Part 17

"That construction accords with the true meaning of the words 'corporate powers,' which is powers essential or incident to the nature of the artificial being created by law--such as the power to take a common name, to have corporate succession, to contract and be contracted with, and to sue and be sued as one person, etc. These are properly corporate powers. It is true the words are sometimes used to include all the powers which the particular corporation possesses; but that is a loose and inaccurate use.

"I think that the correct interpretation of the publication is that it simply forbids the creation of a corporation by a special act of incorporation--nothing more. It does not forbid an act operating to enlarge, modify, or restrict the rights of an existing corporation, any more than it does a similar act in respect to a natural person in a like case. Still less does it forbid such legislation in respect to a foreign corporation. It is enough for the present case to say that the clause does not prohibit a legislative recognition or an express sanction of an existing comity of the State in favor of an existing corporation of another State.

"1. I am, therefore, of opinion that a special act declaring the assent of the State of Ohio to the exercise within that State of all the powers necessary for a beneficial use of the Pittsburg, F. W. & Chicago Railroad by a corporation of Pennsylvania or Illinois, which should have become the owner of the part of such railroad situate within the State of Ohio, would be valid and effectual.

"A general law would, of course, be somewhat preferable, as it would avoid this question. If it is certainly attainable, I would seek our legislation in that form.

"But I foresee the possibility that it might excite more jealousy than a special act, because its full application and use cannot be certainly anticipated. I foresee, also, the possibility that it may affect special cases of existing interest, prejudice, or passion, of which I am ignorant.

"In the first section of a draft of a general law which I have hastily made at a suggestion, I have tried to avoid the first of these two objections by limiting the cases to which the law applies.

"1. An existing railroad.

"2. Partly situate in Ohio and partly in some adjacent State.

"3. Sold under an existing lien.

"4. Acquired by a corporation of another State in which another part of the same railroad is situate.

"5. Such corporation acquiring the part of the railroad situate in that other State.

"6. Of course, such corporation having the capacity to take and operate the part situate in Ohio.

"Perhaps I may have put in more limitations than are necessary.

"Whether the measure will run foul of any other interest can be better judged of by men conversant with the state of affairs in Ohio and in its legislation.

"The general law, as proposed, is not more liberal than the existing consolidation act of Ohio. We ought to be able to obtain it. If there is a strong probability that we cannot, we ought to obtain a special act of a similar nature, applicable only to our particular railroad.

"2. The advantage of not making the corporation a creation of the State of Ohio is that it certainly and unquestionably avoids this double liability of the corporators imposed by the Constitution of that State.

"The degree of liability to which the individual corporators shall be subject is a part of the code of regulations specifying the mode and conditions of the existence and action of the artificial being. Sometimes it is nothing beyond the stock paid in. Sometimes, as by the Ohio Constitution, it is a limited amount beyond the stock paid in; sometimes it is absolute, as in the case of partners. It is not of the essence of corporations--it is a regulation imposed by the sovereign who creates the artificial being an incident to the particular corporation. Nobody but that creator could impose such a regulation. The most any other State could do would be to refuse its comity to a corporation until it should get the regulation imposed by the lawful authority of the State of its creation.

"Besides, the provisions of the Constitution of Ohio applies only to corporations created by or under the laws of that State. It does not purport to operate on corporations of other States transacting business in Ohio under the comity of its sovereign.

"3. In respect to the general act proposed by Mr. Stanbery and Mr. Hunter, I think they should prepare it and that we should co-operate in procuring its passage. It would be open to our choice if on consultation we should prefer to act under it; and it would be useful in other cases. My idea originally was to have that general law and a special act for the Pittsburg, F. W., C. R. R. If we change the latter to a general law, it makes two of that character; but I do not see any objection if we can get them both passed.

"I should like to have a copy of the draft of such an act as Mr. Stanbery and Mr. Hunter propose.

"The draft of a general act which I send contains provisions which ought to be considered as consulted upon. I have prepared them without, perhaps, sufficient study of your laws on the subject, and without knowing the temper of your Legislature.

"In some particulars they must be regarded as mere suggestions. Consider--

"1. The clause of Sec. 1, subjecting the company in respect to its management of the part of the railroad to the duties and regulations imposed by your general laws--whether there is any provision which should be accepted, whether this clause ought to be made more stringent in order to be satisfactory to your Legislature. But care should be taken not to use expressions which could include the personal liability provisions of the Ohio Constitution and laws.

"2. The clause of the same section subjects it to be--

"Section 2 is intended to give the same power as to mortgaging the rolling stock, etc., which is contained in the Pennsylvania act. I do not think this ought to be objected to.

"Section 3 is an adaptation of a clause proposed last summer.

"I cannot send a fair copy of the special act without losing a mail. The general one is sufficient as a basis of consideration and consultation.

"I would like to have you consider the matter, and must contrive some way to meet in consultation.

"I address this letter to you, though its contents are for Mr. Stanbery, Mr. Hunter, and Judge Sherman, to whom I pray you to offer my best respects.

"Yours truly, "S. J. TILDEN."

"_W. H. Swayne, Esq., "New York, Dec. 6, 1860._"

TILDEN TO W. B. OGDEN

"NEW YORK, _Dec. 17, 1860_.

"MY DEAR SIR,--As you leave in the morning to return to Chicago, I seize a few moments this evening to submit to you some suggestions as to the present crisis in the affairs of our country. I know you have no personal aspirations; that you are exempt from the blinding and misleading influence of active partisanship; that your disposition is equitable; that you have no motive but the public good--no interest except in common with all patriotic citizens; and that, far better than most men, you understand that there is usually another side to a controversy than 'our side.'

"Your situation may enable you to be of great service to your country and to mankind, and of not less service to a gentleman who to-day occupies a more important and responsible position than has been the fortune of any other of his generation. Of course I allude to Mr. Lincoln. His patriotism I do not doubt. The impression he made on me, upon two occasions when I casually met him, was that of a frank, genial, warm-hearted man. In the actual duties of the Presidency he cannot but take conservative views. No man can have a motive so strong and yet so noble to prevent his own name from closing, amid public sorrow and shame, the illustrious roll of American Presidents which began with Washington.

"It must be his renown or his calamity to decide whether he shall be the Chief Magistrate of a whole country or of half a country. Providence has cast upon him that immense responsibility. In saying this I do not touch the question, What has caused the mischief? I speak only as to the question, _Who has the power to save the country?_

"1. The reality of the _danger_ of disunion, I think, cannot be doubted. The cotton States are far more unanimous for secession than our fathers were when they made our revolution despite of the royalist majority. Practically, their people are unanimous. We can only hope for an effective minority forming itself in some qualified position within the current of popular opinion. A statesmanlike policy would be to aid the formation of that minority--to strengthen it that it may become a majority, to create, to hasten, to swell the reaction for which we hope.

"2. Our first necessity is to comprehend the crisis. That is difficult. A man on one side of a question cannot easily turn out the set of ideas which fill his mind and admit the opposite set, even for an experiment. Nothing is so difficult in ordinary experience as to see both sides of a question. For us who have been educated with Northern ideas or in party controversies, we must be almost more than mortal to be able to take a perfectly candid and impartial view of the position of our adversaries. It is necessary to do more--to imagine ourselves in their position, in order to form a policy adapted to their case."

TOWNSEND WARD TO TILDEN

"PHILADELPHIA, _Dec. 19, 1860_.

"DEAR SIR,--Last evening, at Mrs. Gilpin's, I met Mr. Ogden, who kindly gave me a copy of your letter to Mr. Kent.[30] It is so well calculated to do good that I want to obtain copies for distribution. Can you have your publisher send me fifty, with a line stating the cost, which I will remit? Years, perhaps, of the dreary labor of reconstruction of our empire are before us, and it will not do for us who foresaw the storm to desert the wreck while a single plank of hope remains.

"I send you a copy of a pamphlet by a Mr. John R. White, of this city. It has some good points.

"Very Respectfully, "TOWNSEND WARD, "204 S. 5th St.

"_Samuel J. Tilden, Esq._"

S. J. TILDEN TO (TOWNSEND WARD)

"NEW YORK, _Dec. 1860_.

"MY DEAR SIR,--Immediately on receiving your note I caused 50 copies of my letter to Judge Kent to be sent to your address. I acknowledge a deep sense of the favorable estimate you express of that effort, on a sudden occasion, amid the toils which fell upon me as one of the Union committee, to recall our Northern people to the duty of justice and fraternity towards our Southern fellow-countrymen. I have delayed writing to you to say so until I could seize a moment in which to add a suggestion as to the future; and, in the mean time, how rapidly, how fearfully, have events been hurrying forward!

"It seems, too, that these events cast largely upon the Virginia statesmen of this generation the momentous duty of saving from destruction a political system which we and the world owe mainly to the Virginia statesmen of the golden era of the Republic."

S. L. M. BARLOW TO TILDEN

"_Private._

"NEW YORK, _Wednesday_.

"MY DEAR TILDEN,--I understand that you are to be consulted this evg. as to the propriety of assuming control of the Pres't and his adm'n from this time forward on his promise to surrender everything to the Democrats. This plan assumes that Church and yourself will enter heartily into this movement, and that one of you will go into the Cabinet.

"Whoever does so will, in my judgment, run a very serious risk of damaging his own record; the adoption of the plan will hasten rather than retard impeachment; it is not unlikely that the finances may be deranged, which will be chargeable to us, and with Johnson's sins of omission and commission on our backs, we stand a fair chance of defeat, when otherwise we might win in the coming Presidential fight. I see nothing to be gained except a few places, very few, too, with Congress against us, for a few men who want position. I hope, if you agree with me, you will not countenance the plan in any form.

"Y'rs, S. L. M. BARLOW."

"_S. J. Tilden, Esq._"

FOOTNOTES:

[19] To whom this letter was addressed does not appear, but there is every reason to believe it went also to Mr. Newell, through whom he conducted most of his correspondence with the Pierce administration.

[20] Mr. Campbell was a member of the Catholic communion.

[21] Mr. Grover had acted with the Free-soilers in 1848. He was now suggested by Van Buren's friends to succeed Judge Bronson as Collector of the Port of New York.

[22] John Van Buren.

[23] For the history of Mr. Tilden's nomination to the office of Attorney-General, and of his correspondence with Mr. Sutherland, his "Hardshell" competitor, see _Bigelow's Life of Tilden_, Vol. I, p. 127-130.

[24] Governor Tilden's eldest brother.

[25] Who had been Atty.-General under Van Buren when President.

[26] This is no doubt the subject referred to in Mr. Van Buren's letter of October 14, 1859, in which his feelings were deeply interested.

[27] For further particulars of this memorable and very able letter, see _Life of Tilden_, Harper & Brothers, 1895.

[28] The following year Commissioner of the Confederate States to London.

[29] The Pittsburg, Fort Wayne & Chicago Railroad.

[30] The letter here referred to will be found in the _Writings and Speeches of Samuel J. Tilden_. Harper & Brothers, 1885.

1861-1867

TILDEN TO WYNDHAM ROBERTSON

"NEW YORK, _Jan. 13, '61_.

"MY DEAR SIR,--I read your letter, and the printed one you were kind enough to send me, with much pleasure, and gave them to Mr. Miller, with the stipulation that they should go to Messrs. Hewitt and Cooper in succession. In the main I assent to your views.

"I have no doubt--

"1. That the late election[31] was not a verdict of the Northern States on the theoretic questions urged by the Republicans. Masses went for Lincoln, from habit and association, as a lineal succession from Whiggism. Masses from mere opposition to the Democratic party, and from all the causes which gradually operate to make a revolution between the ins and the outs. The drift created by the disorganization of the Democratic party, and our inability to present any single candidate as a point of union to the conservative sentiment, and the concession from April till October that we must inevitably be beaten; I say this drift alone might fairly be 24,000 out of 675,000 voters, or 3-1/2 per cent., which would have changed the result in N. Y. and in the Union.

"2. That a very important reaction has already taken place.

"3. That, even if we had not had our present difficulties to bring men to consider, Lincoln's administration must necessarily go utterly to pieces when it came either to _present affirmative measures_ or to _distribute the patronage_.

"4th. That, on the whole, through all these struggles and much apparent increase of the anti-slavery element, there is growing a larger and stronger party, capable of doing the Southern States full justice, than ever has existed for half a century past; I mean, capable of recognizing, on reason and principle, the right and the necessity the Southern States have to grow in the natural expansion of their industrial and social systems. In 1820 the North was unanimous in claiming the right to attack conditions operating after a State should be admitted. That idea is now abandoned by a vast majority of our people. It is natural that when a new question arises, assumed to be within our constitutional jurisdiction, our people should all start to apply to it the ideas on which they have acted at home. To see that it cannot be wisely disposed of by their merely voting in respect to it as if it were a purely domestic question; that they must calculate for the co-existence and expansion of the two systems; that they must partition the Territories--is a later stage in their political education.

"I am of opinion that prevalent errors have, in the main, run their course; and we need only to give our people a fair chance to secure the adoption of a wiser and better system than they have ever before understandingly accepted.

"If the present Congress continues unable to do anything adequate, I think the next best thing will be a convention of all the States to propose amendments to the Constitution, with an arrangement, if practicable, to keep the parties in _status quo_ while those amendments are being perfected and submitted. The convention should be elected in districts on the basis of the House of Rep. The submission should be to conventions.

"That would make two popular elections necessary. The convention would be sure to be conservative. By summer the disintegration of the Republican party would be completed, the reaction perfected, and three-quarters of the States would ratify amendments substantially on the basis of Crittenden's propositions.

"Our people are temporarily misled, but by a vast majority conservative at the bottom. We only need time to bring them to a sound position.

"Excuse the haste with which I am compelled to write, and believe me,

"Very truly, "Your friend, "(sd.) S. J. TILDEN.

"_Hon. Wyndham Robertson, "Richmond, Va._"

Dudley Burwell was a prominent lawyer in Albany, a thoughtful and estimable man, and had been an active Democratic partisan of Van Buren in opposition to General Cass in 1848. He shared Mr. Tilden's apprehensions of a civil war as the inevitable result of Mr. Lincoln's election. He held no office himself, and I am not aware that he ever sought any. His letter is valuable as an illustration of the diversity of opinion among leading men of all parties by which Mr. Lincoln's government was perplexed during the three first years of his administration. Advice was in abundance, but no two counsellors entirely agreed about what the government should do or abstain from doing. It was impossible to divine the opinions of the people upon any subject, the succession of new and unfamiliar events was so rapid and surprising.

D. BURWELL TO CASSIDY

"I pray you read this letter immediately!

"_Jan'y 29th, 1861._

"MY DEAR CASSIDY,--I received your telegraph this evening--and so kind a message would have started me at once for Albany, but one side of my face is badly swollen, and unless it is better to-morrow I must keep within doors.

"From the names of the delegates to the convention, and the disrelish now almost universally expressed against coercion, do not doubt its expression will be strongly against war.

"I hope they will make Gov'r Throop president, and that they will name Mr. Fillmore or Gov'r Hunt, Gov'r Seymour and Mr. Brady or O'Connor and Mr. Belmont to visit Washington and such other places as they shall think advisable for the purpose of persuading all belligerents to defer all hostile demonstrations for a period of 15 months, or until the 4th of July, 1862, in order to give the people time to consider the whole subject and to act upon it in such way as may be agreed upon.

"_Time is necessary. It is indispensable._ And if the convention will confine itself to that one point and ask time for consideration it cannot very decently be refused.

"Time is wanted--

"1st. That Mr. Lincoln may dispose of his patronage.

"2nd. Until elections can be held in all the Northern States, in most of which the Republicans would be defeated.

"3rd. That the South may try the Southern confederacy, in which they will probably fail to realize the golden advantages, and will be quite willing to resume their places in the Union when they can do so with honor.

"I think Legislatures may be elected next fall in 2/3 of the States, a convention called, good amendments proposed and ratified, so as to bring all the States again into the Union, and that your convention is the proper body to _start this project at this time_.

"If it takes this course it should appoint an executive or corresponding committee to act and correspond with other States, and should omit expressing any opinion as to the _particular amendments now before Congress_, so as to be free from all commitments to special and particular projects.

"I think this the only way of preventing war and saving the Union.

"I hope the resolutions will refrain from condemning the seceding States, also from demanding the forts to be reclaimed, and, in fact, everything that can lead to war.

"I had a talk yesterday with Mr. Loomis, and he understands my views, and will, I believe, act in accordance with them, as they seemed to be his also.

"_Wednesday Morning._

"The two sides of my face are too unequal to show it in Albany, so I will add a few words which I think the most important I have ever penned, unless there should be some one or more who have by careful reflection come to the same conclusion; and I hope you will not reject them on the first perusal, but weigh them, reflect upon them, suggest them to Richmond, Van Buren, O'Connor, etc.

"_To direct the whole action of the convention to initiate a call of a national constitutional convention through a requisition upon Congress by the States, and demand the necessary and indispensable time to effect this object._

"Such action will drive the Republicans to abandon their warlike measures, and will very likely hurry them either to the adoption of some of the measures before Congress or to take the initiative this winter for the call of a national convention while they have the apparent power of controlling it.

"Such a movement would carry every Northern State except Massachusetts and Vermont, would restore the Democracy to power, and revive and invigorate the Union. Start it, I implore you, and do not let the convention exhaust itself on the rubbish now before Congress. We must strike a blow at the overwhelming patronage of the Federal government, and restore it to the States to augment their power. We must place the South in a position where it will feel its equality, and have the means of defending itself in its own hands.

"By taking this course, simple and pure, invigorating it with all the spirit and vehemence of the convention so as to arrest the attention of the whole country, you will open a door for the reunion of all Democrats at home and abroad, and save all that is worth saving in our institutions.

"You recollect Act. 5--Cons. U. S.--that Congress _shall_, on the call of 2/3 of the States, call a convention.

"You initiate this proceeding, then you have a reason for demanding peace, for you have a constitutional remedy to propose. You have an object always ahead to accomplish, all old, obsolete issues are dead, and you have always hope to influence the masses and the _Union to love_ to incite all men to its restoration to health and vigor.

"If this plan of action is proposed by others, encourage it if you have resolved upon it; be confirmed in your resolution, but do not, I beseech you, reject it because it comes from so humble a source as myself. I fancy I have bestowed as much calm reflection upon all the phases of this state of the country as all the members of the convention. I believe no one can be personally less interested, whether we all go to chaos and confusion, or come out with renewed vigor from the dangers of this dark hour.

"If it shall appear that I am a suggester, then I beg you to place the matter in Van Buren's hands and let him at the first practicable moment lay the subject fairly and squarely before the convention. And as more think upon it they will admit it is the thing to kill the Republican party. If John is obdurate try Seymour and some one else.

"Yours truly, "D. BURWELL."