Felt Necessities: Engines of Forest Policy
The term “felt necessities” is taken from The Common Law, a book of essays assembled in 1881 by Oliver Wendell Holmes, Jr., in which he explains the historic underpinnings of the nation's legal system. President Theodore Roosevelt thought to much of Holmes’ essays that nominated him to the Supreme Court in 1902.
20 MINUTE READ
Welcome to “Felt Necessities: Engines of Forest Policy,” a series of essays tracing the history of the conservation movement in the United States, and its influence on the nation’s ever-shifting forest policy.
The series expands significantly on a half-day lecture Evergreen founder, Jim Petersen, delivered to a graduate-level forestry class at the University of Idaho in February 2017.
The term “felt necessities” is taken from The Common Law, a book of essays assembled in 1881 by Oliver Wendell Holmes, Jr., in which he explains the historic underpinnings of the nation’s legal system. President Theodore Roosevelt thought so much of Holmes’ essays that nominated him to the Supreme Court in 1902.
We hope you enjoy and learn from this series. Your comments or criticisms are most welcome. Felt Necessities will subsequently be available in book form.
Writing in The Common Law, a book of essays he assembled in 1881, Oliver Wendell Holmes, Jr., who joined the Supreme Court in 1902, had this to say about the historic underpinnings of the nation’s legal system:
“The life of the law has not been logic. It has been experience: the felt necessities of the time, the prevalent moral and political theories, institutions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do with the syllogism in determining the rules by which men should be governed. The law embodies the story of the nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.”
Nothing that I say here this morning about the nation’s ever shifting and often conflicting array of forest policies will make sense to you if you don’t have some familiarity with the felt necessities that have driven policy formation in our country since the Civil War era.
Justice Holmes, who was nominated to the high court by President Theodore Roosevelt, received his law degree from Harvard after the war – a war in which he’d been badly wounded at Antietam and Chancellorsville, two of the war’s bloodiest battles.
He practiced commercial and maritime law for 15 years in Boston, also serving as editor of the American Law Review. It was during this period that he began to compile The Common Law.
America was – as you shall see - a very different country at the time Holmes published his quite thoughtful essays.
The first transcontinental railroad was only 15 years old and the first forestry school in the country would not be founded for another 18 years. Yet the histories of the nation’s railroads and those of its forestry movements would soon be inextricably tied to one another as a direct result of what Holmes called “felt necessities.” In this case, the need to move manufactured lumber to lucrative eastern markets.
Of the nation’s post-war longings, none loomed larger in the American consciousness than exploring and settling the great American West - the two-thirds of the nation that lay west of the Mississippi River, a billion-plus acre expanse about which little was known before President Thomas Jefferson sent Meriwether Lewis and William Clark west in 1804 to have a look at what the federal government had purchased the year before from the French for $15 million.
Those of you who are students of history will recall that the 828,000 square miles we bought from the French government did not include Oregon, Washington, Idaho or parts of Wyoming and Montana – almost all of it west of the Continental Divide - that we acquired from the British Government in 1848, the same year we acquired California, Nevada, Utah, Arizona and parts of Texas and Colorado from the Mexican government.
You who share my interest in Indian history will recall that millions of Indians outpaced the 104 Englishmen who came ashore at Jamestown, America’s first settlement, in present-day Virginia, in 1607, by about 10,000 years. It can thus be said that “Native Americans” who walked here on a Bering Strait land bridge that once joined Alaska and Asia held title to all that is the United States long before there was a United States.
Manifest destiny – a necessity felt most deeply at opposite ends of America’s then rigid caste system - more than doubled the size of our cobbled together nation between 1803 and 1848.
The first transcontinental railroad connected Omaha, Nebraska with San Francisco, California at Promontory Summit in Utah Territory on May 10, 1869. Leland Stanford, who would later build Stanford University out of his own checkbook, as a fitting memorial to his dead son, drove the ceremonial last spike on behalf of the Central Pacific Railroad, which he co-owned with Collis Huntington, Charles Crocker and Mark Hopkins, calculating risk-takers who would soon be worth hundreds of millions of dollars.
CP Rail, the Union Pacific and the Western Pacific each built sections of the rail line using federal land grants as financial leverage in the nation’s treacherous bond markets.
The grants for alternate sections of Public Domain land on both sides of the westbound tracks formed a checkerboard expanse whose aggregate acreage – all of it available for sale and development - was greater than that of the entire State of Texas.
In Montana, Idaho and Washington - along the mountainous and heavily timbered route surveyed for the Northern Pacific Railroad - the checkerboard grant pattern helped define forest landownership and forestry as it is practiced today on public, state and private lands across the Pacific Northwest.
Owing to the per mile cost of traversing the Continental Divide east of Butte, Montana and the Cascades, at Stampede Pass in western Washington, via a 9,850-foot-long tunnel through solid rock, the Northern Pacific was granted more acreage than any other westbound railroad.
The historic evidence here is the 1862 Pacific Railroad Act. The Act, signed by President Lincoln, a former lawyer whose clients included a small railroad, codified the nation’s fervent hope that the West would be settled in President Jefferson’s agrarian vision of small farms carved from lands cleared of heavy timber by settlers willing to invest their time, talent and treasure in developing the West’s natural resources.
In an unofficial sense, the 1862 Act, which transferred ownership of millions of acres of Public Domain land to private ownership, was the nation’s first expression of federal forest policy.
Many new forest policy visions followed, each crafted in response to the nation’s ever-changing perceptions of its wants and needs – felt necessities turned into laws that often conflicted with those of earlier generations of Americans.
This morning, I will briefly summarize the earliest years. As I walk you through these, you will note the presence of charismatic personalities who gave voice to the sum and substance of the country’s hopes, ambitions and fears.
The first of these luminaries was President Theodore Roosevelt - a bear-of-a-man considered by many to be our nation’s first true conservationist. Others preceded him, but as President of the United States that emerge following the Civil War, he occupied the bully pulpit, and he frequently used it with great gusto, and to great political advantage.
Consider these words from a short lecture President Roosevelt gave at a March 26, 1903 gathering of the members of the Society of American Foresters hosted by his friend and cohort, Gifford Pinchot, who two years later, would, in 1905, become the founding Chief of the newly formed U.S. Forest Service.
For those of you who may not know, Pinchot helped organize SAF, originally called “the baked apple club,” after Pinchot’s liking for serving the group baked apples and ginger bread whenever they gathered at his home at 1615 Rhode Island Avenue in Washington, D.C.
Although SAF was less than three years old in March of 1903, the President had high hopes for Pinchot and his cadre of young foresters. Here is what he told them:
“And now, first and foremost, you can never afford to forget for one moment what is the object of our forest policy. That object is not to preserve forests because they are beautiful, though that is good; nor because they are refuges for the wild creatures of the wilderness, though that, too, is good; but the primary object of our forest policy, as of the land policy of the United States, is the making of prosperous homes. It is part of the traditional policy of home making in our country. Every other consideration must come as secondary.
“The whole effort of the Government in dealing with the forests must be directed to this end, keeping in view the fact that it is not only necessary to start the homes as prosperous, but to keep them so. That is why the forests have got to be kept. You can start a prosperous home by destroying the forest, but you cannot keep it prosperous that way.
“You yourselves have got to keep this practical object before your minds; to remember that a forest which contributes nothing to the wealth, progress or safety of the country is of no interest to the Government and should be of little interest to the forester. Your attention must be directed to the preservation of forests, not as an end, but as a means of preserving and increasing the prosperity of the nation.”
In my opinion, these 242 words - spoken almost two years before the Forest Service was founded - constitute the most enduring statement of forest policy in U.S. history. Here was the President of the United States telling a group of aspiring young foresters – exactly what he expected of them in terms of their professional conduct in the years to come. Did they know that Pinchot probably ghost-wrote Roosevelt’s instruction?
Perhaps some guessed it, but Roosevelt’s brief forestry tutorial was not the first such declaration of a federal forest policy. Arguably, the first official utterance was written into Section 1 of the Sundry Civil Expenses Appropriations Act for Fiscal Year 1898, more famously known as the Organic Act. Among the Act’s provisions is this unambiguous passage, which you will recognize for its having gone the way of other felt necessities that are no longer felt necessary in modern-day society:
“No national forest shall be established, except to improve and protect the forest within the boundaries, or for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber for the use and necessities of the citizens of the United States; but it is not the purpose or intent of these provisions, or of the Act, to authorize the inclusion therein of lands more valuable for the mineral therein, or for agricultural purposes, than the forest purposes.”
Some historic context: The Organic Act was Congress’s speedy and clarifying response to the western political firestorm that erupted following President Grover Cleveland’s 21-million-acre addition to the nation’s Forest Reserve System, forerunner of the National Forest System.
With a stroke of his pen, President Cleveland had, on the observance of George Washington’s 165th birthday – February 22, 1897 - added 13 new Reserves to the system without consulting western solons, probably because he knew they would oppose his actions, which had the blessing of the National Forest Commission - an august body of political, social and literary movers and shakers who held court in New York City’s most affluent circles, and who had essentially appointed themselves to advise Congress and the President on matters related to conservation of federal forest lands in the West, lands that they had glimpsed only once as members of a government-sponsored tour.
Among the commission’s impressive cast of characters: Robert Underwood Johnson, editor of the widely-read Century Magazine; Charles Sprague Sargent, director of the Arnold Arboretum at Harvard and publisher of Garden and Forest magazine; Wolcott Gibbs, president of the National Academy of Science; William Stiles, editor of Garden and Forest; General Henry Abbott, formerly of the U.S. Army Corps of Engineers, who earlier in his career had helped survey the Union Pacific Railroad’s route west from Omaha; Alexander Agassiz, a curator at the Harvard Museum of Comparative Zoology; William Brewer, a Yale University faculty member and California State; botanist, Arnold Hague, a distinguished geologist with the U.S. Geological Survey; and Interior Secretary, Hoke Smith, who later asked Gibbs to convene a group of forestry experts to study the Forest Reserve situation and make necessary recommendations.
President Cleveland’s February 1897 declaration and President McKinley’s clarifying ratification of the Organic Act, just four months later, settled the question of who owned the West that was not already privately owned. It belonged to the federal government and, by extension, the citizens of the United States.
If you who follow the daily news, as do I, you know that several western states are currently mulling a legal challenge to federal ownership. Their claims rest on a lofty interpretation of language imbedded in Louisiana Purchase documents that appears to suggest that the intent in 1803 was to transfer ownership to the states as they were formed. This occurred in the South, but not the West.
What we have here are colliding felt necessities – a federal claim that it owns the land and state dissatisfaction with the failure of the federal government to better manage former public lands for economic gain, essentially the same criticism western solons leveled against the 13 Reserves President Cleveland authorized in 1897.
Noteworthy here is the fact that the federal government does not pay property tax on the lands it holds within states and counties, so local governments have no way of cashing in on their own felt necessities. Imagine being a county commissioner in a rural western county in which 70 to 80 percent of the land base is federally-owned, as is the case across much of the western United States. Your property tax base would be a fraction of that available to a county in which very little land is federally-owned, yet your basic costs for law enforcement, fire departments, roads, libraries and federally-mandated social services would be about the same.
The back story involving the formation of the National Forest Commission is much too long to tell in its entirety, but I think it important that you know that the man behind the organization, the western tour and its subsequent report to Congress and the President was none other than Gifford Pinchot, whose robust relationship with President Roosevelt began when the latter was Governor of New York.
You may think “robust” an odd word to describe a relationship between a President of the United States and an overly ambitious young forester, but they were both very competitive men, so I can only imagine that Pinchot went through his long life relishing the fact that he had once flattened Roosevelt in a boxing match in the basement of Roosevelt’s New York mansion.
Fisticuffs aside, I think it unfortunate that no historian has ever given President Cleveland the credit he deserves for approving new Reserves I’m certain you know well: The Bitterroot, Lewis and Clark and Flathead in western Montana; the Priest River in northern Idaho, the Olympic in western Washington, the Black Hills in South Dakota and the Teton and Bighorn in northwest Wyoming – contemporary National Forests treasured by all Americans.
Cleveland was such an avid outdoorsman that he memorialized his passions for hunting and fishing in Fishing and Shooting Sketches, a lovely little book, complete with pen and ink sketches, published to polite applause in 1906.
As for history’s snub, we can surmise that Cleveland lacked President Roosevelt’s gift for self-promotion, to say nothing of Pinchot’s well-timed flair for theatrics, a talent he displayed to good advantage whenever he found it necessary, though he was always careful never to upstage Roosevelt. In fact, he preferred to speak his mind through Roosevelt’s oratory.
The felt necessity behind the creation of the first Forest Reserves was the Forest Reserves Act of 1891, signed into law by Cleveland’s predecessor, Benjamin Harrison. The Act gave legally enforceable intent to a long running series of events – some might say warning shots – the first one fired in 1864 by George Perkins Marsh, a U.S. diplomat and former congressman from Vermont. Marsh, the scion of a wealthy Vermont family, was nearly blind by age seven, so to master the 20 or so languages he spoke fluently, he learned from voice memory.
As a diplomat, Marsh traveled widely in Europe, but his home state’s forests, which had been heavily cleared by homesteaders and early lumbermen, held a special place in his heart, and formed the backdrop for Man and Nature, an unsettling book in which he argued for an entirely new way of looking at humankind’s progress. The country’s natural abundance was not limitless, Marsh declared. “Man is everywhere a disturbing agent. Wherever he plants his foot, the harmonies of nature are turned to discord.”
And indeed, discord could be seen in all directions in Marsh’s native Vermont. Between 1830 and 1880, nearly 80 percent of the forested landscape of Vermont and parts of lower New York State’s Adirondacks and Berkshires - the only forest near New York City - was cleared away by impoverished settlers trying to scratch out a subsistence living in soils better suited to growing trees than crops. I count two of my Petersen grandmother’s great uncles among this motley crew. One logged in Vermont, the other in New Hampshire.
The clearing work, backbreaking though it was, did not set well with wealthy New Yorkers who owned summer homes in the Adirondacks and Berkshires. The public fear, which Marsh fed, was based on his belief in the now disproven “steady state web of life” theory of nature, which intoned that a forest once cleared was gone forever.
Having traveled Vermont, where hand stacked rock walls marked property lines, I can tell you that those old walls are difficult to photograph because they were long ago overgrown by the return of forests that grew up after the first farmers abandoned the Northeast for the more fertile soils of the Ohio Valley.
It must be remembered that many of the same New Yorkers who were up in arms about land clearing in the Adirondacks and Berkshires were the children and grandchildren of the captains of industries that were amassing great fortunes in railroading, steel making, oil drilling and lumber manufacturing - consuming great amounts of the natural resources whose loss their well-heeled heirs now decried.
Gifford Pinchot’s father was one of Pennsylvania’s wealthiest lumbermen. No wonder he could afford to send his son to forestry school in France. James Pinchot’s architecturally splendid French chateau – Grey Towers – overlooking the Delaware River near Milford - now the home of the conservation-minded Pinchot Institute – is indicative of the conspicuously consumptive lifestyles enjoyed by wealthy industrialists of the time.
The elder Pinchot also endowed the Yale University School of Forestry, the first such institution in the United States, and supposedly did so to assuage his guilt for having made a fortune in sawmilling and wallpaper making. I find this hard to believe. He was more likely overcome by his young son’s irrepressible salesmanship.
What is most clear to me at this point in our story about hardscrabble settlers and captains of industry is that not all felt necessities and Manifest Destinies were created equal.
A Civil War battlefield surgeon named Franklin Hough added considerable fuel to Marsh’s polemic with a paper he prepared for the 1873 annual meeting of the American Association for the Advancement of Science meeting in Portland, Maine. Hough had been a physician in upstate New York for 20 years, but his love of natural history led him to abandon his practice in favor of publishing a magazine titled The American Journal of Forestry.
I’m fascinated – actually, a little amused - by Hough’s use of the word “forestry” in the title of his magazine. It would be another 35 years before the first forestry school in the U.S. opened its doors, so Hough must have been acquainted with Europe’s forestry schools. And being from upstate New York, he would have been well-acquainted with the same devastation that so alarmed Marsh.
Slow subscription sales suggest that, at the time, there wasn’t yet much of a market for a forestry magazine, so he abandoned the publication and enlisted in New York’s 97th Volunteer Infantry Regiment, where he served with distinction throughout the Civil War.
After the war, Hough returned to New York where, in the process of updating the state’s census, he noticed, to his dismay, that the amount of timber available for harvest in New York was in steep decline. This leads to the quite surprising discovery that, while there were yet no forestry schools in the U.S., someone was systematically surveying and recording growth and harvest. But who? It wasn’t Pinchot, who was only eight years old in 1873.
Hough’s discovery led him to write On the Duty of Governments in the Preservation of Forests, the paper he presented in Portland, Maine in which he noted not only the value of vanishing timber, but “our absolute dependence on it.”
There was, Hough declared, a need for both education and regulation – themes that survive and resonate to present day. He also thought that the states needed to get involved, another refrain I hear frequently, especially as it concerns Good Neighbor Authority, a timely provision imbedded in the 2014 Farm Bill that grants states the authority to contract with the U.S. Forest Service to speed restoration work in National Forests that hold too many trees for the carrying capacity of the soil. As forestry students, you know the stand density-disease-insect-wildfire story much better than do lay audiences.
In response to Hough’s report, the American Association for the Advancement of Science quickly formed a committee charged with the task of imploring congressional action. Congress complied, albeit three years later, creating a special agent’s office in the Department of Agriculture. President Grant named Hough to the post.
Although Hough had no formal training for the job, he was an excellent statistician, and he took his work seriously, traveling about the country by train and carriage to learn all he could about forests and lumbering. It helped that he was well connected in scientific circles and could call on botanists, horticulturists and geologists when he needed technical advice.
The result of his lengthy investigation was a three-volume, 650-page Report on Forestry, published between 1878 and 1882 – the final volume coming after Hough completed a tour of European forests, a trek that convinced him the U.S. Government needed to hire European-trained foresters to manage the nation’s Public Domain timberlands. Congress rewarded Hough’s work by temporarily establishing the Division of Forestry in 1881, with Hough as its first chief.
Five years later – in 1886 - Congress granted permanent status to the Division and appointed a Prussian-trained forester named Bernard Fernow to replace Hough. Bear in mind that it would be another 12 years before German-trained forester, Carl Schenck, established the first forestry school in the United States on the grounds at Biltmore, George W. Vanderbilt’s splendid estate near Ashville, North Carolina.
Vanderbilt, who knew Pinchot well, was the grandson of Cornelius Vanderbilt, steamship monopolist and builder of the New York Central Railroad who, at the time of his death in 1877, was worth $143 billion in today’s dollars, more than twice Bill Gates’ fortune.
When it was completed in 1895, Biltmore was – at 179,000 square feet – the largest privately-owned home in the United States. It still is – and while open to the public - it is still owned by Vanderbilt heirs. The castle-like home and its estate gardens and greenhouses were designed by Richard Morris Hunt and Frederick Law Olmstead, about whom I will have more to say in a few moments.
Bernard Fernow’s German tutelage served him well during his years at the Division of Forestry. He quickly recognized the uniquely American roots of the problem Marsh had written about in Man and Nature. It was bad enough that so much of the eastern forest had been leveled by lumber, railroad and steel tycoons. Now the West was also in their crosshairs, no thanks to the transcontinental railroads that were opening hundreds of thousands of square miles to the Manifest Destinies of many hundreds of thousands of homesteaders, dream chasers, prospectors and fast-buck artists.
Forests and watersheds were being destroyed, and timberland speculators were driving prices so high that sawmills could not turn a profit unless they ran constantly, regardless of lumber prices – a situation that would not fully resolve itself until the World War II years, when high- strain band saws began to replace slower and less efficient circle saws.
The government needed to quickly reverse course, Fernow declared - abandon the idea of selling Public Domain lands and instead hold the country’s timberlands in Reserves for the future, harvesting “not more than what grows yearly or during certain periods.”
We thus see – for the first time in American history - a forester advancing the idea of balancing annual growth and harvest, a felt necessity embedded in every forest policy our country has since embraced.
While Fernow clearly recognized the enormous future economic value of the nation’s timber holdings, he had serious doubts about whether a country drunk on land speculation could be convinced to return at least a portion of its Public Domain to a government that was selling it as fast as it could for as little as $1.25 per acre.
Fernow had come to the United States in 1876 to marry his American sweetheart. Six years later, he became an U.S. citizen. By then he was up to his armpits in the formation of the American Forestry Association, not surprising given the fact he was the only trained forester AFA had on its membership roster.
Fernow was a natural to become the Division’s third chief, perfect in a job that was perfect for him. The country desperately needed someone who had the skills necessary to lay a foundation for forestry, someone who could catalog not just what was, but also what might be, if forestry could make a good start. The autocratic Fernow was that someone.
When Fernow left the Division in 1898, Agriculture Secretary James Wilson asked him to report on what he’d accomplished during his tenure. The result was a 401-page masterpiece titled Forestry Investigations and Work of the Department of Agriculture. But it was much more than a bureaucrat’s report; it was a roadmap to the future.
Not only had Fernow cataloged the nation’s Forest Reserves, he’d also accounted for the nation’s demand for wood, tabulated the number and type of sawmills in each state and created an annotated list of the 162 forestry bills – the embodiments of felt necessities - that had been introduced in Congress between 1871 and 1897.
There was even a 64-page section complete with photographs and maps that showed where the nation’s commercially important tree species grew, plus a discussion of the physical properties of wood. Indeed, the only thing missing from Fernow’s voluminous work was congressional will.
If the autocratic Fernow lacked the commensurate political skills needed to achieve all that he had hoped to accomplish, it did not matter. There were others working actively behind the scenes – well-bred, well-educated and politically well-connected men who, like Pinchot, more than made up for Fernow’s inability to cope with petty politics.
Among them, the aforementioned cast of characters associated with the formation of the National Forest Commission: Wolcott Gibbs, a Harvard chemist and president of the National Academy of Science, which he helped found in 1863; William Stiles, a Yale educated columnist with the New York Tribune and later editor of Garden and Forest magazine, who played a supporting role in the design of New York’s Central Park; and Charles Sprague Sargent, director of the Arnold Arboretum at Harvard University, publisher of Garden and Forest, and the son of a Boston banker who grew wealthy from his railroad investments.
I think it may have been Sargent who was doing, or at least overseeing, the upstate New York growth and harvest sampling that Hough cited in his 1873 Portland, Maine paper.
Suffice it to say, the exceptionally well-connected National Forest Commission soon joined Fernow in demanding the withdrawal of Public Domain lands, as did a supporting cast that included the nation’s leading landscape artists and photographers, including: Thomas Cole, Winslow Homer, James Audubon and Albert Bierstadt, plus the aforementioned Frederick Law Olmstead, who transformed a swampy rock pit into Manhattan’s Central Park, and the aforementioned Richard Morris Hunt, founder of the American Association of Architects, designer of many of New York City’s most notable structures, including the Great Hall of the Metropolitan Museum of Art, the pedestal for the Statue of Liberty, and many of Park Avenue’s finest mansions, plus James Pinchot’s Grey Towers chateau and George W. Vanderbilt’s Biltmore estate.
And there were others, less obvious but no less important, who joined the conservation chorus: Literary giants of the time, brilliant poets like Henry David Thoreau, Walt Whitman and Robert Frost, who while not part of our more narrowly drawn forestry story, made significant and successive contributions to the more transcendental moods and mindsets of the time.
What we see here - for the first time in the history of the nation’s conservation movement - is the political convergence of intellectual thought and great wealth. We see it today in opinions expressed by those who work for media giants like the New York Times, the Washington Post, CNN and others who openly and vigorously advocate for conservation.
And, as we shall see in due course, the meaning of the word “conservation” will undergo its own slow but significant metamorphosis in the years following the designation of the first federal Forest Reserves. Perhaps you will find it ironic – as do I – that this evolution – which today favors preservation at the expense of conservation or even resource use - is still being driven by the same convergence of wealth and intellectual capital that drove westward expansion and development following the Civil War. Felt necessities on the march.
Copyright James D. Petersen and the Evergreen Foundation. All rights reserved. No part of this series can be copied in any electronic or written manner without the written permission of Jim Petersen and the non-profit Evergreen Foundation