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in December, 1883, and was in session when the National
Republican Convention met in Chicago in June, 1884, re-
ported a bill to reduce the tariff by a horizontal reduction
all along the Hne, without considering the question of either
revenue or protection. This report only gave rise to a
great debate and its author was dubbed, "Horizontal Bill."

Mr. Blaine was opposed at this time to reducing the
customs duties. He had advocated getting rid of the sur-
plus by distributing it pro rata to the States.

My husband wrote his report to the President as Post-
master-General one night at our home. He urged the amend-
ment of the postal laws as a means of suppressing the Louis-
iana Lottery; and recommended the extension of the rail-
way mail service, cheaper postage, the reduction from three
to two cents for ordinary letters, and opposed the govern-
ment taking over the telegraph lines as part of the postal
systems.

It was left to Secretary Folger, inasmuch as the annual
report of the Secretary of the Treasury, under the law, was
made to Congress, to confute Mr. Blaine's proposition to
get rid of the surplus in the Treasury by distributing it to
the States. The idea had originated in General Jackson's
time, to dispose of the surplus derived from the sale of the
public domain.

Mr. Folger had attained eminence as a jurist on the Court
of Appeals of New York, whence Mr. Arthur had made him
Secretary of the Treasury. The "knifing" he received at
the hands of both the Blaine and Piatt factions while the
administration candidate for Governor of New York at the
November election of 1882, when Grover Cleveland attained
his unprecedented majority of 200,000, was most unjust
and should not have affected him as it did — he almost



500 LIFE OF WALTER QUINTIN GRESHAM

became a recluse. It was purely a political defeat, not a
personal one. He was a widower and went but little into
society. My husband's sympathy for him, his former judi-
cial experience, and his zeal in Mr. Arthur's interests, as
well as his conviction that the customs duties should be re-
duced, broiight him in close touch with Mr. Folger, who
consulted him about the line of argument he should use in
confuting Mr. Blaine's proposition.

Blaine and the distinguished men of General Jackson's
time were not referred to by name, but Secretary Folger
constructed such a dispassionate judicial consideration of
the proposition to get rid of the surplus by distributing it
pro rata to the States, that it was never again advanced by
any one, not even by Mr. Blaine. Then the Secretary
followed with an irresistible argument in favor of the reduc-
tion of the customs duties. In his reports and in Mr. Ar-
thur's messages is found the best practical exposition extant
of the finances and the tariffs of the government, taking
into consideration ''the conflicting interests of all the citizens.'"

Their ideas — to be departed from in 1888 — as well as
the traditions of the party, were incorporated into the Re-
publican platform of 1884.:

The Republican Party pledges itself to correct the inequal-
ities of the tariff and to reduce the surplus, not by the vicious
and indiscriminate process of horizontal reduction, but by such
methods as will relieve the taxpayer without injuring the laborer
or the great productive interests of the country.

Colonel John W. Foster came home from Spain, where
he was our representative, and helped organize the Arthur
forces. But his mission was that of the diplomat and not
that of the leader.

Thomas C. Piatt in his "Memoirs" speaks of his cordial
relations with President Arthur. But it is a fact that Piatt
was against Arthur's renomination. After the 1884 con-
vention, Mr. Piatt justified his opposition by saying that



IN PRESIDENT ARTHURS CABINET 501

when he had recovered from his failure to be returned to
the Senate, after he and Roscoe ConkHng had resigned and
were working back into active politics, he wrote President
Arthur a letter, which was not answered. After awhile
another letter was written to Mr. Arthur. Receiving no
answer to his second letter, Mr. Piatt said he then deter-
mined on his course. I know Judge Gresham and Secre-
tary Folger thought they had placated Mr. Piatt. They
had several interviews with him in New York, on behalf
of Mr. Arthur and with Mr. Arthur's consent. The oppo-
sition of the administration would have defeated Piatt's
election as a delegate to the Chicago convention from the
Tioga district. Mr. Piatt, without pledging himself, had
created the impression — I know it was Judge Walter Q.
Gresham's and Secretary Folger 's — that he would support
Arthur. Henry M. Teller, a native of New York, and
then Secretary of the Interior, a friend of Mr. Piatt, also
expected him to vote for Mr. Arthur. I know the Blaine
people in Washington did not know that Piatt was then
with them because the New York Tribune, which was Mr.
Blaine's chief organ, denounced the election of Piatt to
the Chicago convention. It said the Blaine people had been
misled in the Tioga district, but at the Chicago convention
Piatt came squarely out for Blaine and made a speech in
his support. Instead of resentment against Mr. Arthur,
the real reason for Mr. Piatt's vote was an understanding
with Mr. Blaine.

General Logan was a candidate and so was Senator Ed-
munds. Mr. Blaine's friends were able to organize the
convention. The Logan votes, which were confined to
IlHnois, were Blaine votes in disguise. After the second
ballot they were transferred to Mr. Blaine, who was nom-
inated on the fourth ballot. General Logan was named
for Vice-President. I well remember the disappointment
in Washington, especially among the women. Mrs. Blaine
did not share the personal popularity of her husband.



502 LIFE OF WALTER QUINTIN GRESHAM

Even young girls expressed regret that Mrs. Blaine might
be the mistress of the White House.

Judge Folger died and Walter Q. Gresham was trans-
ferred to the Treasury Department. During the two months
he was at the head of that department he made many in-
vestigations and inaugurated some reforms. In the cam-
paign that followed he made a speech in New York at a
meeting of the business men in Wall Street. He spoke as
Secretary of the Treasury. The business men of New York
had been unanimously for Mr. Arthur's nomination. This
speech was prepared with special care. He did not deem it
wise to say anything about Mr. Blaine's greenback record,
but he did assail the record of Thomas A. Hendricks, the
Democratic candidate for Vice-President, who had opposed
the issue of the greenbacks as a war measure and then op-
posed their retirement, and at that time was demanding
that the cash balance in the Treasury be applied at once on
the war debt. A clear exposition of the financial legislation
from i860 down to that time was made, and the only prac-
tical way to keep the greenbacks afloat as a legal tender —
a proposition that the business men could appreciate, my
husband said — was for the government to carry enough
gold in the Treasury to meet the greenbacks as presented.
Governor Hendricks' plan to deplete the Treasury at once
by applying all its cash on hand on the war debt would
not do, could not be credited to his intelligence, and re-
ceived the approval of no man of affairs. He made a clear
exposition of the workings of the sinking fund, clearer than
is set forth in any of the reports. Six per cent bonds with
twenty years to run had been sold by our government for
less than ninety cents. "Now the government can put out
3 per cents at a premium." The speech was in part reported
in the New York Tribune:

No one at home or abroad doubts that our war debt will be
fully and honestly paid if the Republican party is continued in
power. The public credit has been so firmly established and the



IN PRESIDENT ARTHURS CABINET 503

public debt so largely reduced that we can now safely reduce
taxation within the demands of the law creating the sinking
fund. The law requires the purchase or payment of one per
cent of the entire debt within each fiscal year and an additional
amount equal to the interest upon all bonds previously purchased
for the sinking fund. The government entered into a solemn
obligation with its creditors to use in this manner a certain pro-
portion of the revenue derived from the duties on imports. This
engagement was entered into, it is to be borne in mind, at a time
when the public credit was distrusted by many and the bonds
were worth much less than now. In some years the debt had
been reduced be^-ond the requirement of this bond. A liberal
estimate will not require more than $50,000,000 for the sinking
fund of the current year, and we will have a surplus over this
of, say, $40,000,000 or $50,000,000. The steady development
of the country and the growth of its trade and commerce will
increase the revenues under existing laws. There is, therefore,
no necessity for maintaining our present rate of taxation, but, in
view of the records of the two parties, is it not safer to trust the
Republicans to manage our finances and to reduce taxation within
reasonable limits? Why should the Democratic Party be trusted
to accomplish this or any other good result in legislation or
administration?

In revising our tariff laws and reducing our customs revenues,
home interests should not be neglected. Indeed protection to
our manufacturers and laborers can and should be afforded by
taxing only such imports as come into real competition and
admitting others free.

Mr. Blaine said it was the best speech made in New
York for him that year, and he repeated this statement a
year later when he passed through Chicago on his w^ay to
the Pacific Coast. After showing Walter Q. Gresham's
judicial work in its chronological order, it may be interest-
ing to observe how Mr. Blaine and the Republican party
in 1888 departed from the platform of 1884 and from its
previous history.



CHAPTER XXXII
ON THE BENCH AGAIN



BECOMES CIRCUIT JUDGE FOR SEVENTH DISTRICT
— INTIMACY WITH PRESIDENT CLEVELAND — MELVILLE W.
fuller's APPOINTMENT AS CHIEF JUSTICE OF THE SU-
PREME COURT — CORDIAL RELATIONS OF HARLAN AND
GRESHAM — THE SUPREME COURT's IGNORANCE OF PAT-
ENT LITIGATION — THE LAWTHER-HAMILTON CASE.

"IVTOVEMBER 2, 1884, Walter Q. Gresham accepted an
■*- ^ appointment as United States Judge for the Seventh
Circuit to fill the vacancy occasioned by the resignation
of Judge Thomas Drummond. The next day he left
Washington for Indianapolis, to vote, then went on to
Chicago, where on November 10 he began calling the
chancery calendar. The next day he took up the hearing
of cases and continued this, except for a number of trips
to Washington, until late in the following August. Then
after a short vacation he steadily held court again at
Chicago, Springfield, Peoria, Indianapolis, Milwaukee, and
Madison, until late in August of 1886.

The visits to Washington were made necessary by the
suit of the Louisiana Lottery Company. The case went
to the Supreme Court before it was finally disposed of. At
first the law officers of the government, after the ist of
March, 1885, were not disposed to defend the ex-postmaster-
general. But Mr. Cleveland took Mr. Arthur's position
that, inasmuch as the exclusion of the Lottery Company's
mail was done as an official act, the government should
defend the suits. Overtures of the Lottery Company to
settle were rejected.

It was early in Mr. Arthur's administration, during a

504



ONTHEBENCHAGAIN 505

visit to Rochester, that Walter Q. Gresham first met Grover
Cleveland. On one of his visits to Washington soon after
Mr. Cleveland had entered the White House my husband
told him not to fear the politicians, that the people wanted
a practical, efficient administration; they would sustain the
President while acting on these lines against any body of
men in Congress. The Senate was then in the control of
the Republicans, and he cited the case of Roscoe Conkling.
The contest over appointments came with the Republicans,
led by Senator George F. Edmunds, but popular opinion
forced the Senate to recede.

On one of the visits to Washington Mr. Cleveland asked
Judge Gresham if he would write and give his views when
requested as to the fitness of men recommended for judicial
positions. This was done in many instances. After we
were members of Mr. Cleveland's administration, Daniel
Lamont told me on one occasion that Cleveland had said
to him that he had made a mistake in not appointing
Judge Gresham Chief Justice instead of Melville W. Fuller.
On the death of Chief Justice Waite there was a Republican
majority in the United States Senate, and it was a
problem to get a Democrat who could be confirmed. John
Scofield of the Illinois Supreme Court was offered the
chief justiceship and had Judge Gresham's indorsement,
but Judge Schofield declined it because Mrs. Schofield did
not want to go to Washington to live. Schofield's opinions,
in the Illinois reports, show that he would have graced the
position.

The objection that Melville Fuller had been a "Dough
Face" during the war long deferred the sending in of his
name to the Senate; it was feared he could not be con-
firmed. Judge Gresham urged upon the soldier element,
and especially on some of those who were lawyers, that
such consideration should no longer obtain in determining
the qualifications of men for judicial positions. He per-
suaded Senator Charles Farwell of Chicago, a practical



5o6 LIFE OF WALTER QUINTIN GRESHAM

business man, to agree in advance to vote for Fuller's con-
firmation. He sent men like General Charles Fitzsimmons,
who had been not only a good soldier but also an Aboli-
tionist, to Senator Cullom to suggest the propriety of
agreeing to support Fuller. The promise of both the
Illinois senators to vote for Fuller made his appointment
certain, and his name went in to the Senate for con-
firmation.

In the face of similar objections to the appointment of
Joshua R. Allen as United States District Judge for the
Southern District of Illinois, Judge Gresham, when re-
quested by Mr. Cleveland to state his views as to a num-
ber of Illinois lawyers who were suggested as suitable to
succeed Judge Treat, recommended Judge Allen's appoint-
ment, and afterwards, when it was made, defended it.
The circuit judge refused Senator John M. Palmer's re-
quest to recommend to Mr. Cleveland one of Senator
Palmer's own sons for the position. This gave the Sen-
ator a grievance, but after a time he mellowed.

When Walter Q. Gresham went back on the bench, the
Seventh Circuit was composed of the States of Indiana,
Illinois, and Wisconsin. In Wisconsin Charles E. Dyer
was still the district judge in the Eastern District, but
Romanzo Bunn had succeeded Judge Hopkins in the West-
ern District. Henry W. Blodgett was still the district
judge in the Northern District, and Samuel H. Treat in the
Southern District; William A. Woods, who had succeeded
Walter Q. Gresham, was the district judge in Indiana.
The circuit judge could not hold the District Court while
the district judge could sit in the Circuit Court. The
circuit judge had appellate jurisdiction over the District
Court in some classes of litigation.

John M. Harlan was the member of the Supreme Court
assigned to the Seventh Circuit as the circuit judge. It
was an open secret that had there existed a vacancy,
Mr. Arthur would have appointed Judge Gresham to the



ONTHEBENCHAGAIN 507

Supreme bench, and members of the court intimated they
would be glad to have him join them.

The law contemplated, if it did not require, that the
circuit justices should visit each district once in every two
years. But the Supreme Court was so far behind that the
visits of the circuit justices to their circuits were at long
intervals and were as short as possible. When the Supreme
Court was not in session, its members were engaged much
of their time. Judge Harlan wrote, in consultation and in
writing opinions. A great deal of work thus devolved on
the circuit judge. The correspondence between Justice
Harlan and Circuit Judge Gresham about the business in
the Seventh Circuit and also about personal matters, was
cordial and voluminous. There was also much correspond-
ence with the district judges and with Howell E. Jackson,
the circuit judge in the Sixth Circuit.

Of the correspondence with the judges, much with
Justice Harlan and District Judge Woods of the Seventh
Circuit, and with Circuit Judge Howell E. Jackson and
District Judge Sage of the Sixth, was in relation to rail-
road receiverships. When Walter Q. Gresham went back
on the bench there were the "Narrow Gauge," the Illinois
Midland, and the Wabash Railroad receiverships. The
first two were then most alive. Soon others followed.
The Wabash was to become the most celebrated.

The Narrow Gauge was a system of railroads extending
from Toledo, Ohio, to St. Louis, Missouri, with a branch
from Delphos, Ohio, to Cincinnati, and a branch from this
line at Dayton, Ohio, to Ironton on the Ohio River. The
corporation which had built it, the Toledo, Cincinnati &
St. Louis Railroad Company, was hopelessly insolvent, with
all kinds of creditors. The Illinois Midland Railway
Company acquired a line from Peoria through Atlanta,
Decatur, and Paris, to Terre Haute, Indiana. On both
these lines construction had been poor and earnings small.

Judge Harlan wrote that on the Midland there were v/



5o8 LIFE OF WALTER QUINTIN GRESHAM

no less than eighteen series of Receiver's certificates, aggre-
gating $700,000 — more, he was afraid, than the entire line
would sell for. "The Midland case is the worst I ever
heard of," he declared. "More than a year ago, January
2, 1885, I was over-persuaded to take hold of it. Judge
Drummond would not, and Judge Treat will make no
further order in the case unless some other judge will sit
with him." Judge Treat was then far beyond three score
and ten and eHgible for retirement, but, like many Federal
judges, he held on until death removed him, although he
should have retired years before.

Judge Harlan said that Judge Treat "should not have
allowed the issuance of so many Receiver's certificates, but
you must not let him know I am criticizing him. I want
you to help me out in this case. It will take us a week to
hear it. I will come to Chicago at the February, 1885,
adjournment of the Supreme Court and we will hear it
together, and then you can dispose of it. It is too much
to ask another judge to take it up anew." This was to be
the final hearing, but Justice Harlan's work held him in
Washington, so the joint hearing did not take place.

Meantime the Narrow Gauge case was being crowded
along by Judge Gresham to a decree of sale, so as to get
it out of court. Joint hearings were held with Judges
Jackson and Sage of the Sixth Circuit, at Cleveland and
Cincinnati. Expenses were reduced to the minimum; the
daily train service consisted only of one "mixed" train each
way. Rolling stock which had been purchased on time be-
yond what seemed to be the needs of the road, was ten-
dered back to the rolling stock companies with the choice
of suing the corporation and the Receiver in so far as he
had ratified the contracts of sale, or demanding a fair rental
value for the time the cars were held by the Receiver. No
Receiver's certificates were issued, but the road was sold
subject to the right of the court to order the payment by
the purchaser of the claims of the rolling stock claimants



ON THE BENCH AGAIN 509

out of the proceeds of sale prior to the mortgage bond-
holders, provided the court so decreed, with a right of
appeal to the Supreme Court, the property itself remain-
ing as security for the final payment of the claims if so
allowed. Meanwhile a committee representing the bond-
holders was "provisionally" given possession of the railroad
and the rolling stock. By this method the road was prompt-
ly released from the hands of the court, and the contingency
of the bondholders buying in the property at a song was
guarded against.

"I am glad you are making such good progress with ]y

the Narrow Gauge case," wrote Justice Harlan in May;
1885. In June, 1885, he came to Chicago, and after the
hearing, entered a final decree in the Midland case. The
laborers were paid first, and most of the Receiver's certifi-
cates were held to be valid, although some were issued
under orders of the court without notice to the bond-
holders, and, technically, were invalid.

The bondholders in the Midland case wanted to appeal,
so Judge Harlan wrote Judge Gresham, August 11, 1885,
that he had telegraphed the attorneys for the bondhold-
ers to appear before him. Judge Gresham, and let him fix
the bond that would supersede the decree. "An appeal to
our court," wrote Justice Harlan, "will tie up the distri-
bution to the laborers and small claimants for three years,
and that ought not to be. Make the penalty in the bond
large, unless the bondholders, appellants, will agree that
the appeal may be taken up on brief or short time after the
record gets here, and I will get the court to pass on it
promptly. The laborers ought to be promptly paid."

Justice Harlan's letter, twelve pages long, written with
his own hand from Winchester, Virginia, his country home,
is a better exposition of the Midland case than his official
opinion. In this letter he said he reahzed the justice of the
criticisms of the delay in disposing of the Midland litiga-
tion, although he had no fears for himself, adding that he



5IO LIFE OF WALTER QUINTIN GRESHAM

had been threatened with bodily harm in anonymous com-
munications, because of the delay.

But the time had expired — sixty days from the entry
of the decree — within which a circuit judge could enter
an order approving an appeal bond to stay the operation
of the decree appealed from; that is, make the appeal a
supersedeas. As the law then was, only a justice or the
Supreme Court itself, after sixty days from the time of
entry of the decree, could name the penalty in, and approve
the appeal bond, so as to make it a supersedeas. The at-
torneys, therefore, had to go to Washington for this pur-
pose. Justice Harlan made them agree to advance the cases
before he would approve their appeal bond, and the next
Spring this appeal was passed on by the Supreme Court
and all that Justice Harlan had done was approved. In
upsetting vested interests, Judge Gresham in the Narrow
Gauge case did not go beyond Justice Harlan in the Mid-
land case — indeed, he did not go so far. Further mention
of these appeals will be deferred until we come to the
appeals in the Narrow Gauge case, which took the regular
course and were not passed on until 1891, when the Supreme
Court administered a rebuke to Judge Gresham for what in
the meantime he had done in the Wabash receivership.

Always ready to do his share of the Circuit Court work,
except in patent litigation. Justice Harlan was sometimes
compelled by the increased work in the Supreme Court to
cancel appointments he had made to visit the circuit, and
then he would write to tell the attorneys, "I will give them
the morning hour in Washington before the Supreme Court
meets and in the evening after adjournment." That the
^ overcrowded dockets in the Northern District of Illinois
might be relieved. Justice Harlan wrote how he and Justice
Blatchford construed certain sections of the statutes so
that judges from other districts might be summoned to
that district to hold court and be allowed $10 per day for
their expenses. It was manifestly unjust for Congress to



ON THE BENCH AGAIN Sll

make laws that permitted the poorly paid district judges to
be called from their districts to hold court in other districts
without making specific provisions for their expenses when
so engaged. So the suggestion of Justice Harlan as to this
construction of the statute was promptly adopted. With
the aid of Justice Harlan and the other district judges in the
circuit, the dockets at Chicago and throughout the circuit
were cleared and pace was kept with the increasing business
at Chicago. After several years, Judge Gresham and his
associates on the district bench were able to write Justice
Harlan, "There are no cases undisposed of that need your
attention on the circuit."

I have already commented on the aversion of many of
the Supreme Court judges to handling patent litigation.
Justice Harlan frankly avowed his position. I quote from
one of his letters as an example. March 20, 1887, he wrote
Judge Gresham: "Let me say that I am in good condi-



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