Matilda Gresham.

Life of Walter Quintin Gresham, 1832-1895 online

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Cornell University

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tine Cornell University Library.

There are no known copyright restrictions in
the United States on the use of the text.



As A Law Student, Twenty Years of Age


Walter Quintin Gresham










Copyright, 1919, by
Otto Gresham


Press of Rand McNally & Company

A '■



LORD MACAULAY, in one of his essays, said that many
of the EngHsh statesmen of his own and of eariier times
were wanting in practical administrative ability by reason of^
their logistic powers, — their abiHty to refine and distinguish.
Their very talents hampered them and their followers in reaching
a conclusion, especially the right one, to which their less gifted
and learned, but practical and clear headed, associates readily
turned.^ Of Macaulay's own treatment of Warren Hastings and
Judge Impey, Judge Stephens said: "I think Macaulay made
use of the ambiguous expressions because he was afraid of being
definite for fear of being wrong."

The career of Walter Quintin Gresham was before all else
that of a lawyer and judge. Definiteness he insisted on — def-
initeness of fact, of statement, of decision. That definiteness in
affairs of State brought him criticism that he enjoyed — he was no
diplomat. In this presentation of his life, therefore, the aim has
been to be specific, and to make no statement which could not
be corroborated by the evidence.

The marshalling of the facts has been my part of the work.
I have taken the evidence, have sifted it, and have presented it,
just as I should prepare a brief for the court. But the facts
themselves, and the deductions and conclusions, have come from
the unclouded memory and clear mind of my mother, Matilda
Gresham, the best informed witness obtainable and, I submit,
competent. We- have had to take into account the Editors and
Censors, and we have bowed to their will and their judgment in
some things where perhaps they were right and perhaps they
were wrong. It has been hard to convince the Editors and the
Censors that the woman was telling the story, and that her own
life experiences and environments and "prejudices" fitted her
for the task.

That needle-work, all kinds of it — a recital of which the Cen-
sor struck out of the text — ^that she was compelled to do as a part
of her childhood education, and her practical knowledge of the

1 See pages 632 and 641. 2 See page 800.


sewing-machine, qualified her to assist the judges with their
models in deciding a question arising under the patent laws.
Her experiences on the Mississippi River in 1863 and 1864, as a
passenger on steamboats loaded with ammunition, gave her a
different view of the warning of the German Embassy of April
22, 1915, published in fifty American newspapers, than that of
Lady Mackworth, the English Suffragist who sailed on and lost
her life in the sinking of the ill-fated Lusitania. "Tommy-rot!"
was her ladyship's cormnent. She didn't believe they could do
it. Neither did the statesmen.

By taking the lawyer's last fair chance the Lusitania could
have been saved. As she approached the English Coast — whether
or not under reduced speed, as it is said she crossed the Atlantic, she
shotdd have been convoyed. "That duty" to use a judicial phrase
"was measured and dictated by the Exigencies," the possibilities of
the occasion. And this , too , assuming we had no statute prohibiting
the clearing of vessels, in time of war, carrying both passengers
and ammunition — non-explosive ammunition if you please.

Not in any sense by way of justification do we advert to this
astounding act of cruelty, but to illustrate further the workings
of the mechanical mind or the mechanical instinct, the highest
form, perhaps, of intelligence, and the necessity for it in the
practical administration of governmental affairs. Adopting one
of Walter Q. Gresham's expressions, before the model is made
there must be the conception, the vision. Quoting one of the
most reverent and devout, revelations and not inventions have
been some of the conceptions — beyond the imagination of man,
of the immature, of the low born and of the ignorant — "which
have gone into machinery and made for the benefit of the race.
George M. Pullman was not an educated man, but he saw at a
glance what many a graduate of the best scientific schools of this
country and Europe and those skilled in the management of rail-
roads could not see, what the mechanic. Sessions, as set forth in
Chapter XXXIII of this work, could do. That chapter and the
preceding judicial chapters illustrate how Walter Q. Gresham
helped as a judicial officer to enforce the provisions of the patent
law which require that the credit of the invention shall go to the
man or woman who conceives or imagines it, however much
material advantage the law allows to accrue to the man who


may aid in the practical adoption of the new idea, and the folly
if not the danger of the material man attempting to assume the
role of an inventor. It will also appear that the judicial mind was
concerned, although adhering to the rule that if property rights
were the basis of our civilization what would be the ultimate effect
of the labor-saving machine in domestic and international affairs?

In view of the letters of Walter Q. Gresham, as set out in
the Natchez chapters in this work, it will not do to say that
passenger vessels without previous warnings were never fired on
prior to 1915. But construing the statute as only prohibiting
the carrying of passengers on vessels loaded with ammunition
that might explode, and conceding that this construction, as it
is claimed by universal acquiescence for a long period of years, was
the correct construction of the statute, we want to submit with
all due deference to all whom it may concern, that Walter Q.
Gresham was enough of an executive, and had enough of a
nose for news,^ to have taken notice of a threat, even through a
newspaper advertisement, to sink a passenger vessel because
it was carrying ammunition. To be specific, Theodore Roose-
velt said, after the sinking of the Lusitania, that had he
been President he would have met the threat to sink with a
declaration of war, but as a newspaper man he permitted the
threat to pass unnoticed, and Colonel George Harvey was like-
wise silent. As a matter of fact, there was no such universal
acquiescence in the practical construction of the statute as to
give it the same effect as if written so as to permit passengers
and non-explosives on the same vessel, for William Jennings
Bryan, as Secretary of State, opposed that construction.

Walter Q. Gresham would obey the law in good faith, even
though his conscience did not approve it, as is evidenced by his
attitude toward the Fugitive Slave Provision of the National
Constitution, and of the Fugitive Slave Law of 1850, to give it
effect. With him, while the war legislated, but not exactly as
he would have written it, he did not as a judge enter on con-
structions that brought embarrassment to other judges, the
judicial recall, for instance, and then the declaration that the war
amendments were self executory. Written in blood, that was
the only sane view for a court to take. Part of that legislation

I See page 641.


prohibited passengers on ships or boats carrying ammunition.
The primary object was to remove the temptation that ammu-
nition on those vessels gave to an enemy to destroy them.

Opposed to the doctrine of ImperiaUsm, the acquisition of
possessions beyond the seas, not only as contrary to the principles
and traditions of the Republic but because it involved large
armaments, once entered on, Walter Q. Gresham said it could
and should be maintained.

History shows that dispensing statutes and constitutions
have been costly to rulers, statesmen and people. As a young
lawyer, Walter Q. Gresham realized that the most potent argu-
ment for secession was Wendell Phillips' statement: "Seward will
swear to support the constitution of the United States but will not
keep his oath." In his mature years he concluded that the most
potent argument for anarchy, what we now call Bolshevism, was
the disposition of men in official position in this country, under
the guise of construing constitutions, to avoid their constitutional
obligations. Live up to the traditions and beliefs and compro-
mises if you please, of the fathers or the Republic will go the route
of the Roman Republic. He believed that "that instinct of reason
that was common to the masses" no statesman or politician could
long impose on. Not by way of criticism of the present leader
of Democracy, was any of the text of these two volumes written.
All of it was prepared even before Mr. Wilson became President.
I voted for him ini9i6. Ithas taken a long time to get by the critics
and the censors. "The Case System," one of the best methods
for teaching the novice in the law, has been in a measure resorted
to, to illustrate the power and functions of the Government of
the United States and its preservation, with all of its imperfec-
tions — to be cured by amendment, — which Walter Q. Gresham
believed should be preserved for the benefit of the race.

And the war just closing was finally prosecuted by Great
Britain and the United States on the lines Walter Q. Gresham
said he would make war. His views (as to how to make modern
war) as set forth in our last chapter (pages 799 to 802) were
written and criticized long before August, 1914. That criticism
suggests the thought that, although a pacifist, but not a non-
resistant, indeed, an adept in the art of defending by attacking,
he would not have waited until the regular organizations in the


War Department fell down before utilizing the mechanic, the
business organization, the business method, the business man,
and if you please, the malefactor of wealth. At the minimum
his system would have put, as one of his surviving comrades
in the Army of the Tennessee said the night following the
declaration of war on Germany, 3,000,000 men in France by
March i, 1918.

James E. Stewart, who avowed his indebtedness to Walter
Q. Gresham for counsel and advice, and whose ability in civil
affairs is set forth in Chapter XL (beginning at page 641), and
something of a soldier, organized in ten days in July, 1918, the
nth Illinois, and as he marched it through the city of Chicago
a few days later said it was as good as any that had gone to
France. This actual demonstration of Governor Lowden's
executive capacity — and he had some tutelage under George
M. Pullman — is conclusive, we submit, that Walter Q. Gresham
was consei^ative in his statement as to what might have been
done in Illinois in raising volunteers. Operating on business and
mechanical lines, Governor Lowden and his organization could in
three months- following the declaration of war against Germany
have delivered to the National Government 500,000 men ready
equipped for shipment to Germany.

Conceding but not admitting the fact that the draft, the
selective service, will produce more men than the volunteer system,
it failed to produce the machinery, the guns, ammunition, and
aeroplanes, to equip the drafted army. James P. Goodrich was
one of the young fellows who undertook to make Walter Q.
Gresham President in 1888. Experienced in mechanical and
business affairs, as well as politics. Governor Goodrich's Indiana
State Council of Defense, headed by Will H. Hays, served as
, a model for State and Nation. "A hundred billion of dollars
and 5,000,000 of men if necessary, and not a boycott, " is the way
the Chairman of the Indiana Council of Defense said he would
win the war, and demonstrated his executive capacity. That
maxim that Hays learned as a country lawyer that one of the
best ways to defend was to attack, was passed on to the man in

General Omar Bundy, the son of Judge M. L. Bundy,' of

1 See page 758.


our Hawaiian chapter, opened the jack-pot at Chateau Thierry.
The sire many times when on the defense in a lawsuit converted
a riot into a victory by digging into the plaintiff.' The son
stopped the Germans, and got sent home, but made Foch come
in, and it is said it took much arguing on General Pershing's
part to make the aged Frenchman "front face to the rear."^
The parallel in part is in General Grant's case as we detail it in
the Shiloh chapter.^ Grant disobeyed orders and was relieved,
although he "whipped them," and destroyed, according to many
of the Southern historians, the best single asset the Confederacy
had. General Albert Sidney Johnson, who was killed on the after-
noon of the first day. When Mr. Lincoln got all the facts, General
Grant was restored to his command. It was Colonel T. Lyle
Dickey, the bearer of a message from General Grant, the Com-
mander of the Army of the Tennessee, to the President of the
United States, who silenced the criticism of General Grant's
drinking "by the Generals and the Colonels who were thicker
in Willard's Hotel in Washington than they were in the Army
of the Tennessee," by declaring with much emphasis and some
profanity that if the President of the United States would look
up ' ' the brand of whisky General Grant drank and order a train-
load down here for the Army of the Potomac, enough for the
Commander-in-Chief and down to the last private, the govern-
ment might make some headway with the war in Virginia. ' ' When
Mr. Lincoln heard of the incident a few hours later he was delighted
and said, "Dickey, I am going to steal this idea from you. You
must never use it again, and I will give it to the next delegation
of preachers who come up here protesting against General Grant's
drinking." At that time Dickey was on Grant's staff. In civil
life he was a lawyer and a good one and he died a member of the
Supreme Court of Illinois.

We by no means deprecate preparation in a lawsuit nor
training for military men. Adverting to the simile that Thomas
F. Bayard, Ambassador to the Court of St. James in 1895, used
in advising Walter Q. Gresham that the war was coming, "These
European nations are watching each other like pugilists in a
ring,"* we suggest that it was learned by that time that pugilists
could be trained too fine. In Grant's days they fought with

1 See page i8s. 2 See page 240. 3 See page 17s. 4 See page 794.


bare knuckles and for blood. To be specific — before Foch came
in, but after Bundy landed his "jolt" — as I have heard the
spectators and seconds at the ringside urge the strong, husky-
young fighter, "Rush him now!" — the cry went up, "We can
win!" The lines we quote from Grant's Memoirs in the Shiloh
chapter, about General Grant being able to go farther with
volunteers than Buel with professional soldiers, were sent to the
President of the United States with the statement that General
John A. Rawlins, General Grant's Chief of Staff, was a volunteer
who died the most influential man in the RepubUc, and that the
Army of the Tennessee, which Grant and Rawlins organized out
of volunteers, never was "whipped." It is said that General
Bundy is not entitled to the credit of ordering the advance
at Chateau Thierry. So be it. Then let credit be given to the
man who gave that order. The best that Foch did was to
get a "draw." They could have had that at any time after
it was demonstrated that we had the " punch, "' and thus saved
thousands of lives.

Senator Lodge helped edit "The Education of Henry Adams."
That element of force, the Russian Fleet^ for instance, that was
back of all the diplomacy so graphically set forth, seems to have
escaped them. I was at the courtroom meeting described in the
'77 Strike chapter.' I went into General Chapman's company.
Afterwards I went with General Spooner, the United States
Marshall, to the Arsenal, after the Federal troops came. I heard
the conference between General Spooner, General Morrow and
General Harrison, for as I dropped out at the office door General
Harrison said, "Spooner, bring the boy in." General Harrison
called General Spooner, "Spooner," while General Spooner
addressed General Harrison as "Ben." With General Morrow
they were very formal. There was much discussion as to how
many men General Spooner would take with him. Finally he
ended the conference by saying, "Two lieutenants and fifty men,
if they are good ones^ are all I want."

When we returned to the Federal Building my father said,
"You cannot go to Terre Haute with General Spooner. There
may be some trouble at our home; go and stay there until this

1 British General Maurice's term. 2 See page 266. 3 See page 387 et seq.


squall is over." Our residence was then on the outskirts of
Indianapolis, on the corner of what is now i8th and Capitol
Avenue, a block from any other house. I owned a good breach-
loading, double-barrel shotgun and a rifle, and there were two
army revolvers in the house. That evening, a beautiful moon-
light night, while my mother. Senator McDonald and General
Harrison sat under the trees, General Harrison assured Senator
McDonald "that the boys will make no move this bright, moon-
light night, and to-morrow morning that express car of ammu-
nition will be here from Chicago." The men on the Indianapolis,
Peru & Chicago Railroad did not strike, but they did not know
they were rushing ammunition to Indianapolis. As soon as the
ammunition reached Indianapolis, wide publicity was given to
its arrival. There was little ammunition although plenty of
arms and artillery at the arsenal when the trouble began, but there
was an ample supply of cartridges for General Harrison's and
Chapman's companies. General Harrison had come with General
Morrow and Captain Isaac C. Arnold, the Commandant of the
Arsenal, to meet Senator McDonald and others of the Committee
of Public Safety for a conference at our house. Leaving the con-
ference in the library, General Harrison and Senator 'McDonald
came out to visit with my mother and Mrs. Smith, the widow of
General Giles A. Smith. ^ And my education has not been entirely
under the tutelage of warriors, statesmen, lawyers, and school

It was disobedience to orders that brought Colonel Benjamin
Harrison his promotion, his most devoted followers always claimed.
The 70th Indiana was being cut to pieces in a ravine at Resaca.
When Colonel Harrison applied to the Division Commander for
permission to charge in order to save the regiment from anni-
hilation, with a reprimand he was sent back to hold the line.
He charged, nevertheless, carried the position in front of him,
and the line was advanced and "Joe" Hooker commended the
Colonel of the 70th in general orders.

As a trial lawyer General Harrison knew how to defend by
attacking, as appears in the account of the Brownlee case,^ and
he suffered more mental anguish than he did at Resaca when, in
appearing for the Government of the United States in the Jennings

1 See page 307. 2 gee page 447.


County Election Cases.i Colonel A. W. Hendricks put him on
the defense and almost out before he was fairly started on the
Government case.

Not one jot or tittle from Benjamin Harrison's fame, if
any, would we detract. Our friends as well as our critics will
have to concede that we have had some knowledge of his limita-
tions and that I, as a lawyer of more than fifteen years' experience
with all sorts of courts and juries, knew the sire had enough force
of character and popularity with the common ordinary man in
1892 to do what he said he was going to do, split with President
Harrison and the Republican party. Moreover, it can perhaps
be understood that we could tell the newspaper men by counties
and townships at least in Indiana where the votes were that
would go with him.2 George Ade was the only newspaper man
who would publish our figures. All the rest were afraid, as Judge
Stephens would say, of being wrong. Not "all the "practice and
procedure" are in the books, as many trial lawyers will testify.
At sixteen years of age I learned the law of conspiracy in the
courtroom from Benjamin Harrison's lips. As the years rolled on
I learned that he was committed to certain principles of govern-
ment — and some of the succeeding pages show that he realized
the effect and protested against certain measures of his party. ^
It was difficult to get newspaper men to quote views privately
expressed, that he was against the Imperialism which William
McKinley and William Jennings Bryan in a measure committed
us to in the Philippines. The editors were afraid General Harri-
son would disavow; on the contrary, he was glad to stand up and
be counted; and yet the Editors said I could not have learned
at the fireside how "Old Uncle Dennis" made William Henry
Harrison and Governor Posey in territorial days come along on
the slavery question.

Theorists and statesmen may legislate, but after all it was
Walter Q. Gresham's conception that government and civilization
depend on force — on men like Grant, Fitzsimmons,^ and Bundy,
the man who can go up in the plane, down in the submarine, or
'lead the suicide club with the infantryman at his heels — or the
man with moral coiurage or force enough to break with his party,^
or to stand up against a Grant — as well as the consent of the

1 See page 472. 2 See page 675. 3 See page 656. 4 See page 800. s See page 670.


governed. Again, with all due deference to the devout and the
materialist, "the favored of Him who rules on high " is not always
considerate of functionaries and forms. Often he alone is con-
scious of his gifts until there is an actual demonstration. Accord-
ing to Milton, although recognizing "the Potency of Him above,"
the devil's conception was that the human race is his "inferior
in power and excellence."

The women of Walter Q. Gresham's family were not denied
the privilege of thinking out loud, even if they were at times a
little illogical in reaching their conclusions. And he was not
adverse to accepting Matilda Gresham's conclusions, even though
based on illogical processes, in aid of his own judicial conscience.
To get the human point of view, he often invoked the judgment
of well-informed women outside his own family.

The rule of law that prevents husband and wife from testify-
ing for or against each other is not founded on the nile that the
best informed shall best enlighten the court. Time was, within
the memory of men now living, when the parties who of necessity
knew more about the facts in a litigation, if plaintiff or defendant
on the civil side or defendant in the King's Court or the courts of
the States of this Union, could not testify, even though his or her
property or his or her life were involved.

The facts presented in this work comprise the testimony of
Matilda Gresham, presented to the court of the public as a com-
petent witness. Southern by birth and inheritance, she had