John Bigelow.

The life of Samuel J. Tilden online

. (page 13 of 35)
Online LibraryJohn BigelowThe life of Samuel J. Tilden → online text (page 13 of 35)
Font size
QR-code for this ebook

that they had derived any advantage whatever from the
enlargement. After tedious and futile negotiations suit
was instituted by the canal company, and Mr. Tilden was
retained for the defence. The case was tried before Judge
Hogeboom, of the Supreme Court, sitting as referee. Sev-
enty odd days were consumed in the hearing, and the tes-
timony offered by the plaintiff fills several large printed
volumes. As in the Flagg case, the plan of the defence
advised by Mr. Tilden was a surprise both to court and
counsel. By a sort of necromancy, which he seemed to
have always at command when needed, he smote all their
testimony as with a blight, and rendered it utterly worthless.

The question was, whether, in point of fact, the enlarged
canal had furnished more economical transportation than
the smaller canal had done ; but there were an infinitude of
facts which seemed to complicate the question and render
it nearly incapable of an entirely satisfactory solution. The
difierence in size of the boats used, the difference in loads,
the dijHTerent periods of detention in loading and unloading,
the difference in the length of seasons, — these and many
other questions rose to embarrass the problem and to mul-
tiply witnesses. In meeting this difiiculty, Mr. Tilden's
originality, courage, and conscientiousness all appeared to
great advantage. What he did we may as well quote in
his own words in summing up the case :

" At quite a late stage, comparatively, in this case, when
I intervened and undertook to ascertain the relative time
of the trip, I did as I always would, if possible, in such a
case — I endeavored to simplify the controversy by apply-
ing a test which made all this part and many other parts of


the discussion unnecessary. I took a simple integer with
which to compare the time of the trip upon the old canal
and the time of a trip upon the enlarged canal. The num-
ber of trips a boat would make during a season of naviga-
tion was subject to be varied by causes affecting the length
of the seasons, — by the question whether navigation was
for 179 or 185, or any other number of days. It was also
subject to be affected by the question whether the boat
was all the season in use upon the canal, or was part of the
season running upon the river. It was subject to other
elements of disturbance and irregularity. I discarded it
and took a single trip as the integer, and made my compu-
tations, as later in the day I shall endeavor to show your
Honor, upon the time of the trip considered singly — caus-
ing to be examined and computed every trip made by the
plaintiff's boats in a period of four years upon the old
canal, and a period of four years upon the enlarged canal,
every trip of which the books of the plaintiffs give a com-
plete record — and from them deduced an average time
which I computed as the time of a single trip and made my
integer. I was, therefore, enabled to dismiss altogether
from my investigation the question whether this particular
canal-boat No. 1 was upon the canal the whole season, or
six months, or three months, or one month, or for how
long a period it was upon the river. I got as my result
what that boat did while and whenever it was actually upon
the canal.

" It may have been unfortmiate that this mode of treat-
ing the question did not receive earlier and more general
attention ; for the habit formed of talking about the small
number of trips made by the boats on the enlarged canal as
resulting from the employment of the boat for certain days,
or certain parts of the season, upon the river and not upon
the canal, has survived all necessity for the discussion of
any such facts."

A lawyer less courageous or less conscientious than Mr.


Tilden would have hardly ventured upon such an expedient,
for besides involving a fabulous expense of both money
and time, if the plaintiffs' claim was well founded, it would
have as effectually demonstrated that fact as it actually did
demonstrate the reverse. Some notion of the amount of
labor required for the preparation of these tables and of
the argument that was based upon them may be gathered
from the following paragraphs of Mr. Tilden's closing
argument :

" I advised our clients to tabulate and ascertain the time
of the trips of all the boats during the entire period between
the notification of the completion of the enlargement and
the commencement of this suit, taking the navigation
seasons in which these events happened as complete seasons,
and having a fraction before and after these two dates, and
to make a similar tabulation in respect to the boats on the
small canal for an equal period.

" It certainly took all the influence I had — and pretty
nearly exhausted it — to get this done ; because it was a
pretty large job. You have, sir, in these tables equal to,
at least, twelve years of the labor of a single man. You
can read and perceive results here in five minutes, which,
if the whole thirty-two volumes of the plaintiffs' books
were brought into court, and your Honor should spend the
next twelve years in examining them, you would scarcely
discover. That was a laborious and costly process. Per-
haps it might appear, now, to be unnecessary. It was
intended to be decisive. It is, I think, decisive.

" I remember an anecdote which ex-President Van Buren
once told me of John Randolph. Somebody was speaking
to him in a complimentary vein in reference to a debate in
the House of Representatives, and told him that a speech
of his had not been answered. ' Answered, sir 1 ' said he ;
' it was not made to be answered.' And so, sir, these
tables were not made to be confuted. They are made
according to the best process of scientific analysis ; proved.


step by step, from the records of the plaintiffs themselves,
and are introduced here in strict conformity to the rules of

" They will establish and do establish the proposition they
were intended to determine — when I did not know, and
nobody knew, what the result of the investigation would
be. Never, sir, anywhere, or on any other occasion, was
there such a body of evidence upon any such question
involved in litigation."

By these tables, and by taking a single trip as the in-
teger, Mr. Tilden rid the case of the question of the dura-
tion of particular seasons and all the testimony that related
to it ; and in getting rid of that he got rid of a second, —
whether the boat was used part of the season on the river
and part of the season on the canal, for it was evidently
immaterial how many trips the boat made in a season, the
point was what time it took to make one trip. If he could
deduce the law governing the navigation ; if he could
show that the navigation on this enlarged canal during
the period in question was governed by a constant, uniform
law belonging not only to fast trips and to slow trips,
but to all the trips, there was an end of all the talk and all
the testimony about the specialties and peculiarities of a
particular season during the four years in controversy.

The tables proved to a mathematical demonstration that
the round trip on the enlarged canal took forty per cent,
more time than the small boats in the original canal, and
that by diminishing the aggregate of the service during a
given time, the cost of transportation was proportionately
enhanced. There was no possibility of escaping or resist-
ing this conclusion, and a verdict was given accordingly in
favor of Mr. Tilden's clients.

The amount claimed was twenty cents a ton on an annual
transportation of five or six hundred thousand tons a year
for some ten years, besides a royalty of the same amount
for an indefinite future. It was a crisis in the fortunes of


the Pennsylvania Coal Company, through which it was
successfully conducted by a device which only a great man
would have had the ability to invent, only a brave man
would have the courage to suggest, and to which only a
thoroughly conscientious man would be willing to trust.

Among many other cases in which Mr. Tilden was en-
gaged, we will allow ourselves to refer to one in which his
strictly professional abilities appeared to special advantage.

In the year 1858 the Cumberland Coal and Iron Com-
pany brought suit in the New York Supreme Court against
two of its directors, and the president of a company of
which the said two directors owned practically all the
stock, to set aside the sale of a large tract of the plaintiffs'
lands, which by fraud and misrepresentation the said direc-
tors had induced the plaintiffs to alienate to them, and for
an injunction against the transfer of said lands to the com-
pany of which the said directors held all but ten of the
five thousand shares.

Upon a motion to dissolve this injunction Mr. Tilden and
C. A. Rapalle appeared for the coal company. The feat-
ure of Mr. Tilden's argument was his successful effort to
extend to corporations the important doctrine that trustees
may not become purchasers of property confided to them,
nor traffic at all in the property of their cestui que trusts.
Upon these points this is now the leading case.

Mr. Tilden's success in rescuing corjDorations from un-
profitable and embarrassing litigation, in reorganizing their
administration, in reestablishing their credit and in render-
ing their resources available, soon gave him an amount of
business which was limited only by his physical ability to
conduct it.

Since the year 1855 it is safe to say that more than half
of the great railway corporations north of the Ohio and be-
tween the Hudson and Missouri rivers were at some time
his clients. The general misfortunes which overtook many
of these roads between 1855 and 1860 called for comprehen-


sive plans of relief. It was here that his legal attainments,
his marvellous skill as a financier, his capacity for concen-
trated labor, his constantly increasing weight of character
and personal influence, found full activity, and resulted in
the reorganization of the larger portion of that great net-
work of railways upon conditions by which the rights of all
parties were equitably protected, wasting litigation avoided,
and a condition of great depression and despondency in rail-
way property succeeded by an unexampled prosperity.

Mr. Tilden's professional career was singularly marked
by his individuality. Whether in court, in his office, or on
the highway, he exhibited none of the badges of the con-
ventional lawyer. His law training seemed in him like the
mastery of a foreign tongue as subordinate to more im-
portant uses. His acquaintance generally no more thought
of him as a lawyer than we are wont to think of Milton as
an organist or of Gladstone as a wood-chopper. Skill at
the bar was simply one of his accomplishments. He always
lived a larger life than was expressed in his profession, and
for larger purposes than winning the suits of his clients.
And yet no member of the legal profession in New York
ever accumulated so large a fortune or won for himself a
more enviable professional reputation in so short a time.
Neither did he ever have, in the common acceptation of the
term, a very large practice. His power lay in the thorough-
ness of his preparation. He was never content to go into
a fight of any kind without forecasting and providing for
every contingency that could be anticipated, and he spared
no amount of time or labor in the efibrt to place his clients
in positions to defy the caprices of fortune.

He concentrated his energies entirely upon cases involv-
ing large, often enormous interests ; cases requiring the
exercise not only of great abilities, but more time and per-
sonal attention than lawyers with a large office practice can
usually aff'ord to bestow. The litigation of cases of minor
importance he neither invited nor encouraged, and if such



business came to his office it was confided to his subordi-
nates. His professional charges were exceedingly moderate,
and were graded upon the amount of work done, rather than
upon the advantages realized from such work by his client.
This with him was a matter of principle, and he distrusted
the clients who came to his office with gross retainers.^

' Among Mr. Tilden's papers were found some bills rendered by him in
important suits to which reference has already been made.

If the example of the dead can go for anything with members of the
bar of this generation, the publication of the following extract from a bill
for services to the Pennsylvania Coal Company for a single year may
prove a public benefaction :


March 12.

" 13.
" 14.


















Jan. 8

The Pennsylvania Coal Company, to S. J. Tilden.

To advising as to the mode of taking and holding land
for the Washington Coal Company, and preparing
forms of contract .......

To attending consultations and advising as to the
proper mode of uniting the Washington Coal Com-
pany and the Pennsylvania Coal Company

To drawing proceedings of the Washington Coal Com-
pany to effect the same

To drawing proceedings of the Pennsylvania Coal
Company to effect the same

To attending at otBce of the company on request and
consultation in regard to titles of various parcels of
land and water lot and in respect to various acts in
merging the two companies .....

To Ditto







The Pennsylvania Coal Company, to S. J. Tilden.


" 9,

To attending sundry consultations in respect to the
contracts with boatmen ; advising in respect to and

amending the same $25.00

To drawing special forms of bill of sale and power of
attorney to transfer stock of the Pennsylvania Coal

Company 10.00

Vol. 1.— 10


In one of his communications to the public he said : ^
" I declined retainers from Fisk in matters involving no
scandal, but in which he had not my sympathy after he had
informed me that he had paid counsel, during the year,
many times the largest fee I had ever received, adding,
'We don't want anybody else — we want you.'"

In repelling an assault made upon him some years later
by a corrupt judge in New York city whom Tilden had
been instrumental in impeaching, he made some statements
which set forth in impressive terms the ethical principles
which controlled his professional life. He was charged"
with receiving a retaining fee of $10,000 from the Erie
Railroad for which he did no work, and for which he was
expected to do nothing, unless it was to compromise himself
in the interest of the rogues who then had possession of
that corporation. The late George AV. Cass eifectually
disposed of the imputation in his reply to a letter addressed
to him by Mr. Tilden, near the close of which Mr. Tilden
said :

" I do not mean to say that it might not happen that a re-
tainer is sometimes received and yet no further services
rendered in the case. I presume that this often happens
without impropriety. I have only to say that, so far as I
recollect, it never has happened to me in any single in-
stance of my professional life. I have been content to re-
ceive compensation fixed by agreement with my clients after
the services were rendered. I have in no instance had any
controversy or difierence of opinion with any client as to
the amount of compensation. I have never heard of any
discontent after the settlement, unless this may be such a case.

" Since there is an elaborate attempt to misrepresent an

Jan. 9. To drawing special forms of bill of sale and power of

attorney to transfer the stock of the Wyoming Coal
Association, and also power of attorney to execute
the articles of said association .... $15.00

" 11. To attending consultation and advising in respect to

certain contracts with boatmen .... 10.00

' " New York City Ring, its Origin," etc., p. 15.


act of my professional life, I have a right to say this,
without the imputation of egotism ; and I have a right to
add that, for the last sixteen years, at least, my only trouble
has been not to accept more business than I could perform
according to my standard of duty and justice to those who
intrust their affairs to my management; that I have not
accepted half which has been offered, of cases in which the
clients were willing themselves to iix my compensation to
my full satisfaction out of what they would recognize as
acknowledged benefits.

" And I have never hesitated to choose what business I
would decline. At the outset of the famous litigation of
the Erie, under the presidency of INIr. Eldridge, it was
communicated to me that the Erie desired to retain me ;
and afterward ]Mr. J. C. Bancroft Davis, in its behalf,
twice came to my office to offer me retainers. I declined.
In 1.S69 J\Ir. James IMcHenry, when acting in apparent
unison with the Erie, several times pressed upon me re-
tainers, in behalf of his scheme of reorganization of the
A. and G. W. ; but after considering has scheme, I de-
clined. In the same year Mr. James Fisk, Jr., called upon
me with Mr. Jay Gould. Mr. Fisk said, with many flat-
tering suggestions, that they desired to retain me in refer-
ence to a matter then pending, and in the course of the
interview he stated that they had paid within a year
$125,000 to a member of the bar whose name he men-
tioned. I declined. I do not mean to imply that there
would have been anything wrong in acting as counsel for
Erie in a proper case ; but simply, when an act of mine is
challenged, to state facts which are pertinent to my vindica-
tion. I have ever stood, not only in my personal conduct,
but in my public influence, for the dignity and honor of
the bar and the purity of the bench, and against whatever
should tend to weaken or degrade the administration of
justice. I did so in 1869, when the evils of corrupt times
were growing and powerful. I accepted issue in the Demo-
cratic State convention of that year. On the 1st of Febru-
ary, 1870, at the meeting which resulted in the formation
of the Bar Association, I uttered these unpremeditated
thoughts :

" ' K the bar is to become merely a method of making
money, making it in the most convenient way possible,
but making it at all hazards, then the bar is degraded. If


the bar is to be merely an institution that seeks to win
causes, and to win them by back-door access to the judici-
ary, then it is not only degraded, but it is corrupt.
Sir, I believe that this country is to-night at about the
lowest point in the great cycle which we have occasionally
to traverse. I believe that there will come a sounder and
a better public sentiment, in which speculation, and gam-
bling, and jobbing, and corruption will lose their power, and
in which free government will vindicate its right to the
confidence of mankind. If I did not believe this, I should
think that a very great part of my own life was lost, and
all the traditions I have derived from my ancestors.' "

"It is not to be wondered at," says James C. Carter in a
recent admirable sketch of Mr. Tilden,^ "that with his pro-
found knowledge of the causes by which human affairs were
controlled, combined with such capacities for skilful action,
he should have accumulated a large fortune. Aside from
what he received for professional services, his large gains
were, I imagine, rather easily acquired. Among the mis-
chiefs of an unstable currency is the facility with which
men who have the power of dealing skilfully with excep-
tional conditions may amass large fortunes. Few men under-
stood such things better than Mr. Tilden. He had striven
to prevent, as well as a man in opposition could, the issue
during the war of an irredeemable government currency ;
but I remember his saying to me after the policy was
adopted, in substance, 'Now is the time to make yourself
rich. Buy all that you can pay for or run in debt for.
Every day it will be easier for you to pay, and your prop-
erty will correspondingly rise in value or rather in price.'
And at the close of the war he advised the opposite course.
I do not know, but I have no doubt he acted extensively
on this policy. If there were a question about the pro-
priety of such action he certainly was excusable. Had his
counsels been regarded, no such measure would have been

' " Atlantic Monthly Magazine," October, 1892.


Tilden never allowed himself to accept a contingent
retainer. He judged very pi-operly that such a partner-
ship had a tendency to distrust the proper relations of a
lawyer with his clients, and exposed him both to temptations
and suspicions which were apt to prove inconvenient and
sometimes deoradinor.


His propensity to thoroughness in all his mental opera-
tions made him sometimes tedious before popular assem-
blies, but in time it came to be pretty generally understood
that he never took the platform without having something
to say which no one else was likely to say, and without
which the presentation of the subject would have been

He never lost his presence of mind in court, on the plat-
form, or indeed in any assembly, nor did he ever seem
surprised or embarrassed.

He has been heard to say that he had great temptation,
because considerable faculty, for sarcasm, but that he made
up his mind early in life that one may make as incurable
wounds with the tongue as with a dagger, and that a triumph
achieved by means of a mortifying or humiliating sarcasm
is dearly bought at the cost of incurring an enmity for life.
He frequently deplored in John Van Buren his inability to
suppress a smart thing, whoever it hit and however it might
prejudice the cause he might be advocating. Tilden never
lost a friend nor made an enemy by this sort of indiscretion.
If he chaffed, as he occasionally did, a presuming opponent,
he did it in a way that instead of making his victim angry
made him grateful rather for his forbearance, and indis-
posed him to ever again attempt any liberties with an
adversary at once so formidable and so considerate.

He won his cases, so far as success depended upon him-
self, by no stage tricks or artifices, still less by any techni-
cal subterfuges, but by sheer intellectual force concentrated
upon the point of least resistance, which point he was
pretty sure to discover before engaging with his adversary.


His business habits were about as bad as they could be :
one could never count upon finding him at his office ; he was
not punctual ; he would stop and talk for hours with a per-
son casually encountered on the street when he knew clients
were waiting for him at his office by appointment. He
seemed to have appropriated to himself the prerogative in re-
gard to time which the common law only confers upon kings,
and to be under the impression that in the long run the world
could lose nothing by waiting for him. This was due pri-
marily to his health, which had prevented his submitting to
the rules or enduring the discipline of any well-conducted
business. Incident to and consequent upon this neglected
training was an utter want of method. Those who knew
him well would not be in the least surprised to be told that
when in full practice he never endorsed or filed away any
law paper or made an entry in his register. But if a paper
in any proceeding was wanted, and when called for was not
promptly produced, he made the office so uncomfortable for
his clerks that they took good care to supply the order and
method which he lacked, and for which he was unwilling to
expend any thought or trouble.

Had not Mr. Tilden's life, like Pope's, been a "long dis-
ease," and had his intellectual forces been sustained by an
unimpaired physique, his success at the bar would probably
have been of such an exceptional character, that, if it did not
gradually extinguish his taste for politics, it would have
made him a controlling force in our government at a much
earlier period of his life, and, in aU human probability, the
hero of many and more important chapters of his country's
history than it is now my privilege to record.


The Civil war — Lincoln President — Tilden's prophetic utterance —
Letter to "William Kent — Preston King — Edward Everett — Tilden's

Online LibraryJohn BigelowThe life of Samuel J. Tilden → online text (page 13 of 35)