Part 19

[23] This I afterwards learned from Mr. O'Conor's own lips was his invariable practice. He never asked pay for his professional services until he had earned it.

MEMORANDUM OF CASE FOR O'CONOR'S OPINION

"_March, 1879._

"A copy of the draft of the Bill of Discovery intended to be filed in the United States Circuit Court is submitted. It is for discovery merely, and is in aid of a common-law action pending in the district court. The complaint in that action is also submitted.

"Some of the questions on which Mr. O'Conor's opinion is desired in the first instance are the following:

"First.--If to the Bill of Discovery a plea, or an answer in the nature of a plea, should be made denying the right of action of the United States in the suit in the district court, and, consequently, its claim to a discovery on the ground that the quasi judicial determination of the assessor as to the amount of the tax, and the satisfaction of the judgment rendered by him are conclusive against the United States, and if the Circuit Court should overrule that point and grant the discovery, would that decision of the Circuit Court be a final judgment on which an appeal would lie to the Supreme Court?

"Second.--Would that appeal probably be effectual to obtain the rulings of the Supreme Court on the main question of the controversy?

"First.--If to the Bill of Discovery a plea, or an answer the defendant's income was in excess of the amount found by the assessor to be his income, calls on the defendant to state on oath every item of income during ten years, and every item of deductions therefrom and many items of receipts which are not income. There is no proposition between the foundation and the superstructure.

"What are the rules applicable to such a case?

"The interrogatories are not even limited to taxable income, but would involve accretions of value which are not taxable.

"Can the objection (_a_) that there is not any proper foundation for any interrogations? (_b_) that an interrogatory is too broad? (_c_) that an interrogatory relates to a matter in which the plaintiff has no interest or concern, as, for instance, to a subject not within the tax laws--can such objections be taken by way of special plea if we prefer that mode?

"The opinion or advice on the first and second questions is more emergent--the others can be dealt with later."

CHARLES O'CONOR TO TILDEN

"_Monday, Mar. 24, 1879._

"DEAR SIR,--I have your note requesting me to examine some questions touching a bill of discovery. No papers accompanied it except the original complaint and a copy of the bill.

"This controversy has been some time in the courts. The law case is at issue, and arguments and a judgment have been had in it. The nature and merits of the law case should be understood by any one who would venture to advise in the equity case.

"It is true that I could investigate all this matter from the beginning without aid from any one; but, considering that you have had counsel in the law case, it seems to me that a statement from them, with points referring to statutes and authorities, might be put into my hands with advantage. As this might facilitate my researches, it would expedite my conclusion and you indicate a desire for speed.

"Yrs. respy., "CH. O'CONOR."

TILDEN TO O'CONOR

"NEW YORK, _March 25th, 1879_. "TO CHARLES O'CONOR.

"MY DEAR SIR,--The action of the United States in the income tax case is a common-law action. The complaint has been sent to you.

"The substance of the plea is that the defendant had been assessed by the proper officers of the United States. The tax and penalties fixed and the amount collected by the government. A copy of the plea will be sent to you, but the above is the substance of it.

"The question argued before Judge Blatchford in the district court was on the point raised by the defendant that the action of the government officers was quasi judicial, and their determination conclusive and exclusive.

"The points of the defendant are sent herewith.

"In this state of things the District Attorney proposes to file a bill of discovery to obtain the facts which shall establish the right of action.

"It is understood that the District Attorney desires, if possible, to have the judgment of the Supreme Court on the main question. But that purpose may, perhaps, be regarded as confidential.

"The advance sheets of the bill of discovery intended to be filed, which had been informally furnished to one of the defendant's counsel, have also been sent you.

"The first point upon which your opinion has been asked is whether, in case we plead to the bill of discovery, that the plaintiff is barred as to his right of action by the quasi judicial determinations of the officers, and has no right to discovery by reason of having no right of action, and that plea is overruled by the Circuit Court, the decision will constitute such a judgment as will be appealable to the Supreme Court.

"There are other questions, but this is the most immediate.

"I write this note to give you information at once without the delay incident to getting the counsel together to write out a case for submission.

"Very truly yours, "(Signed) S. J. TILDEN.

"Hon. Charles O'Conor."

TILDEN TO GEORGE W. CLINTON

_"August 26, 1879._

"DEAR JUDGE,--I thank you for your kind letter.

"The life I am leading with out-door exercise and physical activity alternated with rest has left me little time for correspondence after I get through with other calls upon my attention. But I none the less appreciate intercourse with such men as yourself. Nor do I forget that there are three generations since my ancestors were first allied to the great founder of your family, amid the trying scenes which attended our national independence, and the formation of a genuine government of the people.

"You are quite right in the impression that I would not think it fit for me to run for _Governor_ at the coming election. The reasons against it are conclusive.

"In the first place, I don't want to add to the burdens I have had and now have connected with public affairs.

"In the second place, although I do not expect to be installed in the Presidency to which I was elected, I deem it due to the four and a quarter millions of voters who have been defrauded of the fruits of their suffrages, that I should not, during the term for which I was chosen, do anything inconsistent with their moral right.

"In the third place, I should not like to be a convenience to the dictation to the Democratic State convention that they must surrender their choice if it be Governor Robinson, whose administration has deserved so well of all good citizens.

"I have not time to dilate on these topics, but I do not doubt that you and I will think the same things concerning the Republic.

"It will give me great pleasure to hear from you whenever you find time to write me, and I hope to have the pleasure of seeing you personally.

"Very truly yours, "(Signed) S. J. TILDEN."

TILDEN TO JOHN GILL, JR., CHAIRMAN

"NEW YORK, _September 27, 1879_.

"GENTLEMEN,--I have received the letter of the Democratic executive committee in the city of Baltimore inviting me to attend a mass-meeting at the Maryland Institute on the 29th inst.

"It would give me great pleasure to meet so respectable a representation of the Democracy of Maryland, but my engagements will deprive me of that gratification.

"I concur with you in regarding the issue created by the subversion of the election of 1876 as the most transcendent in our history. The example of a reversal of the votes of the people after they have been deposited in the ballot-box, if successful and followed by prosperity to the wrong, would be fatal to the system of elective government. _The hierarchy of office-holders would maintain their possession indefinitely, and every effort of the people to change the administration would be nullified. The government, elective in form, would become imperial in substance precisely as did that of Rome._[24] Such an issue, involving the very existence of our free government, is not to be belittled into a personal grievance. It is to be dealt with as a great public cause.

[24] The italics are the editor's.

"With assurances of my cordial esteem for yourself personally,

"I remain, very truly yours, "(Signed) SAMUEL J. TILDEN."

S. J. TILDEN--INTERVIEW WITH "SUN" REPORTER

(Draft.)

"_Dec. 19, '79._

"A _Sun_ reporter called on Mr. Tilden, showed him a copy of the _Sun_ of Sunday last containing an article copied from the _Star_, and asked if it would be agreeable to him to say whether there was any, and, if so, what foundation for the statements there made about negotiations with him to obtain the electoral vote of the State of South Carolina for $30,000.

"Mr. Tilden took the paper, ran his eyes over it, and then said: 'I have no objection to answer your question if my friends of the _Sun_ think the publication worthy of such notice.

"'I do not see, on looking this article over, any statement concerning me personally which is not a mere fiction.

"'The substance of the story is that I was visited at my house by a gentleman from South Carolina, who told me that the vote of the State had been given to me, but that the Returning Boards had determined to count it against me unless they were paid $30,000; that after declining the proposition, I recalled this agent by a letter addressed to him at his hotel; that on the second interview I referred him to a gentleman in this city; that that gentleman gave him a package containing $30,000, which was sent to Charleston; that the letter had scarcely left the wharf when the agent received another letter from me requesting him to call at my house immediately; that I then insisted upon the immediate return of the package unopened, and that it be restored to the person from whom it was received; that the agents remonstrated, saying:

"'"The corrupt men in Columbia and in the State generally have not tried to count Hampton out. They know perfectly well that both you and Hampton are elected and have received a majority of the votes of the people, but they can afford to count you out, but not to count Hampton out, because he and his friends will not stand it."

"'That notwithstanding this remonstrance, I persisted in requiring the package to be restored to the person who handed it to the agent.'

"Mr. Tilden: 'Every one of these statements is totally false; no one of the three pretended interviews ever happened. I never sent either of the two letters attributed to me; I never referred any agent bearing such a proposition to Mr. Brown or to Mr. Anybody else. All the details concerning the package of money being sent and recalled and my conversations respecting it also are wholly destitute of truth. They are simply a fabrication from beginning to end.'"

GEORGE L. MILLER TO S. J. TILDEN

"_Personal and Confidential._

"'HERALD' OFFICE, EDITORIAL DEPARTMENT, "OMAHA, NEB., _Dec. 26th, 1879_.

"HON. SAMUEL J. TILDEN.

"MY DEAR SIR,--Pardon a preliminary statement before I reach the main object of this letter.

"Since I last saw you I have met the slanders circulating against you, to the effect that you were seeking a second nomination to the Presidency by corrupt and other means, by saying in my paper, as a matter of my own opinion, that you would neither seek nor accept such nomination. I have also said, on my belief in Governor Seymour's sincerity, that _he_ would not accept a nomination to the Presidency. I now want to give you some news for your special information.

"I have a letter from a leading Democrat of Oneida County who has peculiar facilities for getting at the 'true inwardness' that Horatio Seymour will not decline a nomination to the Presidency. He will not write any letters forbidding the use of his name, and if he is interviewed at all the result will be uniformly that which was recently seen in the New York _Times_. He will not change front exactly. No one will be authorized to say he will consent to run, but it will appear that the Governor's health is greatly improved, and that he was never better in his life, and nothing authentic will be got from him to show that he would not accept a nomination.

"I said this is sent to you as _news_. It may not be such to _you_. But the information I get is such a great surprise to _me_ that I could not rest without sending it to you.

"I am, most truly yours, "GEORGE L. MILLER."

JOHN A. McCLERNAND TO TILDEN

"SPRINGFIELD, ILL., _Jany. 27th, 1880_.

"EX-GOVERNOR SAMUEL J. TILDEN.

"DEAR SIR,--There is no other motive for this communication than a patriotic one. Its purpose is not to intrude counsel or to invite confidence. A common interest upon a subject of vital public concern is its only warrant.

"The fundamental right of the people to choose, according to constitutional forms, their Chief Magistrate has been violated in your person. This fact devolves upon every true Democrat and, no less, upon you as their representative, the solemn and binding duty of redressing the wrong. In no other way can that duty be so effectually performed as by renominating and re-electing the old ticket. The masses are emotional and sentimental rather than metaphysical. They feel that the old coach stands ready to be hitched to, and that, that done, a safe and prosperous journey is before them.

"If anything like a concerted appeal to the country had been sustained by its leading Democratic press, the renomination and reelection of the old ticket would have resulted by an overwhelming vote. Nor is it too late now to amend the omission, notwithstanding the supervening complication of the late New York elections. Putting the latter upon a salient issue of _principle_ and _faith_: whether, indeed, the organization and voice of the Democratic party in that State shall prevail, or whether a predatory faction of bolters shall be allowed to dominate both. Such an appeal ought and, I think, would meet with an approving response from true and tried Democrats.

"The bolters failing to retrace their steps, what else is left but for a strong and emphatic demonstration to be made declaratory of the above issues. Pardon my boldness. I deem it advisable, nay, necessary, for you to lead the way in a speech or paper couched in such form and terms as you may consider appropriate, and as will be effective to ring throughout the land. A leader who is demonstrative will always find followers.

"Very respectfully, "Your obt. sert., "JOHN A. MCCLERNAND."

JOHN BIGELOW TO G. PITMAN SMITH

"58 E. 34TH ST., NEW YORK, _March 10, 1880_.

"HON. G. PITMAN SMITH.

"DEAR SIR,--Mr. Tilden has shown me your favor to him of the 25th ult., and desires me to thank you for its friendly counsel. In complying with his wishes, I will take the liberty of adding a few words on my own account for which I trust my cordial sympathy with the manifest objects of your communication will be a sufficient apology.

"There is no one in this country, I suppose, who can suffer more from a popular misunderstanding of his motives than Mr. Tilden, but circumstances constrain him, no less now than heretofore, to leave the vindication of his conduct as the leader of his party in the last Presidential contest to its good sense and its love of justice. There has been no time when he could participate in any public discussion of the methods finally adopted for counting the electoral vote, without appearing to criticise the conduct of statesmen standing high in the confidence of the Democratic party and whose patriotism is above suspicion. That alone would be a sufficient reason with him for maintaining silence, and for declining to make of what might seem to some a personal grievance a provocation of unprofitable party dissension.

"But in my judgment he had another and a better reason. He knew that whenever, if ever, it should become necessary for the people of the United States to pass judgment upon his conduct during and subsequent to the canvass of 1876 they could not fail to acquit him of any responsibility for its final result.

"The logic of nations is far more rigorous than that of the individuals composing it, and it would be doing the understanding of the American people great injustice to suppose they cannot see that there was no time when Mr. Tilden could have taken any step towards seizing the Presidency with any color of right or with any prospect of success. There were just two contingencies, and only two, in which it would have been lawful and obligatory on Mr. Tilden to take the oath as President of the United States.

"The first one would have been presented if Congress had performed its constitutional duty: had counted the electoral votes, and declared Mr. Tilden the chosen of the electoral colleges. The duty of verifying the electoral votes is given by the Constitution to the two Houses of Congress and to them only; it has always been exercised by them at the choice of every previous President from the foundation of the government. It was known to all who came in contact with Mr. Tilden--for he was unreserved in the expression of his opinion upon that subject--that in his view this power and duty of Congress was lodged nowhere else.

"The two Houses of Congress, however, did not see fit to exercise that power nor to discharge that duty, and as a consequence this contingency in which it would have been proper for Mr. Tilden to take the official oath never presented itself. Before the time fixed by law for counting the electoral votes, Congress passed the electoral bill by which they practically abdicated in favor of a tribunal unknown to and, in my judgment, unknowable by the Constitution, and enacted that the electoral commission should in the first instance make the count, and that its count should stand unless overruled by the concurrent action of the two Houses. This electoral tribunal counted Mr. Tilden out, and counted in a man who was not elected. Congress did not overrule their count, in consequence of which the false count stood as law under the act of Congress.

"The only other contingency in which it would have been obligatory, or even lawful, for Mr. Tilden to have taken the oath of office was in case of a failure in the choice of President by the electoral colleges, the House of Representatives had itself proceeded to make the election, voting by States in the manner prescribed by the Constitution and pursued in the election of John Q. Adams.

"This contingency, like the first, never presented itself, and, both failing, any attempt on the part of Mr. Tilden to seize the Presidency by violence would have been not statesmanship, but simply brigandage.

"Courage is too common a virtue among Americans for any one to make a boast of it, and the lack of courage too rare to explain the conduct of any body of representative men. At the same time, there is no doubt that if there was any place where a special display of heroism could have prevented the defeat of the popular choice and installed the elect of the people in the Presidential chair, that place was the floor of Congress. I suppose I say nothing which any Democratic member of that Congress will be disposed to dispute when I state that it was the fear that the Senate would lead a resistance to the rightful judgment of the House, and that President Grant would sustain this revolutionary policy with the army and navy, and with the militia of the great States in which the Republicans had possession of the State governments, that deterred the House of Representatives from the assertion of its rights, and induced its vote for and acquiescence in the electoral commission.

"But without speculating upon the causes or motives for such vote and acquiescence the facts are beyond dispute. The House of Representatives did not elect Mr. Tilden in the manner prescribed by the Constitution or in any other. On the other hand, it did concur with the Senate in anticipating and preventing the contingency in which it might have had to act, and in providing beforehand an expedient which incapacitated it for supplying a failure of an election by the colleges. It adopted the electoral law, and went through all the forms of the electoral scheme. True, it afterwards rebuked itself by passing a declaratory resolution condemning the electoral commission, and asserting that Mr. Tilden had been the choice of the people. But the Constitution had not provided that a man should or could take office as President on a declaratory resolution of the House of Representatives. If that resolution could have had full effect to abrogate the electoral law which the House had assisted to enact, it would still have furnished Mr. Tilden with no warrant of authority for taking the oath of office. Had Mr. Tilden been declared President-elect by either of the constitutional methods, no one who knows him can doubt that he would have taken the oath and the office or sealed the people's choice with his blood, as he was in duty bound to do.

"I do not weary you with the recapitulation of these facts, because I suppose any of them new to you. On the contrary, they are all now matters of history. It is because they are of public notoriety, and because they point so directly to the one and inevitable conclusion that Mr. Tilden's responsibility in the late canvass terminated at the ballot-box, that I recall them here to justify in your eyes his silence upon the subject referred to in your letter, and his perfect faith in the good sense and justice of his countrymen.

"I need hardly say that in what I have here written in explanation of Mr. Tilden's attitude before the country I have written as his friend, not for him.

"Very truly yours, "JOHN BIGELOW."

TILDEN TO JOHN A. McCLERNAND

"_Confidential._

"GRAMERCY PARK, NEW YORK, _March 16, 1880_.

"MY DEAR GENERAL,--I thoroughly appreciate the motives which prompted your note of the 27th of January, and it is not from any want of consideration for your suggestions that I have not sooner acknowledged it. I thank you cordially for your friendly counsels. I agree with you entirely as to the danger to the elective system of government liable to result from the subversion of the popular will as manifested in the election of 1876.

"I also concur with you in the opinion that the dissension which exerted a temporary power in this State in 1879 cannot be continued or repeated with success in 1880.

"I regret the narrow limits to which a letter confines the interchange of sentiments between us, but I need hardly assure you that I shall always be happy to hear from you, and that your counsel, whenever you are disposed to favor me with it, will not be wasted upon me.

"With high esteem, I remain, "Very truly yours, "(Signed) S. J. TILDEN.

"_Hon. John A. McClernand, Springfield, Illinois._"

THEODORE P. COOK TO S. J. TILDEN

"UTICA, _April 6th, 1880_.