "bad facts"-inthis case, one bad factfiltered througha worldviewthat was too quickto see plutocraticgreed at workeven when something far more complicated was really going on. Our excavationof Illinois Central also has implicationsfor some of theambiguities that afflict the modern public trust doctrine. There is,first, the question of whatkinds of resourcesshould be subjectto thedoctrine. The understandingof thepublic trust doctrine as a rule of inalienabilityemerged in thecontext of a struggleto defineprop- ertyrights in submergedland undernavigable waters. It is possible thatthis is a uniquelyvexed resource, in thesense of one afflictedby an extraordinarilyhigh degree of legal uncertainty. It is notclear how manyother resources are vexed in a similarway or, if theyare, whethera strongrule of inalienability is the correct answer to thedi- lemma.So cautionis perhapsin orderbefore extending the doctrine to consumptionrights in water,old growthforests, works of art, or cy- berspace.576 Our storyalso shedssome light on whetherthe doctrine impli- catesfederal interests in sucha wayas to justifygrounding it in federal ratherthan state law.5" The federalgovernment played a much largerrole in the Chicagolakefront controversy than would appear

575 On the general appeal of vested-rightsclaims duringthis era, see generallyArnold N. Paul, ConservativeCrisis and theRule of Law: Attitudesof theBar and Bench,1887-1895 (Cor- nell 1960). 576 Compare NationalAudubon Societyv SuperiorCourt (Mono Lake), 33 Cal 3d 419, 658 P2d 709 (1983) (applyingthe public trust doctrine to reallocateappropriated water rights); Paep- cke v Public BuildingCommission of Chicago,46 Ill 2d 330,263 NE2d 11 (1970) (applyingthe publictrust doctrine to the diversionof a publicpark for use as a publicschool); RichardA. Ep- stein,The Dubious Constitutionalityof the CopyrightTerm Extension Act, 36 Loyola LA L Rev 123,156-58 (2002) (suggestingthe applicationof the publictrust doctrine to an extensionof in- tellectualproperty protection to formsof expressionin thepublic domain). 577 For examplesof attemptsto groundthe publictrust doctrine in federallaw, see Epstein, 7 Cato J at 426-28 (cited in note 40) (arguingthat the trustmay be groundedin the Due Process or Equal ProtectionClauses); Wilkinson,14 UC Davis L Rev 269 (cited in note 1) (arguingthat the trustmay be derivedby implicationfrom modem statutesregulating uses of federallands).

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 2004] TheOrigins of the American Public Trust Doctrine 929 fromjust reading the Illinois Central opinion, where, for peculiar reasons,the United States asked that the Court not rule on theissues that it had presentedin thecourt below. The State'sownership of the lakebed had its rootsin a doctrineof federalstatutory interpretation- namely,the Pollard rule growing out of theequal footinglanguage of federalstatehood grants. Both Lake Park and the IllinoisCentral Railroadwere creatures of federalland grants.A federalagent had authoredthe dedication of northLake Parkas publicground forever freeof buildings.All partiesand courtshad acknowledgedthat the federalgovernment had ultimatecontrol over navigation in theChi- cago harbor,and the desireto preservefree navigation was theroot policyunderlying the publictrust doctrine. The federalgovernment had filedthree lawsuits that played a criticalrole in theevolution of the controversy,and a federalregulator had made the decisionthat precipitatedthe litigationthat finally reached the SupremeCourt. Whetherany of thesefacts, or all in combination,might justify a fed- eralrule of decision is a topicfor another day. But theysurely suggest thatthe possibility is notfrivolous -at leastif the doctrine is confined to controversiesover lands beneath navigable waters. Finally,we thinkthat our studyraises questions about whether thepublic trust doctrine is theright answer to theproblem of main- tainingthe optimal level of public access to resources.A resourcesuch as submergedland under navigable waters requires a kindof blend of open accessand exclusionrights.578 On theone hand,we wantnaviga- ble watersto remainan open access resourcein orderto promote maximumuse bythe public. On theother hand, we needto demarcate privateexclusion rights in at leastsome of the land beneath navigable watersin orderto promotethe developmentof docks,wharves, and otherfacilities that make public access to theresource possible. Giving riparianowners exclusion rights to thesubmerged land (the English rule)may result in too manydocks and wharvesand notenough public access;requiring that the submergedland remainin publichands (thepublic trust rule) may result in too fewdocks and wharves and no wayto makepublic access meaningful.Justice Field had an intuitive appreciationof thisreality, and soughtto distinguishbetween small grantsfor building wharves and piers,and largegrants that would conveyaway control of theentire harbor. But he offeredno principle thatwould guide courts in thefuture in distinguishingbetween access- enhancingand access-diminishinggrants, and thisaspect of his deci- sionhas fallenby the wayside in favorof a rathermindless (but easily

578 a Compare Epstein,7 Cato J at 417 (cited in note 40) ("Navigable riversare therefore mixedasset, some of whose attributes should remain private and others should be public.").

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 930 TheUniversity ofChicago Law Review [71:799 administered)distinction between alienation of the fee and long-term leases.S79 Whatmay be neededare more"contractual"-type rules that can be tailoredto therequirements of differentbodies of water, along the linesof the settlement agreement between the Illinois Central and the UnitedStates in 1872.Such a case-by-caseapproach points to the need forsomething like an administrativeagency to superintendthe problem.An administrativeagency solution, in turn,requires legal rulesthat presuppose a degreeof trustin governmentto controlthe use of resources,not radical skepticism in theform of judicially en- forcedinalienability rules.

CONCLUSION Greatcases have the power to shapeattitudes about the law in a waythat goes farbeyond the particular legal propositions for which theystand. Witness the power of Marburyv Madison"in supporting an expansivepower of judicial review, or ofBrown v Boardof Educa- tion"'1in underminingthe legitimacy of invidious racial classifications. IllinoisCentral Railroad Company v Illinoisplays a similarrole in the publictrust doctrine. The force of Illinois Central, however, derives not so muchfrom its fine phrases or thecourage that it took for the Court to reachthe decisionit did. Rather,Illinois Central is a compelling precedentlargely because of its facts, or at leastwhat are presumed to be its facts.The Illinoislegislature granted the entireChicago lakefront,over one thousandacres, to a privaterailroad corporation! Smallwonder that the legislaturequickly repented of thisdeed, or thatthe Court was compelledto saythat this valuable resource is im- pressedwith a publictrust that means it can never be soldto a private entity. We havetried to showhow the Lake FrontAct of 1869came to be passed,why the railroad's motives were not as perniciousas they are usuallyportrayed to havebeen, and how a conscientiouslegislator mighthave decidedto vote in favorof theAct. We have also concludedthat most probably the railroad used corrupt means to procure thelegislation. So thereality is morecomplex than the standard story

579 Thisat leastis whathas become of the public trust doctrine in Illinois. Compare Friends of theParks v Chicago Park District,203 Ill 2d 312,786 NE2d 161 (2003) (upholdingthe long- termlease ofa lakefrontstadium to a professionalfootball team even though the team would controland regulatepublic access to thestadium), with Lake MichiganFederation v United StatesArmy Corps of Engineers, 742 F Supp441 (ND Ill 1990)(invalidating the transfer offee to a nonprofituniversity even though transfer was subject to restrictionsdesigned to preserve and evenenhance public access to the lake). 580 5 US (1 Cranch)137 (1803). 581 347US 483(1954).

This content downloaded from 128.59.161.126 on Wed, 04 Nov 2015 16:25:20 UTC All use subject to JSTOR Terms and Conditions 2004] TheOrigins of the American Public Trust Doctrine 931 evenbegins to intimate.None ofthis is to suggestthat the public trust doctrineis necessarilya bad idea or a good one. But it does suggest thatthe doctrineshould be assessedusing arguments more probing thana retellingof the standardnarrative of theIllinois Centralcase. Thatstory is a fable,and canjustify the doctrine only if we alreadybe- lieve in it forreasons independent of thelesson the case supposedly teaches.

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