"FORT WASHINGTON, _Jan'y 12, 1876_.
"MY DEAR GOVERNOR TILDEN,--In this form I will say nothing
of the proceedings, surprising to me, as they must have been to you,
which have marked the movements toward trying the Tweed civil cases.
I have neither seen nor heard from the present chief of the 'bureau
of municipal correction' since the newspapers began to regale us
with its recent fortunes.
"My object in addressing you is to submit certain suggestions for
consideration.
"When the present leading counsel for Tweed fell into a line of
practice which, steadily pursued for years as it has been, might
well have led to his being dubbed Attorney-General for Rascals, it
was my lot to be much in professional antagonism to him. I found
him to be neither wise, learned, nor, properly speaking, able, but
essentially a trickster. He seems capable of being very troublesome,
and to a _negligent_ or unskilful adversary he may be regarded as
dangerous.
"In dealing with his class, one will generally find a central device
around which all their series of tricks revolve, and from which
all their force and effectiveness are drawn. This man's course and
career furnish an admirable illustration of this fact.
"Our multitude of judges, with equal powers, were perceived by
him to furnish a hopeful quarry. One wicked, weak, or manageable
could be found somewhere. The next item in his scheme for making
judicial proceedings do the work which a bolder thief might seek
to accomplish by piracy, highway robbery, or counterfeiting was to
engage himself in quarrels where an unlimited number of separate
suits by separate plaintiffs might be brought before different
judges--all aimed at the same substantial object. This enabled him
to make almost at random all sorts of harassing movements against
the same parties. Slap-dash, hit or miss, he poured his shot upon
the selected victims, the loss of a suit or failure of a movement
troubling him not, the number of strings to his bow making this of
no more consequence to him than the loss of a single soldier to the
general of an army.
"You are aware that any single stockholder in a private or trading
corporation may file a bill in equity against the corporation
itself, its managing officers, and any one else suggesting
malversation, and, of course, such a suit has all the usual
incidents of receivership, injunctions, etc., etc. With a desperate
Wall Street swindler for plaintiff, an utterly unscrupulous legal
practitioner to direct it, and an unprincipled or manageable judge,
the blackmailing capabilities of such a suit are not slight. And
when you consider that the stock is always in the market, and
that five shares, or, indeed, a single share, may be sufficient to
qualify a plaintiff, you see the readiness with which a lot of these
suits, like a swarm of insects in summer, may harass. It was with
this single scrap of technical knowledge that the Attorney-General
for Scoundrels qualified himself for his office. In a very large
degree he has lived upon it ever since.
"It was in analogy to this right of the stockholder of a private
corporation that some well-intentioned persons devised the scheme
of judicially restraining municipal and other public officers from
improper action. I believe the history of the rise and fall of this
idea may be found in a long argument of mine reported in 'Wetmore
_v._ Story,' _22_ or _23 Barbour_. You have read it and spoken of it
to me. There is no analogy between the cases, and no basis in our
common-law or customary jurisprudence for the pretended right of a
taxpayer thus to intervene. The inconveniences of such a practice
would be enormous. It should not be permitted.
"Using a noted and life-long corruptionist, Charles Devlin, one of
Tweed's bail, the Scoundrel's Attorney-General has brought a suit
of this kind intended to perplex the Ring prosecutions and aid in
misleading the thoughtless readers of their partisan journals.
"I have said that such a suit is wholly without warrant in the
common law, and the claim to sustain it thereby has been by the
highest authority, in every form, judicially exploded; but in two
statutes it may find some color at least of support, and I write in
the hope that these may be at once repealed.
"The first of these is S. 3 of the city tax levy of 1864, ch. 405,
p. 945. It was obtained by Nathaniel Sands, the then leader of
reform, as actuary or general agent of Peter Cooper's Citizens'
Association. His subsequent history is known to you. The other
is ch. 161 of the laws of 1872, p. 467. You were then in the
Legislature, and may have favored its passage; it is not impossible
that I may have failed to condemn it when spoken to, but I never
believed in the utility of such a remedy. A reluctance to throw
cold water on the efforts of our friends sometimes dictates a
prudent silence. But whatever might be said at that time, the law
of 1875, establishing the right of the State, has superseded the
use of any such private taxpayer's action, and this inexpressibly
impudent suit of Devlin shows that the privilege tends to mischief.
I hope you will get some real and earnest reformer belonging to the
Republican party to bring in and push through a bill for the repeal
of both these enactments.
"Another subject may seem to demand attention, and that speedily. In
Polly Bodine's case, some years ago, it was found that the public
journals had so thoroughly imbued the minds of the people with
information or reports and ideas concerning the facts of the case
that under the existing common law touching challenges to the favor
it was hardly possible to get a jury. This must be so in Tweed's
cases. The Legislature then altered the law, but I am told that the
change is confined in its terms to criminal cases. It ought, by
supplemental legislation, to be extended to all cases.
Yours faithfully,
"CH. O'CONOR."