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lawyers, had made. Mr. Runnells was then the general
counsel for the Pullman Company, and one of the best
lawyers of his time, and his associate, Mr. Burry, as the
■ saying is, was coming along. June 6, 1891, Judge Blodgett
quashed the indictment.

The officers of the Whiskey Trust wanted to go to trial
in the State Court and acquit Gibson, as a vindication of the
Distilling and Cattle Feeding Company. To this end they
offered Stewart $100,000 if, as a witness, he would testify
that after Gibson was arrested at the Grand Pacific Hotel
an officer took the satchel from him. This would admit
of the defense that the explosive material was put in the
satchel by some one other than Gibson. But Stewart was
obdurate. After several continuances and all pretense
over delay had been exhausted, as a trial approached Gib-
son "fled the realm." He went to Cuba and died there.
This Gibson incident is said to have cost the "Trust"
$290,000.'

Of course, the arrest of Gibson was given wide publicity
in the newspapers. Almost everybody was interviewed.
Solicitor Hart said: "He, Shufeldt, is making money, while
the Trust, with $35,000,000, with big salaries and carrying
dead plants in its capital account and other expenses, is
losing. The Trust might easily put up the price of spirits,
but cannot do so as long as the Shufeldt holds out, and it
would be a mighty good thing for the Trust if the Shufeldt
is out of the way."

Thomas Lynch said: "How such an organization as the
'Trust' is allowed to exist, I cannot understand. It has is-
sued $35,000,000 of certificates, and I can prove that it is not
in possession of more than $4,000,000 worth of property.

1 April 9, 189s, John McNulta, Receiver of the Distilling and Cattle Feeding Company,
brought suit in the United States Circuit Court at Chicago against J. B. Greenhut, Nelson
Morris, Samuel Woolncr, and the other directors of the Distilling & Cattle Feeding Company
for $290,000, the difference, after allowing for certain legal e.xpenses, between $1,685,000
actually paid November 14, 1892, for the Star and Crescent and the Nebraska Distilleries,
and 51,984,407.83, charged on the books as the purchase price of these distilleries. But the
suit was not prosecuted. May 7, 1895, it was dismissed.



648 LIFE OF WALTER QUINTIN GRESHAM

We have all the orders we can handle. Ours is the largest
distillery out of the Trust."

Henry H. Shufeldt said: "The arrest of Gibson was a
complete surprise to me. We have fought the 'Trust'
right along and do not mean to quit now."

But May i, 1891, Shufeldt and Lynch sold the Shufeldt
Distillery to the Trust at a good price. The purchase was
made through Lyman J. Gage, the president of the First
National Bank of Chicago, subsequently the Secretary of
the Treasury under President McKinley. Judge Gresham,
several years before this, had made some powerful enemies
when he said from the bench that he did not believe certain
statements Mr. Gage had made as a witness in open court
under oath. Nelson Morris, one of " the directors in the
Trust, was also a director in Mr. Gage's bank. The trade
and the world at large soon knew of the purchase by the
Trust of the Shufeldt Distillery.

Because Walter Q. Gresham did not believe that "the
fathers ' ' contemplated every crime by judicial construction
should be drawn into the Federal courts, or, in other words,
was able to maintain before all comers the proposition that
"■while the war legislated" it did not destroy the States or
local self-government, Benjamin Harrison and William H. H.
Miller knew that of all men Judge Gresham was for main-
taining all the legitimate and constitutional powers of the
National government. They complained that as a Federal
judge he went too far in upholding these powers, and
there was judicial warrant for their complaints. They
said he ought not to push old soldiers to the wall. And
they knew that for a time he forfeited General Grant's
friendship when the General's confidence was abused by
bad and designing men.

Manifestly there was an offense against the Sherman
Act. By all the rules for the practical enforcement of the
law, the place to have begun the prosecution of the Whiskey
Trust under the Sherman Act was in the district and circuit



SHERMAN ACT AND MCKINLEY BILL 649

courts of the United States for the Northern District of
Illinois. Within that district were both Peoria and Chi-
cago. At Peoria were all the archives of the combination
and there it had its inception.

But instead of beginning the prosecution against the
Whiskey Trust in Illinois, under the Sherman Act, the gov-
ernment of the United States went way down to Boston,
and there, March 23, 1891, procured indictments against
Joseph B. Greenhut of Peoria, Illinois; Louis H. Green of
Cincinnati; Warren H. Corning and Julius French of
Toledo, Ohio; Herbert L. Terrell of New York, and other
officers and stockholders of the Distilling and Cattle Feed-
ing Company of Illinois, none of whom resided in or were
citizens of Massachusetts, or even New England. At once
Elihu Root and Richard Olney, as attorneys for the de-
fendants, denied the right of the government of the United
States to remove a defendant from his home district to
a foreign district for trial. In every instance was the-
government defeated. According to the opinion of Judge
Ricks in the Northern Circuit and Judge Jackson in the
Southern District of Ohio, and Judge Lacombe in New York,
the indictments were not drawn with that technical care
which the layman hot unjustly thinks has become one
of the reproaches of the legal profession. Circuit Judge
Jackson, in an elaborate and forcible opinion which for
years was pointed to by the combines as its protection,
tore the Sherman Act to pieces and refused to enter an
order for Green's removal to Boston for trial. Finally
Judge Nelson, May 16, 1892, in Boston, before whom the
indictments were returned, quashed them all (50 F. R. 469).
In Judge Nelson's opinion occurred this sentence: "The
indictment in this particular is clearly insufficient according
to the elementary rules of criminal pleading, and charges
no offense within the letter or spirit of the second section
of the statute." It is due to SoHcitor-General Taft to say
he had no part in drafting this indictment.



650 LIFE OF WALTER QUINTIN GRESHAM

On February 18, 1893, President Harrison sent Circuit
Judge Jackson's name to the Senate as the successor of
Justice Lamar, who died January 23, 1893. Think not
that I am criticizing Judge Jackson's appointment. Long
before Mr. Cleveland took him from the Senate and made
him a circuit judge, he was one of the Southern men with
whom, it was said, Walter Q. Gresham was on too intimate
terms. On the circuit bench Judges Jackson and Gresham's
relations were most cordial. We visited the Jacksons at
West Mead, Tennessee, and they us in Chicago. Judge
Jackson was one of the men, who, by word of mouth and
letter, urged Judge Gresham "to do his duty" by pub-
licly stating he would vote for Grover Cleveland. But
how a President who really wanted the Sherman Act en-
forced could promote a judge, in every other respect able
and capable, who had torn that law to tatters, is a mystery.

In open court the Harrison administration fared better
at the hands of Judge Gresham than it did before almost
any other circuit or district judge. In the celebrated
Counselman case, to which we have referred before, the
government, in upholding a great piece of remedial and con-
structive legislation, won, December 11, 1890, before Judge
Gresham, and lost before the Supreme Court, January u,
1892. Afterwards the Supreme Court, when confronted
in a subsequent case with the consequences of its ruling in
the Counselman case, took it back. On the bench passion
and resentment never affected the judgment of Walter Q.
Gresham.

I heard a discussion about one of the anti-trust cases
that became historic — the Sugar Trust case. It was the
first to get to the Supreme Court of the United States. It
was at a family dinner at Secretary of the Treasury Car-
lisle's. Attorney-General Olney, my husband, and a few
others were present. The Havemeyers, the heads of this
trust, were then much in Washington and in Washington
society. Their influence in legislation was great. They



SHERMAN ACT AND MCKINLEY BILL 651

had had a hand in drafting the McKinley Bill, and they were
not without influence in framing the Wilson-Gorman Bill.
Grover Cleveland knew them. They were in his mind when
he denounced the "communism of pelf" in his famous letter
to Representative Catchings of Mississippi. Night after
night, as I shall subsequently show, I sat beside Grover
Cleveland at State dinners. Aside from my husband, he
talked to me with less reserve about men and measures than
any man ever did. And there were the Sugar senators.
Many times I have heard them named by Grover Cleve-
land. It will do no good for me to mention them here.
Walter Q. Gresham denounced them most bitterly.

Senator Quay opposed the prosecution of the Sugar Trust
from the start. What some senators did and denied. Quay
did in the open. Surely he speculated in sugar stocks and
voted for the sugar schedules as a means of raising revenue
and for protection.

President Harrison was loath to go against the Sugar
Trust. But March 4, 1892, the American Sugar Refining
Company, a New Jersey corporation, purchased the four
sugar refineries, situated in the city of Philadelphia, of the
E. C. Knight Company, a Pennsylvania corporation, and
the pressure became so great that the government was
forced to proceed.

March 21, 1892, Charles H. Aldrich, a Chicago lawyer,
able and learned in his profession, succeeded Mr. Taft as
Solicitor-General. Meantime President Harrison appointed
Mr. Taft one of the judges of the United States Circuit
Court of Appeals for the Sixth Circuit, where he did his
part in giving life and validity to the Sherman Act. Mr. Al-
drich was sent to Philadelphia to examine the situation.
He spent several days there. He returned to Washington
and redrafted the bill that had been partially prepared,
and on May 21 filed it in the United States Circuit Court
at Philadelphia to enjoin the American Sugar Refining
Company from completing the acquisition of the four



6S2 LIFE OF WALTER QUINTIN GRESHAM

Philadelphia refineries of the Knight Company, and from
restraining trade and commerce between the States. In
addition, Mr. Aldrich wanted to proceed by way of indict-
ment against the officers of the trust, but was not permitted
to go that far.

All the evidence to support the government's case was
prepared before Mr. Cleveland came in as President and
Mr. Olney as his Attorney- General. Mr. Olney continued
Emery P. Ingham, who had been appointed by President
Harrison, and a Mr. Russell, the assistant district attorney,
to try this "Sugar case." January ig, 1894, Ingham and
Russell argued the case before Judge Butler. January 30,
Judge Butler filed his opinion (60 Fed. R. 306), in which
he held there was no evidence that there was any purpose
to control trade and commerce, only to manufacture, and
therefore he dismissed the case. March 26, 1894, the Cir-
cuit Court of Appeals affirmed Judge Butler (60 F. R. 934).
This time Ingham alone argued the case for the government.
But John F. Phillips, the old solicitor-general, and a fine
lawyer, was on the brief with Mr. Ingham.

The case had been tried and lost before Judge Butler
and the Court of Appeals at Philadelphia and was approach-
ing argument in the Supreme Court when the dinner party
mentioned above occurred. The case was argued October
24, 1896, by Lawrence Maxwell, the Solicitor-General and
one of the able law>^ers of his time, by Mr. Phillips for the
government, and by John G. Johnson and John S. Parsons
for the Sugar people. At the dinner party Attorney-
General Olney stated the broad proposition that a mere
combination of manufacturing was not in contravention of
the Sherman Anti-Trust Act. My husband agreed with
him, but said it would take a very little evidence, "a
scintilla" outside of the acquisition of many manufacturing
plants, to authorize the court to infer that the purpose was
to control commerce or traffic; that is, buying and selling
between the States.



SHERMAN ACT AND MCKINLEY BILL 653

"There was nothing in the proofs," said Chief Justice
Fuller, in deciding the case, January 21, 1895, "to indicate
any intention to put a restraint upon trade or commerce.
A combination or a monopoly of manufacture is not under
ban of the National government." Justice Harlan dis-
sented from this opinion.

All the courts through which the case passed said that
the bill, as Mr. Aldrich drew it, was good; that it charged a
combination or monopoly to dominate and control the com-
merce between the States and not a combination simply of
manufacturing. Mr. Aldrich said the evidence was pre-
pared or gathered to prove that the Sugar Trust was a com-
bination in restraint of trade. It turned out that District
Attorney Ingham did not put in evidence on the trial before
Judge Butler the testimony and the documents which proved
that the purpose of the American Sugar Refining Company
in acquiring the four refineries of the Knight Company was
to buy and sell sugar to the citizens of the United States and
therefore dominate trade and commerce between the States.
Afterwards Ingham was indicted, tried, and convicted for
being a party to a scheme to defraud the government by
counterfeiting. The only explanation that seems to me
reasonable is that Ingham had been reached by the officers
of the American Sugar Refining Company, and that there-
fore Ingham did not introduce in evidence an essential part
of the government's case. For later on the American Sugar
Refining Company and many of its officers were convicted
of inducing the customs officers to make false statements
to the Treasury Department of the United States as to the
quantity of raw sugar the company was importing, in order
to cheat, as it did cheat, the government of the United States
out of immense sums of revenue.

Had the Sherman Act been drawn as Senator Sherman
originally intended, and enforced as finally written, there
would probably have been no difficulty about reaching
the first great combination that the government attempted
to prosecute.



654 LIFE OF WALTER QUINTIN GRESHAM

Only in the prosecutions begun against the Trans-
Missouri Association, a combination of railroads in which
the Harrison administration failed before Judge Rines, did
the Cleveland administration succeed. Attorney General
Harmon argued the case for the government, and the
court reversed Judge Rines, holding that the Anti-Trust
Act applied to railroads the same as to industrial combi-
nations to control trade and commerce between the States.
But up to that time it had not been enforced against
industrial combinations, certainly not against the Whiskey
and Sugar Trusts. In the debates in Congress the senators
and representatives said they meant to reach the "Sugar
Trust," the "Beef Trust," the "Oil Trust,"' the "Coal Trust,"
the "Whiskey Trust," and other combinations of capital and
industry. The Supreme Court answered in the language
of Senator Salisbury of Delaware of 1866. It is not what
the Senator, Trumbull, means, that will control the con-
struction of his amendment, the Thirteenth, to the Consti-
tution of the United States,- but what is the proper
conclusion to draw from the language he uses. The Anti-
Trust Act was first enforced (54 Fed. Rep. 994, 57 Fed.
Rep. 85) against labor men, longshoremen, on a strike at
New Orleans.



iSee page Sii.
2 See page 329



CHAPTER XLI

JUDGE GRESHAM'S VIEWS ON POPULAR
GOVERNMENT



SPEECH AT THE DEDICATION OF THE GRANT MONUMENT,
CHICAGO POLITICS AND GOVERNMENT OF THE TIMES DE-
NOUNCED—BANQUET OF THE SOCIETY OF THE ARMY OF THE
TENNESSEE — NOTED SPEAKERS — PLAN TO DEFEAT HARRI-
SON'S RENOMINATION — PEOPLE's PARTY WANT GRESHAM AS
A CANDIDATE FOR PRESIDENT — HE DECLINES.

SOON an occasion came when Judge Gresham was
obliged to make his political views public. In Lin-
coln Park, Chicago, October 7, 1891, an equestrian statue
of General Grant was to be dedicated under the aus-
pices of the Society of the Army of the Tennessee,
which was to hold its annual reunion October 6, 7, and
8. Mr. Gresham was chosen to make the address at the
dedication.

Aside from the fact that his military services imposed a
duty on him to speak, if it was fair criticism that the ad-
dress was political in its effect, as it was intended it should
be, it was less a political act than for the Supreme Court of
the United States to amend an act of Congress by writing
the word "reasonable" into the Sherman Act in the Stand-
ard Oil and Tobacco cases after Congress had expressly re-
fused to make that amendment, and that, too, after Justice
Harlan in his oral opinion in open court warned his breth-
ren that the oral opinion of Chief Justice White as just de-
livered and subsequently reduced to writing was legislation
pure and simple.

After what President Angell of the University of Michi-
gan said was one of the best delineations of General Grant's

42 655



656 LIFE OF WALTER QUINTIN GRESHAM

character that was ever made, after stating that brave
and generous men will not censure the ex-Confederates
for cherishing an affectionate regard for one another and for
strewing flowers on the graves of their fallen comrades, he
set forth his views on political matters in a way that he
could not have done had he accepted the overtures of Piatt
and Quay in the Chicago Republican Convention of 1888.

It is a mistake to suppose that popular government is an
art or a mystery. Some of the details of administration require
special training and experience. But in its broad policies, in
the adjustment of it to the ends for which it was organized, in
the promotion of its purposes, men like Grant, who feel rightly
and see clearly, who have a sound judgment, and saving common-
sense, and who will resolutely assert themselves under all cir-
cumstances, may be safely trusted with its affairs and destinies.
We need men possessing these qualities to resist the aggressions
of those who seek to make of our politics both an art and a mys-
tery, intelligible only to the adept and initiated, who assume the
management of them by virtue of their capacity for the deft and
artful manipulation of their fellows. Their influence upon the
country is corrupt and debasing, and the area of political venality
constantly enlarges under it. According to their views the whole
interest that any citizen has in Municipal, State, or National
Government is measured by what he can make out of it. It
is worse than idle to shut our eyes to the existence of cor-
rupt methods and practices in our politics which threaten to
subvert our free institutions.

The man who accepts a bribe of any sort places his conscience
and judgment in the vilest bondage. He is no longer free. Argu-
ment is wasted on him. Considerations of the public weal or
woe do not affect him. Bayonets at the polls would not control
his conduct more effectively. And men who contribute money
to buy votes and to Sribe the people's representatives, as well as
those who disburse it, are deadly enemies of the republic. They
may masquerade in the garb of righteousness, but their virtues
are assumed; they are hypocrites and assassins of liberty, and
would welcome a dynasty rather than shed their blood in defense
of popular government.



VIEWS ON POPULAR GOVERNMENT 657

Let us not be deceived by mere fonns. Radical changes in
government may be effected without perceptible change in the
mode of administration. Some of the worst tyrannies the world
has ever known were maintained under popular forms.

Engrossed in the cares of business and laborious occupations,
men seem inattentive to the requirements of citizenship, but they
do not consciously and willfully shirk its duties and responsi-
bilities when they are clearly and fully understood. They may
be slow to act, but when danger becomes imminent they will
assert themselves again as they have in the past. The sentiment
of patriotism is still strong in the people. Its voice may be un-
heeded for a season, and may be drowned by the noisier tongues
of greed and selfishness, but it will be heard again. It patiently
submits to many affronts, and quietly endures many indignities.
But in its temporary silence it gathers an acctunulation of energy,
and when the limit of endurance has been reached, its command-
ing voice breaks forth on the startled air, trumpet-tongued, and
against its mighty tones no other voice dares lift itself.

Our Republic was founded in the patriotism of the people,
and their love of country was strengthened by the struggle for
its defense against foreign aggression. The Revolutionary War
was a test of the popular patriotism which had been previously
implanted, rather than a development of it. The patriotism
which was ablaze in the speeches of Otis and Adams and Henry,
and in the intrepid conduct of Warren and Marion, was a steady
and fervent heat in the bosoms of thousands whose names are
unknown to history'. As a people we have inherited the patriot-
ism of our Revolutionary sires, and the inheritance has not been
squandered nor dissipated.

The vast majority of the people are patriotic and sound to
the core. In them is our mainstay and chief dependence. Our
confidence in their steady and unfaltering love of country, which
is indifferent about any show of itself and speaks only in its acts,
will never be misplaced. It was this sort of patriotism that was
personified in Grant.

The newspapers gave this speech wide publicity, both
in their news columns and in editorial comment. Although
Joseph Medill never abated his friendship for Mr. Gresham,



658 LIFE OF WALTER QUINTIN GRESHAM

he thought "the Judge went it a Httle strong." But he did
not criticize. As a sample of the newspaper comment —
and it was almost universally favorable — Morris Ross in
the Indianapolis News said the conditions of the times
demanded that some one speak out, and that the Judge
"bit nigh." One of the most flattering comments was by
an English paper. From Samuel Blackford of the Supreme
Court, from college professors and presidents, from Union
and Confederate veterans and from newspaper men like
Walter Wellman, came letters and editorials of commenda-
tion by the hundred.

The only discordant note came from Chauncey M.
Depew. The newspaper men reported him as saying, in
response to the question as to what he thought of Judge
Gresham's Grant monument speech, "Judge Gresham is no
diplomat."

The reunion of the Society of the Army of the Tennessee
ended with a banquet at the Palmer House, and General
Andrew J. Hickenlooper of Cincinnati delivered the annual
address. Even then the ranks were getting thin, so ladies
were permitted to be present. At my husband's earnest
request, Henry Watterson accepted an invitation to come
to the dinner and respond to one of the toasts — Grant's
words, "Let us have peace." It was thus that I heard "Marse
Henry." Speaking of it years afterwards, James Whitcomb
Riley, who was also there as a guest and responded to the
toast, "The Common Patriot," said: "I will never forget
the emotion 'Marse Henry' exhibited on that occasion."
With three such gifted men as Henry Watterson, James
Whitcomb Riley, and Joseph Medill on its program, the
banquet was all that my husband could desire. Mr.
Medill's subject was "The Legal Press in the War for the
Union." Endowed with qualities of heart and brain, when
the final record is made up, Watterson will be placed as the
leader who broke through the restraint that existed in spite
of all the declarations that the bitterness engendered by the



VIEWS ON POPULAR GOVERNMENT 659

war had subsided. Whether right or wrong, the man who
can make the first advance towards a reconcihation is a
great man, a leader, and a patriot. And right alongside of
Watterson in this patriotic work was "Private John" M.
Allen of Topeka, Mississippi. To be able to break through
the ice that I know only too well existed, and make your
enemy, if you please, love you, is something more than the
attribute of mere man.

Among the letters that came from ex-Confederates was
one from Blanton Duncan, whom, as we have seen, had led
a regiment of Kentuckians to the Confederacy in 1861. He
was then living in Los Angeles. Always alert, he had been
through the South and in touch with the Farmers' Alliance.



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