October 1, 1919, who had complied with certain conditions and requirements, being in the main, of course, conditions stipulated in the general mining laws, should be entitled to relief in the form of a permit or lease.

I believe that the chairman of this committee and Mr. Raker both had much to do with the drafting of the leasing act-I think I have seen their finger prints on that measure. I have wondered what section 19 was inserted for, if it means the same as section 37, and under the construction of the Supreme Court, it seems to grant relief to no one who can not obtain relief under section 37, and I assume that no man would seek relief under a lease where he was entitled under the law to a patent. Now section 19 reads as if it were drawn to meet exactly this emergency, and I take it this committee will apply section 19 to this situation as far as that can be done. The two measures, one introduced by the chairman and one introduced by Mr. Sanders, fall within the general boundaries and purview of the leasing act. The spirit and purpose and policy of that act are embodied in those measures.

Whatever legislation you enact will, of course, define the conditions and fix the standard which must have been conformed to by the claimants who are to be entitled to relief. In fixing these conditions and circumstances the committee will, of course, add, as one of the conditions, the presence of good faith.

Now, of course, there will be contests, Mr. Chairman, arising under this legislation, whatever you enact. There will be claimants insisting that they did in good faith comply with the conditions and that they enjoy priority of right.

A good deal has been said here during the course of the hearing with respect to the detailed circumstances and evidence tending to establish priority in behalf of one claimant as against another. As I view the situation those details are not essentially material at this time. You will prescribe the conditions, fix the standard. The duty of determining whether a given claimant qualifies under those conditions and standards must be devolved upon an administrative officer of the Government. The committee is not equipped for that sort of work. It is a quasi-judicial duty, which must, in the nature of things, be devolved on some official of the Government. That duty will, of course, be devolved upon the Secretary of the Interior. The thing now is to secure relief legislation based upon sound, public policy, which makes provision for the equities of the case, and when the committee has done that it has discharged its duty, and we must, of course, assume that the Secretary of the Interior will then discharge the duties devolving upon him.

The necessity for legislation in behalf of these claimants, depends upon their claim that they acted in good faith. Those who did not act in good faith can not appeal to you for consideration. Judge Dyar made his entire protest turn upon the point of good faith and he took the position that under the circumstances which obtain in this controversy no one could have acted in good faith. He claims that the circumstances negative the presence or the possibility of good faith.

The chairman read authorities into the record which stripped the issues down to a clear-cut point, so that it can be seen of all men, and it is clear that good faith can be exhibited where there is an adverse claim or an adverse claimant. Judge Dyar assented to the general propositions laid down by the chairman or, rather, laid down in the authorities cited by the chairman, with two qualifications. First, he insisted that the rule is that the party alleging good faith must have used extreme caution and exercised due diligence. Now, I agree with the Judge. His first qualification is well founded. That is the law. The other qualification was that in the cases cited by the chairman those alleging good faith were seeking to recover improvements or the value of improvements and that no claim was set up for the substance of the property and, therefore, the authorities did not constitute precedents in a case where a claimant was seeking the substance of the property itself. Now, I can not agree with Judge Dyar in the application of that rule. He was reasoning by analogy, and no method of reasoning is so dangerous as that of analogy, because there may be an

essential difference, a fundamental difference in the facts and circumstances of the case. The difference may be latent, but if there is a fundamental difference, of course, any analogy fails.

I submit that in the existing situation the analogy suggested by Judge Dyar utterly fails. No individual who owns land ever blazes forth to the world that if the people will come and find valuable mineral deposits on his premises the mineral deposits shall be theirs for a song. That is never done, but the United States for more than half a century has said to all men, to all men who could qualify, to all citizens of the United States, without regard to age, color, or sex, "Find a mineral deposit of value anywhere on the public domain and that deposit is yours"--the substance, not the shadow "The substance is yours for a nominal consideration." That is the purpose of the policy and that is the title of the act. The act of May 10, 1872, was entitled "An act to promote the development of the mineral resources of the United States." Judge Pitney in a recent case said it held forth an invitation to all men and the promise of a generous reward to those who accepted the invitation.

These men accepted the invitation, and Attorney General Williams, the year that measure was enacted, rendered an opinion saying it ought to be liberally construed in order to effectuate the policy of the law.

The object of the mining laws of the United States has been to dispose of the substance, to dispose of the minerals, I believe, under a placer mining claim at $2.50 an acre and under a lode claim, I believe, at $5 an acre. Judge Raker will correct me if that is not right. That is the law and it has been a wise policy. It has been justified by a progress which has no parallel in the annals of the race. It is not analogous to a private individual who generally observes the ancient rule, the good old plan, "Let him get who has the power and let him keep who can." So the analogy fails altogether. Now, Mr. Chairman, with respect to good faith, I think this distinction ought to be made. It is not necessary for these claimants to make a showing of good faith before this committee which would justify you in granting them a lease or leases to these lands, if you were vested with authority to do that. Your function, as I conceive it, is to consider the circumstances of the case; to consider the showing of good faith which they did make; it is your duty, as I conceive it, to determine whether or not an executive officer of this Government ought to be vested with the power and charged with the duty of making a thorough and judicial investigation, weighing the evidence, measuring the situation, dealing with these men in the light of our history and determining whether or not they used such good faith and did such development as would entitle them to a lease, a lease that would be in harmony with our public policy. That is the duty of the committee as I understand it with respect to good faith.

What showing have these claimants made in regard to good faith? I think they have made such a showing; they have made such a showing as warrants you in commissioning someone to make a thorough-going investigation of the facts and equities in the premises, and to render judgment in accordance with such findings. It is my own belief that my client, Mr. Testerman, has made such a showing of good faith as will justify you gentlemen in the pursuit of such a policy. Now, what did he do? Tom Testerman is a plain, practical man; he is one of the men who has made Oklahoma what it is; he has builded better than those who built palaces; he has helped to build a commonwealth and to establish a seat of civilization, than which there is no greater service to this country or to the people of this country.

Now, Mr. Chairman, the Greer County case was a matter of common knowledge; it excited a great deal of interest while it was pending, and it was known to all men that the United States won the suit; it was known of all men that the Supreme Court of the United States decided that the south bank of Red River was the southern boundary of Oklahoma and that the south bank of Red River was the northern boundary of Texas. Everybody knew that, and Tom Testerman took the word of the Supreme Court in good earnest when it said so. As I suggested before, the Supreme

Court did not attach to that opinion the statement that its judgment was not a joke. It did not say, "Know all men by these presents that the south bank of Red River is the north bank of Texas and anybody who crosses it is a transgressor." But it said that the south bank was the boundary between the two jurisdictions. That was known to Tom Testerman, and known to other men.

Now, when the oil interests excited Wichita County, men's eyes naturally began to search for lands of the United States which might be available. But Tom Testerman did not rush in where angels fear to tread. He made as thorough an investigation and survey as his circumstances would allow him to make, and this must be kept in mind: He and his conduct must not be judged in the light of the three recent opinions of the Supreme Court of the United States. It is now easy to say that the south half of Red River belongs to the United States and that it was not subject to the mining laws of the United States. The child at its mother's knee knows that But you must judge Tom Testerman, his motives and his conduct, under the circumstances as they were at that time.

now.

In judging of the conduct and the genius of Christopher Columbus we do not reach that judgment in the light of present day science. We have to travel back to August, 1492, and make ourselves denizens of that age as well as denizens of the old world, and we must judge of his motives, his conduct, his genius, and his greatness by the knowledge of mankind at the hour he set sail. In judging the conduct of Washington and his compatriots we do not judge them in the light of twentieth century civilization. Those men looked at their situation and at their prospects through the midnight gloom of Valley Forge, and looking through that gloom they could not catch sight of the splendors which have since come upon us and our country.

Tom Testerman was a layman, a practical man. He believed that the south half of Red River belonged to the United States because Oklahoma went to the South bank of the river and because the Indian treaties and the lands that were granted under them, as well as the act opening the lands to settlement, stopped at the middle line of Red River. It required no impulse of genius to reach the conclusion that that land belonged to the United States. But he did not go on his mere assumption. He was a member of the State Senate at the time and had served several terms in the State Legislature. He was an intimate friend of Governor Williams, at that time Governor of Oklahoma but who had been chief justice of our State and is now an ornament to the Federal bench. He went to Governor Williams and told him that he had taken an oath as Governor to execute the laws of Oklahoma throughout the territorial extent of Oklahoma, and he asked him how far he executed the laws of Oklahoma in Red River. The Governor told him he executed the laws of Oklahoma to the south bank of Red River. Now then, an ordinary farmer had a right to attach some weight to the opinion of the former chief justice of our State.

He did not stop there. He found, that the companies which owned the toll bridges across Red River paid taxes on the entire bridge to the counties in Oklahoma where they were situated. Commonwealths are rather alert in collecting all the taxes that are coming to them. It would not have been allowed to go unchallenged if it were not a matter of common knowledge, the fact that the south half of Red River was within the jurisdiction of Oklahoma.

He did not stop there. He found that the railroads sold tickets in Oklahoma marked to the south bank of the river. They were required to make returns as to their gross earnings to the state, and they counted as a part of their earnings the fares to the south bank of the river. They were allowed in Texas and in Oklahoma to issue bonds based on their mileage. The Oklahoma railroads based their bonds on the mileage to the south bank and the Texas railroads also based their bonds on their mileage to the south bank. We had a 2-cent fare in Oklahoma and a 3-cent fare in Texas. The railroads were contesting the 2-cent fare on the ground that it was confiscatory, yet they sold tickets at 2 cents a mile to the south bank of Red River.

Not only that, but they placed markers at the bridges on the south bank, "Texas and Oklahoma," in order that he who runs might read. It was advertised to the world that the south bank was the boundary, and Tom Testerman knew that because he took the trouble to find it out. I believe there was an opinion by the criminal court sustaining the jurisdiction of Oklahoma to the south bank, but I am not prepared to give the citation or style of the case. I have been so informed.

Tom Testerman did not stop there. He went to the south side of Red River and made inquiries. Before he set foot on the south half of Red River he made an inquiry of Mr. Aynesworth, an attorney in the Greer County case, and asked him where the south boundary of Oklahoma was and he told him it was the south bank of Red River and advised him that the south half of the river was the property of the United States. He has since embodied that opinion in an affidavit.

Testerman did not stop there. Before he spent any money in the development of these claims he went to the tax assessor of Wichita County and inquired of him as to what was the north boundary of Wichita County-which was also the north boundary of Texas-and the assessor of Wichita County, who had been assessor for 2 years and deputy for 10 years preceding, advised him in an affidavit that under the direction of the county judge and county commissioners of Wichita County he assessed property to the south bank of Red River and no further. He assessed the property in that county for taxation. We have here the affidavit of ex-Sheriff Hawkins, and he gave testimony to the same effect; that his jurisdiction extended to the south bank of Red River and that the jurisdiction of the officials of Cotton County, Okla., came down to the south bank of Red River.

Now, I ought to say in fairness, Mr. Chairman, that several of these men, particularly those in office, recanted when the fight waxed furious. When the election drew near they saw a light, and they changed their conscientious convictions. I say that for whatever it may be worth, and whether they were right or wrong, Mr. Chairman, in their first affidavits or in their second affidavits. Tom Testerman may have a wizard's eye in searching out the treasures of this earth, but he had no such talent in searching the minds of men and forecasting that they would revoke or renounce their oaths in the future. He could not tell that these officials, trusted by their fellow citizens, would make different affidavits in the future. When he was contemplating the development of the south half of Red River, he had to go by the lights as they were shining at the time; he could not draw aside the veil of futurity.

He did not stop there, Mr. Chairman. He consulted officials in Oklahoma; he consulted officials in Texas, and he examined the method of paying taxes. But he did not stop there. He went to an official of the Federal Government and he ascertained that the Federal enforcement officer, charged with the duty of arresting those who were introducing whisky into Oklahoma-Wichita County was wet and Oklahoma was drywould arrest them for introducing whisky into Oklahoma the moment the wheels rolled off the green grass on to the bed of Red River, and if he arrested them before the wheels rolled off the green grass he did not charge them with introduction, but with conspiracy to introduce.

I am showing you the pains Tom Testerman took not to become a trespasser upon the public lands of his country. He did not stop there. He went to a prominent attorney in our State, one who had served as a member of the Supreme Court Commission, and he had Judge Rummons prepare an opinion as to whether or not the south half of Red River belonged to the United States, whether or not it could be acquired under the mining laws and, if acquired, whether rights could be assigned. Judge Rummons reported to him that the lands were public lands belonging to the the United States; that they were subject to the mining laws and that rights so initiated could be assigned.

Now, he had the right to act under all these circumstances but he was not willing to do that. He took precaution; he used "extreme caution and due diligence,”

and he paid $1,000 for an opinion at the hands of Judge Rummons which advised him that these were Government lands and subject to the mineral laws.

But he did not stop with that. Tom Testerman knew nothing about the mining laws. I was talking with him the other day and he said he never heard of the placer mining laws and knew nothing about them; that he had heard that when the Government owned lands that were valuable for minerals a citizen of the United States could acquire them under the laws of the land, and he took this extreme precaution. He had Judge Rummons go with him to Wichita Falls and to Red River; he had this distinguished lawyer prepare the notices, prepare the certificates of location and advise him so that he would not sin against the laws of the land. He took those precautions, and what more could he do?

It has been intimated here that Tom Testerman, this rough and ready old frontiersman, ought to have investigated the case of Lenertz against Malloy. Tom Testerman never heard of that case, and if he had read it, he probably would not have been able to decipher the technicalities of it. It is a sound decision; I do not challenge it, but it is inapplicable, as Colonel Roote so clearly demonstrated. I do not assent to the proposition that it was incumbent upon Tom Testerman to investigate the authorities on which Judge Rummons rested his opinion. He was not qualified to do it.

He remarked to me the other day that if Judge Rummons wanted somebody to pass judgment on a herd of cattle or a drove of mules he would probably have consulted him, but when it came to a question of law, constitutional rights, or the interpretation of statutes he was bound to be governed by others. He had no authoritative judgment of his own in the premises, but it seems to me he did all that could be required of a prudent man. He showed good faith.

I shall not embark upon an investigation of the authorities upon which Judge Rummons rested his opinion because I can not think it material and I can not think this man was charged with any obligation to make such an independent investigation. However, there is one point to which I might advert and it is with respect to the claim of the Government as to the Plumb amendment, attached to the Indian appropriation bill of March 3, 1891, which declared that all the lands in Oklahoma should be declared agricultural lands and that proof of their nonmineral character should not be a condition precedent to final entry. That is relied upon to take this strip of land out of the operation of the general mining laws, because the general mining laws are universal in their terms.

The Plumb amendment was attached to the Indian appropriation bill which carried a rider opening lands to settlement in five different States and Territories and it provided for the opening of three different reservations to settlement in Oklahoma. Section 16, to which the Plumb amendment is attached, is not only one section; it is one sentence, and this Plumb amendment is embodied in a proviso. As you know, Judge Storey said that a proviso to a statute will be strictly construed to cover only the exception intended, and that has almost been consecrated into a maxim of the law. Not only is it one sentence, but that proviso contained three distinct propositions. One fixed the price of the land and the other preserved the rights of exUnion soldiers and sailors. Senator Plumb kicked this in on the floor of the Senate, and he told why. Judge Riter contends-and is unfortunately supported by the Supreme Court that this agriculturalized all of Oklahoma and repealed the mining laws of Oklahoma.

Mr. DYAR. No; it did not say that; it said as the mining laws never did apply they never had to be repealed.

Mr. GORE. I believe they did say that, but they said would have modified it. I believe they did say that.

that if this had applied it Now, it is a controverted

question as to whether the mining laws ever applied here. They applied in the