As a lawyer, speculator and senator from Nevada, William Morris Stewart never let laws or ethics get in the way of his crusade for free silver, or free mining on federally owned lands.
When it came to getting a laugh, Mark Twain didn’t limit himself to words. In of his years in the frontier West, he embellished the prose with visual effects. One of these is a sketch, presumably by a ghost- Roughing It (1872), his account artist, of William Morris Stewart.
In his time (1825-1909), Stewart was a mesmeric trial lawyer, an influential U.S. senator, a tycoon living in a “castle” and the author of a lively memoir. His zeal for unbridled development put him on a collision course with John Wesley Powell, explorer, geologist and apostle of planning and restraint. At stake was the shape of the West to come, and Stewart prevailed.
But if Stewart is remembered at all today, it is probably thanks to that cameo in Roughing It. When young Sam Clemens alighted in Comstock Lode country in the early 1860s, Stewart was already there, busy piling up a fortune as a lawyer. Not too busy though, to offer to do the newcomer a favor. As Twain tells it, Stewart promised to give him 20 feet worth of mining stock. All he had to do was pick up the certificates at Stewart’s office.
The stock “was worth five or ten dollars a foot,” Twain continues. “I asked him to make the offer good for [the] next day, as I was just going to dinner. He said he would not be in town; so I risked it and took my dinner instead of the stock. Within the week the price went up to seventy dollars and afterward to a hundred and fifty, but nothing could make that man yield. I suppose he sold that stock of mine and placed the guilty proceeds in his own pocket. [My revenge will be found in the accompanying portrait.]” That bracketed remark refers to the caricature, which depicts Stewart wearing a black hat and an eye patch. Twain was teasing Stewart, but that piratical look turned out to be prophetic: The older man’s renege was only a warm-up for mine-related chicanery to come.
A few years later, Stewart was a Republican senator from the new state of Nevada and a framer of the 15th Amendment to the Constitution, which guaranteed former slaves the right to vote. He had also drafted a statute that has lasted well over a century: the Mining Law of 1866, which governs hard-rock mining on federal land. Often criticized as being unnecessarily friendly to miners, the law to this day ranks high on environmentalists’ list of noxious statutes.
Stewart was born on a farm in western New York state in 1825, the first of seven children. He grew into a strapping young man, intensely ambitious, eager to strike out on his own. He spent a year at Yale, but the sensational news of gold discoveries in California made book learning seem superfluous. He arrived in San Francisco in 1850, prospected in eastern California with little success, then read law. His tutor was an expert in mining law, which Stewart duly mastered.
Stewart married Annie Foote, the daughter of a law partner, in 1855. Five years later, the discovery of the Comstock Lode in northwest Nevada (then part of Utah Territory) lured him and his family to the instant metropolis of Virginia City. There a lavish deposit of subterranean silver raised a simple but weighty question: Was it split into separate veins or lumped in a single, complex mass? The issue pitted entrenched owners, who had bought out the first wave of prospectors, against latecomers, who yearned to hit their own paydirt. For lawyers the endless disputes were a godsend, and Stewart successfully argued that newly discovered deposits were tributaries of the mother lode.
By all accounts, he was a most persuasive advocate, boundless in energy and ruthless in tactics. One of his Comstock cases, which involved a claim contested by rival mining companies, illustrates the tumultuous state of frontier justice. Learning that his own witness had sold out to the other side, Stewart charged that “he was false to his duty, false to his friends, false to his honor.” The jury was wowed—except for a single holdout, who had been bribed. But when the man’s fellow jurors threatened to hang him unless he came around, a unanimous verdict was returned for Stewart’s client. By his own estimate, Stewart made $500,000 in four years of Comstock lawyering. He remained active in mining as a capitalist, a role he played in the two ventures that were to sully his reputation: the Emma Mine in Utah and the Panamint Boom in California.
When Stewart took his Senate seat in 1864, there was a plethora of federal land but no national mining law. In Europe and Colonial America, the sovereign had traditionally retained mineral rights but leased them to prospectors, who paid a royalty—typically a percentage of the value recovered. To encourage commerce and settlement, the United States experimented with “free mining”: giving away federal land to those who claimed and developed ore deposits therein. Naturally, miners themselves favored this approach, and the 1849 California Gold Rush took place without laws to constrain it.
Some members of Congress looked upon the enormous wealth generated by the Comstock and other strikes as an opportunity to augment the federal treasury. In opposition, Stewart and his Western allies argued that the laity could not improve upon the rules fashioned and favored by miners themselves. After much maneuvering by Stewart and others, the Mining Law of 1866 incorporated that principle. With amendments in 1870 and 1872, the law still applies today. Unlike federal laws controlling oil and gas development, which use a leasing system, the Mining Law grants fee title—absolute ownership—to claimants who comply with a fairly easy set of requirements. And once miners own a formerly federal tract, they are free to do with it as they please.
In a senatorial career that lasted 29 years, Stewart never equaled his enviable first-term performance: setting mining policy for the nation and brokering the final version of an amendment designed to safeguard a fundamental American right. Those 29 years fell into two stretches: 1864-75 and 1887- 1905. The hiatus was ostensibly voluntary—Stewart chose not to run again in 1874, he explained, because of the need to replenish his finances. In any case, he would have been up against a formidable opponent: a Comstock millionaire named William Sharon, who sought to join yet another Comstock nabob, John P. Jones, in the Senate. The Bank of California had been a reliable Stewart supporter, but as a bank official Sharon was assured exclusive access to its coffers. Stewart was savvy enough to bow out and bide his time.
There is no evidence that the Emma silver mine scandal played a part in Stewart’s withdrawal, but it did call his integrity into question for years to come. Located in Little Cottonwood Canyon, near the town of Alta, Utah, the deposit had been discovered by two prospectors in 1868. They took on another partner, James E. Lyon of New York, who staked them in return for a one-third interest. After Lyon returned to New York, the onsite partners seemed to forget all about him. They borrowed money from two other men, allotted them each a one-sixth share without reducing their own, and began sending ore to Great Britain for reduction. (The costs of shipping and labor were such that this made economic sense.) Lyon sued to regain his one-third interest, hiring Stewart as his attorney on a contingency basis. Stewart promised to press his client’s case “under any circumstances unless you get $500,000. You will, without doubt, get that.” In the end, Lyon failed to get a third as much.
With an eye on overseas markets, American speculators bought Emma stock. At the time, Britons were swept up in a mania for wildcat American investments, especially in mines and railroads—a phenomenon portrayed in Anthony Trollope’s caustic novel The Way We Live Now (1875). While still representing Lyon, Stewart sailed to England with one of the speculators, Trenor W. Park. Waving around a bullish report on the Emma’s future by a mining engineer from Yale, and failing to mention other, less sanguine assessments, the Americans approached their compatriot Robert C. Schenck, U.S. ambassador to the Court of St. James’s. By guaranteeing Schenck a nice return, they induced him to buy into the Emma Silver Mining Company and to lend his name to its prospectus. Next thing Lyon knew, Stewart had crossed the line from pitching the mine to representing its officers, even joining the company’s board of directors. After a $100,000 deduction for legal fees, Lyon was offered $150,000 for his interest. He took it but, on learning more about Stewart’s machinations, concluded he’d been gypped.
To lay out his case, Lyon printed an 80-page pamphlet, Dedicated to William M. Stewart, My Attorney in the “Emma Mine” Controversy in 1871. Sad Commentary on the Honesty and Conscientiousness of a Lawyer and Ex-United States Senator, etc. “That [Stewart] has ever been of any service to me to the slightest degree in any stage of this Emma Mine business, from its discovery to its final sale in London, I have it yet to learn,” Lyon summed up, “but on the contrary he was as a millstone around my neck, preventing me from the exercise of my honest judgment, and was using the unlimited confidence I placed in him to cheat and defraud me of my just dues, and to appropriate them to his own use.”
If Stewart replied to that diatribe, the volley is lost to history, and the Emma scandal goes unmentioned in his Reminiscences some observers believed were trumped up in order to make the stock look like a winner, thereby boosting its price and allowing early buying shareholders to sell at . After paying a few dividends (which windfall profits), the company’s directors announced what they should have seen coming long before: The Emma was depleted. The price of its overcapitalized stock dropped from $23 a share to zero. An American investor called “the Emma bubble a national disaster,” and British investors were incensed. A House committee investigated the affair and slammed Ambassador Schenck for his endorsement, but Stewart got off more easily. Called to testify, he was asked if he had not entangled himself in a conflict of interest by representing Lyon and the speculators desiring to buy him out. “I was not for both at the same time,” Stewart insisted.
The committee took that denial at face value, but Stewart’s biographer, Russell R. Elliott, reaches a different conclusion: “In spite of Stewart’s testimony to the contrary, it seems quite clear from the House report, that his own interests, and not those of his first client, Lyon, were given priority in the negotiations leading to the settlement of the Lyon claim.” Lyon thought so, too; he hounded Stewart in letters for years afterward. Not until 1893 was the last lawsuit stemming from the case settled, in Stewart’s favor.
In the meantime, Stewart had become a Washington celebrity. Known as the Silver Senator, he was reputed to be the richest man in the upper body. To justify that billing, he poured his fortune into a Second Empire mansion designed by Adolph Cluss. Erected in 1873, Stewart Castle lorded it over Pacific (now Dupont) Circle. As described by James M. Goode in his Capital Losses: A Cultural History of Washington’s Destroyed Buildings, the castle’s trappings conjure up a vision of baronial splendor: “fivestory central entrance tower with carriage porch,” “projecting corner pavilions with…octagonal bays at first-story level,” “octagonal lantern above…fish-scaled mansard roof,” “five floors of teak furniture and Aubusson tapestries,” “a ballroom seventy-five feet long.” Some mocked the pile as “Stewart’s Folly,” but in its day it rivaled the White House as a tourist attraction in the nation’s capital.
Virtually nothing of the Emma Mine is left, but remnants of the other silver-mining enterprise that tarnished Stewart’s name are plentiful in the ghost town of Panamint City, high in the mountains of Death Valley National Park in California. Stewart’s official position, along with that of his colleague Senator Jones, was crucial in launching the Panamint Boom in the fall of 1874. The news that the two gentlemen from Nevada and a third partner (none other than Trenor Park of Emma infamy) had bought several claims in the valley, for a total of more than a quarter of a million dollars, set off the rush that flung Panamint City into existence. Touting the area as a “California Comstock,” Stewart became general manager of the new company, at a salary of $25,000 a year.
Central to Stewart’s success had been his ability to find the right words—to sway juries, to win over fellow lawmakers or to lever himself out of tight ethical spots. But at the height of the Panamint craze, he shone by taking the perfect action. Wells Fargo had refused to carry bullion out of the valley because its narrows were rife with holdup sites. “It was an admirable place for outlaws,” Stewart observed, “and it had not been overlooked.” As manager, it fell to him to devise a solution. He and the crooks knew each other, and the two sides bantered and boasted about the fate of the next shipment. When they tried to pull off their next heist, the bandits found that Stewart had played them a cunning trick. The silver had been smelted into a 400-pound cube, impossible to make away with.
Otherwise, Panamint was almost a rehash of the Emma affair, with the same overhyping of limited assets, the same fudging of engineers’ reports and the same flameout of hopes. The prospects had once seemed immense—the Panamint News had called for creation of a new Panamint County, and the public had been offered a grandiose $50 million in stock. But the reality turned out to be puny, with workmen squeezing out a mere $500,000 worth of ore.
By the spring of 1875, the valley’s population had dwindled from 2,000 to about 600. The emigrants were moving on to the nearby silver at Darwin or the more distant gold at Bodie. The mill closed, the newspaper folded and Panamint City withered away. Stewart and Jones not only failed to make a profit but also may have lost $100,000. Collectively, the investors who had placed their confidence in a scheme headed and ballyhooed by two U.S. senators were out at least three times that much. Along with the Emma affair, the Panamint fiasco is a prime example of what Stewart’s biographer calls “unethical and dishonest behavior unbecoming a leader of his political stature.”
The men who succeeded Stewart in the Senate proved to be mediocrities, much criticized for their missed votes. Each served but a single term. Discerning an opportunity in the 1886 election, Stewart moved back to Nevada from San Francisco, where he had been practicing law, and entered the race. To answer charges lingering from the Emma affair, he hired the Virginia City opera house for a speech in which he pleaded innocence and produced Lyon’s signed receipt for the sale of his Emma interest (which, of course, was hardly conclusive). Sustained by banking and railroad money and endorsed by his old crony Jones, Stewart was returned to office.
In his second chance at law- making, he focused on the remonetization of silver (a thicket into which we will not follow him) and irriga- tion, which he hoped might deliver Nevada’s economy from its monolithic dependence on mining. While advancing the cause of irrigation, he found himself in sync with an American visionary, John Wesley Powell.
A one-armed veteran of the Civil War, famous for having made an epic journey down the Colorado River, Powell was chief of the U.S. Geological Survey (USGS). In that capacity, he hoped that government informed by science might give shape to the arid West, with boundaries drawn to follow the terrain’s natural features, especially watersheds, rather than the straight lines favored by surveyors. As an agrarian populist, Powell worried about the tendency of banks and railroads to bully small ranchers and farmers.
Along with miners, the bankers and railroad men were mainstays of Stewart’s support, and having emerged from the rugged individualism of the mining world, he had no truck with populism or rationalized settlement. But as the Senate debated whether to direct the USGS to prepare a grand topographical map of the West as the first step toward building a series of reservoirs, Stewart defended the idea and its would-be implementer against skepticism from Eastern lawmakers. Powell, he declared, was “a very competent and enthusiastic man.” Congress authorized the project in 1888. The following summer, at Stewart’s behest, Powell joined him and other senators on a field trip. It was during that junket that the two men began to notice the gulf between their ideas of how the West should be won.
When their falling-out came, however, it was not over philosophy but a practical matter of statutory interpretation. The law authorizing the mapmaking had included a measure to thwart speculators, who could be expected to dog surveyors’ footsteps and snap up land in the vicinity of prospective reservoirs: All such choice parcels were to be taken out of circulation. When complaints of nonenforcement reached Powell’s superior, the secretary of the interior, he consulted his lawyers, who advised him that Congress had frozen not only irrigable tracts but all federal lands within the vast region to be mapped, for as long as it took to complete the work. The secretary adopted that reading, eliciting protests from settlers, who were used to having plenty of federal land at their disposal. Stewart heard their cries.
After Powell expressed his support for the blanket land withdrawal, Stewart turned on him. At a Senate hearing, Stewart questioned Powell so relentlessly that the latter couldn’t finish his answers. When Stewart charged that Powell had reserved “the whole country,” Powell took offense: “I have not done it. I never advocated it. That reservation was put into the law independently of me. Yet you affirm here and put it in the record that I had it done.” Stewart asked, “Are you in favor of its repeal?” “No, sir,” Powell replied. “I think it wise.”
After the hearing, Stewart kept up his attacks on Powell. The erstwhile “very competent and enthusiastic man” was now “drunk with power and deaf to reason,” “his greed for office and power unsurpassed.” Powell countered that such charges were the product “either of utter recklessness or of a disordered mind.” Congress canceled the irrigation survey, but that wasn’t enough for Stewart. He succeeded in cutting the agency’s budget, year after year, and continued to harry Powell until his resignation from the USGS in 1894. With no survey and limited funds, the agency couldn’t implement Powell’s dream of an orderly West.
In 1905 Stewart left the Senate for good. In the final paragraph of his Reminiscences, published in 1908, the year before he died, he put the best face on a frittering old age (his law practice was languishing; his investments were not prospering). “At the present time,” he wrote, “I am engaged in my profession of the law, and acquiring interests in mines and assisting in their development. The fascinating business of mining is a perennial source of hope. It inspires both mental and physical vigor, and promotes health and contentment.”
For William Stewart, this was a doughty and poignant credo. Well into his 80s, he was still chasing the bonanza he was never able to secure. Mining had provided him with a handsome income as a lawyer, but it had also exposed him to temptations he couldn’t resist, revealing serious flaws in his character without ever granting him the windfall he considered his due. Even so, he stood by the industry to the end. If not mining’s most shining exemplar of rectitude, he was at least its most ardent champion.
Originally published in the December 2006 issue of American History. To subscribe, click here.