S u m m e r 2003 $5

F_521_l48_VOLl 5_N03 INDIANA HISTORICAL SOCIETY BOARD OF TRUSTEES Michael A. BLICKMAN, Indianapolis, Second Vice Chair Frank A. Bracken, Indianapolis Edward E. Breen, Marion, First Vice Chair Dianne J. Cartmel, Brownstown Patricia D. Curran, Indianapolis Edgar G lenn Davis, Indianapolis Daniel M. Ent, Indianapolis Richard E. Ford, Wabash R. R ay Hawkins, Carmel T homas G. H oback, Indianapolis L arry S. L andis, Indianapolis PollyJ ontz Lennon, Indianapolis J ames H. Madison, Bloomington Mary Jane Meeker, Carm el J anet C. Moran, H am m ond Andrew W. N ickle, South Bend George F. Rapp, Indianapolis Robert L. Reid, Evansville Bonnie A. Reilly, Indianapolis Evaline H. Rhodehamel, Indianapolis, Secretary Lan M. Rolland, Fort Wayne, Treasurer Michael L. Westfall, Fort Wayne, Chair William H. Wiggins J r., Bloomington

ADMINISTRATION Salvatore G. CilellaJ r., President Raymond L. Shoemaker, Senior Vice President Annabellk J. J ackson, Controller Susan P. Brown, Director, Human Resources Linda L. Pratt, Vice President, Development and Membership Brenda Myers, Vice President, Marketing and Public Relations Dara Brooks, Director, Membership Carolyn S. Smith, Membership Coordinator

DIVISIONS Stephen L. Cox, Vice President, Public Programs T homas A. Mason, Vice President, IHS Press

TRACES OF INDIANA AND MIDWESTERN HISTORY T homas A. Mason, Executive Editor Ray E. Boomhower, Managing Editor Kathleen M. Breen, Assistant Editor George R. Hanlin, Assistant Editor J udith Q. McM ullen, Assistant Editor WHAT’S NEXT? CONTRIBUTING EDITORS M. T eresa B.aer Douglas E. Clanin Pau ia J. CORPUZ L eigh Darbee

PHOTOGRAPHY David T urk, Photographer Susan L. S. Sutton, Coordinator

EDITORIAL BOARD Edward E. Breen, Marion H oward C. Caldwell J r., Indianapolis J ames A. Coles, Indianapolis Ralph D. G ray, Indianapolis J ames H. Madison, Bloomington Dale O gden, Indianapolis Lester M. Ponder, Indianapolis Robert L. Reid, Evansville Eric: T. Sandweiss, Bloomington T he fall 2003 issue of Traces Bernard W. Sheehan, Bloomington Richard S. Simons, Marion explores the career of Hoosier actress Anne Baxter. The William H. Wiggins J r., Bloomington Oscar-winning actress from Michigan City thrilled fans for DESIGN R. Lloyd Brooks years with roles in such classic films as All about Eve and Thrive, Inc. The Ten Commandments. The issue also features articles PREPRESS AND PRINTING Graphic Arts CENTER/Indianapolis on a Vietnam veteran’s return to the country where he IHS WORLD WIDE WEB PAGE served as a Green Beret, the Lockefield Gardens housing http://www.indianahistory.org development in Indianapolis, the career of baseball legend Gil Hodges, and mint farming in northern Indiana. Traces of Indiana and Midwestern History (ISSN 1040-788X) is published quar­ terly and distributed as a benefit of membership by die Indiana Historical Society Press; editorial and executive offices, 450 West Ohio Street, Indianapolis, Indiana 46202-3269. Membership categories include Student $10, Individual $35, Family/Dual $50, and Sustaining $100. Single copies are $5.25. Periodicals postage paid at Indianapolis, Indiana; USPS Number 003-275. Literary contri­ butions: A brochure containing information for contributors is available upon request. Traces accepts no responsibility for unsolicited manuscripts submitted without return postage. Indiana newspaper publishers may obtain permission to reprint articles by written request to the Press. The Press will refer requests from other publishers to the author. ©2003 Indiana Historical Society Press. All rights reserved. Printed on acid-free paper in die United Stales of America. Postmaster: Please send address changes to Traces ojIndiana and Midwestern History, Indiana Historical Society Press, 450 West Ohio Street, Indianapolis, Indiana 46202-3269. Traces is a member of the Conference of Historical Journals. SUMMER 2003 VOLUME FIFTEEN, NUMBER THREE VOI..15 no.3

The Rule of Law 3 Sarah Evans Barker

Beauty and Utility: The United States Court House and Post Office 4 Elizabeth Brand Monroe, Andrew R. Seager, and Perry R. Secrest

A Century of Change: Indiana’s Women Lawyers 14 Sharon Hannum Seager

Traveling Justice: Judges Riding the Circuit Suzanne Buchko

Walter Q. Gresham: Law, Politics, and Diplomacy in the Nineteenth Century 25 Charles W. Calhoun

For Human Rights: Slave Cases and the Indiana Supreme Court Randall T. Shepard

An Echo of the War: The Aftermath of the Ex parte Milligan Case Allen Sharp

Front Cover: One of the four granite statues located at the Ohio Street entrance to the United States Court House and Post Office in Indianapolis. The statues were sculpted by J. Massey Rhind. In addition to the Literature statue pictured on the cover, the courthouse features statues named Industry, Science, and Agriculture. Credit: Shawn Spence Photography. O pposite: Michigan City-born actress Anne Baxter strikes a sultry pose for a movie studio publicity photograph. Credit: Courtesy David L. Smith.

THE RULE OF LAW SARAH EVANS BARKER

“B e you never so high, the law is above you.” United States Constitution created strong incentives for This proverb captures one of the cornerstone judicial independence and competence. Second, the principles of our democracy—the rule of law. More federal courts were granted jurisdiction over two types of than a preference for law over the dictates of men, cases: state law cases between citizens of different states, this maxim espouses the primacy of the rule of law. in order to counter possible state-court biases, and cases Even the wisest of constitutions, bills of rights, and arising under federal laws and the Constitution, in order statutes would be dead letters without an independent to promote a national perspective and uniformity of judiciary to interpret and apply them and vigorous procedure and interpretation of federal laws. Federal lawyers to advocate for their just implementation. judges thus had both insider and outsider roles in the The vibrancy of the bench and bar allows onr courts, development of Indiana’s legal history. In “diversity of as the law’s arbiters of last resort, to peacefully resolve citizenship” cases they followed Indiana precedents, but disputes often involving the most controversial and in “federal question” cases they were empowered to divisive issues of the day with a finality adm ired enforce federal laws that occasionally ch an g ed state law. and respected throughout the world. The significance Like all institutions, courts are also shaped by the of these institutions underscores the need for personalities of the people who serve there, and fed­ preserving the legal history of our state. Our goal in eral judges in Indiana have been drawn from the this issue of Traces is to muster a modest sampling of ranks of her own citizens. Thus, despite structural, important and interesting aspects of that history, with jurisdictional, and procedural differences between a leaning toward the federal judiciary, whose the federal and state courts, district judges inevitably Indianapolis courthouse marks its centennial this year. brought with them perspectives gained from growing The history of the federal judiciary in Indiana is older up, living, and working as Hoosiers. than the state itself. At the birth of our nation, justice In this issue you will read about Ex parte Milligan, the in the territory northwest of the Ohio River was admin­ most famous federal case in Indiana history, one that istered by a territorial court of three federal judges. is receiving renewed attention in today’s antiterrorism In 1800 most of the land west of the present state of climate. A portrait is sketched of Walter Q. Gresham, Ohio was separated into what was called the Indiana whose term as district judge began in 1869, followed Territory, the first use of that name. The new Indiana by appointment to the United States Court of Appeals, territorial court held its first session in the territorial and whose career ultimately spanned all three branches capital of Vincennes in 1801. In 1805 the Michigan of government. A history of Hoosier women in the legal Territory was formed, followed by the Illinois Territory system, slave cases handled by the Indiana Supreme in 1809. In 1816 Indiana became a state, and three Court, and judges riding circuit are also surveyed. months later in 1817 the United States District Court for We lead off with a description of the ‘jewel in the the District of Indiana came into being. crown” of federal courthouses in Indiana: the United The federal judiciary differed from its state counter­ States Court House in Indianapolis. It is an exquisitely part in two fundamental beautiful and dignified edifice of which we are all proud. respects. First, by appointing The centennial anniversary of our courthouse provides judges with the concurrence the occasion for this issue of Traces. We hope that this of the executive and legisla­ review will prompt you to join in this historic celebration. tive branches, who served with Sarah Evans Barker is judge of the United States District lifetime tenure and an irre­ Court for the Southern District of Indiana. She also serves as vocable compensation, the liaison to the court’s historical society.

TRACES Summer 2003 3

TRACES Summer 2003 5 Beauty and Utility

“It would be difficult for us to point to a m odern building in the architecture of which there is more v ita lity. The tradition of the Renaissance seems to be alive and rejuvenescent."

As the large Indiana-limestone cornerstone swung confirmation of Indiana’s and Indianapolis’s growth in from a derrick, the highest levels of Indiana’s leadership commerce, population, and national importance. gathered on the northeast plinth of the construction, Representative Overstreet, who had been instrumental waiting for the parade to arrive and the solemnities to in obtaining the appropriations for the construction, begin. Both of Indiana’s senators, Charles W. Fairbanks expressed the feeling of many that day:

Left: This formal view of the United States Court House and Post Office, It is fitting that in architecture, convenience and equipment taken in 1913, illustrates well its architectural features, including its this edifice should meet the demands of the future as well as columns, window arrangements, and terrace. Center: Pedestrians and the needs of the present. Erected upon a magnificent site, motorists rush past the building's west entrance on Meridian Street in unexcelled in the country, the beauty of the structure will be 1921. Right: Crowds watch the cornerstone-laying ceremonies on 25 equal to its utility, and both will be as lasting as time. The char­ March 1903. acteristics of beauty and utility can be appropriately applied to and Albert J. Beveridge, were there, as were Repre­ our city within which this building will stand. It is a city of an sentatives Jesse Overstreet and James A. Hemenway, industrious, honest and energetic people. A city of homes, and United States district judge Albert B. Anderson, former churches, and schools, within which truth, thrift and patrio­ minister to Austria-Hungary Addison C. Harris, United tism are taught. We are highly honored and complimented by States district attorney Joseph B. Kealing, Commercial this act of the Government and shall take an honest pride in Club of Indianapolis president Frank Gavin, and our share of the business which may be here transacted. Our Indianapolis mayor Charles A. Bookwalter, among people will be benefited by the building and its business, and others. It was clearly an event of extraordinary impor­ the Government will not suffer by the confidence imposed. tance, for the community was planning more than the addition of a grand architectural ornament to the city After extolling the contributions of the new building’s and the state; the building was also to be a powerful largest tenant, the post office, to the growth of the

6 T R A C E S Summer 2 00 3 Beauty and Utility commercial and intellectual life of the country and the state, centralize the administration of the rapidly growing federal Harris, the day’s chief orator, connected the new building construction program. Famed Hoosier architect Francis with the recently completed Soldiers and Sailors Monument, Costigan served for a time as supervisor of construction for the which was visible just a block away. The courthouse, he said, project. The new building was in die Italian Renaissance palazzo “when completed, will stand in presence and purpose a fit style, which Young adopted for most of the buildings he companion to the monument. The one stands for patrio­ designed for the Deparunent of the Treasury. He preferred the tism and the other will stand for justice. While these stand style pardy because of the sense of quiet dignity it conveyed and for the virtue they represent, bearing aloft every day partly for reasons of economy: the palazzo form allowed the the banner of liberty, our country will stand united by building to nearly fill the lot, unlike other popular styles that the trinity of justice, knowledge and liberty.” Though called for setting buildings back from the street and from their , 215 ollection C ompany C hoto P ass IHS, B completion of this new home for the federal government in neighbors. With the completion of the structure, all local Indiana would be two years away, those assembled eagerly offices of the federal government were housed for the first anticipated “a structure which,” Gavin promised, “will be a time under one roof. The post office occupied the ground credit and an honor to both the State and nation.” floor and basement. On the second and third stories were he United States Court House and Post Office was only the the United States assessor, collector, district attorney, and second home of the federal judiciary in Indiana. Prior to marshal, as well as the judges and clerk of the federal courts. T1860 the federal courts in Indiana had no proper home. In response to the continuing expansion of federal Federal judges borrowed the courtroom of the Indiana Supreme business in Indianapolis, the post-office building was enlarged Court for hearings and trials and kept their offices at their res­ in 1873-74 during Alfred B. Mullett’s tenure as supervising idences. The clerk of the federal courts shared space with the architect of the treasury. Property for a further expansion Marion County clerk at the opposite end of town. was acquired in 1888, but the demand for federal office space The first United States government building in Indianapolis, was growing so rapidly that officials decided instead to build popularly called the post-office building, was built between an entirely new building on another site a block away. 1857 and 1860 at the southeast corner of Pennsylvania and Two events took place in 1893 that had a profound impact Market Streets. It was designed by Ammi Burnham Young, the on the design of the new building. The first was the popular­ Department of the Treasury’s first supervising architect, a ity of the World’s Columbian Exposition in Chicago, which position established just a few years earlier in order to created enormous interest across the nation in reviving the

TRACES Summer 2003 7 Beauty and Utility

These four mosaics, with their Greek and Roman symbols, are typical of the decorative elements found throughout the courthouse and post office. classical language of architecture and in using that language from the sidewalk. The architects, Rankin and Kellogg of to create coherent streetscapes and public open spaces. The Philadelphia, had two reasons for this siting. The first was second was passage by Congress of the Tarsney Act, which symbolic: except for the statehouse four blocks away, the authorized the secretary of the treasury to hire private archi­ federal courthouse would be the most important tects for the design of public buildings. For each building to be government building in the city and one of the largest post erected under the Tarsney Act, an architect would be offices in the country. The second reason was more mun­ chosen from among at least five competitors to prepare the dane: siting the building above street grade reduced the drawings and specifications and be responsible for local super­ slope needed for mail trucks to descend to the basement vision of construction. The design was subject to approval by loading dock. The balustrade and fountain stretching across the supervising architect of the treasury, who retained final the north terrace masked the sunken loading area from the authority. The American Institute of Architects lobbied hard for view along New York Street so that passersby saw only the for­ this new policy. Inland Architect magazine supported it “so that mal arcade of the first story. And at night even the bronze die stranger in looking for the government building will not be light standards mounted on the terrace balustrades directed to look for the worst architectural monstrosity in the highlighted the building rather than aided pedestrians. vicinity, but one to which the citizen may well point with pride.” Important architectural periodicals of the day, such as the n 1900 the United States purchased the entire block American Architect and Building News, Western Architect, and bounded by Meridian, Ohio, Pennsylvania, and New York Architectural Review, soon featured drawings and photos of Streets in Indianapolis for construction of the new edi­ the federal courthouse at Indianapolis. The Architectural fice.I Ground was broken in 1902, the cornerstone was laid in Review reported that “it would be difficult for us to point to 1903, and the building was finally completed in 1905. On 2 a modern building in the architecture of which there is more September 1905 the Indianapolis News announced that vitality. The tradition of the Renaissance seems to be alive “Indianapolis will change her postoffice address to the beau­ and rejuvenescent.” Complimenting the south terrace as “an tiful new federal building within the next two weeks.” The admirable podium” for the building’s “fine air of distinc­ article noted that some federal offices already had moved tion,” the reviewer, however, admitted that the north front was from the old building, but the official opening of the new facil­ “less pleasing” although “no less skilful.” He concluded by ity depended on “whether or not the electric fixtures are in congratulating the architects for their achievement. and connected.” Daylight streaming through the windows Much of the architectural significance of the new United of perimeter offices would suffice until the contractor installed States Court House and Post Office reflected changing lights, but workers assigned to the cavernous sorting room of concepts of office efficiency. This building included eleva­ the post office and other interior spaces needed electric tors and telephones as well as electricity. As with any lights to function. Here a modern amenity was a necessity. building intended to contain court records, the mails, and W hen th e News reporter described the new federal large amounts of cash, fireproof construction was essential. building just before its opening, he thought it “probable Further, the Department of the Treasury, charged with super­ that many will complain of walking .. . farther and climbing vising construction of new federal buildings, had determined twenty steps to buy stamps.” The latter part of that seem­ that almost all federal offices in Indianapolis would be housed ingly unremarkable statement explains why the courthouse together. Designers had to meet the varying needs of was so noteworthy in 1905. In addition to its obviously prosecutors, mail carriers, judges, pension-office clerks, monumental scale—roughly 350 feet by 170 feet and 90 feet customs officials, the United States marshal, and members tall—it was raised on a terrace, which gave it commanding of Congress, all under one very big roof. presence in a city where only a few buildings exceeded it in Other demands were aesthetic. Architects at the turn of the height and where pedestrians entered most buildings directly last century designed many, if not most, federal buildings in

8 TRACES Summer 2003 Beauty and Utility

North of the main cross corridor was the heart of the m ail fac ility, the enormous sorting room. Here elevators brought mail from the basement loading dock to be sorted and then delivered. . . . About 360 postal employees were assigned to this operation, with the 23 special delivery boys of 1905 representing m ore staff than had been needed for the ENTIRE INDIANAPOLIS POST OFFICE in 1860. the Beaux-Arts style, a name derived from the academic exercises of architecture students at the Ecole des Beaux-Arts in Paris. Composed of accurate classical ornament at a mon­ umental scale, Beaux-Arts design was ideally suited to wrap the multiple functions of the federal presence in Indianapolis. An imposing facade, a fireproofed steel skeletal frame, concrete floor slabs, and generous ceremonial and circula­ tion spaces could be embellished by the finest building materials and craftsmanship for which Beaux-Arts design was noted. The result at Indianapolis was one of the finest federal-building compositions in the early twentieth century. In addition to its national status, its local popularity inspired public architecture in Indianapolis for the next forty years. The city adopted the same style for its own house of government, the old city hall, in 1910. In addition, the parade for the 1903 cornerstone laying had unknowingly traced the boundaries of what would eventually become the largest expression of the new federal building’s influence: the four blocks stretch­ ing north from the courthouse became the grand Indiana World War Memorial Plaza of classical buildings, including the Indiana World War Memorial (1927-65) and the American Legion headquarters (1925 and 1950) and culminating in the Indianapolis-Marion County Public Library (1917). John Hall Rankin and Thomas M. Kellogg were masters of the Beaux-Arts style, that popular combination of the symbolic and practical. They had learned the principles of Beanx-Arts architecture at the Massachusetts Institute of Technolog)', home of the oldest department of architecture in the United States, where the curriculum was based on that of the Ecole des Beaux- Arts in Paris. Kellogg in addiuon had worked for seven years as drafter in the office of the most renowned Beaux-Arts archi­ tectural firm of the period, McKim, Mead and White in New York. Edward A. Crane, who joined Rankin and Kellogg in Top: The mail-sorting room, 1907. The enclosed catwalk around the 1903, had formerly worked for the supervising architect of perimeter of the room allowed postal inspectors to discreetly oversee the the treasury. After completing the Indianapolis building, mail clerks. Bottom: Postal workers and trucks in front of the north side of Rankin, Kellogg, and Crane went on to design many other civic the building, circa 1910s. Between 1936 and 1938 planners removed the structures in the classical mode, most notably the Department terrace and arcade seen here and replaced them with a wing that abutted of Agriculture buildings on the Mall in Washington, D.C. the sidewalk. In September 1905 the News reporter did not indicate what made the federal courthouse “so pleasant a thing to look on,” probably because the exterior of the building

TRACES Summer 2003 9 B eauty and Utility

Top: The Honorable William E. Steckler Ceremonial Courtroom is one of the two original courtrooms on the second floor. It was formerly known as the west courtroom

and housed the original district judge. Bottom, Left: In 1935, as part of a New Deal relief program, artist Grant Christian received a commission from the federal government to paint a series of murals on the third floor. This section is titled Mail— Transportation and Delivery.

Bottom, Right: A view of the front facade, 1999. had for a year and a half been a fixture of the Indianapolis to the limestone of the remainder of the facades. They landscape during its construction. But contemporary pho­ employed the seemingly identical Ionic columns in four ways: tographs show that the courthouse has all the hallmarks of free-standing and paired at the east and west entrances, recessed Beaux-Arts architecture: classical form, mass, details, and the at the two south entrances, engaged (attached to the wall) finest materials and craftsmanship. It is a strong design on a along the south elevation, and as pilasters along the east and raised base with projecting entrances at the southeast and west sides. Windows that appear to be the same instead vary southwest corners. Thirty-six Ionic columns, each three in form and size depending on their locations. For example, stories tall, march around the east, south, and west sides of the Chicago-sjyle windows—each with a large central sash flanked building and carry the heavy entablature and roof balustrade. by smaller ones—light the second- and third-story office spaces, Yet for all its boldness there are subtleties. The architects while on the first story an operating transom sash tops each specified a granite base, which provides a textural contrast large plate-glass window. As a further subtlety the architects

10 TRACES Summer 2003 Beauty and Utility graduated the fenestration by locating the largest and most registry office had a separate lobby near the western stairs. formal window compositions on the first floor, with each North of the main cross corridor was the heart of the mail succeeding level diminishing in size. And they entirely hid facility, the enormous sorting room. Here elevators brought the fourth floor behind the balustrade. For the most mail from the basement loading dock to be sorted and then unique spaces—the courtrooms, stairways, and mail-sorting delivered. Clerks “threw” incoming mail to tables, where other room—Rankin and Kellogg created other window schemes. clerks sorted it. Local carriers then arranged the mail for They placed the oversize stained-glass windows for the their routes and returned late in the day with outgoing mail, courtrooms and stair halls in the entrance pavilions, where their which was sorted into local and long distance, with the latter huge scale was offset by the massiveness of the pavilions them­ category sent to the basement for delivery to the railroad selves. To light the high-ceilinged sorting room they devised a depot. The News reporter anticipated that when the carriers glass-wall arcade of eleven large windows along the north facade. and clerks were all “working under [a] good head of steam,” aving said little about the exterior of the building, the about 200 men would be employed in the “great workroom” News reporter turned his attention to the interior, whose under the watchful eyes of postal inspectors stationed in beauty he felt would give the “girl who dream t that she hidden catwalks around the perimeter of the room. According dweltH in marble halls” an “at-home feeling if she happened to the post office, about 360 postal employees were assigned to stroll through it.” Marble costing $370,000 “drawn from the four corners of die earth” had been applied to floors and walls of most public spaces, while “a fortune in marble and glass mosaics” decorated the octagonal rotundas and elevator halls. If marble was the stone of choice (there are at least fifteen marbles, mostly imported, used in the building), bronze was the chosen metal. Bronze entry gates stood guard at the south entrances, and bronze interior gates closed to this operation, with the 23 special delivery boys of 1905 access to upper levels of the building on weekends when only representing more staff than had been needed for the the post office remained open. Bronze elevator cabs rose entire Indianapolis post office in 1860. behind bronze elevator-shaft grills, while bronze balustrades The second story of the federal building was less frequented lined the curving stairs and separated the gallery from the by the public, except when courts were in session. Here the well in each courtroom. Other highly decorative features, architects had provided two large corner courtrooms, each such as painted murals and stained-glass windows in the court­ two stories tall, with ample gallery seating. The News reporter rooms and art glass and stenciled domes in the stair halls, estimated the cost to decorate each courtroom at $50,000. would be installed over the next several years. Between the courtrooms, the architects had ranged three-room But the reporter noted that the architects had made beauty chambers for each judge (a resident district judge and a “rather secondary to convenience.” And convenience was of circuit-riding justice of the United States Supreme Court) with two orders: to die public and to government workers. Housing a law library accessible to both judges in the middle. The reporter so many agencies and tasks under one roof called for care­ described one of the “most striking features” of the library as ful assignment of spaces, and Rankin and Kellogg excelled the mantle “built on the liberal lines of the old Southern man­ at this. Areas with the highest traffic—the post-office lobby sion fire places.” The office of the clerk of the court, the office and mail-sorting room, for example—were located closest of die United States attorney, and witness and bailiff rooms to entrances and the loading dock; other areas with occupied the east and west wings of the second floor. occasional high traffic—such as the courtrooms—were one The designers assigned to the upper floors of the floor above. The remaining offices, less frequently visited by building the pension office, the United States marshal, the the public, found space on the third and fourth floors. Corner Secret Service, customs and revenue collectors, the rural- entrances with adjacent stairs and elevators allowed visitors mail headquarters for the central division of the United to upper floors to avoid altogether the busy first-floor cross States, and civil-service examination rooms. The top floor corridor where public post-office functions took place. was also home to the 425 railway mail clerks when they Post-office patrons could pick up mail from their boxes were not on the trains. In addition to dormitories, these or the general-delivery station, buy stamps, send packages, and men had club rooms and “marble-lined bathrooms purchase money orders at the customer windows along the equipped with beautiful nickel shower baths and porcelain north and south walls of the main cross corridor. Only the bathtubs.” Similar facilities—toilets and bathrooms and

T R A C E S Summ er 2003 1 1 B eauty and Utility , 6574 ollection C ompany C hoto P ass IHS, B

Left: The first federal building in Indianapolis stood on the southeast corner of Pennsylvania and Market Streets. After the new federal building opened in 1905, this structure served as a bank. Right: The new federal building included a spacious law library with ornate ceilings and a prominent fireplace.

“a battery of club and lounging rooms and a library”—were graduated from the Rose Polytechnic Institute and attended provided for local mail clerks and carriers in the basement. the John Herron Art Institute. Muralist Grant Christian, born hen the new United States Court House and Post near Edinburgh, Indiana, began his art studies at Herron. Office opened for business on 10 September 1905 it Sculptor David Kresz Rubins had a more traditional education, Wwas, indeed, a “palace for the people.” Curved and including studies at the Academie Julian and the Ecole des cantilevered marble stairs, decorative mosaics, gates of bronze, Beaux-Arts in Paris and at the American Academy in Rome, but and columns, walls, and floors of marble greeted a public he settled in Indianapolis and taught at Herron for several eager to see this splendid interior. Over the years, other dec­ decades. Many of his works are located in Indianapolis, includ­ orative features were added, such as the four granite seated ing the Eli Lilly monument at Crown Hill Cemetery, the statue statues in front representing industry, agriculture, literature, of young Abraham Lincoln at the Indiana Government Center, and justice; bronze lampposts along the balustrade around the and the bronze cherub that adorns the former L. S. Ayres and plaza; and four stained-glass windows for the two courtrooms. Company clock in downtown Indianapolis at Christmastime. Three decades after its construction, however, the building The McGuire and Shook addition harmonizes well with the ran short of space. Between 1936 and 1938 officials signifi­ architecture of the original wing of the federal building. cantly expanded it by constructing a northern addition, which Indeed, on tire outside, the connection is almost seamless. The extended the east and west wings and joined them together by sculptures and paintings of the New Deal period are funda­ a north wing that spanned to the edge of the sidewalk. Gone mentally different from the original artworks, however; they were the multiarched colonnade, fountain, and terrace that depict Indiana history, contemporary life, and post-office faced University Park and the basement loading docks for the subjects rather than classical and allegorical themes. post office. An expanded mail-sorting room, a new first-floor- Christian’s murals at the southwest corner of the third floor, level loading dock, and additional offices above replaced them. painted as part of the Treasury Relief Art Project, illustrate The Beaux-Arts style of the original building was continued Mail— Transportation and Delivery and Early and Present Day along the east and west elevations, but a more Palladian style Indianapolis Life. Rubins’s carvings above arches spanning was expressed on the north facade. The expansion also brought the truck entrances at the northeast and northwest corners new character to the building through its art and artists. of the addition symbolize Distribution of the Mails. The people responsible for the 1930s addition to the Some original features of the building have been lost courthouse and the art that was installed about the same forever, such as the ornate judges’ library, the courtroom time had quite different backgrounds from their predeces­ skylights, the east courtroom’s west murals, and the fourth-floor sors. All had strong ties to Indiana and all worked in Indiana club rooms and dormitories. Other decorative features, how­ professionally. In part this reflects the rising stature of Hoosier ever, have been unexpectedly rediscovered. While stripping artists and architects. Also, New Deal art and building pro­ outer layers of paint to uncover the original wall and ceiling grams encouraged the employment of local talent. colors a few years ago, restorers discovered the intricate hand- William C. McGuire and Wilbur B. Shook, architects for the painted and stenciled borders in the hallways and stairwells. addition, were both Indiana natives and established their And in 1998, while repairing a small bit of plaster damage partnership in Indianapolis (currently the Odle McGuire and from a water leak near the ceiling of the east courtroom, a Shook Corporation). McGuire was a Purdue graduate; Shook workman discovered colors under the top layer of paint.

12 TRACES Summer 2003 Beauty and Utility , , 6570 oixection C ompany C hoto P ass IHS, B

Left: This 1906 aerial view of the courthouse and post office shows its original U shape. Under construction to the right is the Knights of Pythias building, which stood where Massachusetts Avenue met Pennsylvania and Ohio Streets. Center and Right: Views of the east corridor and main cross corridor, 1906.

More colors were uncovered, and eventually an entire series of Today the building houses primarily the United States District forgotten 1930s murals were revealed around the courtroom. Court for the Southern District of Indiana and associated agen­ After recent restorations by the General Services cies such as the United States marshal’s offices. New spaces Administration, the civilian federal government’s landlord and features are continually added or remodeled to meet the and property manager, today’s visitor can see more of the needs of the tenants and to incorporate new technologies. original character of the courthouse as seen by the first-time Through all die changes, however, the building has continued visitor in 1905. One can marvel at the restored garland borders to fulfill Overstreet’s promise in 1903 that “the beauty of the on the walls, the glittering reproduction chandeliers and structure will be equal to its utility, and both will be as lasting sconces (the ones in the south hallway of the second floor are as time.” And after one hundred years it still fulfills its original originals), the restored frieze murals in the east courtroom purpose, as expressed by Harris, by serving as “the abode of (the courtroom of the Honorable Sarah Evans Barker) depict­ national justice in Indiana” and a “noble adornment” to the city. ing the names of Supreme Court justices, the post-office tellers’ On 25 March 2003, one hundred years to the day after our windows in the main hall, and more of the intricate mosaic Hoosier ancestors celebrated the birth of the United States ceilings on the first story. The west courtroom, the original Court House and Post Office, the community marked its cen­ district judge’s courtroom, still contains the original counsel tenary with a solemn rededication of the cornerstone. The tables as well as the frieze murals depicting the seals of the ceremony was the first of several commemorative events thirteen colonies on the side and back walls and the seal of planned by the Historical Society of the United States District Indiana on the front wall between depictions of domestic and Court and the General Services Administration this year. mechanical arts. The four large stained-glass windows in the Officials also hosted a centennial dinner on 12 June. On 17 east and west courtrooms were removed for much-needed and 18 October they will sponsor a symposium on the history restoration after almost a century of exposure to the elements, of the court and the art and architecture of the courthouse, acid rain, and previous attempts at repairs. Now reinstalled, die and on 18 October they wall hold a public open house. All windows glow with renewed vigor. lovers of history, art, and architecture should add this landmark The history of the United States Court House and Post Office to their itinerary, especially during this centennial year. has been one of constant evolution in the utilization of space Elizabeth Brand Monroe is associate professor of history and inside. The main post office moved out in 1973, and most exec­ director of the public-history program at Indiana University—Purdue utive offices moved to the Minton-Capehart Federal Building, University at Indianapolis. Andrew R. Seager is professor of archi­ which was built three blocks north in 1975, or to rented spaces. tecture at Ball State University. Perry R. Secrest is law clerk to Judicial business and personnel continued to expand within Magistrate Judge Kennard Foster of the United States District Court the building along with the growth of federal laws and litigation. for the Southern District of Indiana.

F o r F u r t h e r R e a d in g Frederick, C. R. Souvenir of the Indianapolis Post-Office, Containing a General Compilation o f Useful Information Pertaining to the Postal Service. [Indianapolis]: n.p., 1896. I Lee, Antoinette J. Architects to the Nation: The Rise and Decline of the Supervising Architect’s Office. New York and Oxford: Oxford University Press, 2000. I Visitors ’ Guide to the United States Court House, Indianapolis, Indiana, and the United States District Court for the Southern District of Indiana. [Indianapolis?]: Historical Society of the United States District Court for the Southern District of Indiana and the United States General Services Administration, Great Lakes Region, 2000.

TRACES Summer 2003 13 Indiana ’s Women Lawyers

SHARON HANNUM SEAGER

“We are living in an age of advancement,” women in Indiana had not yet been granted suffrage. a young woman from Sullivan, Indiana, wrote in 1893. In spite of these impediments, Leach won her case. “Bigotry and prejudice [sic] are giving way . . . and many Justice Leonard J. Hackney, writing for the court, held that harsh and unreasonable rules have fallen before the spirit women such as Leach who met all other qualifications of enlightened reason and true progress.” The woman, had a right to practice law. The words describing eligibil­ Antoinette Dakin Leach, wrote those words to the Indiana ity, according to the court, were intended to include Supreme Court in her effort to be allowed to practice law voters but not deliberately to exclude women. Hackney in the Hoosier State. The obstacles that confronted a woman maintained that women had the same “right to a choice who wanted to be a lawyer at that time were enormous. of vocations” as did men. Although women in the past were Leach was one of a small number of American women ready confined by “custom” to the domestic sphere and were to challenge and overcome those barriers. thought “unfitted for the activities of the sphere occupied There was no question about Leach’s legal knowledge. She by men,” those patterns were “rapidly disappearing.” He had a law degree from a school in Knoxville, Tennessee, wrote, “If nature has endowed woman with wisdom, if our had worked for six years in the law office of John S. Bays, colleges have given her education, if her energy and and had served as the court reporter for the circuit court diligence have led her to a knowledge of the law, and if of Sullivan and Greene Counties. Four Sullivan attorneys sup her ambition directs her to adopt the profession, shall it be ported her petition. She had been blocked from practic­ said th^t forgotten fictions must bar the door against her?” ing law, however, because both the Indiana Constitution Hackney and a majority of the court thought not. and an 1881 statute described a person eligible for admis­ There was some resistance to the court’s decision. sion to the bar as being, among other things, “a voter”—and Indianapolis lawyer W. W. Thornton in 1895 described

14 TRACES Summer 2003 Indiana’s attorneys as having been “startled by a school had only a few years earlier begun to admit a small decision of the Supreme Court that women were enti­ number of women. After practicing law in Terre Haute tled to be admitted to practice law before the Courts of and Indianapolis, she moved to Grand Rapids, Michigan, the State” and reported that “the decision has not been where she maintained a law practice and piloted a steamer accepted by the bar as a correct and sound interpretation carrying produce on Lake Michigan. of the provisions of the Constitution.” In addition to Eaglesfield, other early women lawyers After admission to the bar, Leach maintained a general of Indiana included CeDora Lieullen from Danville, admit­ law practice in Sullivan and then in Indianapolis from ted by the Hendricks Circuit Court in 1886, and Stella 1911 to 1917. She earned the respect of fellow attorneys Colby Meeker, who was admitted to the bar in 1893 and and served as president of the Sullivan County Bar practiced law in Crown Point. Sarah Killgore Wertman, an Association. Although unable to vote, Leach became 1871 graduate of the University of Michigan School of Law, active in politics. She even confined her work to the served as a delegate to the office, not the courtroom, 1896 Republican state with her attorney husband convention. Like most in Indianapolis in the 1870s other women lawyers during “because she believed this period, she worked Indiana law prevented her vigorously on behalf of admission [to the bar] here.” woman’s suffrage. Leach After moving to Ohio she organized for the National was admitted to that state’s American Woman Suffrage bar in 1893 and maintained Association, joined the a practice in Ashland. In Progressive party when it 1897 Elwood’s Henrietta endorsed equal suffrage, Trisch Willkie—Wendell and ran for state represen­ Willkie’s mother—became tative in 1910 on the Equal the first woman admitted to Suffrage party ticket (gar­ the bar in Madison County. nering ten votes). In 1911 Women who aspired to a she spoke before the career in law had to be Indiana General Assembly trained in legal matters just in favor of amending the as men did. Admission to constitution to grant women the bar in Indiana during the right to vote. the latter part of the nine­ Although her case estab­ teenth and early twentieth lished the right of Indiana centuries was handled by cir­ women to become lawyers, cuit courts, and applicants Antoinette Leach was not were generally expected to the first woman in Indiana demonstrate to a judge or a to practice law. That dis­ committee of attorneys that tinction belongs to Terre they had sufficient “learn­ Haute’s Elizabeth “Bessie” ing in the law.” Attending Jane Eaglesfield, who was than three hundred men. law school was not an abso­ admitted to the bar by the Vigo Circuit Court on lute requirement. One could read law with an established 8 September 1875. She studied law with attorney William lawyer, somewhat like an apprentice. In her book Sisters Mack, who made the motion to admit her. A Terre Haute in Law, historian Virginia Drachman maintains that this newspaper, reporting her admission, predicted that traditional system of reading law had some advantages although she would likely encounter “real difficulties . . . for women who wanted to be lawyers. Learning in a pri­ becoming an attorney,” she would “make a success of her vate office, often from male relatives or family friends, undertaking” because of “her perseverance and quiet while living at home provided a supportive environment determination.” Eaglesfield attended the University of for women, quite different from that of law schools. Some Michigan School of Law and graduated in 1878. That Indiana women became lawyers this way. The young

TRACES Summer 2003 15 Indiana’s Women L awyers attorney Ella McCarthy of Vincennes, described in a From the 1920s to the 1950s in Indiana, women lawyers, newspaper story in 1899, “read law with Samuel W. although not numerous, were no longer such a novelty as Williams, an old and well-known practitioner.” After her they were in the 1890s. Most women were engaged in small admission to the bar in Knox County, McCarthy contin­ legal practices, either as individuals or with partners, usually ued to work in Williams’s office. Charline Hinkle McGuire with relatives. Some women worked in law firms with their began working as a secretary in a law firm in Muncie when husbands. Irene Faust of Indianapolis practiced with both she was thirteen years old. She acquired her legal edu­ her husband and son. There were some all-women law firms. cation from the lawyers in that firm, passed the bar exam, In Indianapolis, Adele Storck and Elizabeth Mason, both and was admitted to practice law by the Delaware Circuit graduates of the Benjamin Harrison Law School in 1921, Court in 1914, when she reached the age of twenty-one. formed the firm of Storck and Mason. Longtime Muncie attorney Charline Hinkle McGuire formed a partnership with her daughter in 1948 after Rita McGuire completed law school and was admitted to the bar. Jeanne S. Miller, who graduated first in her class at the Indiana University School of Law in 1948, established an individual practice after finding that “employment prospects for me were nil” with law firms in Fort Wayne. Miller decided that “the best choice was just to go open an office on my own.” ost women attorneys had practices that focused on office work. A few, however, did a lot of work Min the courtroom and took great pleasure in performing “in the arena." Jessie Levy was one such attor­ ney. She practiced law in Indianapolis from 1921 until die mid-1970s and handled criminal cases in addition to matters such as domestic relations. Levy was defense attorney in a variety of cases involving rape, murder, rob­ bery, and embezzlement. She also acted as a special prosecutor in some Marion County murder cases during the 1930s. “Oh, I had some pretty lurid cases in my time,” she told an Indianapolis Star reporter in 1971, A strong supporter of woman’s rights, Antoinette Dakin Leach always “but I enjoyed what I was doing and found the cases chal­ celebrated Susan B. Anthony's birthday by displaying the American flag. lenging.” She received considerable publicity when Leach argued that women voters in equal-suffrage states supported “clean, defending two women who were associated with John honest and efficient government,” and she predicted that Indiana women Dillinger. Levy described herself in a 1976 interview: “By would do the same once they were permitted to vote. nature I’m a fighter; I’m not for violence. You can do A small number of women attended and graduated better using reason.” During her long legal career, Levy from law schools in Indiana before 1900. They were a served as judge pro tern in many Marion County courts. tiny minority in an environment that was often hostile to By the time of her death she was often referred to as the their presence. In 1892 Tamar Althouse Scholz was the “dean of women lawyers in Indianapolis.” first woman to receive a degree from the law department Although there were no women judges in Indiana until of Indiana University. She maintained a law practice in 1964, a few women lawyers such as Levy held some of Evansville for many years. Caroline Butler Hendricks and the lesser positions in the legal hierarchy. Storck and Jesse Overstreet Fitzgerald graduated from the Bess Robbins, as had Levy, often acted as judge pro tern Indianapolis Law School in 1896, and Alice Miller Creed in various courts in Marion County. Several women served of South Bend earned a law degree in 1897. In her 1893 as deputy prosecutors. Zoe S. Wyatt was elected prose­ petition to the Indiana Supreme Court, Leach noted that cuting attorney in Jay County in 1926, perhaps the first “there are in the DePauw School of Law, located at woman in Indiana to hold this position. Some women Greencastle, Indiana, two young ladies, who will receive were probate commissioners: Gizella Stodela in the Lake their diplomas from said school on the 14th day of June Superior Court and Charline McGuire in the Delaware 1893. These young ladies very much desire to be admit­ Circuit Court. Irene Muller Benham of Terre Haute was ted to practice before this Honorable Court.” appointed part-time United States commissioner in 1930

16 TRACES Summer 2003 Indiana’s Women Lawyers and served in that position until 1954. (Commissioners Some of Conn’s work during two terms as a state were the predecessors of today’s magistrate judges.) representative during the 1960s addressed die concerns When women acted in positions of authority they of women. She sponsored legislation that enlarged the faced challenges. In an interview with an Indianapolis property rights of married women. Conn became the tar­ Times reporter in 1960, Storck described what happened get of conservative criticism when she introduced a bill the first time she sat as judge pro tern in Marion Superior that, had it become law, would have made some abortions Court: “When I . . . walked to the bench everyone legal in Indiana. In addition to her service as a legislator, thought I was just a court reporter. There was genuine Conn worked for the state as deputy attorney general, as shock when the bailiff announced I was presiding.” The deputy prosecuting attorney, and, beginning in 1970, Times reporter went on to note that after Storck took as Indiana’s public defender. In that position she and her

Left: Harriette Bailey Conn pins a flower on Jessie Levy, the dean of women lawyers in Indianapolis, during an Indiana Association of Women Lawyers luncheon honoring Levy in January 1970 at the Atkinson Hotel. Also on hand to observe was former state senator Marie Lauck. Right: Levy is flanked by judges Cale Holder and Glenn W. Funk at a 1966 IAWL meeting. Joining Levy with the two judges is Evelyn Pitschke, president of the association. her place on the bench “curious spectators soon ringed staff provided legal assistance to prisoners too poor to hire a balcony to watch the ‘lady judge.’” One attorney in a their own attorneys. “I can’t come in expecting a high per­ divorce case told Storck that “he felt his case should not centage of victories,” Conn told the Indianapolis Star when be tried that day because the evidence was too dreadful she began h er job, “but I’ll feel it’s worthwhile if I can cor­ to be presented before a woman.” She had to cite rect cases in which there has been a denial of rights.” another man for contempt when he announced: “No For women who became attorneys it was important dame’s going to tell me what to do.” to join lawyers associations. Women valued these Some women lawyers accomplished a great deal in the organizations, just as male attorneys did, for both area of public service and social reform. Helen M. Gougar professional and social reasons. In some ways, however, of Lafayette, for example, admitted to the bar in 1895, pro­ the relationship of women to the bar associations was dif­ moted temperance and woman’s suffrage. A notable exam­ ferent from that of white men and somewhat similar to ple in more recent times of a successful reform-minded that of black attorneys. The bar associations initially attorney was Harriette Bailey Conn of Indianapolis. Like excluded both women and blacks. The American Bar her father, Robert L. Bailey, a prom inent African-American Association changed its policy and began to admit women lawyer in the city, Conn used her legal skills to promote in 1918. The Indianapolis Bar Association invited Storck greater civil rights for minorities. During her career she to become its first woman member in 1921. Although served as legal counsel for the Indianapolis chapter of the women were permitted to join most bar associations from National Association for the Advancement of Colored People this time on, they did not always feel welcome. They were and adviser to the Indianapolis Human Rights Commission. greatly outnumbered and rarely in leadership positions. As chair of the Indiana Advisory Committee to the United Some women attorneys formed all-women associations States Civil Rights Commission, she led investigations across and insisted to critics that these organizations were intended the state into cases of racial conflict and discrimination. to supplement, not substitute for, the male-dominated

TRACES Summer 2003 17 Indiana’s Women Lawyers bar associations. The first such association was established National Association of Women Lawyers in 1941, when the in New York City in 1899. Other city and state organiza­ group held its annual convention in Indianapolis. tions soon followed, and by 1913 a national organization Although women had been practicing law in the state was formed. The Women Lawyers Journal, which addressed since 1875, Indiana had no women judges until 1964, when the special concerns of women in the legal profession, V. Sue Shields was elected in Hamilton County as judge of the began publication in 1911. Indianapolis lawyer Merzie superior court. Additional women were elected or appointed George edited this journal for many years. to the bench beginning in 1975. By 1994 thirty-seven women he Indiana Association of Women Lawyers was were serving or had served on various courts in Indiana. organized in 1931 at a meeting in Indianapolis of United States Court of Appeals judge Betty S. Barteau T thirteen women attorneys. Eight of the women prac- published an extensive study of these women. Most of them

Left: A woman of tremendous energy and self-discipline, Harriette Conn attended law school classes at night while raising seven children. In 1966 she became the second African-American woman ever elected to the Indiana legislature. Right: In 1988 Jeanne S. Miller, an attorney from Fort Wayne, became the first woman president of the Indiana State Bar Association. liced law in Indianapolis; the others were from had the not-always-enviable experience of being the first Martinsville, Muncie, Rushville, Sullivan, and Churubusco. woman in their counties to become a judge. Barteau noted Within ten years the organization grew to more than fifty that the women believed “they had to prove themselves before members. In addition to fostering professional ties among being accepted by members of the bar, and most received Indiana’s women lawyers, the association sometimes challenges from all directions testing their authority, knowl­ played an advocacy role. In the 1930s members period­ edge and ability to do the job.” Also, the women judges saw ically urged the Indiana General Assembly to eliminate themselves as helping to “make the path easier” for those some of the legal “restrictions which have surrounded who might follow them to the bench. Sarah Evans Barker, who women.” In the 1950s these women gathered regularly for in 1984 was appointed to be judge of the United States District luncheons at the Indianapolis Bar Association’s dining Court for the Southern District of Indiana, wrote, “I’ve been room. Members emphasized to an interviewer in 1959 the first one through the door on several occasions now, and that it was not a “woman’s law group.” One said, “we do I am very attentive to the needs of those who are coming not want to be set aside in a separate category. We want after me. I have been alert all along to this special visibility 1 to be considered—-and I will say this for the Indianapolis have had and the responsibility it imposes on me.” Bar Association, we are considered—on our own merits Changes began to occur for women in the legal profes­ as lawyers.” Some Indiana women were active in the sion in the 1970s. Employment opportunities expanded. national as well as the state organization. Florence Areas of law once virtually closed to women began to open Thacker Bradley, who practiced law in Indianapolis up, including corporate law, banking law, and litigation. The and later in Brown County, became president of the large law firms in Indianapolis and elsewhere began to

18 TRACES Summer 2003 Indiana’s Women L awyers hire women, and a few firms promoted women to full- number of women. In 1960 women were less than 4 per­ partner status. Women began to be perceived less as cent of those enrolled in law school in the United States. outsiders in the profession, and physical space in offices and That proportion reached 12 percent in 1972, 27 percent court buildings was sometimes modified to accommodate in 1977, and 33 percent by 1980. Today, approximately them. Those who designed the private rooms of the Indiana half of all law students are women. Supreme Court, for example, did not anticipate that women Jeanne Miller, for many years the only woman practic­ would ever serve as justices; after Myra Selby was appointed ing law in Allen County, noted with pleasure in a 1991 to the court in 1995, a restroom for women was added. interview the “substantial numbers of women” who were Some women who had encountered discrimination by then working as lawyers in Fort Wayne. While observing when they became lawyers before the 1970s now expe­ that the situation for women lawyers was hardly perfect, ndiana I ok

istrict D outhern S th e

for

ourt C istrict D tates S nited U ourtesy C Left: V. Sue Shields's first experience on the bench came at the age of twenty-five, when she was elected to the Hamilton County Superior Court. She

was later appointed to the Indiana Court of Appeals and now serves as a federal judge. Center: United States Court of Appeals judge Betty S. Barteau

published an extensive history of women judges in Indiana in a 1997 issue of the Indiana Law Review. Right: Since 1984 Sarah Evans Barker has served as judge of the United States District Court for the Southern District of Indiana. rienced dramatic changes in their professional lives. she said, “Oh, I think it’s much better than it used to be. Virginia Dill McCarty, in an interview several years ago, There are so many more opportunities for training of remembered that after she completed her law degree young lawyers. They can be hired into big firms. They can in 1950 the only job offer she received from any be hired by government. They can get into just about any Indianapolis law firm was to be “supervisor of the sec­ area they want. And as these women progress in their retarial pool.” In 1977 she was appointed to be United careers, you know, the sky’s going to be the limit.” If States attorney. Another woman, who later became a Antoinette Dakin Leach were alive today, she might be judge, described the employment situation for women quite pleased at the development of the “age of advance­ when she graduated from an Indiana law school in 1969: ment” that she wrote about in 1893. She might, however, “Getting interviews with law firms after law school was be surprised at the length of time it took. nearly impossible, never mind landing any offers.” Sharon Hannum Seager is professor of history at Ball State As the profession of law itself began to grow in the University, where she teaches courses on the Civil War and 1970s and 1980s, it attracted a rapidly increasing Reconstruction, the South, and women in American history.

F o r F u r t h e r R e a d in g Barteau, Betty. “Thirty Years of the Journey of Indiana’s Women Judges, 1964-1994.” Indiana Law Review 30, no. 1 (1997): 43-202. I Carlson, Alicia, and Sandra Cline. Law in America’s Crossroads: A History of the Indianapolis Legal Profession. Birmingham, Ala.: Association Publishing Co., 2001. I Drachman, Virginia G. Sisters in Law: Women Lawyers in Modern American History. Cambridge: Harvard University Press, 1998. I Farmer, James E. “Women in the Law: A Centennial Legacy of Antoinette Dakin Leach” and “Indiana’s First Woman Lawyer: The Historical Evidence.” Res Gestae 37 (September 1993): 106-11. I Indiana’s First 100 Women Attorneys. Indianapolis: Indiana State Bar Association, Young Lawyers Section, 2000. I Shields, Vivian Sue, and Suzanne Melanie Buchko. “Antoinette Dakin Leach: A Woman before the Bar.” Valparaiso University Law Review28 (summer 1994): 1189-230.

TRACES Summer 2003 19 TRAVELING

JUDGES In 1811 Judge Benjamin Parke convened the first term of the Wayne County Court. RIDING From his home in Vincennes, Parke traveled THE on horseback along the Cincinnati Trace, the first road cut through from the M iami River CIRCUIT to the Wabash River. At Lawrenceburg he turned north up the Whitewater valley. With only one criminal matter on the docket, he swore in a jury, and under the shade of a large tree, with both judge and jury occupying fallen logs, a boy was tried for stealing a pocketknife. Such was Hoosier justice in the early nineteenth century. Today judges occupy historic buildings or office towers, and interested parties come to the courthouse for resolution of legal dis­ putes. In the early days of our country, however, judges took to the road, traveling to cities, towns, and hamlets, “riding circuit ” as it was called, every spring and fall. The practice of circuit riding teas woven into the fabric of both the state and federal judicial systems. The Judiciary Act of 1789 created three levels of federal courts: district courts, circuit courts, and the United States Supreme Court. When Indiana joined the Union in December 1816, Congress appointed Benjamin Parke the first judge of the District of Indiana. In 1837 the District of Indiana became part of the Seventh Circuit Court.

20 TRACES Summer 2 00 3 JUSTICE

An 1807 illustration of a U.S. Supreme Court justice and lawyers traveling through the middle circuit in 1795. SUZANNE BUCHKO

TRACES Summer 2003 21 R iding the Circuit As originally conceived, the circuit court did not have and wagon. Stagecoaches crowded with as many as twelve its own judges. Instead, the district court judge and two people, bags, and luggage traversed roads that were often Supreme Court justices convened the circuit court to hear little more than wide cuts through the forest. Heavy rains cases in each district. Thus, Supreme Court justices were in spring and autumn and deep snow and ice in winter responsible for the major federal trials throughout the punctuated journeys that were slow, laborious, expensive, country. Circuit riding also brought the reality of national and hazardous. In 1821 a trip from Urbana, Illinois, to government to citizens living far from Washington, D.C., and Indianapolis took fourteen days, but by the middle of the the justices became the eyes and ears of the president, 1850s a “person [could] start from his home in any part of the state on ... Monday and be in Indianapolis before Thursday.” In 1838 Secretary of State John Forsythe reported to the Senate that the justices averaged 2.000 miles apiece annually, with Chief Justice Roger B. Taney trav­ eling a mere 458 miles and Justice John McKinley logging in 10.000 miles. Justice John McLean of the Seventh Circuit typically traveled his 2,500 miles by public conveyance. He wrote in May 1838 that the mud was so deep in Indiana it was impos­ sible for a carriage of any description to pass, and he was left to travel by wagon with the mail. One of the few judges to enjoy traveling was Justice William Cushing, whose four- wheeled horse-drawn phaeton was ingeniously fitted with cabi­ Chief justice of the Supreme Court John Marshall talks to other lawyers at nets for books, food, and other conveniences. Cushing’s a Virginia tavern during his circuit-riding days. Marshall is shown wearing wife and a servant accompanied the justice, making his the tattered knee breeches. circuit-riding experience unique among the brethren. reporting to the chief executive what they observed of the The perils of travel were not unknown to the circuit rid­ growing country. The judges were expected to be both ers. In 1804 a carriage accident left Justice William teachers and learners at a time when an understanding of Patterson seriously injured and unable to dispense a federal democratic government was exceedingly small. justice for a week. An overturned stagecoach near The Indiana backwoodsmen in 1800 lived close enough to Fredericksburg, Virginia, left justice John Marshall with revolutionary times to have an exaggerated notion of per­ a fractured collarbone, and Justice Robert Livingston sonal liberty but too close to the writing of the United States suffered violent headaches for weeks after a rough stage­ Constitution to understand the logistics of democracy. coach ride. Justice James Iredell was a victim of highway Circuit riding was not without its critics, one of whom robbery, and Justice Harry Innes opined that circuit commented that a Supreme Court justice needed “less riding could “break the most robust constitution.” the learning of a judge than the agility of a post-boy.” In Few circuit-riding stories were as dramatic as that told fact, it was not unusual for judges to carry mail and byjustice Stephen J. Field, who was traveling to California parcels for friends and relatives rather than to trust to convene the Ninth Circuit in 1889. Because the justice those packages to the postal service. had received death threats that year, a deputy United During the first decades of the 1800s there were barely States Marshal traveled with him. During a mail stop, a twelve hundred miles of poorly surfaced roads in the stranger brushed against Field, and the marshal, believing United States, and judges traveled by horse, stagecoach, the justice was in danger, shot and killed the man. State

22 TRACES Summer 2003 Riding the Circuit authorities arrested the marshal, and he was spared a trial homes to the judges, to on manslaughter charges only by the quick issuance of a dine and spend the night writ of habeas corpus by the California federal court. “that they might enjoy the upreme Court justices were not alone in traversing benefit of their conversa­ the countryside. District court judges shuttled tions.” Wherever they trav­ S between district and circuit court sites on a fixed eled, judges generally met schedule. Judge Cyrus Griffin in Virginia complained with generous hospitality. that he spent one-fourth of his salary “in public houses When Hoosier judge William and [for] other charges necessarily attending the duties Watson Wick was traveling of my Office.” Walter Q. Gresham, judge of the District from southern Indiana to of Indiana from 1869 to 1883, held court in the large Franklin to convene the In addition to his work as towns across the state. During his first year on the bench, Johnson Circuit Court, he a judge, lawyer, and soldier, Gresham broke the hip of the same leg that had been found himself “at the cabin Benjamin Parke served as the wounded in the Civil War. Ill health and injury marred of William Burkhart, on first president of the Indiana much of his first years on the bench, and in 1874 he was Burkhart’s creek. His was the Historical Society. forced to take an extended leave from the court because only cabin till I reached Franklin, and there was no of “bleeding at the lungs.” He returned to a busy court. road—nothing but a blind trail after leaving the trace. In 1881 he held court for 253 days, disposed of 423 cases I called to the occupant of the cabin and asked for lodg­ filed in Indianapolis, and presided over 30 jury trials. ing. Burkhart informed me that his wife was not at home, While they rode the that he had nothing for circuit, judges and circuit riding was not without its critics, my horse to eat except justices stayed with fam­ one of whom commented that a SUPREME pumpkins and nothing ily and friends or in for me except venison, public accommodations. COURT JUSTICE NEEDED "less the learning ‘but you can stay, and In 1790, when Justices of a judge than the AGILITY OF A POST-BOY." welcome, Judge, if you James Iredell and John like’ he said. Of course Rutledge rode the Southern Circuit together, Iredell I stayed, and after being well warmed and my clothes enjoyed the hospitality of the Rutledges in Charleston, dried, I never made a more satisfactory supper in my life South Carolina. Many justices commented on the public than I did that night off ribs of venison wrapped in houses and taverns in which they stayed, sometimes cabbage leaves and roasted in a bed of live coals.” sharing not only a room but a bed with a stranger. Justice The days of riding circuit disappeared at the beginning John Catron, accustomed to camping out and carousing, of the twentieth century when Congress reorganized the did not find the m eager accommodations at all unbearable. federal judicial system. By June 1901 Supreme Court He socialized with townspeople and traveling members justices no longer held sessions of the circuit court. There of the bar and enjoyed meeting after supper in upper is no record of any judge bemoaning the end of the era, rooms of taverns to drink and play cards until dawn. and no doubt many agreed with a senator who commented Judges and justices adapted in their own ways to life on that it was doubtful “that riding rapidly from one end of the road. Justice John McLean enjoyed dinners, parties, this country to another is the best way to study law.” Still, and political rallies while on circuit-riding duty, although the circuit riding brought the federal government to his critics accused him of doing nothing but furthering corners of the growing country rarely in touch with bis political career, which included a bid for the White the national capital, and the judges had a front-row seat House. On the other extreme was Chief Justice Taney, to gauge the pulse of national growth and to watch the who kept to himself largely because of ill health. efficacy of national laws in a diverse nation. Generally, though, when the circuit court came to town, Suzanne Buchko is a writer and attorney who lives in leading citizens vied for the chance to open their Indianapolis.

F o r F u r t h e r R e a d in g Marcus, Maeva, ed. Origins of the Federal Judiciary: Essays on the Judiciary Act of 1789. New York: Oxford University Press, 1992. I Surrency, Erwin C. History of the Federal Courts. D obbs Ferry, N.Y.: O cean a Publications, 2002. I Taylor, Charles W. Biographical Sketches and Review of the Bench and Bar of Indiana. Indianapolis: Bench and Bar Publishing Co., 1895. I Wheeler, Russell R., and Cynthia Harrison. Creating theFederalJudicial System. Washington, D.C.: Federal Judicial Center, 1989.

TRACES Summer 2003 23

WALTER Q. GRESHAM Walter Q. Gresham was a leader in the judicial and political life of Indiana in the last third of the nineteenth century. For more than two decades he occupied a seat on the federal bench. From 1869 to 1883 he served as judge for the District of Indiana at a time when the state had only one district judge. From 1884 to 1893 he presided over the Seventh Circuit, which included Indiana, Illinois, and Wisconsin. Through most of his career Gresham harbored political ambitions, and during the 1880s he became a prominent contender for the Republican presidential nomination. Nonetheless, he proved to be ill-suited for the period’s rough-and-tumble political struggles. Gresham never won an election after his narrow victory for a seat in the state legislature in 1860. With a deep-seated moral sense, Gresham saw the bench as a kind of refuge where he could insulate himself from what he considered the era’s degraded politics and yet still be use­ fu l to his state and nation. He finished his career as secretary of state and in that role once again took a juridical approach in conducting the nation’s foreign affairs. Law, Politics, and Diplomacy in the Nineteenth Century Walter Quintin Gresham ivas born on 17 March 1832 in Lanesville, Harrison County, Indiana. Before his second birthday, his father, William, the county sheriff, was killed by an outlaw. The periodic retelling of this heroic episode no doubt contributed to the boy’s sense of duty and rectitude. After the death of her husband, Sarah Gresham married a local farmer. More influential in Walter Gresham’s development, however, was the attention bestowed upon him by local politicians, including his great uncle, Denn is Pennington, a Whig party leader and state legislator, and William T. Otto, judge of the state’s second circuit court and later reporter of the U.S. Supreme Court. After a year in the preparatory department at Indiana University, Gresham returned to Harrison County, where at Corydon he read law

Opposite: A portrait of Walter Q. with the prominent lawyer and politician William A. Porter. A rigid Gresham painted during his Calvinist and an exacting preceptor, Porter taught his apprentices service as secretary of the treasury under President Chester the uses of law as a moral instrument. Admitted to the bar in 1834, Arthur. The artist, Robert Hinkley Gresham opened a law practice at Corydon. Like most small-town of Washington, D.C., often painted lawyers, he handled a wide variety of business, both civil an crimi­ commissioned portraits for the federal government and taught for a nal. In 1838 he married Matilda McGrain, who bore a son the while at the Corcoran School of Art. following year and a daughter in 1861. Charles W. Calhoun

TRACES Summer 2003 25 Walter Q. Gresham also returned to politics. In 1866 and again in 1868 the Republicans nominated him against incumbent congress­ man Michael C. Kerr in the heavily Democratic second district. But he lost both times, and again defeat sapped his political exuberance. He turned aside suggestions that he make a bid for the U.S. Senate, noting that “a man soon dis­ gusts people, even his friends, when he aspires to something to which he is not clearly entitled.” The election of Gresham’s resham came of age politically in the mid-1850s, a wartime friend Ulysses S. Grant to the presidency brought time of great political flux. His Whig mentors him offers of lucrative patronage positions, all of which he pushed him toward their party, but after its collapse declined. He was, he said, “disgusted with politics,” but Ghe enlisted in the anti-Nebraska movement and affiliated he nonetheless confessed to a friend that he still harbored “a briefly with the Know-Nothing party. In 1854, as a newly natural craving for some kind of a load to carry.” In September minted lawyer, he ran for prosecuting attorney for the 1869 Grant provided the solution, appointing Gresham as court of common pleas in a four-county district whose heavy Democratic majority sealed his defeat. The next year he lost a close race for Harrison County clerk. By 1856 Gresham had joined the nascent Republican party, and his prominence grew with that organization. At the 1860 state convention he made a bid to become the party’s nominee for clerk of the state supreme court. He failed but returned home in good shape to win nomination as Harrison County’s representative in the legislature, squeaking past his Democratic opponent by sixty votes. When the Indiana General Assembly met in early 1861, Gresham became chairman of the House Committee on Military Affairs, a position that put him at the center of the state’s military preparations as civil war loomed on the horizon. The session also witnessed the beginning of a deep animosity between Gresham and Governor Oliver P. Morton, which lasted until Morton’s death in 1877. Despite his creditable performance in the legislature, Gresham told his wife that his time there had “pretty effectually disgusted me with public life,” and he promised her that A photo of Gresham federal district judge for Indiana. The “politics shall not call me away from you in the future unless taken by Washington, previous judge, David McDonald, had it be in a time of very great public necessity.” D.C., photographer S. A. been a lawyer of wide experience and Such a necessity was indeed at hand, and before the Taylor, circa 1890s. the first law professor at Indiana summer was out Gresham had enlisted in the Union army. University. The thirty-seven-year-old Gresham acknowledged After a brief stint as lieutenant colonel of the Thirty-eighth his inadequacy “to fill his place,” but he assured United States Indiana Volunteer Infantry, he became colonel of Supreme Court justice David Davis, “If I fail it shall not be the Fifty-third regiment. Early in the war he lamented that because I don’t try to do right.” The lifetime position offered because of his legal training it was his “misfortune to be the opportunity for important service while providing a haven caught up on court martials wherever I go.” Even so, he soon from the torments and frustrations of party politics. saw real fighting, and as a brigadier general he commanded With jurisdiction over the entire state, Judge Gresham a division in William T. Sherman’s Atlanta campaign. followed an arduous routine, riding circuit to each of the Gresham’s army experience renewed his sense of the value large cities. Matters coming before his court were mostly rou­ of public service. Although a severe leg wound cut short his tine, ranging from criminal cases to torts. The depression military career in July 1864, it diminished neither his grow­ following the panic of 1873 sparked numerous mortgage ing reputation nor his growing partisanship as a Republican. foreclosures. Because federal law mandated that all As soon as his wound permitted, Gresham resumed his bankruptcy cases be heard first by a judge rather than a mas­ law practice, opening an office in New Albany, Indiana. He ter or chancellor, Gresham devoted a large portion of his

26 TRACES Summer 2003 The “honest and intelligent men of the country,” said Gresham, must rise to combat political evils “not by merely writing and declaiming about them, but by their vo te s , their active personal efforts, and the exertion of their legitimate influence upon o th er s.” time to bankruptcy litigation. Similarly, railroad litigation judge’s heavy-handed charge to the jury, Benjamin proliferated after the financial panic when many lines went Harrison’s skillful defense won an acquittal for Brownlee. into federal receivership. In these cases Gresham held that The Great Railway Strike of 1877 reached Indianapolis in such railroads should apply their revenues first to pay labor late July, and Gresham responded vigorously as a leader and other creditors involved in operating the lines rather against it both on and off the bench. Working closely with than to bondholders. The judge also became an expert in the Seventh Circuit Court judge Thomas Drummond, he issued mechanical intricacies of patent law. “Many a time,” Gresham’s injunctions barring workers from interfering with railroads in federal receivership. He also convinced the Rutherford Hayes administration to send troops to the state, and off the bench he led the formation of a citizens militia to overawe the strikers. Although the legal processes Drummond and Gresham used were less sweeping than those that later judges invoked, they constituted an important step in the evolution of the labor injunction. For the most part the two judges won high praise for restoring peace and business to the public highways in what many saw as a revolutionary crisis. Nonetheless, over the years Gresham’s ideas about labor mellowed, and he earned a reputation as a friend of the workingman. In 1894 he nearly resigned from Grover Cleveland’s cabinet in protest against the administration’s use of blanket injunctions against the Pullman strikers, which he considered an abuse of executive and judicial power. Politics sometimes came directly into Gresham’s court in the form of election-fraud cases. In a notable case in 1878, thirteen Democrats were accused of conspiring to import more than a hundred voters into one of Indiana’s congressional districts Benjamin Harrison, a frequent wife Matilda later wrote, “was to swing its vote to their candidate. When the case moved to political opponent of Gresham, our library cluttered up with jury selection, Harrison, who was serving as a special prose­ had the unenviable task of telling briefs, records, and models of cution counsel, rejected Democratic jurymen and tried to his rival the news that President machinery in patent cases.” replace them with Republicans from the courtroom audience. Chester Arthur had appointed him Occasionally Gresham When the Democrats’ lawyers, led by former United States as the new postmaster general. presided in cases with distinct senator and Indiana governor Thomas A. Hendricks, objected political overtones. In June 1875 his court witnessed the strenuously, Gresham dismissed the jury, ordered a new venire, first convictions against the so-called Whiskey Ring, a and chose a jury of six Republicans and six Democrats. The far-flung conspiracy among distillers and internal revenue Democratic Indianapolis Sentinel praised him as “a fearless agents to defraud the government of millions of dollars in judge,” but Harrison’s partner, W. H. H. Miller, fumed that it excise taxes. The charge in the Evansville case against a was “impossible to convict a Democrat in Judge Gresham’s local distillery was relatively minor—operating in the court.” All but one of the defendants won acquittal. absence of a government storekeeper—but this pioneer Miller exaggerated, but Gresham had in fact grown case opened the way for further prosecutions. Several disenchanted with the Republican party. Like many alleged ring participants were tried in Gresham’s court in Americans he was profoundly disappointed by Grant’s per­ Indianapolis in January 1876. Nearly all were convicted, formance in the White House, especially after the revela­ with the notable exception of Hiram Brownlee, an inter­ tion that some corrupt administration officials had abused nal revenue agent accused of taking a bribe. Despite the the president’s confidence for their own selfish ends.

TRACES Summer 2003 2 7 Walter Q. Gresham Gresham saw selfishness at the heart of what he political evils “not by merely writing and declaiming about considered United States senator Oliver P. Morton’s them, but by their votes, their active personal efforts, and the blatant spoilsmanship and dictatorial control of the Indiana exertion of their legitimate influence upon others.” Republican party. In 1876 Gresham made little effort Perhaps taking his own summons to heart, Gresham to conceal his opposition to M orton’s presidential decided to make a bid for the United States Senate seat that candidacy. Instead, the judge worked for the nomination the legislature chosen in 1880 would fill. As usual, Gresham of Benjamin Bristow, the reforming treasury secretary took no active part in the canvass, while Harrison, who had who had attacked the Whiskey Ring. replaced Morton as the state GOP leader and Gresham’s chief Throughout the 1870s Gresham toyed with the idea of rival, campaigned vigorously for the party’s state and legisla­ returning to active politics himself, but he could not quite tive tickets. As the campaign heated up, charges of fraud bring himself to relinquish the security and relative serenity contemplated by both parties abounded, and Gresham of the bench. When friends urged him to run for governor appointed several special deputy marshals and election super­ in 1876, for example, he could see “so many reasons both visors. But he angered Republican leaders when he refused for and against my going into politics that I am forced into to assign these positions solely to Republicans (as other GOP a state of indecision.” He believed that he “might judges had done) but instead divided them equally between succeed somewhat as a leader,” but he also said that he had the two parties. The Republicans won control of the general assembly, which proceeded to elect Harrison to the Senate. few months later Gresham came under serious consideration for appointment to James A. Garfield’s cabinet, but Harrison and his friends Aconvinced the president-elect that giving a post to the judge would find little favor among Hoosier Republicans. Two years later, in 188S, the tables were turned when Garfield’s successor, Chester A. Arthur, appointed Gresham as postmaster general, in part as a check to Harrison’s pres­ idential ambitions. Ironically, the anti-politician Gresham found himself in the most political of all cabinet posts. He

Left: Railroad financier Jay Gould, who also worked to corner the gold did use his patronage power to undercut Harrison, but he market, has been described by historians as the prototypical robber baron also strictly enforced the Pendleton Act and won praise of the late nineteenth century. Upon his death in 1892 he left his heirs a from reformers for “the great value of the support” he gave

$77 million fortune. Right: Taking over for the assassinated James A. “to the cause of Civil Service Reform at its weakest stages.” Garfield, Chester Arthur surprised many observers by becoming a sound Following his judicial impulses, he made a sustained fight administrator despite suffering from Bright’s disease during his presidency. against the Louisiana Lottery Company. Unsympathetic

Opposite: A February 1880 cartoon from Puck magazine lampoons the federal judges and Congress, however, frustrated his effort scandal-ridden presidency of Ulysses S. Grant, showing the president as an to bar the gambling enterprise from the mails. acrobat on a “third term" trapeze holding onto a “whiskey ring” and “navy Gresham’s bestowal of patronage and his overall ring” while holding the strap “corruption" between his teeth, performance as postmaster general won him a consider­ begun to “experience a real pleasure in the examination able following among politicians in Indiana and elsewhere of legal questions.” In the end he stayed out of the race. and aroused speculation that he might be a viable Gresham’s reluctance to enter the fray in part reflected Republican candidate for president. He worked for Arthur’s his sense that politics in America had taken a wrong turn. nomination in 1884 and used the powers of his office to Although as a judge he steered away from overt partisan­ that end, but he did not deter behind-the-scenes efforts by ship, on the few occasions when he did address public his friends to gather second-choice support for himself, nor audiences he seized the opportunity to denounce political did he discourage their efforts to derail Harrison’s poten­ corruption and venality. In November 1879 he told a national tial candidacy. In the end the Republicans nominated James convention of Union army veterans in Chicago that the lead­ G. Blaine, for whom Gresham had little enthusiasm. ership of parties had passed to “politicians who believe that Gresham’s experience in the Washington maelstrom conscience is out of place in politics.” The solution must dampened any enthusiasm he may have had for a perma­ come from “a closer adherence to the wise precepts and vir­ nent return to political life. He rejected overtures that he tuous methods of our ancestors.” The “honest and intelligent run for Indiana governor in 1884. What he really wanted was men of the country,” said Gresham, must rise to combat to return to the federal bench, to take the seat recently vacated

28 TRACES Summer 2003

W A L T E R () . G R E S H A M in the Seventh Circuit Court at Chicago. In late September in another circuit, who happened to be the nephew of a for­ he honored Arthur’s urgent request to take an interim mer Wabash Railroad president. Moreover, these receivers appointment as secretary of the treasury, but by 1 November, paid a coal company (also owned by Gould interests) rebates Arthur had rewarded Gresham’s loyal service by appointing totaling more than the company’s entire capital stock, while him to the judgeship. He was once more, as Hoosier senator at the same time paying it exorbitant prices for coal. In a Daniel Voorhees told him, “in out of the storm that rages.” boldly worded opinion, Gresham denounced the “injustice” he Seventh Circuit was one of the nation’s busiest, of Gould’s scheme, removed the receivers, and moved to and Gresham soon found that he was not quite out of replace them with “someone who is capable and trustworthy.” the storm. In a case stemming from the 1886 Marion Regarding the coal scheme, he added that it was “further TCounty elections, Republicans charged that Democratic than this court is willing to go to enforce a secret contract county chairman Simeon Coy and others had altered the for the rebate of freight paid to a railroad company.” The tally sheets to give victory to the Democratic candidates for coroner and criminal judge. When the grand jury found insufficient evidence to indict the defendants, Gresham’s successor as district judge, Republican William A. Woods, allowed prosecutors to try them by information. Gresham halted this proceeding, asserting the inapplicability of federal statutes since the case did not involve the election of any federal officer. Undaunted, Woods impaneled a new grand jury, obtained indictments whose validity United States Supreme Court justice John Marshall Harlan sustained, and proceeded to try to convict Coy and another defendant. Gresham still thought Woods’s approach would destroy state courts’ authority. Many Republicans, however, considered his position legal nit-picking, which, said the state party secretary, intensified “the anti-Gresham political sentiment in our party in Indiana.”

Such criticism notwithstanding, several of Gresham’s Opposite and Above: Illustrations from the influential Harper's Weekly actions as circuit judge won him a reputation as a champion portray the disorder of the Great Railroad Strike of 1877, including the of the downtrodden. In 1885, when the Chicago, Burlington Sixth Maryland Regiment fighting its way through the streets of Baltimore and Quincy Railroad claimed exemption from maximum and the burning of the roundhouse at Pittsburgh. rates prescribed by the Illinois Railroad and Warehouse ruling met with wide approval. The New York Times observed Commission, the judge upheld the commission’s authority that the judge’s “independence was everywhere applauded and denounced the railroad for trying to deprive the public outside the circle [of] Gould dependents.” President Grover of its right to control corporations. Moreover, when strike Cleveland was so impressed that he hoped to appoint cases came before Gresham’s court, his response was far less Gresham one of the first commissioners authorized by the aggressive than his antistrike activity in 1877. In early May Interstate Commerce Act, but Gresham declined. 1886, in the midst of the turmoil surrounding the bloody 'file Wabash Railroad case gave a great boost to Gresham’s Haymarket Affair in Chicago, he refused to appoint special presidential prospects. Although the judge himself remained marshals to protect the Wabash Railroad, whose freight han­ skeptical about his chances, the early months of 1888 dlers had struck. A few weeks later, T. Thomas Fortune, the witnessed a vigorous preconvention delegate hunt beaded militant black editor of the New York Freeman, endorsed by Hoosier lawyers John W. Foster and (diaries W. Fairbanks. Gresham for president in 1888, hailing him as “a man of the Despite Gresham’s rising popularity, strengthened by his people” who could rescue the country. evenhanded handling of a strike against the Burlington Gresham enhanced that image in December 1886 when Railroad in the spring, his candidacy faced several obsta­ in a case involving the receivership of the Wabash Railroad cles. In the first place, he disagreed with the Republicans’ he delivered a stinging rebuke to the arch-manipulator of the commitment to a high protective tariff, which was becoming age. Jay Gould. Gould and other company directors had the party’s central issue. In addition, his reputation for conceived a complex scheme to avoid paying a substantial political independence and muted partisanship made party portion of the road’s debts. To seal the plot they had secured regulars wary. Moreover, while many saw his judicial record the appointment of compliant receivers by a federal judge as an asset, some GOP leaders such as Blaine considered

TRACES Summer 2 003 31 WALTER Q. GRESHAM

Crowds gather for the 1893 inauguration of President Grover Cleveland, beginning his second term in office. A financial panic in 1893 caused severe problems for the Cleveland administration, which were further exacerbated by the Pullman Strike of 1894. him “a demagogue and iconoclast on the Bench” whose only “so long as the powers of the nation are not perverted “unjust hostility to corporations would array the capital of to their injury for the enrichment of a few.” Such talk the country against him.” The most important obstacle, how­ attracted the attention of the new Populist party, which ever, was Harrison’s candidacy, which denied Gresham the sought to draft him for its presidential nomination at its support of his home state. Gresham did manage to win 1892 convention. Gresham refused to lead the Populist the solid support of Illinois and handfuls of delegates from crusade, however, and instead announced his support for twenty other states, but in the convention balloting the the low-tariff Democratic candidate Grover Cleveland. By Blaine influence, plus skillful maneuvering by Harrison’s that vote, he believed, “I have committed political suicide.” managers, resulted in Harrison’s nomination. American foreign policy In the years after 1888 Gresham became increasingly comes under attack disenchanted with the Republican party. Some observers in this Homer Davenport thought that Harrison might try to mollify him with a seat cartoon. At the same on the United States Supreme Court, but Harrison made time President Cleveland four appointments and none went to Gresham. The judge’s supports Queen alienation intensified with the Republican Congress’s pas­ Liliuokalani and Hawaiian sage of the McKinley Tariff, which he believed destroyed independence, Uncle competition and fostered trusts. Once again he lashed out Sam courts a woman at the nation’s political system, most notably in an 1891 representing Cuba, speech in which he declared that the “people are often symbolizing the hopes cheated at the polls and in legislation.” The nation’s “real of some Americans to strength,” he said, lay in “the great multitude engaged in annex the West Indies active and hardy pursuits,” but they would “remain tranquil” island.

32 TRACES Summer 2003 Walter Q. Gresham Ironically, this act of “suicide” brought A judge s REVERENCE for precedent informed Gresham his greatest political distinction— Gresham’s conduct of FOREIGN POLICY, but, as one appointment as Cleveland’s secretary of state. Cleveland had first offered the posi­ close associate observed, he “soon fell into tion to Chief Justice Melville Fuller, perhaps trouble by attempting to decide international in order to open a vacancy on the Court for Gresham, but Fuller declined. When questions judicially.” Cleveland offered the State Department to Gresham, he at die monarch, but the determined resistance of the provisional first declined and then reluctantly accepted it as a call to duty. government foiled their plan. Although Gresham blocked nexperienced in foreign affairs, overworked, and ailing annexation, his Hawaii policy was a public-relations disaster. during a time of increasing diplomatic activity, Gresham Republicans denounced it as quixotic and un-American, while pursued no overarching policy objective beyond “bringing Democrats offered only lukewarm support. Nonetheless, theI people back to proper views of things.” Instead of chart­ Gresham believed that he was defending the nation’s moral ing a course of either political or economic expansionism, he standing and preserving its institutions from the incubus of an sought to reverse what he saw as the unwarranted and imperial province that could be managed only by despotic rule. dangerous outward thrust launched by the Flarrison In Samoa, Gresham sought to get the country out of an administration. Because his meager back­ entanglement already consummated when ground in foreign affairs forced him to treat he tried to withdraw the United States from each new problem on an ad hoc basis, he participation with Germany and Britain in turned instinctively to well-established a joint protectorate over the Pacific Islands patterns of behavior. As a federal judge he nation. In Latin America he defended the had been an impartial arbiter adjusting Monroe Doctrine, but he refrained from questions brought to his attention; as placing it above the higher dictates of inter­ secretary of state he re-created that juridi­ national law. He invoked the doctrine against cal role to a remarkable degree, relying British pretensions in Nicaragua, but he upon international law, his understanding thought it had no application to the of traditional American interests, and his , Venezuela-British Guiana boundary dispute. sense of justice and equity to guide his | In the latter case, much like a judge, he opinions. Significantly, the closest he had ; studied a mountain of documents and prece- previously come to experience in foreign | dents and concluded that the Venezuelans affairs had been as a lecturer on interna­ Seconding Cleveland's nomination for should settle with the British and not “dump tional law at Northwestern University while president at the 1884 Democratic the controversy upon us.” While the issue on the bench at Chicago. A judge’s rever­ National Convention, General Edward S. was pending, Gresham died on 28 May 1895. ence for precedent informed Gresham’s Bragg proclaimed: “They love Cleveland In an age of rising jingoism, Gresham’s conduct of foreign policy, but, as one close for his character, but they love him also legalistic foreign policy came under harsh associate observed, he “soon fell into trou­ for the enemies he has made!” criticism. But many of his old associates in ble by attempting to decide international Indiana recognized that he could not break the pattern of This approach showed most clearly in Gresham’s opposition a lifetime. At a memorial service held by the Indianapolis to the annexation of Hawaii. In January 189S a coup aided by bar, John H. Baker, who sat in Gresham’s old seat on the the landing of American troops had overthrown Queen federal district bench, declared, “Every instinct of his pure Liliuokalani, and the expiring Harrison administration had and noble nature gave him an abhorrence of fraud and quickly negotiated a treaty of annexation with the provisional injustice. . . . He became a great judge, and better still, a government Cleveland withdrew the treaty from the Senate, and friend of humanity in its struggle for elevation.” Gresham launched an investigation that convinced him of Charles W. Calhoun is professor of history at East Carolina American culpability in deposing the queen. To make amends, University. His books include Gilded Age Cato: The Life of Gresham and Cleveland attempted a peaceful reinstatement of Walter Q. Gresham. This is his first article for Traces.

F o r F u r t h e r R ea d i n t ; Walter Q. Gresham’s papers are located in the Library of Congress, Washington, D.C., and at the Indiana Historical Society’s William Henry Smith Memorial Library, Indianapolis. I Calhoun, Charles W. Gilded Age Cato: The Life o f Walter Q. Gresham. Lexington: University Press of Kentucky, 1988. I Gresham, Maltida. Life of Walter Quintin Gresham, 1832-1895. 2 vols. Chicago: Rand McNally and Co., 1919.

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Slave Cases expressed.” The court also awarded Polly $26.12 in costs for her trouble. The decision was the unanimous judgm ent of the three justices who were in effect the founding fathers of the court as an institution: James Scott, Jesse Holman, and Isaac Blackford. Scott, Holman, and Blackford constituted the Indiana Supreme Court from the first year of statehood through the end of 1830, and they are well regarded in the legal community to this day. Scott, who authored the Lasselle opinion, had been a member of the territorial general court and the 1816 constitutional convention, where he played a substantial role in drafting the judicial arti­ cle. Holman studied law with Henry Clay in Lexington, Kentucky, served in the territorial legislature, and later became a United States senator. A graduate of Princeton University, Blackford served as the first speaker of Indiana’s House of Representatives. He served on the Indiana Supreme Court longer than any other person, from 1816 to 1853. We regard him as our John Marshall. Of course, slavery proved to be a resilient institu­ tion both in law and fact. Where legal prohibitions When Indiana’s capital was still at Corydon, the against slavery held firm, as they did in the Lasselle state’s supreme court was put to an early test—the result case, indentures of servitude were a common tool by of which is still our most famous case, Lasselle v. State which slave owners attempted to retain their servants. (1820). General Hyacinth Lasselle of the case was Thus, in another case from Knox County, G. W. one of Vincennes’s most prom inent citizens. He Johnson of Vincennes executed just such an indenture commanded Fort Harrison during the War of 1812, with Mary Clark a few weeks before the 1816 consti­ owned Vincennes’s largest hotel, married suitably in tution took effect. The constitution included a to local French gentry, and raised a family of ten provision on servitude invalidating any indenture children, many who later distinguished themselves made after the date of statehood “outside the bounds in fields such as law and journalism. of the state,” but Johnson’s contract of indenture with In 1820 two antislavery advocates organized a Clark was not covered by the literal terms of this relatively friendly lawsuit to test the validity of slave own­ provision. If anything, the relatively specific nature ership in light of Indiana’s new constitution. The suit of this prohibition could arguably have suggested that sought freedom for a woman known only as Polly, the contracts of other sorts (such as indentures executed daughter of a slave Lasselle had purchased from Native before statehood, or, less plausibly, inside the state Americans in the territory northwest of the Ohio River after statehood) were legally valid. before Virginia ceded it to the federal government and, Holman, who moved to Indiana from Kentucky in 1810 obviously, long before Indiana entered the Union. The in large part to free the slaves he and his wife inherited Circuit Court of Knox County, sitting in Vincennes, from her father, authored the court’s opinion in the case ruled in favor of Lasselle and remanded Polly to his In re Clark (1821). He observed that the constitution took custody, declaring: “As far as it regards the situation of great pains to establish rights for former slaves and the m other of the present applicant, this is now a slave declared that commanding performance of indentures state.” The trial court’s statement likely resonated with was utterly inconsistent with those provisions. He wrote: the substantial part of southern Indiana’s population “Such a performance, if enforced by law, would produce that held views favorable to the institution of slavery. a state of servitude as degrading and demoralizing in its Polly’s lawyers appealed. The Indiana Supreme Court consequences as a state of absolute slavery; and if enforced set her free, observing: “The framers of our constitu­ under a government like ours, which acknowledges tion intended a total and entire prohibition of slavery personal equality, it would be productive of a state of in this State; and we can conceive of no form of words feelings more discordant and irritating then slavery itself.” in which that intention could have been more clearly The supreme court ordered Mary Clark discharged.

36 TRACES Summer 2 oo 3 S lave C ases Ten years after the Clark decision, in 1831, the Indiana legislature made one of its periodic efforts at discouraging immigration of African Americans into the state. The general assembly enacted a law requiring “Free Negroes and mulattoes” who entered the state to post bond assuring that they would behave well and not become public charges. While the supreme court upheld this statute, it did so in the most reluctant of tones, saying that the law was “not so clearly repugnant to the constitution as to authorize us to pronounce it a nullity.” hat the statute was constitutional did not mean it would be lovingly enforced. In Baptiste v. State, T decided in 1840, the supreme court reversed a trial-court order directing that George D. Baptiste be removed from the state. Baptiste was a mulatto who had not given bond as demanded by the overseers of the poor, local officers charged with assisting or corralling people deemed vagrant. One might say the justices “fly- specked” the statute nearly to death. They observed that the law did not require removal if the defendant gives James Scott wrote the Lasselle opinion for the 1820 Indiana Supreme no bond; rather, it permitted the overseers the choice Court. The Pennsylvania native served on the court from 1816 to 1830. of hiring out the vagrant to work or removing him to Indiana court looked for ways to protect blacks. As his state of origin. Moreover, if the overseers elected for the federal Court, the decision in Prigg h a d b ee n removal as the remedy, the supreme court ruled, the just the beginning. The conclusion of Taney in the circuit court could issue such an order but not direct a case o f Dred Scott—that blacks of African descent jusdce of the peace to do so. Besides, the supreme court possessed no rights that white men were obliged added, the original application failed to specify where to acknowledge—contributed to the schism in the Baptiste had last been a legal resident and thus the appli­ country that ultimately led to the Civil War. cation was procedurally deficient from its beginning. During the 1850s forces favoring various accom­ The justices didn’t make it easy to enforce this statute. modations to slave-owner interests found their voice The supreme court’s tilt against slavery lasted in Indiana state government. The 1851 Indiana throughout its history under the 1816 constitution. Constitution, the product of a convention dominated In the late fall of 1852 the court, in the case of by Democrats, contained provisions against the immi­ Donnell v. State, invalidated an act of the legislature gration of free blacks even more stringent than those making it a crime to induce the escape of a slave or to in the 1831 statutes. The new constitution also hide one, and thus freed a Hoosier who had assisted a declared void any contracts made with African slave in escaping from Kentucky. Ironically, the court Americans, created fines for persons who encouraged based its ruling on an 1842 decision of the United them to remain in the state, and committed fine States Supreme Court, Prigg v. Pennsylvania, w h ich collections for use in returning blacks to Africa. The affirmed fugitive-slave laws. In Prigg, the Court, led by Indiana General Assembly, building on the provisions Chief Justice Roger Taney, struck down a Pennsylvania of the 1851 constitution, also adopted more rigorous law that prohibited the recapture and return of measures for the return of runaway slaves in response fugitive slaves. It held that the federal government pos­ to repeated complaints from Kentucky. sessed exclusive jurisdiction in dealing with runaway Just as the collapse of the Whig party placed the slaves—jurisdiction that the states could not invade. convention and the legislature in Democratic hands, Such was the depth of the Indiana Supreme Court’s the composition and attitude of the Indiana Supreme opposition to slavery that it used whatever precedent Court shifted as well. The election of 1852 gave the it could find, even Taney’s, to combat involuntary state a new court that was less hospitable to blacks servitude. While the Court in Washington, D.C., than its predecessors. This was most apparent in cases seemed to look for ways to protect slave owners, the involving prosecutions for illegally bringing persons of

TRACES Summer 2003 37 Above: Maps of Indiana from 1817, 1820, and 1827. At the time of statehood the majority of Indiana’s population was in the southern portion of the state, especially around the Ohio River and its tributaries. A significant number of Hoosiers came from the South and were sympathetic to the institution of slavery. Both the Lasselle and Clark cases came from the Knox County Circuit Court in Vincennes.

38 TRACES Summer 2003 Slave Cases color into the state. The appeal of one such conviction was pursued by Arthur Barkshire, who had brought a black woman from Ohio to his home in Rising Sun, Indiana, and married her. He was prosecuted for the offense of bringing her to Indiana in defiance of Article 13 of the state constitution. He was found guilty and fined ten dollars. Speaking for a unanimous court, Justice William Z. Stuart wrote:

The policy of the state is thus clearly evolved. It is to exclude any further ingress of Negroes, and to remove those already among us as speedily as possible. The 13th article of the constitution, inaugurating this policy, was separately submitted to a vote of the people, under the title of “exclusion and colonization of Negroes.” It is a matter of history how emphatically it was approved by the popular voice. . . . A constitutional policy so decisively adopted, and so clearly conducive to the separation and ultimate good of both races, should be rigidly enforced. Barkshire v. State (1856).

arkshire’s conviction, quite obviously, was affirmed. The supreme court had steered well clear of the Bcourse laid down in 1820. For reasons that are still difficult to assess, however, the court that wrote so force­ fully in favor of Article 13 managed to play a positive role in the infamous fugitive-slave case of John Freeman. Freeman was a prosperous African American busi­ nessman who had moved to Indianapolis from Georgia in 1844. Upon his arrival in Indianapolis, Freeman paid the appropriate bond required under the 1831 statute and went to work. He acquired property, built a house, and opened a business downtown. In 1853 a Missouri minister came to Indianapolis and alleged that Freeman was his runaway slave Sam. One of the Hyacinth Lasselle lost in his efforts to claim the woman Polly as his provisions of the Compromise of 1850 included a slave. The Indiana Supreme Court ruling gave broad reading to the stronger federal fugitive-slave law. This law was very state constitution's prohibition against slavery and involuntary vague in its requirements for identifying runaway slaves. servitude within the state. Furthermore, it authorized the use of federal marshals to help apprehend and return fugitive slaves. Freeman was tricked into appearing before a federal judge and was later forced by United States marshal John Robinson to strip so he could be examined for marks that might prove he was indeed Sam. Despite the efforts of numerous prom inent citizens, including Calvin Fletcher and Isaac Blackford, to post his bail, Freeman was held in jail while his lawyers traveled to Georgia and Canada to find witnesses for his defense. Freeman was charged three dollars a day while he was in jail. Reverend Henry Ward Beecher’s protests typified the resulting community outrage: “A man that can read such a state of facts and not feel his heart rising with

TRACES Summer 2003 39 Slave Cases

Above: Isaac Blackford is the justice with the longest term on the sounds friendly to the modern ear. Some opine that Indiana Supreme Court, serving from 1816 to 1853. He had strong the Indiana Supreme Court of the 1850s was influ­ antislavery sentiments and was one of the Indianapolis citizens who enced by the wide public hue and cry favorable to worked to free John Freeman. Opposite, Top: Jesse Lynch Holman served Freeman, and by Freeman’s acknowledged standing on the Indiana Supreme Court from 1816 to 1830. During many of those years as the wealthiest black man in the community. he also ministered to a congregation at the Aurora Baptist Church. Opposite, he election of 1864 was a landslide for President

Bottom: A page from the original lawsuit filed by John Freeman against Abraham Lincoln and Indiana governor Oliver those who took him into custody as an alleged runaway slave, T P. Morton. They swept in along with them an indignation against this scoundrel clergyman [Pleasant entirely new Indiana Supreme Court bench: Jehu Elliott, Ellington, the man claiming to be Freeman’s owner], Jam es Frazer, R obert Gregory, an d Charles Ray. W hether ought to regard himself as having sinned away his day one thinks of them as Morton judges or Lincoln judges, of grace, and as sealed over to reprobation.” these Republicans spoke about slavery with a completely Freeman’s attorneys brought an abundance of different judicial voice. It was a voice that sounded much evidence supporting his claim that he was not a more like Blackford, Scott, and Holman. One does not runaway slave and the federal court case was go too far in saying that the four of them declared eventually dismissed. Freeman then turned to unconstitutional a part of the Indiana Constitution. Indiana’s courts to find further redress. An Indianapolis resident named Smith, who was black, The state courts turned out to be hospitable to sued to recover on a promissory note given by a man him. The 1855 Freeman v. Robinson decision held that named Moody, who was white. Moody’s defense was that a free black man had the right to sue a federal mar­ Smith was of African descent, that Smith had entered shal in state court for assault and battery that the state after the constitution of 1851, and that any occurred during his arrest, as well as for extortion contract made by Smith was thus void under the explicit (that is, the marshal charging Freeman three dollars terms of the constitution. Chief Justice Gregory a day for his own upkeep). The Indiana Supreme described those terms of the constitution with disdain: Court held: “The assault and battery, and the extort­ ing of money were no part of his official duty, under Not only do they deprive them [blacks] of all the privileges that or any other act, and were unlawful,” implicitly and immunities secured to every citizen by the constitution, agreeing that charging Freeman three dollars a day but they denounce severe punishment upon all such persons for his keep might fairly be called extortion. Because who many come into the State, regardless of their mechani­ Congress had not legislated on these matters, Justice cal skills, intellectual ability, moral worth, or the services they Samuel Gookins wrote: “We do not see that it is may have rendered to the country. If persons of African possible there should be any conflict between descent are citizens of the United States, the legislation federal and state authorities.” The tone of this ruling which denied to them every right of a citizen is void.

40 TRACES Summer 2003 The court had little doubt that persons of African descent were citizens of the United States. Indeed, Gregory said, “It would hardly be necessary to discuss this question but for the decision of the Supreme Court of the United States in Dred Scott v. Sandford. That case was determ ined in 1856, and although never formally overruled, it is now disregarded by every department of the government.” The Dred Scott decision and the anti-black provisions of 1851 were likewise to be disregarded in Indiana’s judicial departm ent. Smith won his appeal, and Indiana’s Article 13 was a dead letter. Taken as a whole, the Indiana Supreme Court’s rulings on slavery cases during the first half century of statehood constituted a remarkably strong and usually steady affirmation of human rights. Those who served on the court were, of course, products of the same political forces as those who served in the other branches of government. In light of that, their oaths to act as judges, in accordance with conscience, seem to have frequently led them to conclusions that have been judged favorably by history. Randall T. Shepard has served as chief justice of the Indiana Supreme Court since. 1987, longer than any other person in the state’s history. Shepard and David j. Bodenhamer are preparing a book on Indiana legal his­ tory, expected for release in 2004.

F o r F u r t h e r R e a d in g Information on Indiana slave cases can be found on the Indiana Supreme Court’s “Courts in the Classroom” website at http://www.in.gov/judiciary/education . I Thornbrough, Emma Lou. “Indiana and Fugitive Slave Legislation.” Indiana Magazine of History 50 (September 1954): 201-28. I Williams, Sandra Boyd. “The Indiana Supreme Court and the Struggle against Slavery.” Indiana Law Reviezu 30, no. 1 (1997): 305-17.

TRACES Summer 2003 4 IN May 1871, six years after and dealt with the important the end of the Civil War, the question, then and now, of United States Circuit military commissions Court for Indiana and their authority held in Indianapolis over civilians. This a trial that was, as one second trial, a civil author later described it, lawsuit seeking damages an “echo of the war. ” related to the Ex p a rte The trial came in the M illigan case, aftermath of the attracted widespread Ex parte Milligan attention because of the case, which was celebrity status of some decided by the United States of the parties and of the Supreme Court in 1866 lawyers involved in the case.

Opposite: A firm supporter of states’ rights, Lambdin P. Milligan opposed the draft during the Civil War, urging those in the North “to die on their doorstep’s hearth stones in resisting.”

42 TRACES Summer 2003

An Echo of the War ambdin P. Milligan was a lawyer, farmer, and railroad Oliver P. Morton, Indiana governor during the war and later entrepreneur who lived in Huntington, Indiana. He a United States senator. When the case was transferred to the Lclaimed to be a Jeffersonian Democrat of the old school, United States Circuit Court in Indianapolis, Milligan employed invoking Thomas Jefferson and James Madison’s states rights as counsel one of the most successful politicians in Indiana in ideology reflected in the Virginia and Kentucky resolves of the nineteenth century, Thomas A. Hendricks. Beginning in 1798 and 1799 as a justification for slavery. Milligan therefore the 1840s and ending in the 1880s, no other person in Indiana took the southern position on slavery and the Civil War, engag­ successfully held as many political offices. Hendricks had ing in secret antiwar societies such as the Sons of Liberty and served in the Indiana General Assembly and in both houses the Knights of the Golden Circle. When Congress passed the of the United States Congress, and he would later serve as first national conscription act in 1863, there were serious and governor of Indiana and vice president of the United States. violent antidraft riots in New York and elsewhere. Incensed at In addition to being a masterful politician, he was also a this exercise of federal power, Milligan made a speech in Fort first-rate trial lawyer, appearing over the years in many Wayne to perhaps as many as a thousand people, advocating important cases in Indiana courts and the Supreme Court. willful and, if necessary, violent resistance to the draft. Milligan At the suggestion of President Ulysses S. Grant, the was soon arrested in Huntington, taken on a special train to defendants in the Milligan case hired Benjamin Harrison, an Indianapolis, and tried before a military commission of twelve Indianapolis lawyer, to defend them when the case landed in Union army officers. One of the key players in that event was Indiana federal court in 1868. Harrison was the fourth generation Alvin P. Hovey, a former judge of Indiana’s supreme court and of a prominent family of lawyer-politicians that included an orig­ a future governor, who at the time commanded the Union inal signer of the Declaration of Independence, a president, and army in Indiana. Hovey had served as United States attorney a two-term congressman. He had graduated from Miami College for Indiana and would also later serve one term in Congress. in Ohio and was trained in the law by a former Whig congress­ In late 1864 the military commission found Milligan guilty and man, Bellamy Storer. Harrison moved to Indianapolis in the mid- sentenced him to death. He was soon placed in the state pen­ 1850s and early on established himself as a hard-working, itentiary in Ohio while the legal proceedings played out. sometimes humorless, but extremely able trial lawyer. For a time In the nineteenth century, United States Supreme Court he was a law partner with the father and brother of Lew Wallace, justices were required to ride circuit under the Judiciary Act of a connection that would be important to him for the rest of 1789. The federal court in Indiana was a part of a federal judicial Judge Thomas Drummond, who presided over the Milligan civil case, served circuit that included Michigan, Ohio, Indiana, and Illinois, and for more than thirty years on the federal bench. the circuit justice was David Davis of Illinois, an old friend and former campaign manager of Abraham Lincoln (Lincoln had ridden circuit in Illinois when Davis was a state trial judge there). Proceedings in regard to Milligan’s fate were held before Justice Davis and Judge David McDonald, the United States district judge for Indiana. Because the two judges disagreed on whether the Constitution prohibited citizens from being tried before military commissions, the case was sent to the Supreme Court. In his majority opinion for the Supreme Court, Justice Davis held that if civilian courts were in full operation, as they were in Indiana, and the area was not a war zone, civilian citizens who committed civilian offenses could not be tried before a military commission. As a result of this 1866 decision, Milligan was released from prison and returned home to Huntington to a hero’s welcome. (One of Milligan’s lawyers in his successful appearance before the Supreme Court was Ohio congressman James A. Garfield, later president.) ibrary Milligan filed his own lawsuit in the local courts L ociety of Huntington County, naming as defendants all of those S who were involved in his experience before the military istorical commission. The defendants included Hovey and General H tate Ben Spooner, a Union officer who had lost an arm at the bat­ S llinois tle at Kennesaw Mountain. Also named in the lawsuit was I

44 TRACES Summer 2003 Hendricks’s str ateg y was to keep the case as narrow as possible to one of m alicious prosecution and false imprisonment based on traditional common-law principles. He focused on the time and circumstances of Milligan’s incarceration.

The nephew of former

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frustrated his political ollection C opponents, who claimed

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TRACES Summer 2003 45 An Echo of the War his life. In I860 Harrison had been elected reporter of the so, Harrison found an informant who had infiltrated the Sons Indiana Supreme Court, a position that served an important of Liberty and the Knights of the Golden Circle during the stepping stone for ambitious lawyers. The job also permitted war. Described as a self-promoting Kentuckian, Felix Grundy the occupant to engage in some private law practice. Stidger gave extensive testimony on the activities of Milligan After a long series of procedural machinations, these two in these secret organizations. Stidger testified that Milligan legal-political giants finally squared off against each other in had served in the Sons of Liberty “with the rank and title of May 1871 in the first major civil-rights jury trial held before the Major General” and had been present when the group dis­ federal courts. The drama was heightened because of the cussed releasing Confederate prisoners in Indianapolis and celebrity status of the lead counselors on both sides, who were other locations and arming them with stolen federal supplies. also assisted by other well-known lawyers in Indiana. At one point in the trial Harrison tried to convince Grant had recently appointed Walter Q. Gresham as the Drummond that Milligan had been in a war zone, thus tak­ United States district judge in Indiana. For reasons that are ing the case out of the hard edges of the Supreme Court’s deci­ somewhat obscure, Gresham did not participate as a presid­ sion. Judge Drummond would have none of it, forcing ing judge in this case. Instead, the case was tried before Judge Harrison into a frontal scorched-earth strategy. Thomas Drummond of Illinois, who had served with Lincoln at one time in the Illinois legislature and was on a short list for the Supreme Court when Davis was appointed in 1863. Drummond was considered to be a studious, highly able federal trial judge who ran his courtroom with firmness and fairness. Harrison and Hendricks were both good technical lawyers, and Drummond was an equally good technical judge, setting the stage for a classic courtroom struggle. ne of the principal issues in the case had to do with the extent, if any, of the damages sustained by Milligan. Harrison successfully argued that provisions of an 1863 habeas corpus act enacted by Congress had a two-year statute of limitations. Harrison convinced Drummond to rule that that statute applied to the Milligan case, and the judge instructed the jury accordingly. Thus, Harrison successfully limited the dam­ ages sustained by Milligan solely to a narrow slice of time between 13 March and 10 April 1866. This ruling turned out to be a dev­ astating legal defeat for Milligan and Hendricks. Also hurting their case was the political composition of the twelve-man jury. Democratic-leaning newspapers in Indianapolis alleged that at least ten of the twelve jurors were known Republicans. Hendricks’s strategy was to keep the case as narrow as pos­ sible to one of malicious prosecution and false imprisonment based on traditional common-law principles. He focused on IHS, C7752 the time and circumstances of Milligan’s incarceration. As a A soldier and diplomat, Alvin P. Hovey served in Congress and as Indiana part of this tactic, Hendricks had the benefit of a decision by governor from 1889 until his death in office two years later. During his the Supreme Court, which held as a matter of law that the con­ legal career, he fought to uphold the terms of New Harmony educator stitutional rights of Milligan had been violated by the pro­ William Maclure’s will, which called for the establishment of ceedings before the military commission. With the facts and workingmen’s libraries across the state. the law seemingly leaning in the favor of Hendricks, the ques­ In addition to assisting his client, Hendricks used the trial to tion became what position Harrison would adopt. settle some old political scores. He did so while Brigadier General It very quickly developed that Harrison adopted the strat­ Harry D. Carrington, the predecessor to Hovey as commander egy and tactic of replaying the drama of the Civil War in the of the Indiana military district, was on the stand. Carrington had federal courtroom. He attempted to retry the war and been responsible for assembling a force to run the Confederate Milligan. Although he had to live with the Supreme Court invader John Hunt Morgan out of Indiana in 1863. On decision, it did not did not keep him from demonstrating to cross-examination Hendricks demonstrated that Carrington the jury that Milligan, after all, had been a traitor. In doing had remained safely in the rear during the war. Morgan

46 TRACES Summer 2003 A n E cho of the War escaped into Ohio while Carrington fortified himself with but whether a man can be arrested without authority of law; liquid courage, resulting in his later removal from command. held month after month in prison; put on trial before a Harrison, able lawyer that he was, wrung very little in the tribunal having no jurisdiction or authority over him, and sen­ way of damaging admissions from Milligan. Try as he might, tenced to ignominious death; and for all to be denied the Harrison simply could not get Milligan to admit affiliation ancient remedy and redress of the law. The struggle today is to with or participation in seditious organizations, forcing maintain some of our cherished Constitutional rights; the right Harrison to turn to the likes of Stidger and another infor­ to trial by jury; freedom from unlawful arrest and imprison­ mant, Edmund Klamroth. Hendricks worked Klamroth over ment; and exemption from all trial and condemnation except in a scathing cross-examination, trapping him into falsehoods in accordance with the usages of the courts.” and driving him from the witness chair in disgrace. arrison’s argument, on the other hand, was flamboyant The case was beginning to wind down by the end of May. and directed at what he thought he knew about the Hendricks’s final summation proved to be restrained. He calmly Hjury, especially its sympathy for the Union. Referring argued: “The dignity and importance of the questions involved to Spooner, he told the jury, that during the fighting at in this case you can estimate somewhat when you consider the Kennesaw Mountain “he gave an arm, almost a life, for the country which he, and these his comrades, loved so well. While he lay upon the field, bleeding, almost dying, here in Grand Council in the State of Indiana Milligan and his associates were plotting treason; and now they seek to rob him of the little sav­ ings from the office which a grateful country . . . conferred upon him, in order to enrich the traitors.” This two-week jury trial in the Indiana federal court had been vigorously prosecuted and defended by the ablest lawyers in the state. The jury received the case for deliberation on the evening before Decoration Day (today’s Memorial Day) and returned the verdict at 11:00 A.M. on 30 May. The jury awarded Milligan five dollars plus court costs. Throughout the 1870s, Milligan tried, without success, to collect his winnings. The lawyers involved in the case proved far luckier. Hendricks was elected as Indiana’s sixteenth governor the next year and later served briefly as vice president under Grover Cleveland in 1885. Harrison was elected to a single term in the Senate in 1880 and then elected as the twenty-third president of the United States in 1888. There is no doubt that virtually all of the current discussions of the purposes and limitations of military commissions over civil­ ians must begin with the Supreme Court’s decision in Ex parte Milligan. Chief Justice William Rehnquist has called it the first great civil-rights case. It is also true that the celebrity-laden After losing to Grover Cleveland in the 1892 presidential election, federal-court trial that followed in Indianapolis stands as the Benjamin Harrison returned to Indianapolis and his successful law practice. first great civil-rights jury trial, and it bears out the historic sug­ In 1899 he received thousands of dollars In retainer and fees from gestion that most, if not all, major political questions eventually Venezuela for work on an international arbitration case. find their way into a United States federal court. language of the Supreme Court thus used in respect to them. Allen Sharp is judge of the United States District Court for the They are not whether Mr. Milligan is a good or bad man, nor Northern District of Indiana. He is adju nct professor of history at whether the defendants were gallant soldiers and able officers, Butler University and Indiana University-South Bend.

Fo r F u r t h e r Re a d in g Element, Frank L. The Copperheads of the Middle West. Chicago: University of Chicago Press, I960. I Nolan, Alan T. “Ex Parte Milligan: A Curb of Executive and Military Power,” in We the People: Indiana and the United States Constitution. Indianapolis: Indiana Historical Society, 1987. I Stampp, Kenneth M. Indiana Politics during the Civil War. Indianapolis: Indiana Historical Bureau, 1949. I Tredway, Gilbert R. Democratic Opposition to the Lincoln Administration in Indiana. Indianapolis: Indiana Historical Bureau, 1973.

TR A C E S Summer 2003 47 The 18 September 1886 issue of the A merican Architect an0 Building News featured drawings of the new federal buildings in Terre Haute and New Albany. Both of the structures were designed by M. E. Bell. Illustration submitted by Andrew R. Seager