Part 27

"I think there can be no doubt that all the grounds of the discrimination contemplated against Mr. Sage, as compared with the other persons charged with having received more than seven per cent. for the use of money--as those grounds are reported in the public journals--are erroneous in point of fact.

"The principal ground is the supposed participation of Mr. Sage in the locking up of greenbacks. This allegation is denied in the most positive and comprehensive manner by an affidavit of Mr. Sage. That denial is corroborated by affidavits of one or more persons most intimately acquainted [with] his affairs. I find no difficulty in giving full credence to these denials from my own knowledge of Mr. Sage, his methods and habits of business, his transactions and investments. They are all incompatible with his being engaged in any such scheme. I have known him well for years. He is about the last man to enter into any combination which would limit the freedom of his individual and personal action. He is not a lender of money as a business or otherwise than of his temporary balances. His interests are all in favor of elevating rather than of depressing stocks, in which the bulk of his property is invested. It would not need the affirmative proof which is offered to make me totally discredit the representation that he was or could be involved in a combination of the character and objects imputed to him. Mr. Sage is a man of rare ability, energy, and enterprise; and his use of these powers is all in the way of building up, constructing, developing. I am satisfied that there is not the slightest ground for imputing to Mr. Sage anything beyond the mere fact of receiving more than seven per cent. for the use of money. I hope that you will consider it consistent with your duty to confine your sentence to the fine which you have applied to the other cases of the same character; and I am sure the judgment of the bar and of the entire community will sanction such a disposition of the case.

"It is not necessary, in my view of the matter, to discuss the statute of 1837. It was peculiar in two respects: that it reversed the equity rule which had prevailed always before in this State and in England, that in cases of usury 'he who seeks equity must do equity'; and that it added to the forfeiture at law of the money loaned a criminal penalty. I remember it in its origin, its authorship, and the circumstances under which it came into being. It was then deemed an extravagant and barbarous law. I have never known its criminal feature enforced until now. I presume that nearly all the community, as well as Mr. Sage, were ignorant of the existence of a feature so anomalous in all jurisprudence.

"I beg to add that the case cannot be deemed one calling for any exceptional rigor; nor do any circumstances of aggravation exist to justify the infliction of a special indignity upon a man of character like Mr. Sage, doing an act, not _malum in se_, universally practised and universally tolerated.

"With much respect,

"I remain, "Truly y'rs, "S. J. TILDEN."

"_Hon. Albert Cardozo._"

S. E. CHURCH TO S. J. TILDEN

"ROCHESTER, _June 27, 1869_.

"HON. SAML. J. TILDEN.

"MY DEAR SIR,--Your favor is recd. I was sorry you was not at home when I called, although I had no specific business. But it is a good thing to have a general talk once in a while to see whether we look at things alike. Politics seem to be drifting just now, but I think the general tendency of public opinion is in our favor, and at the end of four years we shall go in as a matter of necessity. As to investments--I have precious little to invest, but I would be glad of an opportunity to make some money, and if you see any good chance I hope you will let me know.

"Are you not coming up this way this summer? We would all be glad to see you and any of your family that can come with you.

"Truly Yours, "S. E. CHURCH."

S. E. CHURCH TO TILDEN

(WOULD LIKE TO MAKE SOME MONEY)

"ROCHESTER, _Jan. 27, '70_.

"My dear Sir,--This is my first letter written by myself. You inquire what my physician thinks and what I think about my recovery. My physician and others who have been consulted all say that my recovery is certain and will be perfect, restoring me to full health, but that it will require time on account of my great prostration.

"I have had the 'blues' occasionally, but I believe I shall recover and be well. I am confined to my bed most of the time, but am able to sit up some and walk a little.

"I would like to make some money. Is there not some speculation by which I can do so?

"Why don't you get interviewed?

"Please write.

"Yours truly, "S. E. CHURCH."

TILDEN TO T. P. BISSELL

"NEW YORK, _Jany. 10, 1870_.

"MY DEAR SIR,--Can you furnish me the following information:

"1. Copy of the record of _births_, deaths, and marriages in the family of Isaac Tilden or any others of the name of Tilden, as shown in your office.

"2. Memorandum of the _names_ of _parties_, _dates_, and _substance_ of _deeds_ and _mortgages_ to and from the said Isaac Tilden and others of the name of Tilden.

"If these are very numerous, a brief memorandum will answer.

"I can decide afterwards whether I will want copies, and, if so, what.

"3. How can access be got to the church records, and can you get the information from those records as to the matters embraced under No. 1?

"4. Where is the probate office in which wills were kept from 1702 to 1760 or 1780?

"Can you look for will of Isaac Tilden conveniently?

"Of course, I will give you a reasonable compensation for any trouble you may be at in procuring and sending me the information mentioned above.

"Truly yours, "S. J. TILDEN."

"_Hon. T. P. Bissell, Esq.,_ "_Hebron, Conn._"

JAY GOULD TO S. J. TILDEN

"_President's Office, Erie Railway Company, cor. 8th Ave. and 23d St._ "NEW YORK, _Feb. 11, 1870_.

"S. J. TILDEN, Esq.

"DR. SIR,--Feb. 24, 1869, I paid you retainer for Erie R. R. Co. $10,000. Subsequently, on March 5, at your request, I bought Flagg's bonds, with the understanding that he will co-operate with us in A and G matters, paying him $3038.29/100, being the face of the bonds and accrued interest, compounded. At the same time that I paid you the $10,000 I paid you also $1000 for Flagg's services to date as trustee, for which you returned me voucher signed by A. C. Flagg for his daughter.

"I wish to ask you whether, in view of the foregoing, we are not justified in being surprised to find you against us _without notice_?

"Please reply and oblige,

"Yours truly, "JAY GOULD."

TILDEN TO JAY GOULD

"MONDAY EVENING, _February 14, 1870_.

"MY DEAR SIR,--On my return late Saturday night I received yours of the 11th, and I take the earliest time at my disposal to reply.

"The retainer to which you allude grew out of and related to matters wholly distinct and disconnected from the A. and G. W.,[52] and was arranged without any agency of mine, and the subsequent payment of it was purely voluntary on your part.

"No intimation was ever made to me that it had any reference to or was to affect my relations to Mr. Flagg[53] as trustee under the several mortgages of the A. and G. W.

"I cannot doubt that it was known to you that I had acted as his counsel for more than a year previous. Nor did I ever suspect that you did not perfectly understand that I was still at liberty to do so.

"Afterwards, when Mr. McHenry[54] sought to retain me in reference to his scheme for reorganizing the A. and G. W., and asked me to name the amount--having looked into all the relations of parties, and having considered his plan--I declined to have anything to do with it in any manner or for any purpose, and refused his retainer, repeatedly pressed upon me.

"In one of these interviews I informed him that the suits which had been commenced to foreclose the mortgages, if, as I understood them to be, for I had not seen the papers, were objectionable, that, if a sale were to be had, they must be reformed or abandoned, and new suit in proper form, and with proper parties, instituted; that Mr. Flagg--at the instance of any bondholders, and possibly in an extreme case without their instance--ought to intervene for that purpose. To this view he yielded.

"When the lease proposed to be made by the receiver was brought to my attention some weeks ago, the counsel of the Erie called on me to ask my consideration of it as counsel for Mr. Flagg and of the first mortgage bondholders. He called on me to exercise my function in that capacity; and had prolonged negotiations with me, not as an associate, but as a representative of a different party.

"I heard no complaint until it happened that, while acting as counsel for the trustees and bondholders, I did not do precisely what their adversaries preferred to have done.

"Now, I answer your question: You 'are not justified in being surprised that I am acting for the trustee and his bondholders "without notice"' to you. You had notice all the time that I was at liberty so to act, and much of the time that I was so acting. If you _are_ surprised, you are under some misapprehension as to the situation. I would have omitted no courtesy towards you. I had no suspicion that you did not understand my position exactly as I understand it.

"When the question as to the proposed lease came before me, suddenly and unexpectedly, it was with the declaration of Mr. Meyer that he was 'opposed to it, unless I could show him reasons to the contrary, which he did not think I could.' I looked at it to see if I could devise modifications which would make it safe for the bondholders.

"The difficulty of the case is the _short_ and _uncertain_ duration of the lease. I was not able to see in it, _as drawn_, sufficient guards to satisfy the bondholders. I spent a morning with Mr. Lane and Mr. Meyer discussing amendments; and we left for Ohio, with the understanding between him and us that we should have a conference there upon the subject of amendment. It was only when the motion was on and the argument was about beginning that we learned to our surprise that Mr. Backus had decided that no negotiation for any modification would be entertained. So the question had to be argued as it stood. Just before I left Cleveland, Mr. Backus said to me that if we would recognize the advance ($1,390,000) as to be ultimately paid, he would do everything to give us security in the operation of the lease; and, if, when I got to New York, it was thought advisable to negotiate, he would come here on your request. After my return I _did think_ it advisable to consider the question, and so said to Mr. Lane; but he declined. Shortly after, the motion in Philadelphia, of which Mr. Cuyler had given notice, in pursuance of a reservation he had caused to be made in the original order, came on.

"I allude to these circumstances to show that I have treated you fairly and considerately while in an adversary position on this question of temporary lease.

"One word as to Mr. Flagg. The payment of the $1000 for his services was due him, and should have been provided for. I first called the attention of Col. Stebbins to it, and then yours. The purchase of the bonds of Mr. Flagg--to a trifling amount--was no greater favor than had been accorded on a large scale to parties who had stood in the way of the arrangement for the close of the receivership and the making of the lease. That he had taken no selfish care for himself did not seem any reason why he should be treated with less consideration. I submitted the matter to you as the proper party. You treated it with equity and courtesy. You are entitled to the same spirit from Mr. Flagg. But you could not have supposed that he would be unfaithful in any respect to his trust.

"In conclusion, what the first mortgage bondholders want is:

"1. That the suit for foreclosure should be prosecuted, in proper form and with proper parties, to give a good title at the sale, and that they be represented in these suits by their own agent and not by agents of any adversary party.

"2. That, if a sale and purchase of the property be made which operates to discharge their lien, with or without an agreement for reorganization, the title be taken by satisfactory agents for their security.

"That in the mean time the property be protected and further debts in priority to their rights be avoided.

"With these conditions observed, the first mortgage bondholders have every desire to preserve the best relations with the Erie, which is the natural and preferred connection. That is my advice. That is their disposition.

"If you wish any conference on the points on which differences have arisen as to the proposed lease, or as to the general relations of the two roads, I shall be happy to obtain an appointment for that purpose.

"In my judgment the faculties of the parties would be better employed in devising a complete and permanent harmony of interests than in litigation. I think, also, that to attempt to discard from the negotiations the divisional bonds which represent most of the value in the property is a practical mistake.

"Very respectfully, Yours, &c., "S. J. TILDEN."

"_To Jay Gould, Esq._"

JAY GOULD TO TILDEN

"NEW YORK, _Feb. 21, 1870_.

"DR. SIR,--I am in receipt of your note on the subject of the retainer of $10,000 paid you by this Co. I can only say that it was understood and treated by the company as a general retainer, and the voucher so states. The only matters I have consulted you in reference to have been A. and G. W. matters. Knowing the pressure of your other engagements, I felt like troubling you as little as possible, and I therefore simply said to Mr. Lane to consult you if necessary, but to trouble you as little as possible. The reason I could not consent to Mr. McHenry giving you a retainer was the fear that his interests and ours would clash, as I did not have confidence in his schemes.

"Yours, "JAY GOULD."

"P. S.--I shall be happy to meet the other parties on the subject of an arrangement at any time.

"J. G."

TILDEN--CIRCULAR OF THE STATE COMMITTEE

"NEW YORK, _April 15th, 1870_.

"MY DEAR SIR,--The election of a chief judge and six associate judges of the Court of Appeals--which will take place on the 17th of May--and the nomination, at the Democratic State Convention to be held at Rochester on the 27th of April, of our candidates for the chief judge and _four_ of the six associate judges, are events of great interest.

"The Democratic party has never hitherto failed to supply in the court of last resort judges of undoubted moral and official purity and integrity, who have commanded the confidence and reverence of the whole people, and who have, by their abilities and professional learning, illustrated the jurisprudence of our State and country.

"In the present tendency of our times--towards a weakening of the trust of the people in the judiciary--it is more than ever important that we hold our standard of character and qualifications _high_.

"A degradation of the administration of justice is the last calamity of a republic.

"Distrust or doubt in the public mind as to the administration of justice, even if unfounded, involves half the evils of an actual degradation.

"At this moment--when we are about to form our highest court, _entirely anew_, and _for a long period_--it is our duty to give attention to the subject, to withdraw ourselves for a little time from our private avocations in order to fulfil our highest obligations as citizens of a republic.

"_First_, special care ought to be exercised that our most _wise_, _discreet_, and _disinterested_ men be chosen to, and be induced to attend, the nominating convention at Rochester on the 27th.

"They should come there to confer for the public good, in a spirit of _harmony_, conciliation, and surrender of all personal prejudices and all personal antipathies to the great object of forming _absolutely the best ticket possible_.

"_Secondly_, assuming--as we may, with confidence--that we shall so act at the convention as to start our canvass with the favorable opinion of the public and of the bar of the State, still in a special election held at an unusual time, and in so short a canvass, prompt and efficient measures should be taken in each county to organize a movement to bring out our vote and elect our ticket.

"I ask your co-operation for these objects.

"Very truly yours, "S. J. TILDEN."

TILDEN TO HON. S. E. CHURCH

"_Confidential._

"NEW YORK, _April 20, '70_.

"MY DEAR SIR,--My letter, which passed yours in the mails, if I recollect its contents aright, is, or implies a practical answer to your last, so far as we can see until we meet in Rochester. I have trusted to it for a day or two, while I am engrossed with measures not capable of being deferred, and which seem essential to the convention and election.

"As to candidates, I have carefully kept myself free; saying uniformly--in quite a number of cases where communications have been made to me personally or by letter--that I intended to be perfectly and absolutely open when opportunity should be had, at the convention and just before, for consultation with our friends to do what might seem best. I am not committed to Comstock, unless it be implied that I would not decide against him until that time, from such expressions made to him and to others.

"He, undoubtedly, has counted on the nomination as chief judge; has believed that Allen was for him, and only aimed to be associated with him.

"While I have kept more cautiously free than Kernan and others, I wish to treat Comstock with delicacy and kindness. Indeed, as I look upon my own future, totally void of any conscious desire for the most honorable of official labors, it seems to me I feel more difficulty in wounding--any more than I at last must--those who are capable of fixing strong affections on objects of an elevated ambition.

"I need not say how strong--and stronger than in other cases--is the personal interest I feel in promoting what shall be finally agreed to be best in respect to your future career, or how disposed I should be to give the prevailing weight to your own ideas on that subject.

"While it is not safe to assume the action of a convention, I should think that besides those who will go for you on public grounds and from personal regard, there will be an element which would like to remove you from the field of active politics. I thought, from December to very recently, this was visible in respect to me, and perhaps there may be even greater motive in respect to you in that you were more likely to become a rival to some existing powers.

"Before I had quite finished my note, which lay over from last evening, yours of yesterday came.

"You perhaps interpret it rather more strongly than I intended. I aimed only to suggest the topic, and naturally stated the _cons_ rather than the _pros_.

"I will endeavor to see you, as you suggest, at Albion, before the convention, unless something happens to make this inadvisable.

"And letter-writing is so insufficient for such topics that I reserve the discussion till then.

"Meantime, consider what is the method of proceeding in nominating the _four_. Is that to be done singly, or on one ballot?

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

"_Hon. S. E. Church._

"Make my special regards to Mrs. and Miss Church."

S. E. CHURCH TO TILDEN

"ALBION, _April 20, 1870_.

"MY DEAR SIR,--Your kind favor received. I infer that you are opposed to my taking a nomination for chief judge, and it is quite likely you are right about it; but I feel that there has been a great _break_ in my life, and that it may be as well to start on a new track. My reputation is now fair, and on the bench I can keep it so, until I want to use it for my own benefit and that of my friends, and I think I can aid you politically as much as I can to remain as I am. I shall, of course, object to being regarded as '_shelved_' by the operation, and yet such may be the result, and some people will doubtless favor my nomination for that reason. _They may be awfully mistaken, but this is confidential._

"I shall not dare to go to Rochester next week, lest the excitement might produce a relapse; but you must come here and see me the day before the convention, which you can easily do, and then we can talk the whole thing up--as you say, it cannot be written. Don't fail to come.

"Truly yours, "S. E. CHURCH."

"Mrs. C. and Nellie send regards."

TILDEN TO JOHN R. REID

"NEW YORK, _Apl. 21, 1870_.

"MY DEAR SIR,--I am obliged by the kind terms of your note of yesterday, which were also repeated to me by Mr. Frost, who called on me. But I do not change the feelings with which I regard the nomination for the chief judge, and have regarded it since it was presented to my view in December, or weakened the settled preference I have for freedom and relaxation over even such an honorable distinction. Notwithstanding such a definitive purpose on my part, I hope that you will take care to send a good delegate, because you and I will probably never have another chance of doing so much service to the community in which we live, or to the profession to which we belong, as in securing the best possible selection for judge of the judicial court under a comparatively permanent tenure.

"Very Truly, "Yours, &c., S. J. TILDEN."

TILDEN TO HON. JOHN GANSON

"NEW YORK, _Apl. 22nd, '70_.

"MY DEAR SIR,--I shall regret it extremely if you cannot extricate yourself from the embarrassments which you mention and I appreciate; and yet come to the convention, if not as a delegate, at least as an outsider. Such an occasion will not be likely to occur in your time or mine, and ought we not seize it to do something of real value to our four millions of people and to pay the debt which Lord Coke says a lawyer owes to his profession?

"I have often thought and talked of you as eminently suitable to take a part in the reconstructed court, but have heard that you were not ready to sacrifice the large gains of your professional career. You are over-modest in the suggestion of one or two friends desiring you to come to a different conclusion; for I have talked with a large number who looked to you, and whose motives cannot be imputed as mere friendship, but spring from a sense of public utility, in securing to the public service your abilities and independent integrity. Indeed, Grover told me some time ago that he would not be a candidate if you would be; and I think the same concession would have been generally made, at least at an earlier day.