HISTORY OF THE SUPREME COURT
OF THE UNITED STATES

THE SUPREME COURT UNDER CHIEF JUSTICE WAITE

Recapitulating, we have seen that some years before Chief Justice Chase’s death, the railroad power had begun a systematic campaign to put its avowed representatives upon the Supreme Court Bench.  In the State courts the transformation had already been accomplished ;  there was hardly an inferior court which was not composed of railroad judges, or of men susceptible to railroad influences.  With the Supreme Court of the United States, the process was a little slower, but none the less sure.  The delay was unavoidable because the Justices, appointed for life, often outlived the period and the class section originally represented by them.  Survivals, or rather relics, of a bygone, outworn era, aged and usually infirm, they all could not be expected to respond readily to the demands of later economic interests.  Some of them could hardly realize that the railroad corporations which they had seen come forward a few years before as supplicants for public aid were now the paramount capitalist power, arrogating the larger control of Government.

As fast as these hoary relics passed away, railroad attorneys were appointed to succeed them.  And when, in 1874, Morrison I. Waite was chosen as Chase’s successor as Chief Justice of the Supreme Court of the United States, it was evident even to the most superficial observer that the new regime had become a dominant factor, and that the railroad corporations were the sovereign power.

Williams and Cushing Compelled to Retire.

Like Chief Justices Jay, Marshall, Taney and Chase, Waite did not have any judicial experience when appointed to preside over the Supreme Court.  Unlike his predecessors, he had not even filled a single political office of national note.  So far as public reputation was concerned, he was a total nonentity ;  the public had never heard of him.  But to the railroad politicians surrounding President Grant, and filling the Senate, he was well known for his ingrained conservative tendencies and affiliations.

At first, Grant had selected George H. Williams for the post.  Williams had been a judge in Iowa ;  a presidential elector in 1852 ;  Chief Justice of Oregon Territory ;  a United States Senator from Oregon in 1862-1871 ;  and Attorney General of the United States from 1872 to 1875.  The Bar Association of New York protested against the nomination ;  Williams, it said, was “ wanting in those qualifications of intellect, experience and reputation which are indispensable to uphold the dignity of the highest national court.”¹  Williams’ nomination was withdrawn at his own request.

But when Grant then nominated Caleb Cushing for the Chief Justiceship, public denunciation was even more severe.  That Cushing was seared with corruption was beyond doubt.  One of his transactions we have discussed in a previous chapter ;  how he had been counsel for the Peter’s colony contract grant, and how later, when Attorney General of the United States, he had given an opinion in favor of that grant at the very time Texas was seeking to put a stop to the fraudulent operations of its promoters.  We have also described (Chapter X) how General Sam Houston, in 1857, categorically exposed Cushing’s connection with the Peter’s colony grant.

Of the numerous strictures made at the time upon Cushing’s nomination as Chief Justice, we shall confine ourselves to quoting but one, that of the Springfield Republican, perhaps the most influential, and certainly the most accredited, newspaper in his native state.  “ His reputation,” it said, “ is that of a man who has never allowed principle or conscience to stand in the way of gain. . . . He is not an immoral, but rather an unmoral, man ;  he has not become demoralized ;  he never was moralized.”²

The onslaught upon Cushing’s probity was so effective, and so strongly backed with facts, that his nomination was withdrawn.  Notwithstanding, Cushing held Grant’s ear ;  and in retiring Cushing was, it was understood, one of those proposing to Grant the appointment of Waite as Chief Justice.  He was, indeed, Waite’s sponsor.³  Cushing had an extensive railroad practice ;  he was, after the Civil War, an attorney for Russell Sage’s La Crosse and Milwaukee Railroad Company, which, as we have narrated, had bribed an act through the Wisconsin Legislature, in 1856, with $800,000 in bribes, giving it a land grant then valued at $18,000,000.  He was also attorney for Sage’s Milwaukee and Minnesota Railroad Company and for other railroads of similar fraudulent origin now incorporated in the Chicago, Milwaukee and St. Paul Railroad.⁴

Waite’s Record as a Lawyer.

The son of a Chief Justice of Connecticut, Waite was born at Lyme, in that State, on November 29, 1816.  After graduating from Yale, in 1837, he had settled in Toledo, Ohio.  There he had become associated in law partnership with Samuel R. Young, and later with his brother, Richard Waite.  Their cases, for twenty-five years, were an unbroken succession of lucrative appearances for corporations of one kind or another.  In the decades before and after the Civil War, Morrison R. Waite represented the Bank of Toledo, the State Bank of Ohio, the Toledo Insurance Company and similar institutions.⁵  He and his partner, Young, were receivers for the Commercial Bank of Toledo.⁶  But the greater part of Waite’s practice was as attorney for railroad corporations.  He was counsel for the Southern Michigan Railroad Company ;  for the Northern Indiana Railroad Company ;  for the Cleveland and Toledo Railroad Company ;  for the Lake Shore and Michigan Southern Railroad Company, and for other railroad corporations.⁷

During twenty-five years of practice, there was scarcely a case in which Waite appeared in which he did not advocate the interests of some powerful individual or corporation.  Charles Butler, one of Toledo’s richest landholders, applied through Waite, in January, 1853, for a permanent injunction restraining the City of Toledo from collecting an assessment for the cost of grading streets.  Waite argued that the legislative act authorizing this assessment was retroactive and an impairment of vested rights, and that the fund for the grading work was being misapplied and wasted.  Judge Brinckerhoff, in the Ohio Supreme Court, denied that any vested right was being impaired, and dissolved the injunction.⁸

In cases affecting the interests of banks or railroads, Waite was more fortunate.  Of the successive judges of the Ohio Supreme Court, there was hardly one who had not been, or who did not become, a corporation attorney.  Allan G. Thurman, for some years Chief Justice of that court, and subsequently a United States Senator and a candidate for Vice-President of the United States, was counsel for the Valley Bank, for the Ohio Life Insurance and Trust Company (which failed under disastrous circumstances, in 1857) ;  and he was counsel for a number of other corporations.  Judge Swan had been counsel for the State Bank of Ohio.  Milton Sutliff, Chief Justice of the Ohio Supreme Court, in 1861, was so indifferent to public criticism that he did not forbear bringing a very remarkable suit in which he demanded his full share of watered railroad stock.  He set forth that he was the owner of Cleveland and Mahoning Railroad seven-per cent.-bonds, not specifying, however, how he obtained them.  These bonds he had elected to convert into stock.  Subsequently, he averred, the company had watered the stock to the extent of forty-seven per cent., and had given him this depreciated stock in exchange for his bonds.  He sued to get an amount of stock equaling the value of his bonds, plus forty-seven per cent. interest ;  but when the case was decided, in 1873, he was defeated.⁹  As for Judge Birchard, he had been counsel for a variety of corporations, and after leaving the bench resumed corporation practice.

The Case of Veronica Muhl.

Most of Waite’s cases dealt with some phase or other of vested rights, in the pleading of which he was recognized as an expert, and in every hoary precedent concerning which he was deeply read.  These cases, blanketed as they were in abstract technicalities, the reading public could not follow very closely even when they were stated simply in the brief newspaper reports.  But there was one case argued before the Ohio Supreme Court, in 1859, which was clear enough ;  it was so very plain that the workers of the railroad quarter of Toledo had no difficulty in keeping track of its aspects, and no hesitation at expressing their indignation over the particular defense advanced by Waite.

Veronica Muhl, a Swiss woman, had been killed in Toledo, on July 19, 1854, by being run over on the street by a locomotive and a train of cars, going at a speed of more than twenty-five miles an hour.  The speed was proved and it was also proved that no warning bell had been rung.  A city ordinance prohibited, in that part of Toledo, a speed of more than twenty-five miles an hour, and forbade any running of trains at all without the constant ringing of the locomotive bell so as to give ample warning of danger.

Veronica Muhl left a two-year old boy ;  and suit was brought in his behalf for $5,000 damages.  The Southern Michigan Railroad Company entered a general denial.  In July, 1855, the jury in the Court of Common Pleas returned a verdict in favor of the orphan.  The railroad then applied to the district court, amending its answer, and not denying, in effect, its own culpability.  What, then, was the plea put forward by Waite, as attorney for the railroad ?  A very extraordinary one ;  he concentrated his whole argument upon the point that the plaintiff’s counsel must prove that Veronica’s son was legitimate, and he moved that the action must be non-suited on the ground that the boy was an illegitimate child, and, therefore, not next of kin within the meaning of the statute governing the case.  The judge in the district court non-suited the case.

The orphan’s lawyer appealed the case to the Supreme Court of Ohio.  In the meantime, the news of the railroad’s peculiar defense in the case had got abroad.  That it was generally received with execration is putting the fact mildly.  The mother had been killed by the railroad company running its trains in violation of the law ;  her boy had been left a helpless orphan.  To cheat him out of the very modest damages awarded him by the lower court, the railroad’s attorneys, Morrison I.  Waite and his brother Richard, had no scruples in heaping contumely upon the name of the dead woman, and covering her defenseless boy with public disgrace.

Public opinion made itself manifest ;  and when the Waite brothers, representing the Southern Michigan Railroad, renewed their plea before the Ohio Supreme Court, in December, 1859, the judges of that court, railroad attorneys as they had been, could not avoid expressing disgust.  Judges Sutliff, Brinckerhoff, Scott, Peck and Ghoulson concurred with an unusual unanimity.  They reversed the action of the district court, and directed that the child should get the awarded damages.

“ It is difficult,” said Judge Sutliff, in delivering the court’s opinion, “ to perceive upon what ground the judgment of non-suit, shown by the record, was rendered.  When the defendant’s counsel, under leave to amend, had withdrawn all that part of the answer that denied the killing of decedent by the wrongful carelessness of defendant’s servants, in operating their locomotives, there remained no denial of the right of action.”  The question, Judge Sutliff further declared, of whether Veronica’s son was the nearest of kin, could in nowise affect the cause of action.  As to who was the legal beneficiary could be adjudged after the action had been determined.  Nearness or remoteness of kin on the part of the boy, Judge Sutliff went on, did not depend at all upon the circumstance of his being born within or without lawful wedlock.¹⁰

Quite incidentally, the judges had no high opinion of Waite’s character in that he should have advanced what was regarded as so reprehensible a defense, nor did they appraise his knowledge of law as worthy of much consideration.

Waite’s Advocacy of Vested Private Rights.

Not a few of Waite’s legal efforts as an attorney were attempts to break down the constitutionality of this or that statute — a typical enough preparation for a future Chief Justice of the Supreme Court of the United States.

In 1851 the Ohio Legislature had passed an act to tax banks and bank stock ;  accordingly the City of Toledo assessed a tax of $1,957.50 on the Toledo Bank.  That bank refused to pay, and when sued, Waite and Young, representing the bank, pleaded that the legislative act was unconstitutional.  Among the precedents cited by them was Marshall’s decision in the Dartmouth College case ;  they argued that the charter of a private corporation was a contract within the meaning of the restrictive clause of the Constitution of the United States.

Chief Justice Bartley, in the Ohio Supreme Court, in June, 1853, decided against the bank, declaring that the Dartmouth College decision had been perverted “ until it has become, to some extent, a subterfuge for fraud and a means of shielding corporations from responsibility and correction for the abuse of their corporate franchises.”  The antique precedents advanced by Waite to enable his client to defraud the city of taxes, did not at all impress Chief Justice Bartley.  “ A legal principle,” he said, “ to be well settled, must be founded upon sound reason, and tend to the purposes of justice.”  In the course of his decision he further stated that “ it is a humiliating reflection to the friends of our republican institutions, that the efforts to place the rights and property of corporations upon a footing of greater sanctity than those of private persons, have been resisted with far greater success in England than they have been in this country.  The right of Parliament to amend or repeal the charters of private corporations has for many years been undisputed.”  The property of every person, Bartley declared, “ must be liable to bear an equal and just proportion of the public burdens. . . .”¹¹

Another example of Waite’s activities was this :  As a matter of public health, the City of Toledo had passed an ordinance requiring owners to fill up noisome vacant places ;  if they failed the city was to do it, and assess the expense upon the owners.  One of the landowners refusing to pay this assessment was one Ezra Bliss.  As Bliss’ attorneys, the Waite brothers claimed that the Ohio health statute under which the city acted, was unconstitutional, in that it violated vested private rights.  The Ohio Supreme Court, in December, 1864, decided that it was constitutional.¹²

Morrison I. Waite and Richard Waite were also, together with Charles Pratt, the attorneys in another action to have an Ohio legislative act construed in favor of vested private rights.  They represented Rollin B. Hubbard, the owner of large flour mills.  These mills had been run with water from a branch of the Wabash and Erie Canal which had traversed Toledo.  The Ohio Legislature, in 1864, had passed an act discontinuing that particular canal, and authorizing its being reconstructed into a public highway.  Hubbard then came forward with a claim that in 1840 he had received the right under a thirty years’ lease, renewable, to propel his mills with surplus water not required for navigation.  When, in 1868, the Governor of Ohio executed a formal grant of the canal to the City of Toledo, Hubbard and others obtained a provisional injunction restraining the city from interfering with the flow of water.  The injunction was later dissolved, and the case in full argued.

For Hubbard, Morrison I. Waite claimed that he held a vested right ;  that the legislative act was subject to his prior rights ;  and that the city was liable for all damages accruing from the discontinuance of the water supply.  “ The State government,” retorted the city’s attorneys, “ was not organized for the purpose of running grist mills.”  The Ohio Supreme Court, in December, 1871, decided in favor of the City of Toledo.¹³

Waite’s Railroad Interests and Connections.

To ascertain the real importance of Waite’s position as a railroad attorney, it is necessary to know what large interests owned or controlled these railroads.  Samuel M. Young, law partner of Morrison I. Waite, was a director of the Cleveland and Toledo Railroad.¹⁴  This railroad belonged to the Vanderbilt system ;  William H. Vanderbilt was one of its directors ;  in turn it was leased to the Cleveland, Painesville and Ashtabula Railroad, one of the directors of which was Henry B. Payne, later so powerful a magnate as treasurer of the Standard Oil Company, and such a sinister figure in the bribery of Ohio legislators and officials.¹⁵

As for Morrison I. Waite, he was one of the directors of the Dayton and Michigan Railroad, and for a time was its vicepresident.¹⁶  This railroad had been leased, in 1863, to the Cincinnati, Hamilton and Dayton Railroad.  The president of the Dayton and Michigan Railroad, S.S. L’Hommedieu, was also president of the Cincinnati, Richmond and Chicago Railroad, and was also “ interested ” in the Kentucky Central Railroad.  One of Waite’s sons was superintendent of the Cincinnati and Muskingum Railroad during a great part of the time that Waite was Chief Justice of the Supreme Court of the United States.

Only twice had Waite ever held any public office :  in 1849, when he had been elected to the Ohio Legislature, and in 1873, when he was president of the Ohio Constitutional Convention.  He had been defeated for delegate to the State Constitutional Convention in 1850, and had not succeeded in his candidacy for Congress in 1862.

Wonderment was publicly expressed that such an obscure person should have been made Chief Justice.  Yet in official circles it was well known that the interest that had chiefly pushed him was the powerful Vanderbilt family, at that time, as it still is, one of the largest railroad owners in the United States.

But although railroad magnates such as Vanderbilt and Gould were warring fiercely upon one another, and in turn were ousting the lesser railroad capitalists, all the railroad interests had certain ends in common so far as the construction of law was concerned.  On the interpretation of law in general for their benefit, all the magnates, large and small, were united, irrespective of what their own differences were.  While, therefore, a judge’s antecedents were those of retainership for this or that particular railroad magnate, still his previous training and attachments would incline him to favor all railroad interests as against public agitation.

Some of the great railroad questions certain to come up before the Supreme Court were those dealing with the interpretations of laws by which the various Pacific railroads had obtained immense land grants and Government money subsidies.

In 1868-69 Jay Gould and Russell Sage had begun to get control of the Union Pacific and allied railroads ;  and had, as later investigations and actions showed, like Stanford and Huntington, set out to manipulate those roads in order to cheat the Government.  Caleb Cushing, one of Waite’s principal backers, was very close to Sage.  The Vanderbilts, too, had their ambitious schemes and interests ;  they were constantly extending their railroad power ;  and issues affecting their interests would necessarily come for final decision before the Supreme Court of the United States.  In addition there were questions of railroad stock and bond issues ;  of land grants either given to railroads or in which they were interested ;  of railroad pools and many other considerations determining whether the wealth and power of railroad owners should be aggrandized or hindered by court decision.  Not the least, it was certain that pressing questions arising from conflicts with labor organizations would be argued up to the Supreme Court.

Grant’s Intimacy with the Vanderbilts.

With the Vanderbilt family President Grant was on the most excellent terms.  Indeed, ten years later, after the firm of which Grant was a member — that of Grant and Ward — had gone into bankruptcy, it was to William H. Vanderbilt that Grant appealed for a loan of $150,000, and it was from that powerful magnate — then the richest in the United States — that Grant obtained it.

On May 4, 1884, General Grant called at Vanderbilt’s residence, at No. 640 Fifth Avenue, New York City, and asked for the loan of $150,000.  “ I gave him my check without question,” wrote Vanderbilt on January 10, 1885, to Mrs. Grant, “ not because the transaction was business-like, but simply because the request came from General Grant.”  General and Mrs. Grant sent to Vanderbilt deeds on their joint properties to cover the obligation, but Vanderbilt returned the deeds.

Subsequently, when Vanderbilt was in Europe, General Grant delivered to Vanderbilt’s attorney mortgages upon everything that he owned, including military trophies and presents from foreign governments.  On January 10, 1885, Vanderbilt presented as a gift to Mrs. Grant’s personal estate the debt and judgment that General Grant owed, and the mortgages on household goods and articles pledged.  The only condition was that at Grant’s death, the articles of historical value should be presented to the Government.  “. . . I have only to add,” wrote Grant in reply to Vanderbilt, on the same day, that I regard your giving me your check for the amount without inquiry as an act of marked and unusual friendship. . . .”  After considerable vacillation, General and Mrs. Grant finally decided to have certain of their mortgaged property sold toward the payment of the debt.¹⁷

At the time that Waite was appointed Chief Justice the Vanderbilts controlled the New York and Harlem Railroad, the New York and Hudson River Railroad, the Lake Shore Railroad ;  and they presently acquired the Canada Southern and Michigan Central Railroad, and a large interest in the Northwestern Railway.

A Succession of Railroad Decisions.

The new Chief Justice was of medium height, stout and straight in build, and he was strong, firm and quick in movement, with a self-confident manner.  His eyes were dark and keen, his hair iron-gray, his upper lip was kept clean of growth, and carefully-trimmed whiskers covered the remainder of his face.  His mouth and nose were large, his chin heavy.

One of the first cases argued after Waite had taken his seat was one of the greatest importance to the railroads on the one hand, and, on the other, to the public.

Throughout the country railroad promoters had influenced the authorities of municipalities to issue vast amounts of bonds to assist in the private construction of railroads.  Indignant at this abuse of public funds, the people of various States, in particular those of Michigan, had insisted upon putting provisions in their State Constitutions forbidding such grants.  The township of Pine Grove, Michigan, had issued bonds to aid in the building of the Kalamazoo and South Haven Railroad, and subsequently refused to pay, on the ground that they were unconstitutional.  Talcott, one of the bondholders, brought suit to recover.

Chief Justice Waite was disqualified from participating in the case because his interest was concerned.

Delivering the Supreme Court’s opinion, Justice Swayne decided that the bonds were valid ;  his chief ground was the assumed doctrine of acquiescence.  “. . . When the bonds were issued,” he said, “ there had been no authoritative information from any quarter that such statutes were invalid.  And during the period covered by their enactment, neither of the other departments of the State lifted up its voice against them.  The acquiescence was universal.”¹⁸  The decision in this case caused great exultation among railroad owners, and formed a precedent much cited thereafter.  Following this decision came another decision also ranking as an authoritative precedent, and many times cited.  It allowed railroad capitalists who had secured by every corrupt means immense land grants, to keep those grants intact and safe from forfeiture.

Railroads Escape Forfeiture of Land Grants.

The case establishing their vested right to this plunder was that of Schulenberg vs. Harriman, decided by the Supreme Court of the United States in October, 1874.  In June, 1856, Congress, after bribery had been freely used,¹⁹ passed an act granting about 2,388,000 acres of public land in Wisconsin to be allotted by the Legislature of that State for the express purpose of encouraging the building of railroads.

It was distinctly provided that the railroads were to be built within ten years.  In the same year — 1856 — various railroad adventurers corrupted the Wisconsin Legislature to pass acts giving them land grants.  The La Crosse and Milwaukee Railroad, as we have seen, distributed at least $800,000 in bribes for the passage of an act granting it 1,000,000 acres.²⁰  Another one of the land grants obtained that year was for a railroad from Portage City to Lake St. Croix, with extensions ;  this was the particular land grant involved in the case of Schulenberg vs. Harriman.

The obvious fact was admitted in the suit that neither the railroad nor any part of it had ever been constructed.  Yet the railroad capitalists had claimed the land grant as their absolute property, and by 1873, no less an immense quantity than 1,600,000 feet of the most valuable pine timber had been stripped from it.  Since no part of the railroad had been constructed, the State of Wisconsin took the position that the land grant reverted to the State or Government, as explicitly provided in the original act of Congress.

The Supreme Court of the United States did not take this view.  In its decision, written by Justice Field,²¹ it held that inasmuch as no action had been taken by legislative or judicial proceedings to enforce the forfeiture of the grants, therefore, the lands had not reverted.²²

It need scarcely be said that this decision legalized the consummation of the most enormous frauds.  Moreover, it gave an unmistakable cue to railroad looters.  All that they now had to do was to corrupt Congress to pass acts extending the time for the construction of railroads, deriving meanwhile prodigious profits from the exploitation of vast areas of land to gain which they had done nothing.  And that they did corrupt Congress was speedily shown in the scandals concerning the Southern Pacific, the Central Pacific and other railroad measures, not the least of which was the Texas Pacific bill promoted by Senators Matthews and Lamar, who themselves became Justices of the Supreme Court of the United States.²³

The Grange Movement.

At this period there developed an organized agrarian agitation which had considerable influence upon politics.  It grew to such strength that politicians, especially of the agricultural regions, sought to propitiate it.  In the records of the Supreme Court of the United States we find references to it ;  and that in its decisions affecting railroads the Supreme Court sought to make an appearance of deference by handing down certain decisions apparently, but not in reality, against the railroad corporations, is quite certain.

This organized movement was called the Grangers, composed of American agriculturalists.  It was essentially a middle-class movement, and it later merged into the Farmers’ Alliance, which, in turn, blended into the Populist Party.  It was estimated that at the end of the year 1875, there were 30,000 granges in existence, with an average of about forty members each ;  the order was strongest in the West and Northwest, and had a considerable following in the South.  Professing to be non-partisan, it was nevertheless the stimulus of a powerful agitation against discrimination in railroad freight rates, and it declared for the recovery of excess lands held by railroads, and the prohibition of the ownership of land by aliens and foreign syndicates.  Later came a demand for Government ownership of railroads.

The Union Pacific Railroad Relieved from Restitution.

Goaded into action by public agitation, the Government, in 1878, brought a suit against the Union Pacific Railroad Company for the restitution of the enormous sums of which successive groups of capitalists had swindled the Government.

This company, had obtained, by means of bribing Congress, a land grant of 12,000,000 acres, and also a loan of $27,213,000 in Government bonds.  The Credit Mobilier Company had then been organized to construct the railroad.  Comprising the company were some of the most powerful capitalists in the United States — conspicuous bankers, such as Levi P. Morton (later Vice President of the United States) and William H. Macy ;  and factory owners, such as Cyrus McCormick and George M. Pullman.  Charges of enormous thefts committed by the Credit Mobilier Company resulted in the appointment of an investigating committee by the United States Senate.  This committee, called the “ Wilson Committee,” from the name of Senator Wilson, its chairman, reported in 1873 :

That the total cost of building the Union Pacific Railroad was $50,000,000.

That the Credit Mobilier Company had charged $93,546,287.28.

That “ from the stock, income bonds, and land-grant bonds, the builders received in cash value $23,366,000 as profit — about forty-eight per cent. on the entire cost.”

The total “ profits ” were, therefore, about $44,000,000, of which the sum of $23,000,000 or more was in immediate cash.  The committee reported that large sums of money, borrowed for the ostensible purpose of building the railroad, had at once been divided as plunder in the form of dividends upon stock for which not a cent in money had been paid, in violation of law.²⁴

Finally, as a matter of fact, the Union Pacific road was owned entirely by private capitalists, although it had been built almost wholly with Government grants and loans.

After this looting had been accomplished, the value of the stock of the Union Pacific Railroad had necessarily fallen, at which auspicious time Jay Gould and Russell Sage acquired the railroad, and, as the report of the Pacific Railroad Commission of 1887 showed, subjected it to another comprehensive process of looting.

In bringing its suit in 1878 for misappropriation and for restitution of the stolen funds, the Government, in its bill of complaint, stated the specifications of fraud and theft, page after page of them.  It asked that the construction contracts and land-grant and income mortgages be declared void.  The chief attorney for the railroad in this case was William M. Evarts.  At Yale Evarts had been a classmate of Chief Justice Waite.  Evarts had been an attorney for the Pacific Mail Steamship Company which, as we have seen, had disbursed $1,000,000 in bribes, in 1872, to obtain the passage of an act of Congress.  Evarts had also represented the Chicago, Rock Island and Pacific Railroad.  Subsequently he became — 1885-1891 — a United States Senator from New York.

Delivering the majority opinion, Justice Miller decided that the Government had made out no case for relief.  He concluded with these remarks, the first of which was unfounded in fact, and the remainder of which have seldom been equaled for their sardonic cynicism.

“. . . The Government ” (said he) “ has received all of the advantages for which it had bargained, and more than it expected.  In the feeble infancy of this child of its creation,”  Miller went on, “ the Government, fully alive to its importance, did all that it could to strengthen, support and sustain it.”  Every Justice of the Supreme Court knew that the Government had done nothing of the kind.  Everyone of them was aware that it was by corruption that the Union Pacific Railroad promoters had accomplished their ends.  Not a single Justice was ignorant of the report of the “ Wilson Committee,” handed in five years previously, that those promoters had illicitly expended a corruption fund of nearly $436,000 to get the act of July, 1864, passed, and that another corruption fund of $126,000 had been used to get the act of March 3, 1871, passed by Congress allowing the Union Pacific Railroad exorbitant rates for the transportation of Government supplies and mail.²⁵  Every newspaper in the country had been filled with the details of the testimony.

“ Since,” Justice Miller concluded, “ it [the Union Pacific Railroad] has grown to vigorous manhood, it may not have displayed the gratitude which so much care called for.  If this be so, it is but another instance of the absence of human affections which is said to characterize all corporations. . . .”²⁶

One of the points of this decision was that the Government could not sue until the company’s debt matured in 1895.  This, as we shall see, gave Gould, Sage and associates a new lease of life in their operations, enabling them to loot further on an enormous scale.

Fraudulent Bonds Given Precedence.

At the same time, the Supreme Court of the United States, in October, 1878, handed down another decision in favor of the Union Pacific Railroad.  The railroad had sued the Government for compensation for transporting troops, supplies, etc.  The Government set up a counter-claim for five per cent. of the net earnings of the company, as due under the act of July 1, 1862, for the payment of bonds.  The Court of Claims decided that the railroad had been completed in 1869, and that the company’s profit on the operation of the road from 1869 to 1875 had been $29,052,045.67.  The Court of Claims, accordingly, gave the Government a judgment for $1,402,602.28, as being five per cent. on the profits, and it awarded the company $593,627.10 for services.  From this decision the company appealed.

Reversing the judgment, Justice Bradley, writing the opinion of the Supreme Court’s majority, based his decision in favor of the company upon the construction of the act of July 2, 1864.  The fact that it was for the passage of that very law that the Union Pacific Railroad Company had distributed nearly $436,000 in bribes, was wholly ignored.  Bradley held that the act in question authorized the company to issue an equal amount of first-mortgage bonds to have priority of the Government bonds.

It was well known that the act was lobbied through for the express purpose of cheating the Government.  Here, again, the vaunted principle of law that fraud vitiated every contract, was serenely passed over by the Supreme Court.  The circumstances of the passage of the act, and of the great plundering going on, were not even considered.  Bradley held that the act of 1864 empowered the company to issue an equal amount of first-mortgage bonds to have priority over the Government bonds ;  hence those holding these bonds had the preference of being paid before the Government could receive its five per cent.  Justices Strong and Harlan strongly dissented, practically saying that the effect of the decision was to facilitate and legalize the swindling of the Government.²⁷  The same decision was made in the case of actions against the Denver Pacific Railroad and other railroads.

The Accompanying and Subsequent Thefts.

But who owned these first mortgage bonds ?  The majority report, nine years later, of the Pacific Railway Commission, — a Government investigating body — reported in detail the vast thefts committed by the Credit Mobilier Company and by Gould, Sage and associates.  In consolidating the Kansas Pacific, the Denver Pacific and other railroads with the Union Pacific, Gould, Sage and company had misappropriated more than $20,000,000 by the fraudulent jugglery of stocks and bonds.  The Union Pacific Company had sold not less than 7,000,000 acres of land, although it had got no patent from the Government.²⁸  Great areas of the most valuable coal lands had been fraudulently appropriated.²⁹  The fraudulent shuffling of millions of dollars from one corporation to another was another fertile source of loot.  The stock of the Union Pacific had been inflated from $38,000,000 to $50,000,000 ;  the bonded indebtedness from $88,000,000 to $126,000,000, and sundry other indebtedness to nearly $10,000,000.

While this plundering was in process, Gould and Sage were putting the railroad in a condition of bankruptcy for the double purpose of draining its funds, and of pleading that the railroad could not afford to reimburse the Government for its loans.  The majority report of the Pacific Railway Commission described “ the lavish and reckless distribution of the assets of the company in dividends,” and pointedly asked why it was that although the Union Pacific Company had been doing a large and profitable business, “ it found itself early in 1884 on the verge of bankruptcy.”

Had it not been for the two decisions of the Supreme Court we have cited, this looting would have received a check.  The Supreme Court had virtually legalized and justified it.  And it is also set forth in the Pacific Railway Commission’s majority report that while stealing tens of millions of dollars, and at the very time the Government’s action for misappropriation of funds was before the Supreme Court of the United States, Gould and Sage took measures to relieve themselves from any liability to the Union Pacific Railroad as a corporation.

“ It appears,” the majority report of Messrs.  Littler and Anderson reads, “ that while this litigation was pending, certain proceedings were taken by the directors whereby, by their own acts and votes, they undertook to release themselves from any obligation or liabilities to the company.”

The minority report of Commissioner Pattison was even more penetrating.  It declared that the Union Pacific Railroad and the Kansas Pacific Railroad had received about $35,000,000 in loans from the Government, of which little had been returned.  It recited that up to 1887 the sum of $136,314,010.73 “had been dissipated ” by the directors of these two railroads.³⁰  Not less than $84,000,000 of watered stock had been issued.  “ The Union Pacific Company,” the minority report continued, “has received $176,294,793.53 in surplus earnings and land sales during eighteen years, and if its stock had been fully paid, as Congress required that it should be, and its officers certified under oath that it was, nearly all of that money would be applicable to-day to the payment of the Government debt.  The company has paid out $28,650,770 in dividends, and $82,742,850 in interest on bonds, nearly all of which was distributed to shareholders without consideration . . .”  Commissioner Pattison estimated that Jay Gould’s personal share of the loot was probably $40,000,000.³¹

This report reveals the condition of affairs nine years after the Supreme Court of the United States decided in favor of Gould, Sage and associates of the Union Pacific Railroad Company.  Likewise it disclosed the futility of the “ Sinking Fund ” decision that the Supreme Court of the United States had rendered late in 1878 asserting that in the cases of the debt of the Pacific railroads the act of Congress, of May 7, 1878, establishing a sinking fund, was constitutional.  First, the Supreme Court denied the application of the Government for restitution, and allowed the manipulators to juggle and pocket all the profits.  Having done that, the Supreme Court then said that the Government had a right to conduct a sinking fund !  The empty right was allowed, but from where was the money for the sinking fund to come ?  Stanford, Huntington, Gould, Sage and associates were appropriating it by the hundreds of millions for their private fortunes.

It should be noted that in the “ Sinking Fund Cases,” Justices Field, Strong and Bradley dissented at length.  In the previous cases they had concurred in holding that a contract was to be strictly construed.  In this case, notwithstanding the fact that the Pacific railroads had received the Government funds on explicit condition of repaying them, Justice Strong advanced this extraordinary proposition :  “. . . Had it been dreamed that a call could have been made at any time thereafter designated by Congress, it is inconceivable that the loan proffered would have been accepted. . .”³²  “ The loan proffered” was a rare way of putting the case, considering that Congress had been bribed to give that very loan.  Vested rights, Justice Strong went on, “ no matter how they arise, are all equally sacred, beyond the reach of legislative influence.”³³

Justice Bradley wrote a long dissenting opinion, and Justice Field, who did likewise, began, “ The decision will, in my opinion, tend to create insecurity in the title to corporate property in the country,” etc., etc.— a groundless assertion, as Field himself no doubt well knew, and as events fully proved.  Then Justice Field proceeded to expound an elaborate defense of the Pacific railroads, particularly of the Central Pacific Railroad.³⁴

These are some typical instances of decisions regarding railroads handed down under Chief Justice Waite.  With a few adverse decisions of comparatively slight importance, railroad interests were dissatisfied, but the greater number of decisions were entirely favorable to the railroad owners.  To enter into the consideration of this mass of decisions is out of the question here.

Claims Confirmed to Forgers and Perjurers.

The decisions of the Supreme Court concerning private land claims were also most uniformly favorable to the claimants.

Discovering new evidence of fraud, the Government brought suit to void a decree of the lower court confirming a large California land claim to W.A. Richardson, who, as we have seen, had been officially exposed as a notorious perjurer.  The Government’s petition set forth that after submitting his claim to the Board of Land Commissioners, in 1852, Richardson became satisfied that he had not evidence enough to support his claim, and that he went to Mexico, and obtained from Micheltorena, the former Mexican Governor of California, “his signature, on or about the first day of July, 1852, to a grant which was falsely and fraudulently antedated, so as to impose on the court the belief that it was made at a time when Micheltorena had power to make such grants in California.”  The Government also charged that Richardson, “ in support of this simulated and false document also procured and filed therewith the depositions of perjured witnesses.”

After getting a confirmation from the United States District Court, Richardson turned over the claim to Throckmorton, George H. Howard and others.  Howard, in 1852, was the United States law agent before the land commission.  The Government now charged that “ Howard, one of the present defenders had, from the papers in some other suit, derived notice of the fraudulent character of the Micheltorena grant, and that he failed and neglected [in 1852] to inform the commissioners of the fact, or otherwise defend the interests of the United States in the matter.”³⁵

Howard, it may be remarked, had also been interested with Teschmaker and others in a sixteen-league claim in Napa County, California, alleged to have been granted by Micheltorena.  The Supreme Court of the United States had, in 1858, denounced this sixteen-league claim as a forgery, supported by such professional perjurers as Juan Castenada, and had voided it.³⁶

Common sense alone would have dictated the fair assumption that if Howard had been detected in promoting one forged grant, all his other acts would inferentially stand impeached.  But in deciding the Throckmorton case, the Supreme Court of the United States presented some singular views.  Writing the court’s opinion, Justice Miller acknowledged, to begin with, that the Government was not bound by the statute of limitations.  He complained, however, that the suit was brought twenty years after the decree of the District Court, and that to retry the case would involve perhaps more appeals.  “ If we can do this now, some other court may be called on twenty years hence to retry the same matter on another allegation of fraudulent combination in this suit to defeat the ends of justice, and so the number of suits would be without limit.”  Moreover, he said, there were no specifications of the means by which fraud had been accomplished.

The fact that Howard had been condemned twenty years previously by the Supreme Court for pushing a forged grant, did not count with the eminent Justices.  That in many cases proof had been presented that United States district attorneys had often been in collusion with land-claim forgers and had long concealed the fact — this, too, was ignored.  Nor did the Supreme Court give the slightest consideration to the fact that District Judges in California had been interested in these fraudulent claims, and that the scandal was so great that Congress, in 1864, had passed an act prohibiting those judges sitting.  That successive Attorneys-General of the United States had exposed the Micheltorena forgeries — this, also, had no weight with the Justices.  The Throckmorton claim was declared valid,³⁷ serving as a notable precedent in subsequent private land-claim cases.

In another case it was shown that in 1845, Alcalde George Hyde had fraudulently presented to George Donner, then only ten years old, and a dummy for officials, a large and now valuable plot of municipal land one hundred varas square (about 3333 feet), in the heart of San Francisco.  The law allowed distribution of land to settlers only.  In validating this grant, the Supreme Court of the United States, in 1878, said :  “We are not aware that the Mexican law prohibited such a grant to an infant.”³⁸  These are some characteristic examples of the Supreme Court’s decisions regarding land claims.

New Associate Justices.

Many changes occurred in the personnel of the Supreme Court at this time.  Justice David Davis resigned in 1877, and became a United States Senator from Illinois.  His successor, appointed by President Hayes, was John M. Harlan, of Kentucky.

Harlan’s father, James Harlan, had been a Whig politician of some note representing a Kentucky district in Congress, 1836 to 1844, and had been Attorney-General of Kentucky from 1850 to 1863.  Entering politics, John M. Harlan had been defeated for Congress, in 1859 ;  had been breveted a colonel in the Union Army during the Civil War ;  had been elected Attorney-General of Kentucky in 1863 ;  had then practiced law, and had been unsuccessful in 1871 and 1875 in his candidacy for Governor of Kentucky.

He was one of the visiting commissioners to Louisiana in the Hayes-Tilden electoral contest ;  and it was openly charged by Senator Chandler that for his services to Hayes on this occasion, Hayes rewarded him by an appointment to the Supreme Court of the United States.  On January 21, 1901, Senator Pettigrew read in the United States Senate a letter signed by Senator Chandler, published in a New York newspaper in 1877.  In this letter Chandler made the charge that Justice Harlan was appointed to the Supreme Court as a result of his services as a visiting commissioner to Louisiana during the Hayes-Tilden dispute.  After Pettigrew had finished reading the letter, Chandler arose and said that every word of it was true.³⁹

The choice of Harlan was largely a personal appointment of Hayes.  Harlan was not conspicuous as a railroad lawyer, although the fact that his nomination was confirmed by a Senate controlled by railroad attorneys and stockholders did not pass unnoticed.  He was forty-two years old at the time.

Retiring on a pension, in 1880, Justice Strong was succeeded by William B. Woods, of Ohio.  Woods was regarded as a political adventurer.  Born in 1824, he had been a Democratic politician in Ohio.  An officer in the Union army during the Civil War, he, in 1866, had settled in Alabama, during the reconstruction period, and had become a leading “ carpet-bagger ” Republican.  He became State Chancellor in 1868, and a United States Circuit Court judge, in 1870.  His decisions in that court were notoriously in favor of railroad corporations.

Opposition to Stanley Matthews.

The next appointment, that of Stanley Matthews by President Hayes, aroused the most intense opposition.

Matthews was nominated to succeed Swayne, who resigned because of disability.  In 1877, Matthews had succeeded John Sherman, as a United States Senator from Ohio.  Matthews was not only Jay Gould’s chief attorney in the middle West, but while in the Senate he frequently appeared in court as attorney for the Louisville and Nashville Railroad.⁴⁰ the Adams Express Company⁴¹ and other corporations.  While a member of the United States Senate, and at the very time he was appointed to the Supreme Court, he was a director of the Knoxville and Ohio Railroad.⁴²  He was also counsel for the Springfield and Mansfield Railroad,⁴³ and for other railroads, and held considerable stock in railroad companies.  For many years he had been attorney for the Cincinnati, Hamilton and Dayton Railroad,⁴⁴ for which, as we have noted, Chief Justice Waite had also been counsel, when an attorney.  Matthews had been one of the counsel for the Hayes electors before the Electoral Commission, and had industriously worked for the seating of Hayes.

Matthews’ activities in the Senate for railroad corporations were notorious ;  he and Senator Lamar (who succeeded him on the Supreme Court bench) were the chief pushers and advocates of the amendatory bill of 1878 in favor of the Texas Pacific Railway.  This railroad company, in 1871, had received a great land grant of 18,000,000 acres, and Government aid of $31,750,000 in bonds, on condition that it construct, within a certain time, a railroad from the Mississippi River to San Diego, California.  But it had only built a small portion of the road, and a move was under way to declare its subsidies forfeited.

Senator Matthews, on March 19, 1878, reported Senate Bill No. 942, extending the time for building the railroad,⁴⁵ and Senator Lamar followed with a long speech in favor of the bill.  Matthews also reported Senate Bill No. 474 authorizing the Southern Pacific Railroad to build railroad and telegraph extensions, and giving Government aid.⁴⁶  Likewise he reported another bill in favor of the Northern Pacific Railroad.  Of the flagrant corruption of Congress by the Texas Pacific Railway promoters, and by Jay Gould and Collis P. Huntington, details are given later in this chapter.  Matthews was one of the Senators conspicuously striving to defeat the Pacific Railroads Funding Act.  The bill, however, was passed.

Denounced as a Railroad Tool.

On February 7, 1881, the following telegram was received in Washington :

“ To the Judiciary Committee of the United States Senate,

“ The Hon. A.G. Thurman, Chairman.

“ In behalf of 800 business firms of the New York Board of Trade and Transportation, we respectfully but earnestly protest against the confirmation of the Hon. Stanley Matthews as judge of the Supreme Court of the United States for the following reasons :

“ We are informed and believe that the great railroad corporations of the country are endeavoring to obtain control of this Court of last resort, which has heretofore been the most important bulwark in defending the public interests against the encroachments of corporations ;  that Mr. Matthews has been educated as a railroad attorney, and views railroad questions from a railroad standpoint ;  that his actions while in the United States Senate prove this, and in this important respect render him unfit for a Justice of the Supreme Court.

“ AMBROSE SNOW, President,       
“ DARWIN R. JAMES, Secretary.”⁴⁷

The explanation of this protest lay in this fact :  The middle-class business men were infuriated at the dominance of such lordly railroad magnates as Vanderbilt, Gould, Sage, Huntington and Stanford.

Through their control of transportation facilities the railroad nabobs were extorting whatever freight rates they pleased and employing discriminative methods against the ordinary shipper.  Largely by this alliance the first great Trust — the Standard Oil Company — had already become a great power, foreboding the time when trusts of all kinds would force out competition and efface the small factory owner and the small distributor.  To fight this developing power, the middle class formed such organizations as the Anti-Monopoly League ;  as the middle class, in aggregate, then possessed immense resources and strength, many of the leading newspapers supported its agitation.  It desired judges representing middle-class interests ;  the essential objection to Matthews was that he was an instrument of the great railroad magnates.

Hence it was that such newspapers as the New York Times, the New York Sun and others bitterly denounced the appointment of Matthews.  The New York Times, in an editorial entitled, “ His Majesty, Jay Gould,”⁴⁸ described how Gould’s control was constantly extending over railroads, the Associated Press and Congress.  “ There would still remain the Supreme Court,” went on the editorial, “ but no one can suppose that he will long permit it to retain its independence.  Even if he cannot secure the confirmation of Mr. Stanley Matthews he will sooner or later contrive to have any vacancies that may occur filled in such a way as to provide against the contingency of decisions hostile to his interests. . . .”  The New York Sun declared that if Matthews’ nomination were confirmed it would be equivalent to putting Jay Gould upon the Supreme Court Bench.  Other newspapers contained similar editorials, demanding that the nomination be withdrawn.

The Contest Over His Appointment.

Associate Justice Field, Senator Lamar, Senator Plumb and others were moving every possible influence to obtain a confirmation.  But public criticism was either too severe just then or Senators representing antagonistic railroad groups were opposed to Matthews, as being too much the creature of Jay Gould.⁴⁹  Whatever were the actuating reasons, the Senate did not confirm.

When, however, President Garfield succeeded Hayes, Matthews (who was a relative of Garfield) was renominated, and the contest again begun.  Lamar, as a member of the Judiciary Committee, renewed his efforts for Matthews ;  Senators George F. Edmunds and David Davis led in opposing the confirmation.  Edmunds, long the chairman of the judiciary Committee, was himself a railroad lawyer, representing the Michigan Central Railroad and other railways.  Why did he oppose Matthews ?  The conflict of the magnates with one another in the economic field had its reflex in the political ;  certain magnates sought, to the exclusion of other magnates with whom they were at war, to control the courts.  Senators representing different magnates thus took opposite sides in favoring or opposing this or that measure or appointment.

The Senate Judiciary Committee, on May 9, 1881, rejected Matthews’ appointment.  On May 12, 1881, the report of this committee was taken up in executive session ;  and after a long, acrimonious and stubborn debate, the Senate by a vote of 24 to 23 — a majority of one vote — confirmed the appointment.⁵⁰  The information leaked out that in the secret session, Senators invidiously pointed out that measures which Matthews had favored or opposed, as a Senator, would come up before the Supreme Court for adjudication.

Justices Gray and Blatchford.

The next appointment, made in December, 1881, was that of Horace Gray, to succeed Justice Clifford.  Gray was the grandson of William Gray, one of the largest shipowners in New England, and the richest man in Boston in 1810.  Of the activities of William Gray in getting bank charters we have given an account in an earlier chapter.  Horace Gray belonged to the class in Boston styling themselves the old aristocracy ;  he was accused of being obtrusively snobbish ;  judging from the anecdotes related of him, he was, no doubt, a thorough snob and a formalist of the most pronounced and provoking type.⁵¹

Graduated from Harvard, Gray traveled extensively in Europe, and was once presented in approved form at the court of King Louis Phillipe.  Admitted to the bar in 1851, he became, in 1854, a reporter of decisions of the Massachusetts Supreme Judicial Court.  In 1864, he was appointed Associate Justice of that court, and in 1873 became its Chief Justice.  He was extremely tall — not less than six feet six inches, and never personally popular.  The circumstances of his receiving a large addition to his already considerable fortune by virtue of a decision of the Supreme Court of the United States while he was a member of that Court, are related in a subsequent chapter.

Shortly after Gray’s appointment, Samuel Blatchford, of New York, was appointed to succeed Justice Hunt.⁵²

Blatchford was the son of Richard Blatchford, a lawyer of note in New York City who, in 1826, became the financial agent and counsel for the Bank of England.  He later acted in the same capacity for the Bank of the United States, and adjusted the final settlement between these two banks, when the charter of the Bank of the United States expired in 1836.  His financial dealings were large for his day.  One of these dealt with the North American Trust and Banking Company.  Although having several millions of dollars in stocks and bonds, this company, soon after its formation, became embarrassed for want of sufficient funds, and resorted to various expedients “ some,” as Judge Roosevelt decided, “ at least of a questionable character.”  Two mortgages for a total of $1,500,000 were then made out to Richard Blatchford and others.  A suit, of a very involved nature, was brought to have these mortgages declared invalid on the ground of their being fraudulent.⁵³

Blatchford’s Interests and Associations.

Samuel Blatchford became private secretary to Governor William H. Seward, serving until 1841, and in 1845 associated himself as a law partner with Seward and Christopher Morgan.  As a State Senator, Seward, on January 31, 1832, had made an elaborate defense of the Bank of the United States in reply to a legislative resolution declaring that its charter ought not be renewed.⁵⁴  Seward was counsel for Erastus Corning, a large capitalist of Albany who was the head of the projectors of the Minnesota and Northwestern Railroad Company which, in 1854, by fraud and corruption obtained from Congress an extensive land grant of 900,000 acres.⁵⁵  Christopher Morgan was the brother of Edward Barber Morgan, a founder of the Wells-Fargo Express Company and of the United States Express Company.  A multimillionaire, Christopher Morgan was president of the Wells-Fargo Company, and a director for many years of the United States Express Company.⁵⁶

In 1854, Samuel Blatchford returned to New York City, and formed a partnership with Clarence A. Seward, son of William H. Seward, and with Burr Griswold.  Their practice was largely one for railroad and express companies.⁵⁷  Another son of William H. Seward, and named after him, became a director of the Southern Central Railroad of New York.  Blatchford was made a United States Circuit Court judge ;  at the time of his appointment to the Supreme Court of the United States, the President of the United States Express Company was Thomas C. Platt, for more than twenty years the Republican boss of New York, and twice United States Senator from that State.  The campaign contributions made by every variety of corporation during the long period of Platt’s dictatorship were so enormous and long continuing that it is out of the question to enter here into a narrative of them.  Official investigations, to which we shall have need of referring, disclose the particulars, especially in the case of the great insurance companies which, in turn, have been controlled by the railroad magnates.⁵⁸

The express companies, starting with little capital, had expanded to enormous proportions and were making immense profits.  Dissatisfied, the shippers were continually complaining ;  litigation was more and more increasing ;  and the express companies, like other corporations, sought to insure themselves against adverse legislation and court decisions.

Between the express monopoly and the railroads was an intimate alliance, comprehending, in many cases, the same capitalists.  Thus, Leland Stanford, D.O. Mills and Charles F. Crocker were directors of the Wells-Fargo Express Company at the time of Blatchford’s appointment to the Supreme Court of the United States.  Blatchford owned stock in the Illinois Central Railroad and many other corporations.  In the Tennessee Bond Cases, involving claims to unpaid bonds claimed by the Louisville and Nashville Railroad and numerous other railroads Blatchford and Justice Stanley Matthews were disqualified from sitting because of their interest.⁵⁹  To such an extent did the railroad and express company interest become merged that the principal ownership of the express monopoly gradually became vested in J.P. Morgan, the Vanderbilts, the Goulds, the Standard Oil Company, the Harriman estate, Lewis Cass Ledyard (a grandson of Lewis Cass) and in other railroad magnates.

So well did the express companies succeed in warding off hostile legislative and court action, that the recent petition of the Merchants’ Association of New York and of the Chambers of Commerce of Chicago, Philadelphia, Boston, Detroit, St. Louis, Denver and other cities to the Interstate Commerce Commission sets forth that the annual profits of the express companies have been 150 per cent. in addition to which great cash reserves are held.

Validation of the Vast Maxwell Land Claim.

Of the large body of decisions handed down by the Supreme Court of the United States during the last years of Waite’s Chief Justiceship, nearly all were uniformly favorable to railroad and other corporations.

It was under Waite that the Supreme Court validated the enormous Maxwell private-land grant.  This claim had originally been asserted by Charles Beaubien and Guadalupe Miranda, claiming title under a grant said to have been made by the Mexican Governor Armijo in 1841.  On September 15, 1857, the United States Surveyor General of New Mexico had reported the grant as embracing 96,000 acres.  One L.B. Maxwell bought the claim, and contended that it comprised nearly 2,000,000 acres.  Holding that the old Mexican laws had limited the area granted to any one individual to 48,000 acres, the Commissioner of the General Land Office, upheld by the Secretary of the Interior, refused, in 1869, to certify more than 96,000 acres.⁶⁰

One of the principal owners of the claim was Stephen B. Elkins, a conspicuous Republican politician, and a delegate in Congress.  Elkins’ efforts at Washington bore fruit.  A new survey was ordered by the Land Office ;  one of the surveyors was Elkins’ brother, John T. Elkins.  The surveyors reported the grant as embracing, in all, 1,714,764.94 acres in New Mexico and extending into Colorado.  On May 19, 1879, the General Land Office gave a quit claim for the whole of this area.  It was then mortgaged to a syndicate of Holland capitalists for the sum of £700,000 in sterling money and Dutch currency.⁶¹

On August 25, 1882, the Government brought suit to have the grant declared void.  Suing the Maxwell Land Grant Company, the Pueblo and Arkansas Valley Railroad Company and the Denver and Rio Grande Railway Company, the Government in five specifications declared that the grant, under the laws of Mexico, could not have been for more than 96,000 acres of land, and that the patent for its enormous enlargement had been obtained by a conspiracy of fraud and deceit practiced upon the Land Office.⁶²

But on April 18, 1887, the Supreme Court of the United States validated the whole claim for 1,714,764.94 acres, basing its decision upon a disingenuous act sneaked through Congress in 1860.  That act, joined with another act passed in the same year, allowed surveys to be made at the expense of “settlers,” and provided that the amounts deposited by “ settlers ” should be received as part payments for the lands.  These acts bore no reference whatever to the Maxwell grant ;  successive Land Commissioners had pointed out that their only object was to authorize fraudulent surveys ;  but the Supreme Court seems to have discovered that they allowed a grant of 96,000 acres to be extended to cover nearly 2,000,000 acres.⁶³

The decision was much denounced.  Stephen B. Elkins, the chief beneficiary, married a daughter of United States Senator Henry G. Davis of West Virginia and financed the construction of a number of railroads.  He had built for him a palace-like castle in the town bearing his name in West Virginia ;  he became a United States Senator, in 1895 ;  and he died a multimillionaire.

Justice Field Protects Leland Stanford.

At about the time when this decision was handed down, Associate Justice Field was subjected to insinuating criticisms for his actions in several matters.  The Pacific Railway Commission was investigating the consecutive frauds and thefts of the promoters and manipulators of the Pacific railroads.  On July 26, 1887, the Commission, when in San Francisco, issued an order requiring Leland Stanford to testify.  The particular questions the Commission pointedly had put to Stanford were these :

What part of a certain voucher for $171,000 that had been made out by him (Stanford) had been used for the purpose of influencing legislation ?  (This $171,000 — or to be exact, $171,781.89 — had been paid out by Stanford in cash, on December 31, 1875.)

What lawyers had been in the habit of attending the Legislature with him (Stanford) ?

Did he (Stanford) ever give away any portion of certain exhibited vouchers to S.T. Gage to influence legislation ?  (Gage was one of the directors of the Southern Pacific Railway Company.)

Did he (Stanford) ever give any money to W.B. Carr for the purpose of influencing legislation in the California Legislature ?

Upon Stanford’s refusal to answer these questions, the Pacific Railway Commission applied to the United States Circuit Court for an order compelling him to testify.

Field was then in San Francisco, presiding over the Circuit Court, for until the act creating the United States Circuit Court of Appeals was passed, each Associate Justice of the Supreme Court of the United States was assigned, for a part of the time, to a certain circuit.  The United States Circuit Court at San Francisco was composed of Field, and Judges Lorenzo Sawyer, Sabin and Hoffman.  Field, as we have seen, had been appointed to the Supreme Court upon the personal solicitation of Stanford.  Judges Sawyer and Sabin owed their seats to Stanford and Huntington.  In fact, Huntington testified before the Pacific Railway Commission that he and his associates made it a system to control the judicial, as well as the legislative and executive, departments of government.  Judge Hoffman had been on the bench before Stanford and Huntington had acquired power ;  his decisions in the private land-claim cases had revealed him as an honest judge.

On August 29, 1887, the Circuit Court gave its decision, written by Justice Field and Judge Sawyer, denying the application of the Commission, on the ground that the act creating the Commission did not authorize compulsory testimony.  Judge Hoffman dissented.  “ The decision of the Circuit Court of the United States in California,” reported the Pacific Railway Commission, “ made it impossible for this Commission to obtain answers to the questions which Congress had directed to be put.”⁶⁴  As to the extent of the corruption carried on by Huntington and Stanford, the Commission reported, “ There is no room for doubt that a large portion of $4,818,535 was used for the purpose of influencing legislation, and preventing the passage of measures deemed hostile to the interests of the company, and for the purpose of influencing elections.”⁶⁵

During all of these years, Field was intimate with Stanford and frequently, when Stanford was a United States Senator, dined at his house in Washington.  In the writings of Justice Bradley there is published a letter, dated March 23, 1891, from Justice Field to Senator James G. Fair, a California millionaire, stating that he (Field) had dined the previous evening at General Schofield’s, and that among those present were the President, Chief Justice Fuller, Senators Stanford, Sherman and many other high functionaries.⁶⁶

While on the subject of the corrupt methods of Stanford it will be pertinent to refer here to the report of the San Francisco Grand Jury, of August, 1891.  This body called the “Wallace Grand Jury,” was impaneled under Judge Wallace to investigate municipal corruption, particularly the debauching of politics by the Southern Pacific Railway.  Gage refused to testify, as did other railway directors, and Buckley, the political boss of San Francisco, fled from the Grand Jury’s jurisdiction.  When Stanford was summoned to testify, the Supreme Court of California was instantly appealed to by the railroad’s lawyers.  That court, by a vote of four to three, held that the Grand Jury was improperly constituted, “ because of an irregularity in the appointment of the elisor.”⁶⁷

A Virulent Attack by Justice Field.

The other occasion on which Justice Field’s course aroused critical comment was in the case of an eleven-league tract in California held by the San Jacinto Tin Company, the Riverside Canal Company and the Riverside Land and Irrigation Company.

This tract was confirmed to de Aguirre by the Board of Land Commissioners and the District Court in 1867.  In 1883 the Attorney General of the United States brought suit to have the patent declared void.  The Government alleged “ that throughout the whole transaction, from the beginning of the effort to have this survey made until its final completion and the issue of the patent, all of the proceedings were dictated by fraud and all of the officers of the government below the Secretary of the Interior who had anything to do with it were parties to that fraud and to be benefited by it.”  The Government set forth that Surveyor-General Upson ;  his chief clerk, Conway ;  Thompson, the deputy surveyor for California, and Joseph H. Wilson, the Commissioner of the General Land Office, knew that the tract contained tin ore, and that they “ were all interested and part owners of the claim at the time this survey was made, and at the very time they acted in reference to its final confirmation.”

Yet the Supreme Court of the United States (Justice Miller writing its decision) accepted the depositions and reports of the very officials who had thus been implicated !  Wilson had made a “ full report,” the Supreme Court said, in 1867, and this report it assumed to receive as authentic, notwithstanding the fact that the Government now showed Wilson to have been interested.  The Supreme Court pretended not to go behind the formal, official acts of the Government officers disclosed as promoters and beneficiaries of the fraud.  It thus consistently followed the long line of precedents begun by Marshall in ignoring motives and acts of fraud and corruption.  Although conceding that Conway had bought the claim, and had organized a corporation to mine tin ore, the Supreme Court, nevertheless, held that the fraud was not proved, and on March 19, 1888, decided against the Government.⁶⁸

Justice Field, however, was not content with concurring in this decision.  He went out of his way to indulge in a savage attack upon the Attorney-General, accusing him of bringing the suit at the instigation of a third party and of using the Government machinery for ulterior reasons.⁶⁹  It was remarked that if the Supreme Court took the position that it was not at liberty to inquire into motives of legislature or official, no matter what fraud or corruption lay behind, what right had a Supreme Court Justice to take advantage of his power to assail the motives of the Attorney-General ?

Lamar Succeeds Matthews.

The last appointment to the Supreme Court made during the period when Waite was Chief Justice seemed to provoke almost as much criticism as that of Stanley Matthews.  As Woods’ successor as Associate Justice, President Cleveland in 1888, appointed Lucius Q.C. Lamar of Mississippi.  Born to 1825, Lamar had been in Congress in 1857-1861, had served in the Confederate military and diplomatic service, was a member of Congress after the Civil War, and was elected a United States Senator in 1873.  In the Senate he was chairman of the Standing Committee on the Pacific railroads ;  and he had, as we have related, been the principal supporter of Matthews’ bill in favor of the Texas Pacific Railroad.  Even his eulogistic biographer describes his zeal in working for the interests of that railroad.⁷⁰ In addition to being the chief and indefatigable pusher of Texas Pacific Railroad measures, Lamar was an extensive railroad stockholder and a director of the Mississippi Central Railroad.⁷¹

The Prevailing Corruption.

A sufficient indication of the corruption used by both the promoters and the antagonists of the Texas Pacific Railroad bill was supplied by the subsequent publication of the celebrated Colton letters written by Collis P. Huntington to his confidant and one of his partners, General David D. Colton.  Scott, of the Pennsylvania Railroad, then controlled the Texas Pacific Railroad project, while Huntington was one of the Central and the Southern Pacific railroads group.  These two sets of capitalists came into collision over the division of the spoils of the Southwest.  Both caused bills to be introduced and each sought to corrupt Congress.

“ Scott,” wrote Huntington, on January 29, 1876, “ is making a terrible effort to pass his bill, and he has many advantages with his railroad running out from Washington in almost every direction, on which he gives Free Passes to everyone who can help him ever so little.  It has cost money to fix things, so I know his bill would not pass.  I believe with $200,000 we can pass our bill.”  On March 6, 1876, Huntington wrote that “ the Railroad Committee of the House was set up for Scott, and it has been a very difficult matter to switch a majority of the Committee from him, but I think it has been done.”

To one of his associates Huntington wrote further, on November 11, 1876, “ I am glad to learn that you will send to this office $2,000,000 by the first of January.”  Huntington, in one of this series of letters, dated December 17, 1877, wrote :  “Jay Gould went to Washington about two weeks since and I know saw Mitchell, Senator from Oregon.  Since which time money has been used very freely in Washington. . . . Gould has large amounts in cash, and he pays it without stint to carry his points.”  On May 3, 1878, Huntington informed his partners :  “ The T. and P. (Texas Pacific) folks are working hard on their bill, and say they are sure to pass it, but I do not believe it.  They offered one member of Congress $1,000 cash down, $5,000 when the bill was passed, and $10,000 of the bonds when they got them if he would vote for the bill.”⁷²  In the end both groups obtained the legislation sought ;  and that the Texas Pacific capitalists eventually succeeded was due greatly to the efforts of Senators Matthews and Lamar.

As we have seen, Senator Lamar was Matthews’ most vigorous and supple defender during the opposition to Matthews’ confirmation as Associate Justice.  First selecting Lamar as Secretary of the Interior, — the very office having jurisdiction over railroad land patents — President Cleveland had then nominated him to succeed Matthews.  Cleveland himself had been a railroad lawyer.  Three main objections to the confirmation of Lamar’s nomination were agitated :  his long disuse of legal practice, his want of judicial experience, and his notorious activity as a railroad legislator.  It is needless to say that his nomination was confirmed.

The Railroad Power in Control.

All except two of the Justices now constituting the Supreme Court of the United States had been active railroad attorneys or railroad stockholders, directors or legislative railroad lobbyists.  The Supreme Court as absolutely reflected the dominant section of the capitalist class as it did during the eras of the control by the landed interests and the slave power.

From 1879 to 1884 the stupendous amount of $3,36o,000,000 of new railroad securities had been listed.  Edward Atkinson, a conservative political economist, testified before the United States Senate (“ Cullom ”) Committee in 1886, that the railroads formed about one-fifth of the total wealth of the country.  As early as 1870 the railroad magnates had begun to form pools for the partition of traffic and to maintain rates at a certain point.  The organization by the railroad power of the Southwestern Railway Rate Association and, in 1884, of the Western Freight Association called forth the charge by the middle-class business elements that they were conspiracies to restrain trade and to fix extortionate rates.  This was true ;  but the essence of the situation was that the capitalist system was in a state of transition from the old competitive stage to a newer state of centralized control and operation.  Nevertheless, the still powerful middle class sue seeded in getting anti-pool and anti-trust laws passed by Congress.  In this great duel between the two classes everything then depended upon the construction that the Supreme Court of the United States would put upon those laws.

Dying, Waite is Rushed to the Court Room.

For a considerable time Chief Justice Waite had suffered from ailments arising from the liver and spleen, complicated with a painful stomach trouble.  In March, 1888, he was obviously in a sinking condition.  But certain cases concerning a great contest over the priority and legality of the Bell Telephone patent were to be decided ;  and in order that Waite’s vote should not be lost the extraordinary step was taken of rushing a dying man to the Supreme Court chambers.

The principal competitor of the Bell Telephone was the Pan-Electric Telephone Company.  This company charged its opponents, the Bell Telephone Company, with having resorted to a campaign of bribery by means of money or gifts of stock, in order to get its patent claims, laws, franchises and decisions.  On the other hand, the testimony before a Congressional Committee showed that to get the Government officials to move in the courts for the vacating of the Bell patents, large blocks of stock were distributed by the Pan-Electric Telephone Company to influential Representatives and Senators, some of whom became directors of the company.  It was also charged that United States Attorney-General Garland, who had the practical power of deciding whether or not suits to vacate the Bell patent should be brought, held $10,000,000 of Pan-Electric stock for which he had not paid a dollar.⁷³  In fact, a contract was produced before the Congressional Committee proving that on August 4, 1875, the Pan-Electric Company and the National Improved Telephone Company of Louisiana had agreed in writing that they would begin suit against the American Bell Telephone Company, provided they could obtain the assent of the Attorney-General of the United States.⁷⁴

The Telephone Cases Decided.

There were five actions against the American Bell Telephone Company, revolving around the point whether Bell or Dollbear was the inventor of the telephone.  When the decision favorable to the Bell patent was reached, only eight Justices were on the bench, Lamar not having taken his seat when the long and complicated arguments had been made.  Of the eight, Justice Gray refrained from taking part because of interest.  This left seven Justices, of whom Waite, Miller, Blatchford and Matthews concurred in a majority opinion favorable to Bell.  Bradley, Field and Harlan dissented from some of the conclusions reached by the majority.⁷⁵

“ The telephone decision,” says a contemporary account, “ had been written by the Chief Justice, but he was too ill to read it from the Bench, and that duty was, therefore, performed by Justice Blatchford.  Special care was taken that no evidence of the Chief Justice’s illness should appear, and none of the throng that heard the decision read suspected the real reason why it was announced by Justice Blatchford.  As soon as possible after the reading, Justice Waite left the Bench, and was hurriedly driven home. . . . He went to bed and since then has been a very sick man.”⁷⁶

The Chief Justice died on the very day on which this account was published — March 23, 1888.  He had lived in rather aristocratic style in Washington.  After his death the newspapers reported that his estate was so small that members of the Washington Bar and others deemed it advisable to raise a fund for his widow.

1 Rhodes’ “ History of the United States, 1850-1877,” Vol. VII : 27.

2 Merriam’s “ Life and Times of Samuel Bowles,” Vol. II: 231.

3 Cushing was then appointed Minister to Spain, serving from 1874 to 1877.  He, Williams and Waite had been counsel for the United States before the Geneva tribunal of arbitration, in 1871-72.

4 VI Wallace’s Reports, 742, 750, 751, etc.  Russell Sage was president of the Milwaukee and Minnesota Railroad.  For the specific account of the enormous frauds committed by the men controlling those railroads in issuing fraudulent bonds to themselves and in profiting from fraudulent foreclosure sales, see, “ History of the Great American Fortunes,” Vol. III. Chapter I, citing from legislative and court records.  Sage was allied with Jay Gould in many railroad and telegraph company operations.  At the time that Russell Sage was president of the Pacific Mail Steamship Company, in 1872-1873, that company had bribed (as we have already narrated, through Congress, by means of $1,000,000 in bribes, an act giving it an additional mail subsidy of $500,000 a year for ten years.

5 See, I Ohio State Reports, 628 ;  VIII Ibid., 468; XII Ibid., 605, etc.

6 See, Case of Platt vs. Eggleston, XX Ohio State Reports, 417.

7 See, X Ohio State Reports, 272 ;  Ibid., 163; XXII Ibid., 575 ;  XXV Michigan Reports, 329, etc., etc.

8 Case of Charles Butler vs. City of Toledo, V Ohio State Reports, 225.

9 Sutliff vs. Cleveland and Mahoning Railroad Company, XXIV Ohio State Reports, 147-150.  Sutliff was long a close personal friend of Chief Justice Chase ;  they corresponded regularly and intimately, Schuckers says.

10 See, Case of Mull, Administrator, vs. Southern Michigan Railroad Company, X Ohio State Reports, 272-277.

11 Case of Toledo Bank vs. John R. Bond (Treasurer of the City of Toledo), I Ohio State Reports, 622-703.  But we have described in Chapter XI how the Supreme Court of the United States, in 1855, declared the Ohio act of 1851 unconstitutional, and how, in a dissenting opinion, Justice Campbell denounced the decision, and described how the corporate money interest was dominant in Ohio.  Chief Justice Bartley seems to have been exempt from that domination.

12 Bliss et at. vs. Kraus, XVI Ohio State Reports, 58.

13 Hubbard vs. City of Toledo, XXI Ohio State Reports, 379-401.

14 “ Poor’s Railroad Manual,” 1868-1869 : 163, and Ibid., 1869-70 : pp. 184 and 362.

15 After Payne was elected to the United States Senate, in 1884, a subsequent Ohio Legislature petitioned the United States Senate for an investigation.  Upon completing an examination of sixty-four witnesses, the Ohio House of Representatives declared that Payne’s seat in the United States Senate “ was purchased by the corrupt use of money,” and the Ohio Senate likewise resolved.  The specific testimony showed that the Legislature had been debauched with corrupt funds.—See, Report No. 1490, U.S. Senate, Forty-ninth Congress, 1886, and see a complete account from the records in Lloyd’s “ Wealth vs. Commonwealth,” pp. 373-382.

16 “ Poor’s Railroad Manual ” for 1869-1870 : p. 26.

17 The full correspondence between General and Mrs. Grant and William H. Vanderbilt is published in Appendix F in Croffut’s “The Vanderbilts,” 294-297.

18 Case of Township of Pine Grove vs. Talcott, XIX Wallace’s Reports, 678.  The note on the record reads :  “ The Chief Justice did not sit in this case, and took no part in its decision” (p. 679).  Justices Miller and Davis dissented.

19 Reference has been already made to the report of a Select Committee of Congress appointed to investigate alleged corrupt combinations of members of Congress, and how that committee recommended the expulsion of four prominent Congressmen as having been at the head of corrupt combinations to influence legislation.  (Reports of Committees, 1856-1857, Vol. III, Report No. 245.)  Thirty distinct land-grant acts were passed by Congress in the year 1856.

20 This $800,000 in bribes, according to the report of the joint Legislative Committee of 1858, had been thus distributed :  A total of $175,000 in bonds had been given to thirteen specified State Senators ;  $355,000 in bonds was used to buy seventy specified Assemblymen ;  $50,000 in bonds had been given to Governor Coles Bashford ;  $16,000 to other State officials, and $246,000 to certain specified editors and other persons.

21 It may be observed here that Justice Field’s brother, David Dudley Field, was at this time representing the Central Railroad of Georgia and other railroads in cases before the Supreme Court of the United States.— See, 92 U.S. Reports, 666, etc.  But a few years before, David Dudley Field had been the chief attorney pleading for the fraudulent transactions of Jay Gould and James Fisk, Jr.

22 XXI Wallace’s Reports, 44.  One of the railroad’s attorneys was John C. Spooner, for a long period United States Senator from Wisconsin, and one of the most adroit and conspicuous members of that body.

23 See details later in this chapter.

24 Reports of Committees, Credit Mobilier Reports, Forty-second Congress, Third Session, 1872-73, Doc. No. 78 ; xiv-xx.

25 See, Doc. No. 78, Credit Mobilier Investigation, xvii.

26 U.S. vs. Union Pacific Railroad, 98 U.S. Reports, 620.

27 Union Pacific Railroad vs. U.S., 99 U.S. Reports, 402.

28 Report of Pacific Railway Commission, Vol. I : 192.

29 Ibid.

30 Report of the Pacific Railway Commission, Vol. I : 147.

31 Ibid.

32 U.S. Reports, 733.

33 Ibid.  The italics are mine.— G.M.

34 Ibid.

35 U.S. vs. Throckmorton et al., 98 U.S. Reports, 69.

36 U.S. vs. Teschmaker, Howard et al., XXII Howard’s Reports, 395.

37 U.S. vs. Throckmorton, 98 U.S. Reports, 61-71. (October, 1878.)

38 Case of Palmer vs. Low, 98 U.S. Reports, I-19.

39 In the Presidential election of 1876, the result as to whether Hayes or Tilden was elected was uncertain.  Each side charged fraud, and the vote of certain reconstructed States was the deciding factor.  An Electoral Commission, composed of five Senators, five Representatives, and five Associate Justices of the Supreme Court of the United States, was created to decide the election.
     The New York Sun, a supporter of Tilden, reiterated the charge that after Justice Bradley had prepared a written opinion in favor of the Tilden electors in Florida, he had changed his views during the night preceding the vote in consequence of pressure brought to bear upon him by Republican politicians and Pacific Railroad magnates whose carriages, the Sun said, surrounded his house during the evening.  On September 2, 1877, Bradley wrote to the Newark Advertiser denying “ the whole thing as a falsehood.”  “ Not a single visitor called at my house that evening. . . ”  The charge, Bradley added, was “ too absurd for refutation.”  (“Miscellaneous Writings of the Late Joseph P. Bradley,” etc., p. 221.)  Evidently the Sun sought to convey the idea that Hayes was backed by railroad grandees.  So he was.  But Tilden, too, had the support of many of them ;  he was one of the most prominent of railroad attorneys, and an extensive holder of railroad stocks.

40 See, Stevens et al. vs. Louisville and Nashville Railroad Company, U.S. Courts Reports, Sixth Circuit (Flippin), Vol. II : 716, etc.  This railroad dominated politics in Kentucky and Tennessee.

41 Ibid., 673.

42 “ Poor’s Railroad Manual ” for 1880 : p. 492.

43 In a case concerning this railroad he was disqualified from sitting, having been of counsel in the case.—IV Supreme Court Reporter, 259.

44 XIX Ohio State Reports, 226, etc.

45 The Congressional Record, Vol. 7, Part 2, Forty-fifth Congress, Second Session, 1878 : p. 1852.

46 Ibid.

47 This telegram was published in the New York Times and other newspapers at the time.

48 Published February 23, 1881.

49 As illustrative of the railroad interests of a majority of the Senators, the case of Senator William B. Allison, of Iowa, may be mentioned.  When a member of Congress, in 1867, Allison had been vice-president of the Sioux City and Pacific Railroad, which had received a land grant of one hundred sections, and $16,000 of Government bonds for each mile of railroad.  In the construction of this railroad, the sum of $4,000,000 was fraudulently appropriated.  By an act lobbied through Congress, in 1900, when Allison was still a powerful Senator, the Sioux City and Pacific Railroad Company was virtually released from paying back more than one-tenth the sum it still owed the Government.—Ex. Documents Nos. 181 to 252, Second Session, Fortieth Congress, 1867-68, Doc. No. 203 ;  Report of Pacific Railway Commisslon, Vol. I : 193, etc.

50 Appleton’s “ Annual Cyclopedia ” for 1881 : p. 194.  Considering that long previously the Senate had established an unwritten rule that no objection should be made to any appointee who had been a member of the United States Senate, and that his appointment should be promptly confirmed on the ground of “ Senatorial courtesy,” this contest over Senator Matthews’ appointment was unprecedented and remarkable.

51 Such a stricture seems justified by these and other anecdotes related of him when he was a judge and Chief Justice of the Supreme Court of Massachusetts :
     “ At the trial of a certain case Judge Gray suddenly summoned a man to appear at a particular stage of the proceedings.  The man responded promptly and appeared in the court room attired as at his work bench, in his shirt sleeves.  Judge Gray, after commenting severely upon such disrespect to the court, waived the urgency of the pending cause, and directed the man to go home and put himself in the proper garb for the humble part which he was to take in the doings of the august tribunal.”  (New York Times, December 20, 1881.)
     “ His tirades,” said the Washington correspondence of the Philadelphia Press, “ against trembling deputy-sheriffs and frightened witnesses have been told over and over again.  Only two lawyers in Boston have ever been able to turn the tables on him.  One was Henry E. Payne ;  the other Sidney Bartlett.  ‘ If your honor please—’ said Payne one day, beginning a motion.  ‘ Sit down, sir ;  don’t you see that I am talking with another Justice ? ’ thundered the Chief Magistrate.  Mr. Payne took his hat and walked out of the courtroom.  A half-hour afterward a messenger reached his office with a note saying that Judge Gray was willing to hear him.  ‘ I am not willing to be heard, answered the old lawyer, until Judge Gray apologizes.’  And apologize the judge had to.
     “ ‘ Mr. Bartlett,’ said the Chief Justice one afternoon, throwing himself back in his chair, ‘ that is not law and it never was law.  The veteran smiled, and looking over the bench said, ‘ It was law, your Honor, until your Honor just spoke.’ ”—Republished in the New York Times, issue of March 13, 1882.

52 President Arthur had first offered the appointment to United States Senator Roscoe Conkling of New York.  Conkling was one of the counsel for the New York Central Railroad.  (See, XXII Wallace’s Reports, 621, etc.)  After Conkling declined the appointment, Arthur offered it to Senator Edmunds, who, as we have seen, was also a noted railroad attorney.  Upon Edmunds’ declination, Blatchford was appointed and he accepted.

53 Case of Curtis vs. Leavitt, Barbour’s Supreme Court Reports (N.Y.), Vol. XXVII: 312-378. (Dec., 1853.)

54 Jenkins’ “ Political History of New York ” (Edition of 1849) : pp. 378-380.

55 Reports of Committees, Thirty-third Congress, First Session, Vol. III : Rep. No. 352 : 30.  For full details from the official documents see “ History of the Great American Fortunes,” Vol. III : pp. 24-25, 44, etc.

56 Stimson’s “ Express History,” 75, 462, etc.

57 Thus, to give four examples :  Clarence A. Seward represented William B. Dinsmore, president and treasurer of the Adams Express Company (XXXIV Howard’s Practice Reports [N.Y.], 1868 : p. 421), and with Benjamin R. Curtis, former Associate Justice of the Supreme Court of the United States, he represented the same corporation in Ellis vs. Boston, Hartford and Erie Railroad (107 Mass. Reports, 15 : 1869).  Seward represented the Adams Express Company in the suit of Caldwell against that company (XXI Wallace’s Reports, 143) and he was counsel for the Southern Express Company in the action of Vermilye and Company against that corporation (XXI Wallace’s Reports, 2615).  Many other instances could he given.

58 This item is one of many signifying the political debauchery by corporations :  The New York Legislative Insurance Committee, in its extensive report in 1906, stated that for many years the Equitable Life Assurance Society had been giving $30,000 annually to the New York State Republican Committee (controlled by Platt) and that all of the other insurance companies variously did the same, contributing to the campaign funds of both the Republican and Democratic parties, State and National.—Vol. X: 10, 62, etc., etc.

59 In the Chicago Lake Front case affecting the Illinois Central Railroad’s title, Blatchford could not sit because he owned stock.  For the Tennessee Bond Cases, see, V Supreme Court Reporter, 995.

60 “ Land Titles in New Mexico and Colorado,” House Reports, First Session, Fifty-Second Congress, 1891-92, Vol. IV : Report No. 1253.  (Committee of Private Land Claims.)

61 House Reports, 1891-1892, Vol. IV, Report No. 1353 : 7.

62 See the bill of particulars reciting the history of the frauds in VII Supreme Court Reports, 1017, and 121 U.S. Reports, 327.

63 The full narrative of this grant, thus validated to comprise a colossal area, is related in the “ History of the Great American Fortunes,” Vol. III: 324-334.

64 Report of the Pacific Railway Commission (Ex. Doc. No. 51, Fiftieth Congress, First Session), Vols. I and II : 121, and Vol. VII: 4215.

65 Ibid., Vol. I : 84.

66 “ Miscellaneous Writings of Joseph Bradley,” pp. 350-351.  The purpose of the letter was an enquiry concerning the effectiveness of hydraulic mining, over which an academic discussion had taken place at the dinner.

67 See, Report of Wallace Grand Jury, contained in “ Report on the Causes of Municipal Corruption in San Francisco,” etc.  Published by Order of the Board of Supervisors, etc., San Francisco, 1910 : p. 9.  In this document, comprising the full report of the Oliver Grand Jury of 1908, the presentment of the Wallace Grand Jury is reprinted.

68 125 U.S. report, 288.

69 Ibid., 307.

70 Mayes’ “ Lucius Q.C. Lamar, His Life, Times and Speeches, 1825-1893.”  Mayes tells how Lamar supported the measures for the benefit of that railroad and quotes a laudatory account, written by William Preston King in 1879, which went the rounds of the press :  “ Senator Lamar has been recognized as the zealous friend of all measures for internal improvements in the South, especially improvements of the levees of the Mississippi and for the Texas Pacific Railroad.  He has been a very effective and eloquent champion of this last-named enterprise.”— p. 372.
     An examination of the record shows that Lamar made the principal speech for the Texas Pacific Railway.  Pointing out that the Northern Pacific Railroad had received about 47,000,000 acres of land, and the Union and the Central Pacific roads 50,000,000 acres, he pleaded that the Texas Pacific should be allowed to retain its land grant of 18,000,000 acres.—The Congressional Record, Vol. 7, Part 4, Forty-fifth Congress, Second Session, 1878 : II. 3653-3658.

71 “ Poor’s Railroad Manual,” for 1869-70 : p. 18.

72 The original name of the company was the Texas Pacific ;  later it was changed to read Texas and Pacific Railway Company.  There were a large number of the Colton letters :  they came to light in a lawsuit arising over the plundering of Colton’s estate by Huntington, Stanford and Crocker, and were published in a pamphlet, “Driven From Sea to sea ” by C.C. Post.  “It is impossible,” reported the Pacific Railroad Commission (Vol. I : 121), “ to read the evidence of C.P. Huntington and Leland Stanford and the Colton letters without reaching the conclusion that very large sums of money have been improperly used in connection with legislation.”

73 See, House Miscellaneous Documents, Forty-ninth Congress, 1885-86, Vol. XIX.—“ Testimony taken by the Committee Relating to the Pan-Electric Telephone Company.”

74 Ibid., 574.  Isham G. Harris, for many years a United States Senator from Tennessee, was Vice-President of the Pan-Electric.  Telephone Company.

75 126 U.S. reports, 531.

76 Washington despatch, New York Times, March 23, 1888.