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THE ERIE RAILROAD ROW. 
 
 " Man and boy," said old John Adams, " I have known New 
 York politics for sixty years, and to me they have always been 
 the devil's own incomprehensible." The element of incompre- 
 hensibility, noticed by the second President, without disappearing 
 from the politics of the Empire State, has since extended to her 
 law, which puzzles and confounds the mind .of the foreign advocate 
 now, as did her politics the instinct of the statesman then. This 
 paper has been entitled the Erie railroad " Row," simply because 
 the litigations which disgraced the New York courts in the spring 
 of 1868, and which arose out of the operations of those con- 
 tending for the control of that road, are deserving of no other 
 name. 
 
 Such an extraordinary perversion of the process of law ; such an 
 utter absence of respect for the bench ; such contempt for the forms 
 and courts of justice as was then exhibited, — ought not to pass un- 
 noticed. There is in it that which should give pause to the com- 
 munity, and challenge an instant of reflection. It illustrates several 
 things ; it may, in one point of view, be regarded as a significant in- 
 dication of the spirit of the times ; or, in another, as a development 
 of the moral condition of our greatest city ; or, again, as a picture of 
 prevailing morals and manners ; or, perhaps, it might throw some 
 light on the practical working and tendencies of an elective judi- 
 ciary. Possibly, from a severe study of the proceedings in their 
 various forms, the patient student at the New York bar might 
 arrive at some insight into the principles of practice under the 
 Code, or of the New York law as it emanates from the successors 
 of Kent. As, however, the Code is a mystery of little interest to 
 the outer world, and as the successors of Kent are such only in 
 form, it would hardly be worth while to go far below the surface 
 of this extraordinary legal episode in search of any erudite legal 
 principles which may there be concealed. 
 
 On Monday, the 17th of February last, Mr. Prank Work, a 
 director of the Erie Railroad, appeared, by Messrs. Rapallo and 
 Spencer, his attorneys, before George G-. Barnard, a justice of 
 
2 THE BRIE RAILROAD ROW. 
 
 the Supreme Court of New York, then sitting in Chambers, and 
 petitioned that a writ of injunction might issue, against the Board 
 of Directors of the Brie Railroad, to forbid the settlement by them 
 of certain outstanding accounts between Mr. Daniel Drew, the 
 treasurer of that corporation, and the corporation itself. It then 
 became publicly known that a bitter feud had broken out between 
 the two railroad kings, Daniel Drew, commonly known upon Wall 
 Street as the " Speculative Director," and Cornelius Vanderbilt, 
 familiarly known as " The Commodore." The immediate cause 
 of the quarrel was to be sought among the mysteries of Wall Street, 
 among the Bulls and the Bears, the longs and the shorts, the pools, 
 corners, and combinations of the railroad world. With all of 
 these this paper will deal as little as possible. A few words, 
 however, are necessary to a statement of the case. 
 
 Commodore Vanderbilt, some years previous to the occurrences 
 here referred to, had transferred the scene of his operations from 
 the sea to dry land, and had become the great railroad, as before 
 he had been the steamboat, king. He was, at this time, rapidly 
 obtaining control of all the great thoroughfares leading from New 
 York to the West. Beginning with the Harlem road, he had then 
 taken possession of the Hudson River, and, finally, of the New 
 York Central, and was now stretching out his hands to grasp the 
 Erie, the peculiar property of Mr. Drew. In September, 1867, 
 Mr. Drew had been rudely shaken on his throne as autocrat of the 
 Erie, and even defeated at the annual election of the directors of 
 the road. An entirely new board was then elected, which knew 
 Vanderbilt, but knew not Drew. The Commodore, however, not 
 foreseeing the future, did not press his advantage; and it was 
 arranged that a member of the new board should resign Ms posi- 
 tion, and, Mr. Drew, having been elected in his place, was re- 
 instated in his old position of treasurer. Now Mr. Drew, it 
 appears, had long been concerned in operations, sometimes looking 
 to a rise, but more usually to a fall, in the value of the securities 
 of the Erie road. Under his skilful manipulation " Erie " had, 
 for years, fluctuated widely ; but, while in it many fortunes had 
 been made and lost in a single day, the particular fortune of 
 Daniel Drew had prospered greatly. The brokers and operators 
 of Wall Street, as the result of long observation, had finally con- 
 cluded that the ways of the " Speculative Director " were past 
 finding out. In April, 1861, Erie had sold at 17, and in March, 
 
THE ERIE RAILROAD ROW. 6 
 
 1864, it liad risen to .125 ; yet tlie road never had made a divi- 
 dend, — and the common belief was that it never woiild make one ; 
 it hung ever on the verge of bankruptcy, and was, in short, the gam- 
 bling stock par excellence of Wall Street. Early in 1866, the com- 
 mon stock of the road was selling at about 97, and Mr. Drew, from 
 his office of treasurer, arranged one of those daring combinations 
 which elsewhere are called by a different and more opprobrious 
 name. Under the laws of New York, the Board of Directors had 
 no authority to create any new stock of the road ; but, under cer- 
 tain provisions of the law, they claimed the power to issue the 
 interest-bearing bonds of the road, which should upon their face 
 be convertible into stock at the option of the holder. Such being 
 the construction given to the law, and the road, as usual, standing 
 at the time in great need of ready money, Mr. Drew made his 
 little preliminary and private arrangements by contracting to 
 deliver, at a future day, many thousand shares of Erie at its 
 present market value. Having done this, he proceeded to sup- 
 ply himself with the stock necessary to fill his contracts. The 
 directors of the road borrowed of Mr. Drew $3,600,000 in cash, 
 depositing in his hands, as collateral security for the loan, 28,000 
 shares of the capital stock of the company, hitherto unissued, 
 and also $3,000,000 in the convertible bonds of the corporation. 
 These last the wily treasurer at once converted into stock, and 
 then, armed with his 58,000 shares, he proceeded into Wall 
 Street, and flung the whole mass upon the market at once. It 
 was by no means unlike playing with loaded dice, and with the 
 results usually attained by the use of those implements. The 
 " Speculative Director " had wagered for a fall, and the mar- 
 ket responded to his wishes to the extent of some fifty per 
 cent. The operation was extremely neat, and by it Mr. Drew not 
 only largely increased his wealth, but won great glory in Wall 
 Street. 
 
 All this took place some eighteen months before that election of 
 the Erie Board which has already been referred to, in which Mr. 
 Drew owed his seat to the condescension of Commodore Vander- 
 bilt ; but it has an intimate connection with the course of subse- 
 quent events. After his restoration to the post of treasurer by 
 Commodore Vanderbilt, the two potentates of Wall Street united 
 for a time, with infinite success, in transferring the spare cash of 
 the community from the pockets of others to their own. Hardly, 
 
4 THE ERIE RAILROAD ROW. 
 
 however, had the spoils of a gigantic pool in the bull interest been 
 divided between the chiefs, when again Vanderbilt stretched out 
 his hands to grasp the Brie road, and to force it into a combina- 
 tion with his private roads, in which its individual interests were 
 to be sadly ignored. Again the " Speculative Director " stood for 
 his own, and forthwith the feud broke out afresh. Then Vander- 
 bilt went into Wall Street in his might, and began, right and 
 left, to purchase " Brie," with a view of making himself abso- 
 lute master of the position, as the holder of a majority of the 
 stock. This, however, was not only an operation in itself of 
 enormous magnitude, but, in the face of an antagonist like 
 Drew, it was a very dangerous experiment; so Vanderbilt de- 
 termined, while operating upon the exchange, to make himself 
 secure by corresponding proceedings in the courts. Like a good 
 commander, he sought to cover his flanks. Meanwhile the ac- 
 counts between the Erie road and its treasurer, arising out of 
 the operations of 1866, were still unadjusted, and offered to 
 Vanderbilt a point of attack of which he could hardly fail to 
 take advantage ; besides, it might naturally occur to him that, 
 while buying up a majority of the shares of the Erie, it would 
 be well to guard himself against any increase of the gross amoimt 
 of that stock through a repetition on the part of Mr. Drew of his 
 former ingenious expedient. Hence the appearance of Mr. Work, 
 accompanied by Mr. Vanderbilt's attorneys, Messrs. Rapallo and 
 Spencer, before Mr. Justice Barnard. 
 
 As the result of an ex parte hearing, supported by the usual 
 affidavits, a temporary injunction was granted covering the points 
 included in the petition, and enjoining the Brie Board of Directors 
 from paying either interest upon or the principal of the three and 
 a half millions borrowed of the treasurer two years before ; as, 
 also, from releasing Drew from any liability to the company, then 
 existing, or from any cause of action it might have against him ; 
 and, also, enjoining any settlement of accounts embraced in the 
 transaction of 1866 ; and, finally, enjoining Drew from any legal 
 proceeding against the company in the premises. The 21st of 
 February was set down for a further hearing, at which time Drew 
 ■was summoned to appear. The object of the writ apparently 
 was to keep the company in a position in -which the treasurer 
 could be compelled to restore the bonds and shares formerly 
 loaned him as collateral, and, by so doing, would necessarily be 
 
THE ERIE RAILROAD ROW. O 
 
 deprived of the power of depressing tlie market value of tlie secu- 
 rities. 
 
 On the 19th of February, however, and without waiting the 
 issue of the first assault, the attack was renewed in a new 
 form ; on that day the same attorneys of Commodore Vander- 
 bilt again appeared before Judge Barnard, and this time, in 
 the name of The People, through the Attorney General of the 
 State, demanded the removal from office of Treasurer Drew, 
 under the statiite authorizing the removal of directors guilty of 
 misconduct. The petition alleged many curioxis facts as to the 
 affairs of the company. It set forth that the treasurer was, 
 at that time, heavily oversold in the "short" interest; and, con- 
 sequently, deeply interested in depressing the value of the stock. 
 It also set forth a new and ingenious expedient by which, as it 
 alleged, the facile " Speculative Director " had recently obtained 
 those masses of stock by means of which he had depressed the 
 value of " Erie." It appeared that there was a law of New 
 York, recently passed, by authority of which the officers of any 
 railroad company could exchange the stock of that company for 
 the stock of any road under lease to it ; and it was alleged that 
 Drew and certain other of the Brie directors in the " short " in- 
 terest had induced the Erie Board to lease and contract to complete 
 a certain worthless connecting road, mainly owned by them, and 
 known as the Buffalo, Bradford, & Pittsburg road ; having 
 done this, they had then, since the 1st of January, procured the 
 issue of a large amount of Erie stock in exchange for the stock 
 of this road. The petitioners alleged that the Buffalo, Bradford, 
 & Pittsburg road was not properly under lease to the Erie, and 
 that Drew had obtained the issue of the stock simply that he 
 miglit throw it upon the market. Judge Barnard ordered Drew 
 to show cause on the 21st, why the' prayer of the petitioners should 
 not be granted, and, meanwhile, suspended him temporarily from 
 office as a director and treasurer. 
 
 On the 21st, Drew made his appearance. The court-room was 
 crowded with brokers and railroad men, the friends of both 
 parties ; and the defendant was surrounded by a body-guard of 
 counsel, chief among whom was Mr. David Dudley Field. Mr. 
 Rapallo appeared for the Attorney General. Though the con- 
 tending parties were thus brought face to face, little resulted 
 save preliminary skirmishing, and a few desultory motions. The 
 
6 THE ERIE EAILROAD ROW. 
 
 defendants mored to dismiss for want of jurisdiction, and argued 
 their point at length ; but they were promptly overruled, and 
 thereupon took an appeal to the general term of the court, and the 
 argument on the merits was finally postponed to the 26th. Before 
 that day arrived, Mr. Field tried to make something of his appeal to 
 the general term, but took nothing by his motion. It was not until 
 the 3d of March, that the two suits again came up before Judge 
 Barnard, and, even then, that for the removal of Drew was post- 
 poned to the 10th of the mouth ; but a hew injunction was issued 
 restraining the Brie Board from any furtlier conversion of bonds 
 into stock, or 'from any new issue of capital stock in addition to 
 the 251,058 shares appearing in previous reports, as well as for- 
 bidding the guarantee by the Brie of the bonds of any connecting 
 line of road ; and, finally, enjoining Daniel Drew, " his agents, 
 attorneys, and brokers," from selling, transferring, delivering, dis- 
 posing of, or parting with any of the Erie stock in his or their 
 control, or fulfilling his contracts already entered into, until he 
 had returned to tlie Erie corporation the 58,000 shares loaned 
 him in 1866, as well as 10,000 additional shares alleged to have 
 been more recently received by him in exchange for a like amount 
 of the Buffalo, Bradford, & Pittsburg stock. The 10th of March 
 was appointed for a final hearing. 
 
 This took place upon the 3d, and so far things looked very badly 
 for the Drew interests ; the bulls, in fact, had it all their own 
 way. The " short " operations of the Erie treasurer seemed 
 effectually blocked by the last injunction, and the Yanderbilt 
 party was apparently at liberty to go fearlessly on buying up a 
 majority of the stock, with their operations safely covered from 
 any flank movement of their antagonist. If, however, they counted 
 upon an easy victory, Commodore Vanderbilt and his friends 
 showed a profound ignorance both of the resources of their oppo- 
 nent and of the character of New York law. Mr. Drew all the 
 while pursued the even tenor of his way upon Wall Street, follow- 
 ing out his usual line of " short " tactics with apparent reckless- 
 ness of consequences. The 10th was fast approaching. Day by 
 day, tlie great bull leader was buying in the Erie stock, which was 
 steadily rising in value; and yet, regardless of all this, — with 
 
 injunctions and removals from office impending over him, the 
 
 " bearish " Drew was daily contracting for the future delivery of 
 the stock at current prices, as if neither Juda;e Barnard's writs 
 
THE ERIE RAILROAD ROW. 7 
 
 nor Commodore Vanderbilt's millions possessed any terrors for 
 him. In reality the battle had not yet begun. 
 
 By the New York system the whole State is divided into eight 
 judicial districts, and each district is presided over by a court of 
 four justices, excepting the city district, which has five. There are, 
 therefore, thirty-three justices of the Supreme Court, each group 
 sitting within its own bailiwick, as it were, but each jlidge armed 
 with certain equity powers running throughout the State. Not 
 having that complete confidence in the judicial impartiality of 
 Judge Barnard which the Yanderbilt party professed to entertain, 
 the Brie counsellors took their first step upon the 6th, by com- 
 mencing a new suit before Mr. Justice Balcom of the Supreme 
 Court, in the county of Broome. Of course their prayer was for an 
 injunction, and they included in their petition all the parties to 
 all the other suits, not excepting the Attorney General. Equally of 
 course the desired writ was forthwith granted by Judge Balcom, 
 who ordered all the parties to show cause at Courtlandville on the 
 7th instant, — staying until that time all farther proceedings in 
 the suits already commenced, and temporarily suspending Mr. 
 Work, who was accused in the Drew affidavits of being a spy of 
 the New York Central in the councils of the Erie, from his duties 
 as a director. So far the friends of Drew. The instant, however, 
 that the existence of this writ was known in New York, the Yan- 
 derbilt counsel applied to Judge Ingraham in yet another suit, 
 in the name of one Richard Schell ; and his honor thereupon 
 forthwith enjoined the Board of Erie Directors from holding any 
 meeting, or transacting any business, unless Mr. Work could 
 take part therein ; thus blowing a counter blast to Judge Balcom, 
 and restoring the endangered equilibrium. 
 
 When the 10th arrived, Judge Barnard was presiding at a capi- 
 tal trial, and could not attend to the Erie cases, which stood 
 adjourned to that day, so they were necessarily postponed ; his 
 honor simply announcing to the faithful or curious his determina- 
 tion on the morrow to sweep away all the injunctions except the 
 original ones. On the morning of that very day, however, tlie 
 Drew party had struck their decisive blow ; they had opened 
 the stable door and stolen the steed away, and Judge Barnard was 
 left to apply lock and key to the empty stall. Hitherto the pro- 
 ceedings in Drew's behalf, before Judge Balcom, had looked merely 
 to the consolidation of suits and the simplification of litigation ; 
 
8 THE EHIE BAILEOAD ROW. 
 
 the Erie party very honestly and publicly announcing that they 
 felt no confidence in Judge Barnard, and wished to have the pro- 
 ceedings removed before some other justice. The case now, how- 
 ever, assumed a wholly new aspect. On the morning of the 10th of 
 March, a carriage containing Mr. Dudley Field and anotlier gentle- 
 man in the Drew interest, passed over the Brooklyn Ferry, and 
 drove rapidly up to the residence of Judge Gilbert of the Supreme 
 Court for the second judicial district. A petition for a new 
 injunction was presented in the name of one Belden. And now a 
 new name appeared in the long list of defendants, — the name of 
 George G-. Barnard, a justice of the Supreme Court of the State 
 of New York. The petition, among other grounds for asking that 
 an injunction might issue, alleged that a combination had been 
 entered into in the month of February by and between " Cornelius 
 Yanderbilt, Richard Schell, James H. Banker, G. G. Barnard, 
 and Frank Work, to speculate in the stock of the said Brie Rail- 
 road, and to use the process of the courts for the purpose of 
 aiding their speculation, for which purpose they had various con- 
 sultations together, in which it was agreed that the said Work, 
 as agent for said conspirators," should commence proceedings 
 before Judge Barnard. The affidavit of Belden, in support of 
 the petition, alleged " that the said Barnard is in the constant 
 habit of resorting to Broad Street, where said transactions are 
 going on, and frequenting the office of one of the principal firms 
 of brokers who are engaged in buying said stock." 
 
 In the course of a few moments, the triumphant counsel of 
 Mr. Drew left Judge Gilbert, with a new injunction in their posses- 
 sion, restraining all the parties to all tlie previous suits from 
 farther proceedings, or from doing any act "in furtherance of 
 said conspiracy ; " ordering the Erie directors, excepting Work, 
 to continue in the discharge of their duties, and also directing the 
 conversion of bonds into stock to go on ; and, " in case of disobedi- 
 ence to this order, they will be liable to the punishment therefor 
 prescribed by law." ..." But this order is not intended to inter- 
 fere with the judicial functions of the said George G. Barnard." 
 The defendants were ordered to show cause at Brooklyn, upon the 
 18th of the month, at ten o'clock, a.m. At a later hour in the day, 
 yet another injunction was granted in the premises, being the 
 seventh so far, by Judge Cardozo, of New York, in the case of 
 Bloodgood v. Drew, and als. 
 
THE ERIE RAILROAD ROW. 9 
 
 All the other injunctions, however, by -whomsoever issued and 
 to whatsoever end directed, paled their ineffectual fires before that 
 of Judge Gilbert. That injunction placed the Drew faction where 
 most it desired to be placed, — between two fires. While, on the 
 one hand. Judge Barnard had restrained all issues of stock and 
 conversion of bonds. Judge Gilbert, on the other, had equally 
 explicitly directed outstanding contracts to be fulfilled, and the 
 conversion of bonds into stock to continue. Any action or no 
 action would now equally violate an injunction, and one injunction 
 might as well be violated as another. In less than twenty-four 
 hours ten million dollars of convertible bonds had been issued by 
 the Drew faction, and immediately converted into stock, which 
 was thrown upon the market. Here was the turning-point of the 
 struggle, and from this point Wall Street and its jargon disappear 
 from consideration. The statement of the case is all in, and the 
 position and motives of the parties are sufficiently evident. The 
 wily Drew had again, in face of the courts and the exchange, 
 regardless no less of the processes of law than of the elements of 
 morality, repeated his strategy of two years before. The stock 
 of the road, of which he was treasurer, fell fifteen per cent iu' 
 about as many minutes, and Vanderbilt and Wall Street realized 
 that in selling " short " so boldly the " Speculative Director " had 
 not reckoned without his host. 
 
 It now remains to pass in review a few of the more pleasing 
 court episodes of this interesting struggle. And, in the first place, 
 the injunction issued by Judge Gilbert is not undeserving of con- 
 sideration. The New York community is not apparently unac- 
 customed, to seeing one justice of its Supreme Court enjoining 
 another, on the ground. that his respected associate has entered 
 into a conspiracy to use his judicial, power in a stock-jobbing 
 operation ; for this elsewhere extraordinary proceeding called 
 forth from the press little more than a passing notice, to the effect 
 that " the order granted by Judge Gilbert is -in direct opposition 
 to that previously issued by Judge Barnard, and, as a strategic 
 movement on the part of the ' Speculative Director ' and his 
 party, it answered all the purposes for which it was sought." It 
 would, however, in more unsophisticated communities, naturally 
 be supposed that a justice sitting in Brooklyn and wielding equity 
 powers, would feel some delicacy in interfering in proceedings 
 initiated before a brother justice sitting in New York, especially 
 
10 THE ERIE RAILROAD ROW. 
 
 when the preliminary papers submitted to him contained the most 
 serious allegations against that associate which could be preferred, 
 — allegations which should properly only be submitted to legisla- 
 tive investigation. Not only did the case involve the official char- 
 acter of Judge Barnard, but it also involved millions of money. 
 The order at first applied for to Judge Gilbert was a mandamus 
 commanding that to be done immediately tlie doing of whicli an- 
 other justice had especially enjoined. Such an application, pre- 
 ferred on the avowed state of facts, — an application for an improper 
 writ to compel an illegal act, — and this by leading counsel, is in 
 itself a curious illustration of the estimate placed by the bar upon 
 the erudition of the bench. This mandamus, it appears, Mr. Jus- 
 tice Gilbert had declined to grant ; and it might have been sup- 
 posed that his suspicions would have been aroused, when, an hour 
 later, he was applied to for a " mandatory " injunction, whatever 
 that may be, directed to exactly the same end. Having refused, 
 and most properly refused, to command the Erie directors to go 
 on with the process of converting bonds into stock at ten o'clock, 
 at eleven o'clock he enjoined them from ceasing to convert those 
 bonds into that same stock. Taking all things into consideration, 
 it would have seemed not unnatural for Judge Gilbert to have 
 proceeded cautiously in such a matter ; to liave carefully consid- 
 ered the purport of his own orders ; to have satisfied himself of 
 the bona fides of the transaction by a decent study of the affida- 
 vits ; finally, he might well have declined to interfere, and have 
 referred the applicants to one of Judge Barnard's associates within 
 his own judicial district. Yet, however much his injudicious 
 action is to be blamed, there is another side to the case, — a sad 
 and very shameful side. The error into which Judge Gilbert fell 
 was an error into which an honest judge — one desirous of arrest- 
 ing wrong — might not unnaturally fall. " As will be seen here- 
 after, the case presented to him was, in its worst aspect, not 
 impossible, and hardly improbable. The facts, as laid before him, 
 and supported by affidavits, demanded immediate action, if true; 
 and he could not have been unaware that episodes equally flagitious 
 in the recent career of the New York City judiciary had been 
 openly recounted. Strange as it may seem, his action, while it 
 speaks volumes as to the moral condition of affairs in judicial 
 circles, rather stamps Judge Gilbert himself as a courageous and 
 honest official, desirous to prevent wrong ; though, perhaps, in this 
 
THE EEIB RAILROAD BOW. 11 
 
 instance, a trifle indiscreet. On the matter of this injunction, 
 however, he at a later day told his own story, and perhaps this 
 episode in the proceedings may best be disposed of by presenting 
 his statement without comment. : 
 
 The 18th of Marcli had been appointed as the day of final hear- 
 ing on this petition ; and, not unnaturally, before that day the 
 tumult his reckless order created had induced Judge Gilbert to 
 suspect that he had acted witli undue precipitation. The indig- 
 nant Vanderbilt counsel were present in force before his honor at 
 the appointed time, but the temporary order having done its work 
 so well, the Drew people hardly deigned to send a clerk to look 
 after their interests. Mr. Shearman did, however, just for appear- 
 ance' sake, show himself in their behalf and asked for a postpone- 
 ment. This motion, of course, was denied, and the injunction 
 dissolved. His honor, thereupon, stigmatized tliis highly success- 
 ful attempt to use the process of his court in furtherance of a 
 stock-jobbing operation in these words : — 
 
 " The parties had taken the responsibility of bringing these charges, not 
 only against a judge of the Supreme Court, but against gentlemen of the 
 highest character in the community ; alleging a conspiracy of a most 
 extraordinary nature, and a perversion of the course of justice, as well as 
 charging them with using the process of the courts to further speculations 
 in stock. The gentlemen who make these charges should be prepared to 
 substantiate them, not only to the satisfaction of their own consciences, 
 but that of the public ; and he [.Judge Gilbert] would not permit a charge 
 of that kind to be supported on a bare suspicion. . . . The application for 
 this order was made to him [the court] when he was sick, and he endeav- 
 ored to guard against these consequences which the counsel had shown to 
 exist. When the bill was read to him, he supposed it contained aflBrma- 
 tively positive allegations upon the subject, and he saw now from reading 
 it that it would possibly bear that construction. ... As it at present stood 
 it was an outrage on the administration of justice." 
 
 The motion to delay was peremptorily denied. 
 
 It is necessary to return, however, to the 10th of March, — the 
 day of injunctions and conversions. There were now outstanding 
 three injunctions from Judge Barnard, and one each from Justices 
 Balcom, Ingraham, Cardozo, and Gilbert, — all enjoining or com- 
 manding things wholly inconsistent. Only the more noteworthy 
 proceedings have here been recounted, but in every court there 
 were pending motions and appeals and applications without num- 
 
12 THE EEIE EAILEOAD EOW. 
 
 ber, and, on the morning of the 11th, the puzzled counsel had 
 good cause to inform distracted reporters " that the litigation was 
 now becoming very complicated, and it was impossible to keep 
 track of the proceedings." When Judge Barnard took his seat on 
 the bench that day, Mr. Rapallo inquired of the court what course 
 should now be pursued, in view of the multiplicity of injunctions. 
 Mr. Field thereupon objected to the court giving any suggestions 
 at all, and said he was tliere to protest against any action at all 
 being taken. Judge Barnard finally settled the matter for the 
 day, by declaring that the proceedings, being all regular, had 
 been " tied up " by a certain judge having co-ordinate powers ; 
 and he would, therefore, on his own motion, order all proceed- 
 ings adjourned to the 14th of the month, which was accordingly 
 done. 
 
 Meanwhile between the 11th and the 14th, grave fears of fur- 
 ther processes of the court, — of some unknown engines of the 
 law, — took possession of the souls of the president, treasurer, and 
 directors of the Erie railroad. At ten o'clock on the morning 
 of the 11th, a panic-stricken throng, bearing in their hands ac- 
 count-books, desks, drawers, and packages of papers, representing 
 bonds, assets, and archives, — carrying bales of greenbacks in 
 hackney-coaches, — they fled to Jersey City, exciting, as they broke 
 from the of&ces of the corporation and made their disordered way 
 to the ferry, the particular attention of the police. Otliers of the 
 board followed in open boats, like thieves in the night, and all 
 made haste to place the Hudson between themselves and the indig- 
 nant Barnard. On the 13th, two lingering directors had been 
 arrested for contempt of court ; and on the 14th, Judge Barnard 
 took his seat on the bench, prepared to vindicate the outraged 
 majesty of the law. General Diven and Mr. Skidmore, — the 
 two contumacious directors who had been arrested, — were pres- 
 ent in the crowded courf^room, prepared to purge themselves of 
 their contempt ; and there, too, were arrayed half the bar of New 
 York, representing no less the absent Drew than the present VaU- 
 derbilt. 
 
 The matter first before the court was in relation to the abscond- 
 ing directors, against whom Mr. FuUarton moved for an attach- 
 ment. Mr. Field objected that the very motion itself was a 
 violation of an injunction, and rendered the party offering it liable 
 for contempt. The court, however, having held the present to be 
 
THE ERIE RAILROAD ROW. 13 
 
 an independent proceeding, tliereupon Mr. Meld took a new ground 
 and argued as follows : — 
 
 " Then, sir, I object to the judge on the bench hearing the case. I do 
 this with great respect, and only in discharge of my duty. It so happens, 
 that there is a suit now pending in this court, in another district, in which 
 a judge of this court is a party, upon an allegation that he is interested in 
 this litigation. He is a party in that suit, and that suit is a part of this 
 litigation. That makes him a party to this suit. Whether he be or be 
 not interested, is another thing ; that is not for me to decide at all. It is 
 for another judge in another place. And therefore, both on the ground 
 that it would be a direct violation of law, and a void proceeding, if it were 
 carried on, I respectfully object ; and I am sure your honor never would 
 partake in a violation of that courtesy which should prevail in all branches 
 of the court, and without which the administration of justice will fall into 
 discredit. Now, sir, you know better than I can tell you, that it not only 
 is a provision of the common law, but of the statute also, that any judge 
 who sits in hearing in any case in which he is interested, is deemed guilty 
 of a misdemeanor. And, with an extreme desire not to say any thing 
 which would be in the slightest degree objectionable, I submit that every 
 requirement of law prohibits this proceeding from going on here." 
 
 To which Judge Barnard replied, " Anticipating that these objections 
 might be raised, the justice who is named as a party defendant in that 
 proceeding commenced against him, and to which you refer, submitted the 
 papers that were served upon him to a majority of his associates sitting 
 upon the bench in this district, and they advised him, that, the injunction 
 being granted upon information and belief, their advice was, first, that the 
 injunction should be violated by him ; and, second, to hear this matter 
 regardless of the order, because nothing is charged against him, he stating 
 to them that he is not interested in any way in this litigation, and never 
 was so interested. 
 
 " Mr. Field regretted that any of the associates should give any such 
 advice as recommending the court to violate an injunction. But that was 
 a matter for higher authority to take notice of, and was not of any material 
 importance to the case under consideration. He (Mr. Field) should have 
 a remedy upon that question in its due and proper time." 
 
 Having thus disposed of the preliminary objections, Judge Bar- 
 nard proceeded to the matter before the court. The returns 
 showed that Messrs. Diven and Skidmore were present in court to 
 answer for their contempt, and that the remaining members of the 
 Board of Directors were not to be found. The next question was 
 in regard to framing an order as to filing interrogatories to the 
 
14 THE ERIE EAILEOAD ROW. 
 
 directors above named, and the fixing of their bail. For those 
 who had voluntarily appeared, the court suggested a nominal bail ; 
 but for the others directed bail in the sum of $500,000. "What 
 followed was thus reported : — 
 
 Mr. Field desired to know what authority there was for making the 
 bail in the other cases $500,000. But before any order is made in this 
 case, he wished to file his objections, which he wished to have incorporated 
 in the order just read. 
 
 The court did not think that Mr. Field's objections should be incorpo- 
 rated in the order of the court, as they did not form any part of the order, 
 but were exceptions taken to the proceedings. 
 
 Mr. Field here read his objections, and said, addressing the court, 
 " That is all true, as you are aware, sir." 
 
 judge Barnard. — It is true, sir, that the objections have been made, 
 but not that I have any interest in the stock [suppressed laughter]. 
 
 Mr. Clark. — We object, may it please the court, to the mutilation of 
 our order by the embodiment of these objections. 
 
 Mr. Field. — Our order ! — our order, does the gentleman say ? Is 
 this your order, or the order of the court ? I submit that we have a right 
 to have these objections filed. But, primarily, I insist that this whole 
 proceeding is void ; that it is good for nothing, and that every one is liable 
 to arrest who takes part in the proceeding. 
 
 The Court. — I think, Mr. Field, that if you will reflect in regard to 
 your own practice, tl;ere is nothing unusual in this course. I have never 
 known such a thing to be incorporated in an order. I will give Mr. Field 
 a separate order. 
 
 Mr. Field. — Well, sir, that will do, and add to the other order the 
 words " the court thereafter made the following order." 
 
 Mr. Fullarton. — Now let us have a fair understanding on this. I 
 want this to be decided according to the regular practice, but I cannot tell 
 but what that order intends to reflect upon the justice before whom this 
 proceeding is taken. 
 
 Mr. Field. — Oh, it is not in any way essential here, in the matter 
 of making or framing this order, that the judge is interested in the litiga- 
 tion. 
 
 Judge Barnard here dictated the closing sentences of Mr. Field's 
 objections, beginning with the words " the judge disclaiming," &c. The 
 order and objections, as mentioned and modified, were then read as fol- 
 lows : — 
 
 " The People, ^c. v. A. S. Diven. The plaintiffs moving this day to 
 proceed upon the attachment heretofore issued against the defendant for an 
 alleged violation of an injunction, it was objected that the motion for attach- 
 
THE ERIE RAILROAD ROW. 15 
 
 ment was made in violation of another injunction of this court ; and, therefore, 
 that no further proceedings should be had ; whi^h objection was over- 
 ruled. It was then objected that the judge, now sitting, could not hear 
 and decide on the questions upon the attachment, because he was party 
 to another suit, being part of this general litigation, and was interested 
 therein ; the judge disclaiming that he ever had any interest in this litiga- 
 tion, or that he was ever interested in the slightest degree, either directly 
 or indirectly, remotely or contingently, in the Erie stock, or any other 
 stock, or ever has been ; and thereafter an order is made, of which the 
 following is a copy," &c. 
 
 This disposed of the matter then before the court. Mr. Clark, 
 of the Vanderbilt counsel, then rose and referred to another matter 
 pertaining to the case, which proved to be no less than an applica- 
 tion for an order appointing a receiver of all tlie property, amount- 
 ing to millions of dollars of stock, which had been issued in 
 violation of the injunction. A difficulty at once arose about serving 
 notice on the defendants. The Schell case was selected as the 
 best to move in, as, the Balcom injunction not applying in that 
 case, there was only the Gilbert injunction to violate by further 
 proceedings therein. As there was no appearance in that case, it 
 became a question whom the order to show cause should be served 
 upon ; which the counsel solved by proposing to serve copies upon 
 the Erie directors there present and answering for their contempt, 
 and upon the counsel then in court, " and this' is the best ser- 
 vice we can make." The following amusing colloquy, as well as 
 extraordinary specimen of practice, then took place : — 
 
 Mr. Field. — This is an ex parte application, and we do not care any 
 thing about it. The worse you make the case, the better it will be in the 
 end. 
 
 Mr. Rapallo. — I ask your honor to make this order returnable on 
 Monday morning. 
 
 The Oourt. — I do not think it is necessary to wait until Monday 
 morning. You had better have it made returnable forthwith. 
 
 Mr. Olarh. — We ask that that paper [the order to show cause] be 
 served upon Mr. Diven, who is now in court. [Mr. Clark looked in the 
 direction in which Mr. Diven had been sitting a moment before, and looked 
 astonished also ; Mr. Diven was not to be seen.J Is Mr. Diven in court, 
 or has he gone into New Jersey also ? [Laughter.] 
 
 Mr. Field. — That is rather an extraordinary question. Mr. Diven is a 
 gentleman without a superior in the State, and I think that there is no 
 occasion offered here to make any imputation against him. 
 
\Q THE ERIE EAILEOAD BOW. 
 
 Mr. Glarh. — There is -another one of the directors here in court, Mr. 
 Skidmore ; I want a paper served on him. 
 
 Mr. Field. — I cannot see that there is any need for making this impu- 
 tation against Mr. Diven. 
 
 Mr. Clark. — Mr. Diven is a gentleman for whom I have the profound- 
 est respect, and I had no intention of making any imputation, only that I 
 found that just at that moment when we wanted him he was absent from 
 the court. 
 
 Mr. Field. — That is sufladent ; but the gentleman might reasonably 
 suppose that there are occasions when Mr. Diven might have reason to 
 leave the court momentarily [laughter] without going to New Jersey. [In- 
 teresting tittering.] 
 
 Mr. Clark. — If the court please, I now bring on the order, returnable 
 forthwith, against the Erie Railway Co. and its directors, to show cause 
 why a sum of money amounting to from seven to ten millions of dollars, 
 which has been realized by some of these gentlemen, from sales of Erie 
 stock, in violation of an injunction, should not be brought into court and 
 paid into the hands of a receiver. The papers have, of course, not been 
 considered or examined by counsel for the other side. I don't know that 
 they feel any responsibility in regard to hearing this motion this morning, 
 unless they were sent to them. But I do not propose to do so, nor do I 
 propose to make any very elaborate opening regarding the extraordinary 
 facts which these papers develop, unless my adversaries are prepared to 
 go on. The papers which I hold in my hand Bet out the whole history of 
 this litigation. They set out and show, between the third and the eleventh 
 days of March, the issue of ten million of dollars worth of stock, in 
 violation of the order made by your honor. It is now floating in the 
 ■ community, and is either in the pockets of these gentlemen, or under their 
 control ; although sorpe of it may be out of the jurisdiction of the court. 
 
 Judge Barnard. — Is there any objection to this application? 
 
 Mr. Field sat smilingly in his chair, which was tipped back on its rear 
 legs, and looked composed in the extreme, but made no response to the 
 inquiry of the judge. 
 
 The Court. — Draw up an order appointing Geo. A. Osgood receiver 
 of this fund, with security in the sum of $1,000,000, and requiring these 
 defendants to appear before a referee in regard to the matter. 
 
 Mr. Field (rising). — The court will understand that this was ex parte. 
 
 Mr. Glarh. — We have given notice, and therefore this is not ex parte. 
 
 Mr. Field. — There has been no notice given ; there has been no ser- 
 vice. This is ex parte, and now if any one vyill enter that order, I want 
 to see him do it. 
 
 Mr. Fullarton (excitedly and earnestly). — I dare enter that order, and 
 will do it with your honor's permission. 
 
THE BRIE RAILROAD ROW. ^ 17 
 
 Mr. Field. — May it please the court, thefe have been no papers 
 submitted in this case, and no affidavits presented on which this order 
 ,is made. You have made it upon blank paper, and in complete absence 
 of any regular proceeding whatever. I wish to say, however, that just so 
 sure as this proceeding is being taken in this form, a day of reckoning will 
 as surely come, when these partifs will have to answer before some one 
 for this action. 
 
 Mr. Fullarton (in a decidedly animated tone). — Let that day come, and 
 there will be a reckoning that you will have to bear, and so will every one 
 of those men who have been engaged in this transaction. 
 
 The Court. — Let it be inserted in that order that as fast as these sums 
 of money obtained shall amount to half a million of dollars, they shall be 
 deposited with the Union Trust Company. 
 
 The complete surprise to opposing counsel ; the utter disregard 
 of form and practice ; the eagerness of the judge outstripping even 
 the demands of the advocate, — were not the only or even the most 
 singular features of this singular proceeding. The appointment 
 of Mr. Osgood to the office of receiver was, under the circum- 
 stances, a most extraordinary one to be made, especially by the 
 particular justice who made it. Mr. Osgood was the son in law 
 of Mr. Vanderbilt. Considering that Vanderbilt was notoriously 
 one party to the conflict,- and considering also the charges of col- 
 lusion with that party so openly and persistently made against 
 Judge Barnard in his own court-room and to his very face, the 
 appointment did seem to indicate a happy disregard of good taste, 
 and a total ignorance of the proprieties of his position, not at all 
 unworthy of Mr. Jiistice Barnard's previous reputation. 
 
 Naturally the appointment of a receiver, especially when that 
 receiver was Mr. Osgood, scarcely met the views of the Drew 
 interest. Resort was, of course, at once had to tlie usual weapon ; 
 — for, in New York, what matters an injunction more or less ? 
 This time Judge Gierke, a colleague of Judge Barnard, but then 
 serving as a member of the Court of Appeals, was applied to, and 
 he met the emergency by at once granting an injunction stay- 
 ing all proceedings in the matter of the receivership until the first 
 Monday in April. This process was served by Mr. Field in person 
 on Judge Barnard upon the 16th, when he took his seat on the 
 bench for the final settlement of details in regard to Mr. Osgood's 
 appointment. Judge Barnard seemed to consider that at last an 
 injunction had been obtained which had some binding force upon 
 
18 THE ERIE RAILROAD ROW. 
 
 him and which really stayed proceedings, and he so intimated to 
 the Vanderbilt counsel. Progress, therefore, was made upon this 
 day only on collateral and unimportant questions. With a curious • 
 forgetfulness of the fact that misdemeanors such as those charged 
 against him were rather matter for the consideration of a High 
 Court of Impeachment than for a petty jury at criminal sessions, 
 Judge Barnard effected a little cheap display of offended virtue on 
 this occasion by sending down to the grand jury all the affidavits 
 and papers relating to the alleged conspiracy ; apparently seeking 
 to indicate thereby that he courted an investigation. The affiants 
 were accordingly subpoenaed, but, upon appearing, were told that 
 their testimony was not required ; and the same evening the grand 
 jury, more correctly instructed than his honor as to their proper 
 province of duty, were discharged for the term. Matters rested 
 thus until the 19th, — the Erie party encamped with their spoils 
 in Jersey City ; the officers of the courts, with alias and pluries 
 alias attacliments in their hands, pursuing contumacious directors; 
 the matter of the receivership hanging up between .heaven and 
 earth ; and all parties equally confused as to what might now be tlie 
 present position of affairs. 
 
 The Vanderbilt counsel finally cut the knot by filing a motion 
 in the Schell case, which was now, through the action of Judge 
 Gilbert, on the 18th of March, freed from injunctions, to have the 
 matter of the appointment of a receiver settled by the court. 
 Thereupon an order was granted by Judge Barnard, requiring the 
 defendants to show cause why the order of Judge Clerke, staying 
 the settlement of the receivership order, should not be vacated. 
 Upon the appointed day the Drew counsel came into court and met 
 this order with a bran new injunction from Judge Clerke. The 
 venue in this new instrument was laid in the county of Steuben, 
 and all the parties in all the previous suits, including of course 
 George G. Barnard, were restrained from taking any further 
 action in those suits, or from instituting new ones ; they were 
 furtlier enjoined from entering or procuring to be entered any 
 order for the appointment of a receiver of any of the property of 
 the Erie Railway Company ; Mr. Osgood also was enjoined from 
 accepting the appointment of receiver ; and, finally, the order pro- 
 ceeded, " The clerks of the Supreme Court are enjoined and re- 
 strained from entering any order for the ' appointment of such 
 receiver." Generally, in short, the Vanderbilt fa,ctioii was en- 
 
THE ERIE RAILROAD ROW. 19 
 
 joined and restrained from doing any thing in the premises, and, 
 by virtue of the closing paragraph of the order, the Drew faction 
 ■was left pretty much at liberty to do any thing. In spite of this 
 injunction, Mr. Clark opened the case on the part of the Yanderbilt 
 party and read affidavits of Messrs. Scliell and Vanderbilt, and of 
 Judge Barnard himself, in denial of the facts alleged in the previous 
 affidavits of the Drew party. In the affidavit of Judge Barnard all 
 allegations of collusion in stock operations, or of any interest in 
 the stock of the Erie road, or of any acquaintance with stock-job- 
 bers, — except Mr. George A. Osgood, "a gentleman whose rela- 
 tions with this deponent are exclusively of a social character," — 
 were explicitly denied, both in scope and detail. After a very long 
 oration in praise of Judge Barnard, — during the delivery of which 
 that gentleman wept freely and evinced every symptom of the 
 deepest emotion, — Mr. Clark closed some severe comments on 
 the injunction just served, with these words: — 
 
 " It is in your honor's power to strike down this order ; and we claim that 
 your honor shall protect us, and we ask that you protect your own juris- 
 diction and dignity." 
 
 To this Judge Barnard replied, " You will draw up an order returnable 
 forthwith, and serve it upon Mr. Eaton as counsel, to show cause why the 
 order granted by Justice Gierke should not be dissolved." 
 
 Mr. Fullarton. — I suggest that your honor treat the order as a nullity. 
 They have made your honor a party in the action, and tied your hands. 
 There will then be no difficulty in the case. 
 
 Judge Barnard. — I issue this order because the judges associated with 
 me said I ought to disregard it, or grant an order to show cause forthwith 
 why it should not be vacated. 
 
 Mr. Field asked to have the affidavit of service of the papers in the re- 
 ceivership matter read. 
 
 When this had been done, Mr. Field proceeded thus : — 
 
 " I have to say that these papers came into our hands about twenty minutes 
 past ten o'clock this morning for the first time. We came here for the pur- 
 pose of acquainting you with the injunction granted by Judge Gierke, and 
 give that as a reason why any motion should not be made, and none enter- 
 tained." 
 
 Mr. Field read an affidavit of service of the order in the new 
 suit, and proceeded at some length to argue that the order of Judge 
 
20 THE ERIE RAILROAD ROW, 
 
 Gierke was issued in the ordinary exercise of the jurisdiction of a 
 Court of Equity to restrain a multiplicity of suits : — 
 
 " In short, every person is made a party, who has, or claims to have, an 
 interest in j-espect to these different subjects. It vi^as, as I helieve, a proper 
 and respectful, not to say entirely legal, proceeding, in which an injunction 
 has been granted ; an injunction which is not in any respect extraordinary, 
 unless the gentlemen choose to say that the fact that a judge of the Supreme 
 Court is a defendant makes it extraordinary ; and I have yet to learn that 
 a judge of the Supreme Court cannot be sued. They have been ; they are 
 parties like anybody else, — whether truthfully or wrongfully made parties 
 depends upon the ultimate decision. An injunction granted to stay other 
 suits is not unusual. In one suit four hundred and fifty-five defendants 
 were prohibited from suing. A receiver when appointed cannot be sued 
 by anybody. The right to sue is not so much a right as the gentleman 
 supposes. Now, having said this, our duty is done. We do not propose to 
 take part in any discussion about the merits of either action. We have 
 come into court to apprise the gentlemen of the injunction granted by Judge 
 Gierke ; and whoever proceeds against it violates the law ; and, in a court of 
 law, one would suppose that was enough." 
 
 Judge Barnard. — So far as the order of Judge Gierke is concerned, 
 staying my proceedings, I have been informed by a majority of my associ- 
 ates that it is void, that I ought to disregard it. I did not disregard the 
 first, but this I have deemed it my duty to disregard, one judge having no 
 authority whatever to tie up by a stay of proceedings the judicial act of a 
 co-ordinate judge acting within his judicial powers. This stay of proceed- 
 ings will be dissolved, and the order will be proceeded with, appointing 
 George A. Osgood receiver. 
 
 The order was then settled, and the day's proceedings closed 
 with the following little passage at arms : — 
 
 Mr. Field. — We have an appeal from that order, and upon that I ask 
 to have a stay of proceedings until the appeal can be heard. 
 
 Mr. Field then read an affidavit by Mr. Eaton, stating that he was counsel 
 for the Erie Railway Company ; that any action on the order appointing a 
 receiver would be a source of great injury to the interests of the company 
 and its stockholders; that himself and associate counsel were of the 
 opinion that the order was illegally granted, and that the company had 
 taken an appeal from the order. 
 
 Judge Barnard. — Your defendants have been guilty of contempt of 
 court, and resorted to practices which appear to the presiding justice not to 
 be justified by the proceedings in the case, and he therefore denies the 
 motion. 
 
THE ERIE RAILROAD ROW. 21 
 
 Mr. Field. — All right, sir ; we will see whether some other justice will 
 not grant a stay, then. 
 
 Judge Barnard. — Then I will see if it may not be vacated. 
 Mr. Field. — Very well. 
 The court then adjourned. 
 
 Before proceeding, however, to demand the threatened stay from 
 " some other justice," Mr. Field made free use of the weapons 
 already in his hands, and, within ten minutes after the order 
 for the receivership had been settled, the county clerk, the 
 Circuit Court clerk, the clerk at Chambers, as well as all their 
 subordinates, had been served with copies of Judge Gierke's in- 
 junction, forbidding them to enter the order in their offices. So 
 the war raged. Judge Barnard had issued his order in defiance 
 of Judge Gierke, sitting, as it were, in a lit de justice; but now who 
 was to record the order, and who was to certify it, and who was to 
 act under it ? These, indeed, were momentous questions, and yet 
 not insoluble ; for, late in the niglit, an adventurous clerk of the 
 Supreme Court was found, to whom the inducements held out 
 seemed sufficient, and Mr. Osgood, as yet unenjoined, became the 
 duly appointed receiver. As all tlie property which Mr. Osgood 
 was authorized to receive was safe in New Jersey, beyond the 
 jurisdiction of the court ; and as all the parties to this legal satur- 
 nalia had long since ceased to pay any attention to injunctions 
 whatsoever, it is still a difficult matter to decide why Mr. Osgood 
 was ever appointed, or why, being appointed, he objected to being 
 enjoined. The only practical effect of either order or injunction 
 seems to have been, so far as reported, that Mr. Osgood strove for 
 five days to avoid the inevitable service, and thereby, from his fear 
 of satellites of the law in disguise, seriously inconvenienced his 
 milkman and baker in their access to his kitchen. 
 
 Tlie order of appointment of the receiver was settled on the 19th ; 
 and, of course, an appeal to the General Sessions was taken. Nine 
 whole days now passed before a new enjoiner made his appear- 
 ance, but those nine days were not idle ones ; they were indus- 
 triously employed both by court and counsel in the hunting down 
 and examining contumacious directors ; and here the proceedings 
 entered into a now phase, and found, indeed, below the lowest deep 
 a lower still. Hitherto the struggle had meant something so far as 
 the parties to the litigation had been concerned ; from this point, 
 however, it ceased to affect them at all, and became simply a dis- 
 
22 THE ERIE EAILHOAD ROW. 
 
 graceful free fight of bench and bar. The real struggle, it is true, 
 had never been in the courts ; but, though the processes of law 
 had only been used by unscrupulous men, those men had at least 
 been cojicerned in the strife. In fact, the saddest feature of the 
 whole sickening farce was to observe liow the judiciary of a great 
 State allowed itself and its process to be made use of; justice to 
 be perverted, and the law to be brought into contempt. A counsel, 
 prominent throughout these proceedings, in giving recently his 
 final conclusion drawn from them, remarked, that the moral 
 of the whole thing was, that, in New York, if a man was driven 
 to the wall, and utterly unable to fulfil his contracts or pay 
 his debts, — deserted alike by God and man, — tlien he should go 
 to the courts, and take out an injunction against fate and his cred- 
 itors. In this case the great bull and the great bear of Wall Street 
 had closed in fierce conflict ; neither cared for the courts or for 
 law or for justice ; both wanted weapons and both wanted time, 
 and, with these, a perversion of law might supply them. They 
 wanted to prostitute the powers of the judiciary to their private 
 ends, and the judiciary afforded them every facility for so doing. 
 Thus it was that all this litigation was a sickening farce. " All 
 those injunctions, attachments, precepts, and affidavits, which 
 hurtled through the air, and served as texts for innumerable and 
 ill-considered editorials, were employed by both parties, not because 
 a great wrong had been committed, but simply as legitimate instru- 
 ments for attaining a definite result. The sviit of Work v. Brew, 
 and als. regarding the issue of stock in the 1866 order, had been 
 overhanging the latter for months, and could have been compro- 
 mised at any time if the defendant had chosen to accept the prof- 
 fered terms. The injunction restraining the directors from the 
 ten million issue came from Mr. Vanderbilt, not because he be- 
 lieved the act was criminal or illegal, but in order to gain time for 
 freeing himself from his terrible entanglement." 
 
 Injunctions, however, being, as it were, now " played out," bench 
 and bar proceeded to devote themselves with great gusto to the 
 scandal of the case. Tlie contumacious directors were brought 
 into court, and many edifying disclosures took place, interspersed 
 with choice exhibitions of judicial courtesy and professional ameni- 
 ties. Some of these were worthy of congressional prominence: 
 a few of them should not be lost. As the various witnesses in the 
 contempt cases appeared in the proceedings before Judge Barnard, 
 
THE ERIE RAILROAD ROW. I'o 
 
 the court and counsel went at great length into all the details con- 
 nected with the issue of the unauthorized bonds. Judge Barnard, 
 finding that these examinations occupied more time than he could 
 well afford, soon determined to send the cases to a referee for the 
 purpose of having the evidence taken. Accordingly, on the 23d, 
 he appointed Mr. John B. Haskin as referee ; a gentleman some- 
 what known formerly as a member of Congress during the Buchanan 
 administration, and one whose name has since been connected not 
 with all that is purest and best even in New York City politics. 
 This appointment was indeed thoroughly in keeping with all the 
 other proceedings in these cases, and, when announced in court, 
 led to a little colloquy to which subsequent events lent a peculiar 
 significance. 
 
 Mr. James T. Brady, one of the Drew counsel, stated that, if the court 
 pleased, he would prefer to have some other person appointed as referee 
 than Mr. Haskin. It was not quite certain what range the examination 
 might take, and while he was on very good terms personally with Mr. 
 Haskin, he would prefer to have the matter sent to Mr. Leonard. In 
 this case there bad been charges of interestedness in the litigation made 
 against a party with whom Mr. Haskin was on terms of very close friend- 
 ship, and it seemed more proper to him that it should be referred to some 
 one else. 
 
 Judge Barnard said that the referee had no discretionary power what- 
 ever in such a case, and would merely take such testimony as was offered 
 to him, and report to the court. 
 
 Mr. Brady. — Well, sir, he is objectionable to us ; but if the other side 
 insists upon it, I suppose they have some reason for it. . . . 
 
 Judge Barnard said that in regard to the referee named, the court had 
 known him intimately for many years, and had the fullest confidence 
 in him. 
 
 Through the action of Judge Barnard, therefore, and notwith- 
 standing the fact that the opposing counsel stated in court that 
 they had no desire to insist on the appointment of Mr. Haskin, 
 that gentleman became referee, and proceeded to take evidence. 
 This, however, did not also prevent his figuring on the stand as a 
 witness ; for, on the 8th of April, when the interrogatories and an- 
 swers in the Jay Gould case were read before Judge Barnard, Mr. 
 Clark proceeded to call witnesses, and among those called was 
 John B. Haskin. His exaiuination was unique in every way, and 
 should not be lost to history. During it, be it always remembered, 
 
24 THE BRIE EAILROAD ROW, 
 
 Mr. Justice Barnard was presiding on the bench, and the Messrs. 
 Field sat at the counsels' table. The evidence, as reported in the 
 daily papers, was as follows : — 
 
 John B. Haskin was called as the next witness for the people, and ex- 
 amined by Mr. Clark, and testified that he was an attorney at law, and had 
 practised about twenty-six years. 
 
 Question by Mr. Clark. — Were you ever employed by Mr. Dudley 
 Field, professionally, prior to the 1st of March, or since ? 
 
 A. — I was applied to by Mr. Dudley Field, the attorney for Mr. Gould, 
 on the 5th or 6th of March last, to accept a retainer in this Erie Railroad 
 controversy, which I declined. I had never previous to that time been em- 
 ployed or requested to act as counsel by Mr. Field. 
 
 Mr. Brady, " on his own responsibility," objected to this line of examin- 
 ation ; but after some discussion it was admitted, and the witness con- 
 tinued : — 
 
 " Mr. Dudley Field, on the morning of the 5th or 6th of March, called at 
 my office, and desired to retain me as counsel in this Erie controversy. I 
 asked him on which side, and he said, " the Drew side." I asked him 
 before whom, and he said, before Judge Barnard. I replied that my inti- 
 macy had been very great with Judge Barnard, and that I supposed he 
 thought my influence as associate in this case would assist his side«of the 
 litigation." 
 
 Q. — What further was said ? 
 
 A. — He said that he desired me to accept a retainer in the case, and 
 said that if I would do so, it might be the means of avoiding serious trouble 
 which would take place in the legislature, as I was Judge Barnard's friend, 
 and if I would get that injunction modified I might, as his friend, prevent 
 the terrible consequences which would result in this fight which was to take 
 place, as Jud^e Barnard would be impeached ; I then left him, and went 
 into another office. In a short time Dudley Field came back, and handed 
 me this book [producing a book], with his written modification of the in- 
 junction, as I believe, in his own handwriting, saying, " If you will get that 
 signed by Judge Barnard, I will give you five thousand dollars ; if that sum 
 is not sufficient I will make it more." I declined the oifer ; and having occasion 
 to go to the City Hall to see Judge Barnard, I went, and met him at the 
 Astor House, where he had gone with some friends, — John R. Hackett, 
 Mr. Thomson, one of the directors of the Erie Railroad Company, and some 
 others whom I do not recollect. I told him incidentally of this application 
 to me, and he said, " Dudley Field must be a dirty fellow, to apply to you 
 for this modification in this way, for he applied to me in court this mommg 
 for this same modification, and I refused to grant it." 
 
 Q. — Did you pee Dudley Field again ? 
 
THE EBIB RAILROAD ROW. ' 25 
 
 A. — I did not see him again. 
 
 Q. — Did you accept the retainer ? 
 
 -4. — I did not accept the retainer or undertalce the service. 
 
 Mr. Brady then arose to cross-examine Mr. Haskin. He said he was not 
 responsible for what was to follow. The other side had invited it, and the 
 consequences must be with them. When he went into the case he knew 
 something of the fierce onslaught that was to be made. 
 
 Q. — Mr. Haskin, you have stated that you have been intimate with 
 Judge Barnard for a long time ; are there any other gentlemen with whom 
 you have been intimate ? 
 
 A. — Yes, several. 
 
 Q. — Name them. 
 
 A. — Mr. Hackett and others. 
 
 Q- — Have you not been intimate also with James H. Coleman and 
 Judge Jones, of the Superior Court ? 
 
 A — Yes. 
 
 Q. — George A. Osgood is another, is he hot ? 
 
 A. — Where do you mean ? 
 
 Mr. Brady. — I will name some places. Your office, corner of Pine 
 Street and Broadway, and a lunch room in John Street. 
 
 A. — You mean the " Commercial Lunch," I suppose, where you and I 
 have met, and where I have taken a few drinks with you. 
 
 Q. — Where I have drank with you, do you say ? 
 
 A. — Well, I don't know ; you told me so yourself, and I am telling you 
 what you said on the subject. 
 
 Q. — Do you say so now ? 
 
 A. — I have answered you all I mean to. 
 
 Mr. Brady (very emphatically). — Very good, Mr. Haskin : I accept this 
 as a personal contest with you, and shall follow it up as such. 
 
 Mr. Haskin (excitedly, and laying hold of his cane). — Well, sir, any 
 contest you see fit to have with me you can have, here or elsewhere, and 
 any way you want it. 
 
 Mr. Brady {sotto voce). — Oh, well, that is low. Mr. Haskin, do you 
 intend to answer my questions ? 
 
 A. — Well, I am not certain that you have drank there with me, but 
 you have told me so. 
 
 Q. — About how often ? 
 
 A. — About as often as you have put impertinent questions to me. 
 
 Mr. Brady asked if the court would permit such language in court. 
 
 Mr. Haskin said witnesses have some rights in a court of justice, even if 
 they are on the stand. 
 
 Mr. Brady. — Does your honor consider that you are sitting judicially 
 now? 
 
26 THE ERIE EAILEOAD EOW. 
 
 The judge answered that such was the case. 
 
 Mr. Brady. — Is it your honor's practice to allow a witness to interrogate 
 counsel in this manner ? 
 
 Judge Barnard.— ! have directed the witness to answer your questions. 
 
 Q, Well, Mr. Haskin, have you ever in your life been applied to by 
 
 anybody, to use your influence, personally or professionally, with Judge 
 Barnard, to accomplish any result whatever ? 
 
 A. — Yes, sir ; I think I have. 
 
 Q. — Personally ? 
 
 ^. — Yes. 
 
 Q. — Professionally ? 
 
 A — Yes. 
 
 Q. — To influence his action as a judge ? 
 
 A. — Well, no ; not that. 
 
 ^._ What, then? 
 
 A. — Well, in cases where there were great interests at stake, to point 
 out to him certain objects that were entitled to consideration. 
 
 Q. — Did you ever agree or undertake to influence his action as a judge ? 
 
 A. — I might have done so on the side of right. What do you mean, 
 sir? 
 
 Mr. Brady. — Oh, well, you will understand what I mean, sir. . Have 
 you never in all your life used your influence with Judge Barnard to induce 
 him to make a decision in favor of some person in litigation whose cause you 
 espoused ? 
 
 A. — I don't recollect any case of that kind. 
 
 Q. -^ Will you swear that you have never done so ? 
 
 A. — I won't swear I didn't, because I might have done it in some case 
 in the number of years I have been acquainted with him. 
 
 Q. — Did you ever receive any kind of reward, directly or indirectly, for 
 using any species of influeiioe, or promising to use any species of influence, 
 with Judge Barnard, or control or direct his action in any respect what- 
 ever? 
 
 A. — I have never received any thing ; no, sir, except my legitimate fees 
 which I have received in references and so forth. 
 
 Q. — Well, you said the other day that all those cases of references 
 Judge Barnard sent you. 
 
 A. — And I say so now. 
 
 Q. — Was there any agreement ever made that he should send certain 
 cases to you as referee ? 
 
 A, — He may have said before the order was settled in some cases that 
 he was going to send them to me. 
 
 Counsel here went into a long cross-examination about the references 
 
THE ERIE RAILROAD ROW. 27 
 
 which had been sent to him by Judge Barnard. He then asked him about 
 his connection with the Christy will case. 
 
 Witness said he was general counsel in that. 
 
 Q. — How did you earn your fee ? 
 
 Witness. — I will not answer ; it is none of your business ; it is im- 
 pertinent. 
 
 Mr. Clark interposed, and said it was irrelevant. 
 
 Mr. Brady. — I want to §how that Mr. Haskin received a fee for his in- 
 fluence with the judge to gain a decision at the General Term. 
 
 Mr. Haskin said there was a suit pending about the matter. 
 
 Mr. Brady repeated that when he went into the case he knew the hos- 
 tility with which he would be met. He was prepared for it. He had 
 known some of the men a great many years, and he had hitherto kept stiU. 
 He would repeat the question about the Christy will case. 
 
 Witness. — I refuse to answer ; it is none of your business. 
 
 Witness further on gave some testimony as to what he said to Judge 
 Barnard about the Merchants' Express Company case before that judge 
 last summer ; he (witness) was not a counsel in it, but when on a fishing 
 excursion last summer he was talking with the court about the law of the 
 case. He told the judge there were some cases in which a judge could not 
 afford to do a favor for a friend ; I knew you were in the case, Mr. Brady ; ' 
 I told Judge Barnard that the newspapers were all down on the express 
 monopoly. 
 
 Mr. Brady. — Did you tell Judge Barnard in what cases a judge could 
 afford to do a favor for a friend ? You say you told him there were some in 
 which a judge could not do a favor. 
 
 A. — I did not say there were any. 
 
 Q. — Did you hear of any judge (not Judge Barnard) getting $50,000 
 in a case ? 
 
 ^. — No. 
 
 Q. — How much money have you made by references since Judge Bar- 
 nard has been on the bench ? 
 
 A. — None of your business. 
 
 Mr. Brady. — What does the court say about it ? 
 
 Judge Barnard said he did not see the relevancy of that testimony. 
 
 Mr. Brady. — Have you kept an accurate account of the moneys received 
 by you from references since Judge Barnard has been on the bench? 
 
 Mr. Haskin. — None of your business. I have some rights here, although 
 I am a witness. I will not answer such impertinence. 
 
 Mr. Brady. — What does the court say ? 
 
 The court thought it was proper, but the witness refused to answer. 
 
 Mr. Brady said he would then move that Mr. Haskin be committed until 
 he would answer for contempt of court. 
 
28 THE ERIE EAILROAD ROW. 
 
 Mr. Clark here interposed to protect the witness, and a long argument 
 ensued. 
 
 This course of examination was pursued for some time longer in regard 
 to references, the amount of money witness had received, &c. At dusk 
 last evening, the proceedings were adjourned until 3 p.m. to-day. During 
 Mr. Haskin's testimony, he stated that Mr. Field said he felt friendly to 
 Judge Barnard, and would take no part in the attack upon him ; but, unless 
 he would modify the injunction, there would be a desperate attempt to 
 impeach the judge at Albany. They meant to move heaven and earth 
 to do it. 
 
 The succeeding day, as the reporters expressed it, " a grand time 
 generally was expected ; " and, long before three o'clock, the court- 
 room was crowded to repletion ; so crowded, in fact, that the first 
 business brought before the court was in the form of a request by 
 Mr. Clark, that the court would direct one of its officers to bring 
 him a chair : — 
 
 Judge Barnard replied that he did not think Mr. Clark would require a 
 chair, as, on consultation with some gentlemen whom he had a right to con- 
 sult, he (Judge Barnard) had determined, that, instead of this examination 
 taking place before him as an officer of the court, the parties should make 
 affidavits before some suitable person as referee ; and that, upon their being 
 brought into court, such portions of the testimony as were relevant to the 
 contempt case of Jay Gould would be considered, and those not relevant 
 would be disregarded and thrown aside. 
 
 Mr. Pierrepont wished to know what disposition would be made of the 
 testimony already taken. 
 
 The Court. — The testimony that was taken of "Judge" Haskin yester- 
 day was, to use the language of a gentleman I have just left, outrageous 
 and scandalous, and should be stricken out as a mark of respect for 
 the court. 
 
 Mr. Pierrepont inquired whether the whole of it was to be stricken out. 
 
 Judge Barnard. — Yes, the whole of it. 
 
 Mr. Clark thought they were entitled to such portions of the testimony 
 as were relevant. 
 
 Mr. Pierrepont asked what was to be done with the testimony already 
 taken ; was it to be wasted ? 
 
 Judge Barnard. — It will be stricken out, not wasted. 
 
 Mr. Pierrepont wished to know whether the court declined to let them 
 go on with the examination of Mr. Dudley Field. 
 
 Judge Barnard. — Yes, sir : I do. 
 
THE ERIE RAILROAD ROW. 29 
 
 Mr. Pierrepont said that on the examination of Mr. Haskin, yesterday, 
 that gentleman had testified to circumstances connected with a conversation 
 between himself and Mr. Dudley Field ; and he thought it would be only 
 proper that Mr. Field should have the same opportunity of making his 
 public statement of that affair as had been given to Mr. Haskin, and they 
 were entitled to that as a matter of right and justice. 
 
 Mr. Clark regretted that Mr. Field was not to be allowed to go on the 
 witness-stand, as he desired as earnestly as Mr. Pierrepont did to have the 
 opportunity of examining Mr. Field. 
 
 Mr. Pierrepont said that was what he wanted. 
 
 Judge Barnard stated that that was what he did not want. He had 
 already been busily engaged during the day in the other court-room, and 
 did not intend to sit here to gratify impertinent curiosity. ... In 
 regard to the examination of Mr. Field, he (Mr. Field) could make his 
 affidavit ex parte, and would have the same publicity given to his testi- 
 n^ony as had been given to that taken yesterday. 
 
 Mr. Brady said he appeared this afternoon exclusively to attend to the 
 examination of Mr. Field. Of course he had had no notice on his side of 
 the case that there had been any conference between his honor and other 
 eminent gentlemen as to what course should be taken. He had come to 
 take charge of Mr. Field's case, and as regards whatever had happened, he 
 took the whole responsibility of it. It belonged to him exclusively, — every 
 questipn, every suggestion, — as it would also belong to him hereafter. He 
 simply asked now that Mr. Field have the opportunity to be heard in the 
 matter publicly, as the other witnesses had been. 
 
 Mr. Clark, in reply, said that he would give Mr. Brady a promise that, 
 if he lived, he (Mr. Brady) should have the opportunity of examining Mr. 
 Field before a referee, if they could agree upon a gentleman who should be 
 acceptable. 
 
 Judge Barnard, in reply to Mr. Field, who asked for the appointment 
 of a referee, said that he had made the only order in the case he would 
 make to-day, and that the matter would now stand adjourned until Thurs- 
 day next, at three o'clock, p.m. 
 
 Whether Judge Pierrepont and Mr. Clark were ever gratified in 
 their desire to get Mr. Field on the witness-stand, does not appear ; 
 but if Mr. Field ever made an ex parte affidavit on the subject, as 
 suggested by Judge Barnard, it may safely be stated that the 
 same publicity was not given to it as was given to the evidence of 
 " Judge " Haskin. Yet such an affidavit would be curious, could 
 it be obtained ; for we might then know what other and further 
 
30 THE ERIE RAILROAD ROW. 
 
 negotiations, if any, took place .on this occasion. It -would be 
 curious also to learn how far the leading members of the New York 
 bar may affect to consider the action of the judicial mind as a 
 merchantable commodity. After Mr. Haskin's specific denial, there 
 can, of course, be no truth in the idle rumor which at one time 
 circulated, that he had agreed to obtain the modification in ques- 
 tion for fifty thousand dollars, but afterwards withdrew from that 
 agreement because the hand of Mr. Field was too evident in the 
 transaction. And yet, in spite of his explanations, a mystery 
 hangs over both Mr. Haskin's relations, to this case in particular 
 and to Judge Barnard in general. For instance, he seems on this 
 occasion to have met his friend, the judge, at a tavern one morning; 
 and " incidentally," he tells us, in a sort of " by-the-way " manner, 
 he mentions to him an attempt to suborn him as a magistrate, and 
 to buy law (for the name of justice should not be profaned) which 
 had just been made, and he himself the medium. His honor 
 thereupon expresses the opinion that the would-be-purchaser is 
 "a dirty fellow," not, so far as can be seen, for making the at- 
 tempt at all, but apparently for the cool and business-like manner 
 in which he proceeded about it. It is all very curious ; — almost 
 suggestive. 
 
 Little more of special interest took place before the 20th of the 
 month. By that time Judge Barnard seems to have made up his 
 mind that he either would or must go through with the whole 
 thing. The examinations, meanwhile, had proceeded before the 
 referee, eliciting all sorts of information on all possible subjects, 
 until the 16th, when Judge Barnard ordered the proceedings in 
 the Schell contempt case to go on in his presence. On the 20th, 
 the case came up ; and he took his seat by the side of Mr. Haskin. 
 He requested Mr. Ira Schaffer to appear as amicus curiae, and, as 
 such, to see to it that the dignity of the court suffered no detri- 
 ment ; and, having done this, he proceeded, in accordance with 
 his previously expressed determination, to take a vigorous part in 
 the pending examinations. The principal witness on this occasion 
 was Mr. Belden, the plaintiff in the suit commenced before Judge 
 Gilbert. His examination was now chiefly curious for that, by 
 declining to answer questions, tending, as he asserted, to crimi- 
 nate himself, he caused six several commitments of thirty days 
 each to the county jail of the county of Npw York to be issued 
 against him. He was, however, allowed to go home on his parole 
 
THE ERIE EAILEOAD ROW. 31 
 
 that evening ; and the commitments were next heard of on the 
 morning of the 22d. Upon that day, after Judge Barnard had 
 taken his seat on the bench, he was observed to be engaged in 
 writing on a number of papers before him : — 
 
 Mr. Field rose, and asked if Judge Barnard was signing orders of com- 
 mitment in these cases. 
 
 Judge Barnard replied, — Yes, sir. 
 
 Mr. Field. — Will you allow me to see them before they are signed ? 
 
 Judge Barnard. — No, sir. 
 
 Mr. Field. — Then, sir, I demand the right to see them, and " except " 
 to your refusal to allow me to see them. 
 
 Nothing, however, came of it, as was usual in these cases ; for, 
 upon examining the commitments after tliey were signed, Mr. 
 Field concluded that Mr. Belden might safely answer the ques- 
 tions, as the court adjudged therein that he was not bound by the 
 injunctions referred to in them. Consequently, Mr. Belden re- 
 sumed the stand, and the commitments were discharged. 
 
 The proceedings, however, though long, never grew dull. When 
 no scandal was thrown at the court, or when the presiding justice 
 was doing nothing in very flagrant violation of decency or law, 
 then, at such odd moments, the counsel were always ready with 
 some playful little amenity, some gentle allegation of subornation, 
 of perjury or the like, to lend life to the proceedings. Mr. Field 
 and Mr. Clark in particular seemed never weary of the conflict of 
 words. Thus, upon the 20th, after Mr. Belden's second commit- 
 ment, the examination turned upon a certain indorsement, and 
 Mr. Clark asked if it was made by the witness. This question 
 Mr. Field objected to, as being a repetition of the previous ques- 
 tion. Upon which the following playful dialogue took place : — 
 
 Mr. Glarh. — I will ask the counsel, when he states an objection, to rise 
 and act like a gentleman. 
 
 Mr. Field. — I submit this is no fit spectacle for a court of justice. I 
 * objected in a mild tone of voice that the question was irrelevant and might 
 tend to criminate, and that it had already been answered. 
 
 Mr. Olarh. — He said it was an idle question. He did not state these 
 objections. Counsel, when they make an objection in court, should rise and 
 state those objections fully. 
 
 Mr. Field. — It is certainly matter of felicitation that we are to be 
 taught decorum and dignity by so true a master. 
 
32 THE ERIE RAILROAD ROW. 
 
 Upon the next day, again a question arose in regard to the 
 production in court of his books by a certain witness, when the 
 following took place : — 
 
 Judge Barnard. — I direct Mr. Heath to go to his office, and return with 
 his books at two o'clock. 
 
 Mr. Pierrepont objected to the witness being compelled to bring volumi- 
 nous books, which are in daily use, and whose absence would seriously 
 interrupt business, claiming that memoranda taken from the books would 
 be competent and sufficient evidence. 
 
 Mr. Fullarton insisted on the books being brought. 
 
 Mr. Field asked by what authority Mr. Heath was required to bring his 
 books, he not having been summoned to produce papers. If Mr. Heath 
 would take his advice, he would do no such thing. 
 
 Mr. Heath having in the mean time left the court-room, Mr. Fullarton ■ 
 suggested that if Mr. Field wished to volunteer such mischievous advice, 
 he might follow him, and would probably overtake him before he got to 
 "Wall Street, if his speed was good enough. 
 
 Mr. Field called attention to the impropriety of Mr. Fullarton's re- 
 marks, and Mr. Fullarton replied that he hoped to see a reform in Mr. 
 Field in matters of courtesy. 
 
 Upon the succeeding day another little passage broke the mo- 
 notony of the occasion, which, likewise, will bear repetition. At 
 an interview at Mr. Drew's house, the evening before the ten 
 million of bonds were isstied, a certain Mr. Greene, the wit- 
 ness on the stand, had declined to sign an affidavit produced 
 for him by Mr. D. Field, on the ground that it contained state- 
 ments of which he knew nothing. This affidavit, and the course 
 of the witness in declining to sign it, was the matter under exam- 
 ination : — 
 
 By Mr. Glarh. — Was any thing said as to whom they would get to 
 make that oath after you refused ? 
 
 A. — I think not, sir. 
 
 Q. — Were you informed before the affidavit was produced, that you 
 would be expected to make an oath ? 
 
 A. — I alluded to that myself. 
 
 Q. — Was any thing said about the affidavit being required to be used 
 before any court, to obtain a modification of an injunction ? 
 
 A. — I don't think there was. 
 
 Q- — Do you know, from any thing that was communicated to you at 
 that time, who made that affidavit afterwards ? 
 
THE ERIE RAILROAD ROW. 33 
 
 A. — I don't understand the question; I understand you to ask if any 
 thing was said there by which I knew who did make that aflBdavit. 
 
 The Court. — I don't exactly understand your question myself, Mr. 
 Clark. 
 
 Mr. Field. — I don't think any one else does either. [Laughter.] 
 
 Mr. Clark then went on to state, at great length, that they (he and his 
 associates) thought an attempt was made to suborn this witness, and that 
 the alBdavit which he declined to make was made by another party. This 
 witness, they believed, could put them on the lead of the "party by whom 
 the false oath was made which witness had the honor to decline to make. 
 That affidavit had been used to deceive Judge Gilbert when he granted the 
 injunction in the Belden suit, and material facts were suppressed from him. 
 Whether that affidavit was presented to that judge to obtain that injunc- 
 tion, was an important fact in this case, and they believed witness knew 
 something on the subject. 
 
 Mr. Field rose, and said that such a harangue as that which had just 
 been made, and which overstepped all bounds of moderation, was as re- 
 markable as it was derogatory to him who made it. 
 
 Mr. Glarh (rising excitedly). — I call the gentleman to order, sir. I 
 object to personalities, and ask your honor to interfere to prevent thern. 
 They are not relevant to this case. 
 
 Mr. Field (very excitedly). — Counsel has said, sir — has dared to 
 say — that there was an attempt made to suborn this witness at that inter- 
 view. Would he dare to say that anywhere else than under your protec- 
 tion? 
 
 Judge Barnard (interrupting). — What do you mean by that ? 
 
 Mr. Field (continuing). — I mean to say in this court, or in the pres- 
 ence of a court. He would not dare to say that outside. There was not 
 a single thing done at that interview that could touch the honor of any 
 human being, and so far as this is an attempt to impute any thing dishonor- 
 able to my son, who now sits beside me, he is as much superior to him who 
 attempts it, in education, culture, integrity, character, and experience, as 
 one man can be above another. 
 
 Judge Barnard, after some further remarks by Mr. Field, said that this 
 discussion was unnecessary, and that he would have taken charge of Mr. 
 Field's interests, perhaps more effectually than Mr. Field was doing, if there 
 had been less hastiness. 
 
 Mr. Field, bowing, said very likely he was not as competent to protect 
 the character of his own son as ably as his honor would have done. But 
 he asked his honor to reflect as to what he would do if he were similarly 
 placed to himself. He believed it to be his duty to do as he had done, and 
 would not be silent unless commanded to sit still. Of course, if he was 
 commanded to do so, he would obey. 
 
34 THE ERIE RAILROAD ROW. 
 
 One more specimen of this species of the facetiae of the case 
 will sufJBice. Some point of evidence had been under discussion ; 
 and, as usual, the debate had been a prolonged one. Mr. Field 
 and Mr. Clark finally closed it as follows : — 
 
 Mr. Field said he did not know whether counsel on the other side was to 
 be permitted to make a harangue on every point raised. He would like 
 to know whether there was any method of stopping an unbridled tongue. 
 [Laughter.] 
 
 Mr. Clark thought if there was any way of doing so, he would like to 
 apply the bridle. If his honor had rebuked the impertinent remark by the 
 gentleman on the other side, the " harangue," as he termed it, would not 
 have taken place. [Laughter.] 
 
 Mr. Field. — Now, sir, I rise again ; for I mean just as often as the 
 counsel rises to repel him. It is my right to close the discussion when I 
 object, and I shall avail myself of my privilege. What right has he to 
 rise every time an objection is made, and go into an offensive and imperti- 
 nent discussion of the question ? Now when I sit down again, I suppose he 
 will be up again to talk [laughter] ; and I shall rise again if he does, and 
 so I give him notice. 
 
 Mr. Glark. — I have said all I wanted to say. [Laughter.] 
 
 A single other extract from the reported proceedings of the 
 court must close this part of the history. On the 1st of May 
 the contempt cases were again before the court, and Mr. Belden 
 was once more upon the stand. His affidavit in the case of Belden 
 V. Vanderhilt, before Judge Gilbert, was the matter under exam- 
 ination. Mr. Ira Schaffer's hands, it would seem, must have been 
 full that day, if it devolved upon him to defend the dignity of the 
 court against the court itself. Upon this subject, and his course 
 in the matter, Judge Gilbert had already been examined and cross- 
 examined on the witness-stand ; and, upon that occasion, Judge 
 Barnard had announced from the bench, that, " in this wide city 
 of a million or a million and a half of inhabitants, where a man 
 can be hired for five dollars to swear any man's life away, there 
 is not one so base as to come upon this stand and swear that I had 
 any thing to do with any conspiracy." 
 
 And now the 1st of May was come as a field day upon this 
 subject, and the final one in so far as this paper is concerned. 
 The more interesting part of its proceedings was reported as 
 follows : — 
 
THE ERIE RAILROAD ROW. 35 
 
 Question hy Mr. Clarh. — What was your object in bringing that suit, 
 and obtaining the injunction? 
 
 Answer hy Mr. Belden. — In order to answer that, I will have to read 
 the whole of the complaint: it is there fully set forth and sworn to ... . 
 One object of the suit was, that these bonds might be converted'into stock ; 
 the paragraph in the complaint referring to consultations held between 
 VanderbUt, Banker, Barnard, Worth and others, was on information and 
 belief. 
 
 Q. — Where were those consultations held ? 
 
 A. — I was informed that they were held in a number of places. 
 
 Q. — Can you state the name of the person who gave you the infor- 
 mation ? 
 
 A. — I can, but I do not desire to give the names ; I have a personal 
 interest in the matter. 
 
 Judge Barnard. — You have as much interest as I have, Mr. Belden. I 
 haven't [addressing counsel] ruled the question out, simply because I want 
 to know whether I am fit to sit on the bench or not ; if I have been 
 engaged in a conspiracy, I am unfit to sit here. 
 
 Mr. Field said the question would open new evidence that had already 
 been ruled out. 
 
 Judge Barnard. — It was ruled out because I intend to have this " North 
 American Review " [holding up the book] put in evidence, which contains 
 an article about me, written by a clerk in your office. I intend to ha,ve 
 this whole matter ferreted out. 
 
 Witness. — I don't think any one person told me all that is contained in 
 that paragraph of the complaint ; I cannot particularize any one person 
 among those who told me at different times that those gentlemen had met 
 at the Manhattan Club to have a consultation : I had the information from 
 various persons ; part of it I got from the newspapers ; part of it I re- 
 ceived from what actually took place before the courts. 
 
 Cross-examined hy Mr. Field. — This suit of mine was brought in per- 
 fect good faith ; there was no collusion about it ; I believe the complaint to 
 
 be true. 
 
 Q, You have stated that you heard the substance of the tenth section 
 
 of your complaint in general conversation ; now please state what that 
 general conversation was. 
 
 Objected to and excluded. 
 
 Q, Who were the persons who were present at these general conver- 
 sations ? 
 
 Objected to and excluded by Judge Barnard, who remarked that it 
 
 "might bring up all Wall Street." 
 
 Judge Barnard. —Wh&t was your object in bringing this suit ? 
 
 A. — It was in part to enable the Erie Railway to make its broad gauge 
 through to Chicago. 
 
36 THE ERIE RAILROAD ROW. 
 
 Judge Barnard. — Any other object ? 
 
 A. — I think that will comprise every thing. 
 
 Judge Barnard. — Was it not stated to you, in a law office below Cham- 
 bers Street, that you must prevent, at all hazards, Judge Barnard from 
 hearing this case; and, second, to get a mandatory injunction from some 
 other judge ? 
 
 A. — It was not our idea to get an injunction ; I believe that was a 
 suggestion entirely of Judge Gilbert ; as to that part of the question re- 
 lating to yourself hearing the case, I think it very probable that it was so. 
 
 Judge Barnard. — Do you know whether James Fiske, Jr., and William 
 H. Marston went in a carriage to John J. Crane's house and offered him 
 $50,000 to vacate this injunction, and did you hear from a director of the 
 Erie Railroad that the Executive Committee had allowed that sum to be 
 paid? 
 
 A. — No one of the directors told me this ; but I think I heard some- 
 thing of the kind. I can't tell from whom I heard it ; there were numerous 
 reports flying about at the time. 
 
 Judge Barnard. — Do you know how Mr. Jencks came to be employed 
 in the case ? 
 
 A. — He was employed by Mr. Sherman. 
 
 Judge Barnard. — How much was he paid, and by whom ? 
 
 A. — I think he was paid $2,500; 
 
 Judge Barnard. -. — Was not he paid $5,000 ? 
 
 A. — I think not, sir. 
 
 Judge Barnard. — When you were at the Metropolitan Hotel, was it 
 not stated by one of the counsel that it was a shame to put Judge Barnard 
 in as a defendant, as he knew nothing about it ; and did not Dudley Field 
 say that, by putting him in, he could frighten him, and overawe or use 
 the balance of the judges ? 
 
 A. — I don't recollect any thing of the kind being said ; I think Judge 
 Porter objected to making Judge Barnard a defendant; I don't think 
 anybody told me to put him in, as it would overawe the balance of the 
 bench. 
 
 Question hy Mr. Clarh. — When was it that Judge Porter objected to 
 making Judge Barnard a party ? 
 
 A. — I don't recollect when, but I think he made that objection at some 
 time. 
 
 By Mr. Field. — Did Judge Porter ever say that he did not think it best 
 to make Judge Barnard a party ? 
 
 A. — I think he said at some time that it was unwise to make Judge 
 Barnard a defendant ; don't know whether it was before or since the in- 
 junction of Judge Gilbert was granted. 
 
 Judge Barnard. — Did you say to young Mr. Field that you couldn't 
 
THE ERIE RAILROAD ROW. 37 
 
 carry this thing through without the aid of Judge Barnard, and did he tell 
 you that he had in his pocket a paper that would hold him ? 
 
 A. — I don't recollect any thing of that kind. 
 
 Mr. Clark proposed to read from an article in the " North American 
 Eeview ; " but was ruled out of order. 
 
 Judge Barnard. — Day before yesterday did David Dudley Field, or 
 Mr. Field, Jr., bring to your office an affidavit containing great abuse of 
 myself, and did you refuse to swear to it ? 
 
 A. — Here is the affidavit [producing it from his pocket]. 
 
 Judge Barnard. — You refused to swear to it : did you ? 
 
 A. — I did not swear to it. 
 
 Mr. Field here proposed to read the affidavit, saying that it contained 
 nothing untrue or improper ; but the court refused to permit it to be read. 
 
 Mr. Field (to witness). — Was there any thing abusive of the judge in 
 that affidavit ? 
 
 Objected to, and ruled out by the court. 
 
 Q. — Have you shown that affidavit to the judge ? 
 
 A. — No, sir. 
 
 Q. — Do you know how he knew you had it ? 
 
 A. — No, sir. 
 
 Judge Barnard. — No, and he never will know how I knew it. I have 
 some detectives myself. I have been followed all over New York by 
 detectives for the last five or six weeks, and I shall now go into that busi- 
 ness myself. 
 
 Question hy Mr. Field. — Were you, or were you not, informed by George 
 A. Osgood of certain facts in relation to Judge Barnard, on which you 
 based your complaint? 
 
 Objected to and overruled. 
 
 Q. — Did you, or did you not, often see Judge Barnard at Mr. Osgood's 
 office? 
 
 Judge Barnard. — I will permit that question, as I want to know how 
 often I have been there. 
 
 A. — I have seen Judge Barnard at Osgood's office. 
 
 Judge Barnard. — How often, Mr. Belden ? 
 
 Mr. Field said he preferred to put the question himself. 
 
 Q. — Will you give the sources of information on which your complaint 
 was founded ? 
 
 Objected to and excluded. 
 
 Mr. Field. — I offer to prove that by common report — 
 
 (Here he was interrupted by Mr. Clark, who objected to his stating 
 what he offered to prove. The court sustained the objection.) 
 
 Q. — Were you informed by George A. Osgood of certain facts which led 
 to the making of the statements in the tenth section of your complaint ? 
 
38 THE ERIE EAILEOAD ROW. 
 
 Objected to, and objection sustained by the court, Judge Barnard re- 
 marking, that " if he admitted that question, they would then have to bring 
 up Mr. Osgood, and ascertain whether $70,000 had not been paid as coun- 
 sel fee in that suit.'' 
 
 Mr. Field said that, as all his questions were ruled out, he had nothing 
 further to ask the witness. 
 
 The court here took a recess of twenty minutes. 
 
 One point in this examination is calculated to excite curiosity. 
 It was a strange statement of Judge Barnard's, that for several 
 weeks past he had been dogged by detectives. Yet such was 
 undoubtedly the case. ' One process in this litigation was actually 
 sustained by the ajB&davits of spies. The incomings and outgoings 
 of the magistrate had been watched. By one affidavit, of the 19th 
 of March, he had been accused of a knowledge of and participa- 
 tion in a plan, undoubtedly organized by the Vanderbilt party, to 
 kidnap Mr. Drew in Jersey City, and to bring him by force within 
 the jurisdiction of the court, — an attempt, hardly denied, by men 
 calling themselves respectable, to employ the vilest elements of 
 New York ruffianism in aj-med violation of the law. Again, other 
 affidavits, of March 26th and 27th, had tried to identify movements, 
 harmless in themselves, with operations in the stock-market, 
 and had sought to fix vipon him secret interviews with Mr. 
 Osgood. None of these affidavits would have received an instant's 
 thought from a respectable lawyer ; and yet this evidence of spies 
 had been openly placed upon the records of a court of justice. 
 For these proceedings, the Drew counsel were confessedly respon- 
 sible. That a judge should vindicate his dignity like a fish-woman, 
 does not help the matter ; the bar has its own load of infamy to 
 carry. " There is a thing, Harry, which thou hast often heard 
 of, and it is known to many in our land by the name of pitch ; 
 this pitch, as ancient writers do report, doth defile ; so doth the 
 company thou keepest." 
 
 There are other things, however, in these examinations, not re- 
 ferred to by Judge Barnard, even more calculated to excite sur- 
 prise than the fact just commented xvpon. Can these admissions 
 of witnesses, these innuendoes of counsel, really mean what they 
 import ? This machinery of referees referred to by Mr. Brady ; 
 this system of privileged counsel half admitted by Mr. Haskin ; 
 these flagrant grounds of impeachment broadly alleged, — can all 
 these abuses of justice notoriously exist in any civilized commun- 
 
THE ERIE RAILEOAD ROW. 39 
 
 ity of the nineteenth century? Do judges now anywhere habitu- 
 ally demean themselves as we read that Jeffries demeaned himself 
 two centuries ago ? Ca,n charges of crimes such as blackened the 
 worst pages of judicial history in earlier days be now openly ad- 
 vanced against those who occupy the seats of supreme justice, and 
 they neither demand investigation or slink disgraced from the 
 bench ? These are questions we cannot answer. The course of 
 these examinations suggests grave doubts, — doubts only increased 
 by the recollection of what we have elsewhere heard and read. The 
 charges here alleged or implied are not new. All of them, whether 
 referred to by Mr. Brady and Mr. Field, or admitted by Mr. Has- 
 kin or avoided by Mr. Belden, were openly recounted as practices 
 familiarly and notoriously common to the bench, in an article en- 
 titled "_The Judiciary of New York City," published in the " North 
 American Review " of July, 1867. The tone of that paper was 
 able, calm, and judicious. The editor, while he knew that of which 
 he spoke, spoke only a part of that which he knew. In one single 
 portrait taken from that paper can be traced every thing, alleged or 
 implied, in the paper under review. We neither know nor care to 
 know who the justice thus depicted was. It is more than enough 
 for us that the picture corroborates every thing, not that we have 
 said, but that we have gathered from the reports. 
 
 " The condition to which the highest courts of the city have been re- 
 duced can, however, best be realized from a single portrait, undoubtedly 
 that of one of the worst judges on the bench . . . but a fair example of 
 what all must soon be, if the present system is continued. 
 
 " This man was nominated for the bench against the advice of all the 
 judges, and elected without the support of a dozen respectable lawyers of 
 any party. His knowledge of law from books is confessedly small ; but 
 he has a keen perception, and can take in a case with remarkable quick- 
 ness ; so that if a cause is well argued before him, and he listens atten- 
 tively, without having any bias or prejudice, he can render a decision on 
 the spot with perhaps as much chance of being right as any other judge 
 in the city. This is a great merit ; but, unfortunately, this is all his merit, 
 and the number of 'ifs' is large and fearfully important. If he does not 
 decide at once, he will take the papers to his office, and probably never 
 open them until he has forgotten all that was said ; and no judge is less 
 fitted to decide upon the strength of his own mere study than he. Besides, 
 there is no security against his hearing another argument after he leaves 
 the court, and the last word is likely to leave the most impression upon 
 
40 THE ERIE EAILROAD ROW. 
 
 him. He is, moreover, very impatient of and inattentive to a long argu- 
 ment, no matter how necessary. . . . Frequently, the judge cuts short an 
 argument by deciding against a party before he has fairly stated his case. 
 On such occasions he is apt to say blandly to a' lawyer, who persists in 
 talking, ' You can go on all day, if you like, counsellor ; but I have decided 
 this case, and I never take back a decision.' Of course, he despatches 
 business more promptly than any other judge ; and, of course, he decides 
 the same questions more diversely than any other two judges could manage 
 to do. Accordingly, his associates pay small respect to his decisions. Not 
 long ago, one of his oral opinions being cited as an authority before Judge 
 
 , that learned official fixed his gaze upon the advocate, and inquired, 
 
 with an air of inild surprise, ' Do you mean to cite Judge 's decisions 
 
 as law ? ' Whereat the whole bar indulged in a suppressed laugh. 
 
 " To dignity the judge does not make the slightest pretension. It is 
 his delight to raise a laugh by some coarse practical joke, and to brave 
 public opinion by open improprieties. Thus, being offended by some criti- 
 cism which appeared in the ' Evening Post,' he said in open court, that 
 ' William CuUen Bryant was the most notorious liar in the United States.' 
 On another occasion, a paper having published a simple report of his 
 behavior in court, the next day, in the crowded court-room, he took notice 
 of what he called this attack upon him, in language too indecent for repetition. 
 
 A motion being made before him, in 1864, on behalf of one H , he 
 
 listened negligently until it was stated that Mr. H had been imprisoned 
 
 by order of the War Department on a charge of fraud ; whereupon the 
 judge literally shouted, ' What ! was he put in jail by those villains down 
 there ? ' — meaning the President and Secretary of War. Receiving an 
 affirmative answer, he immediately granted the motion. . . . 
 
 " The reference business had begun to assume dangerous proportions 
 before this judge took his seat ; but it was reserved for him to give it 
 the form of a science. In his own office there were gentlemen whom he 
 deemed to have qualifications for this duty, superior to all the rest of the 
 bar. He always granted a motion for reference, and always sent the case, 
 if it was ' worth ' enough, to one of these gentlemen. Remonstrance was 
 vain ; even the agreement of all the parties upon other names did not 
 help the matter. The only limitations to this practice were such as were 
 imposed by the jealousy of the other judges, and by repeated amendments 
 of the law, aimed directly at this system. The other judges he sometimes 
 defied, and sometimes conciliated by giving a share of the references to 
 their relatives and friends. The law he evaded by various shifts, but 
 chiefly by making lawyers understand that it was dangerous to object to 
 his nominations. 
 
 " It may easily be supposed that he not only had his standing referees, 
 but also a definite list of receivers, when such officers were needed. The 
 
THE EKIE RAILKOAD ROW. 41 
 
 nature of his interest in these appointments has long been the subject of 
 speculation among members of the bar, but only a few are acquainted with 
 facts sufficient to enable them to form a definite conclusion. 
 
 " Some years ago, one of the foremost lawyers in New York, an emi- 
 nent member, too, of the party by which all the judges are elected, declared 
 publicly that, in order to secure success before certain judges, it was 
 necessary to employ certain lawyers having influence with them. Such, 
 indeed, is a well-known fact, especially with regard to this judge, to whom 
 the circumstances mentioned by the lawyer we have quoted, clearly showed 
 that he referred. Not long ago, certain parties having an important affair 
 in litigation were privately notified that, if they wished to succeed before 
 the judge, they must employ two lawyers (neither of them having the 
 slightest claim to the business), at a handsome fee. 
 
 " The partiality of this judge for a certain politician, whose name is 
 synonymous with corruption and treachery, has been manifested by some 
 extraordinary decisions. Several persons who were injured in riots, 
 instigated by this man, sued him for damages. His counsel, fertile in 
 excuses, delayed the trials for many months ; and, finally, when the causes 
 came on for trial before a judge from the interior of the State, and all 
 excuses were worn out, the defendant and his counsel deliberately absented 
 themselves from court without any excuse at all. Verdicts were taken 
 against him ; and he moved before this judge, of whom we speak, to open 
 his default. Although it clearly appeared that the defendant had purposely 
 allowed his default to be taken, the judge relieved him from it, and ordered 
 costs to be paid to him hy the plaintiffs ! This was too much for his 
 associates, who, though they held themselves unable to reverse his order, 
 called his attention to the matter of costs, when he stated that this part of 
 the order was a mistake ! . . . 
 
 " The facts which we have thus far stated, bad as they are, are not, 
 however, so bad as others, concerning which our information is direct and 
 explicit, and which, if it appears to be necessary to convince the public of 
 the necessity of a complete transformation of the judiciary, we shall dis- 
 close on a future occasion. "We are not actuated by hostility to a man, 
 but to the system which produces such a man. . . . 
 
 " Having owed his defeat in the last public episode of this man's life, in 
 which he schemed long and skilfully for an important judicial appointment, 
 ' in part to the persistent opposition of his associates on the bench,' he 
 gave an open manifestation of his spite in a characteristic manner. A 
 lawyer came into chambers vyhile the judge was sitting there, and asked 
 whether a certain other judge was in the inner room, or had been down 
 
 that day. Judge tartly replied, ' I don't know any thing about him. 
 
 I don't know any thing about any of them. There is a certain class of 
 men I don't want to know any thing about. When they come up for an 
 
42 THE ERIE EAILROAD ROW. 
 
 election, then I mean to know something about them.' A little later in the 
 day he informed the bar that he had ' the most unmitigated contempt ' for 
 all his associate justices, feeling himself ' their superior, morally, socially, 
 and financially.' " 
 
 This portion of the article we have quoted from closes with a re- 
 mark that " About two years ago an investigation into various mat- 
 ters connected with the New York ' Ring ' was attempted by the 
 legislature ; and it was wonderful to notice how many well-informed 
 parties were detained out of the State by sickness, as long as the com- 
 mittee remained in session. The season might be unhealthy again, 
 if a new investigation were commenced." Could these words have 
 in any way foreshadowed sad disorders to those nameless infor- 
 mants of Mr. Belden, who had led him into so serious and ground- 
 less an aspersion upon Judge Barnard's official purity ? Could 
 they, too, have temporarily sought other and more genial climes ? 
 This probably will never be known. Of course, however, his honor's 
 character was sufficiently vindicated by his own statement, without 
 tracing the vile calumny to its source. 
 
 It is, however, necessary to resume that narrative from which 
 this paper has been led away. Little more remains to be said. 
 As a matter before the courts, these proceedings had now be- 
 come decidedly notorious. Judges — even New York judges, the 
 elective judges of New York City — had become shy of them. 
 When Bloodgood v. Urie Co. came up before Judge Cardozo, on 
 assignment upon the 23d of March, that judge very distinctly said 
 that he had no desire to be mixed up in the Brie cases ; and, 
 accordingly, he postponed the hearing to the 30th of the month, 
 and, when that day came, he postponed it again. When, upon the 
 15th of April, in the examination before " Judge " Haskin, in the 
 contempt cases, a point was raised as to the power of the referee 
 to compel answers from witnesses, it was agreed, by general con- 
 sent, to refer it to Judge Cardozo. That magistrate, however, 
 utterly declined to have any thing to do with the matter, de- 
 claring that it had not come regularly before him. Mr. Clark 
 and Mr. Fullarton both set ingenious snares to entrap his honor 
 into an opinion, declaring that all the parties were willing to sub- 
 mit the point to him ; to which the judge simply replied, " I prefer 
 they should not be willing." Mr; Haskin, the referee, himself 
 then tried, beginning, " Does your honor decide — ? " but was 
 saved the troiible of going further by the immediate rejoinder from 
 
THE ERIE RAILROAD ROW. 43 
 
 his honor, " I decide nothing except that I decline to interfere in 
 this case." The next day the point had to be brought before 
 Barnard. The final stamp of disrepute — the single, ludicrously 
 
 ineffaceable one, which could be put upon these proceedings 
 
 was, however, yet in store for them. They received it upon the 
 21st of April, and thenceforth became unique. It was reported 
 as follows in the papers of the 22d : — 
 
 " An application was made to Judge McCunn, in the Superior Court, for 
 a writ of habeas corpus to bring up William Belden, whose commitment 
 on six distinct charges of contempt for refusing to answer questions before 
 Judge Barnard, on the Erie litigation, has been noticed in the papers. 
 Judge McCunn refused to grant the writ, stating that he did not wish to 
 have his court to have any thing to do with the scandal. 
 
 " Counsel called the judge's attention to the fact, that he was liable to a 
 fine of $1,000 for refusing to grant the writ; to which the judge responded 
 that he would take the responsibility." 
 
 These proceedings, however, sprang out of the contempt cases, 
 so-called, and did not belong to the Brie litigation, properly speak- 
 ing. They were merely a sort of incidental free fight. The event 
 last related in the war of the injunctions was tlie vacating by 
 Judge Barnard of the order of Judge Gierke, on the 19th of March. 
 A lull followed this proceeding. There seemed to be a general 
 impression that things were getting to extremities, and the parties 
 paused. At length, upon the 27th, there was issued the tenth and, 
 practically, the last of this extraordinary series of injunctions. It 
 proceeded from Judge Ingraham, a colleague of Judge Barnard, 
 and was based upon certain affidavits of counsel and a phonographic 
 report of the proceedings before Barnard. By virtue of it, Mr. 
 Osgood was enjoined from acting as receiver; and proceedings 
 were temporarily stayed until a decision was reached at general 
 sessions upon the appeal taken from the order of March 19th. 
 This appeal was argued on the 8th and 9th of April ; when at last, 
 at some time in May, a decision was rendered, dismissing certain 
 appeals and sustaining others, deciding the appointment of Mr. 
 Osgood to have been wholly irregular, and consequently setting it 
 aside, and yet as a whole leaving the Vanderbilt party nominally 
 masters of the position ; already the great Erie Eailroad row 
 had become a stale excitement of the past ; the railroad kings had 
 met, and efiected a peace ; the legislators of two States had been 
 
44 THE ERIE KAILBOAD BOW. 
 
 bought and sold ; Mr. Drew had returned from his exile ; the over- 
 issue of bonds had been legalized ; and it had become a matter of 
 supreme indifference to all concerned whether Mr. Osgood or any 
 one or no one else was decided to be receiver ; whether the appeals 
 were sustained or dismissed, or whether the contempt cases and 
 habeas corpus cases, the motions, the injunctions, and the myriad 
 legal ramifications of this costly scandal to the law, were buried 
 out of sight at once, or slept undisturbed among the records of the 
 courts. All this tremendoiis machinery had been set in motion, 
 and not even a fly had been crushed. Money had been poured out 
 like water. Money for fees, money for bribes, money " to make 
 things pleasant." When Mr. George A. Osgood ceased to be 
 receiver, Mr. Peter B. Sweeney was appointed. That the conflict 
 was over, was as evident as it was that there was nothing to re- 
 ceive, nor ever had been any thing ; yet, on the principle that the 
 amount of the remuneration paid must be inversely to that of 
 the services rendered, no high-toned court could have disallowed a 
 bagatelle of $150,000 or so, as receivers' fees, if such a sum were 
 demanded. At any rate, there was money for all ; and the days of 
 peace had returned. The counsel pocketed their perquisites ; the 
 contumacious directors walked undisturbed in Wall Street ; Drew 
 and Vanderbilt, as with one voice, exclaimed, " To-morrow to fresh 
 woods and pastures new ; " Judge Barnard administered to all 
 comers the same dignified and impartial justice as before ; and the 
 great Brie Railroad cases were postponed and postponed, until 
 the proper day arrived, when, incontinently and silently, they were 
 hustled out of court. 
 
 Though this outrageous parody of law and litigation came to no 
 result, it is not well that it should be wholly forgotten. Through- 
 out these proceedings there was one thing painfully evident : there 
 were always before the court powers greater than the court itself. 
 The magnates of Wall Street and the great corporations of New 
 York treated the law and the judge with equal contempt. In 
 obtaining tlie injunction from Judge Gilbert' on such allegations 
 as were then made and were never sought to be sustained, and by 
 issuing, in direct violation of another injunction, the ten million of 
 unauthorized bonds, Mr. Daniel Drew was guilty of as flagrant 
 contempt of court, both directly and indirectly, as was ever com- 
 mitted. In this case, Judge Barnard had more than his own fair 
 
THE ERIE EAILEOAD EOW. 45 
 
 fame to sustain : he was bound to sustain the character and dignity 
 of the law and judiciary of New York. By fleeing to Jersey City, 
 Mr. Drew placed himself wholly in the power of the court. Had 
 Barnard been fit to sit upon the bench ; had he possessed but an 
 elementary appreciation of the responsibilities of his high office, 
 even though he disregarded his own individual honor, — he would 
 have laid Drew by the heels within the four walls of a prison as 
 sure as he ever again set foot within his jurisdiction. That this 
 was not done need not be said. Nothing was done. A little 
 additional infamy, a little additional evidence of public contempt, 
 is a small matter now to the judiciary of New York City. Other 
 . communities, where the judiciary have been more fortunate, may 
 draw a useful lesson from their fate. The judiciary, like the 
 executive and legislative branches of a government, can only in 
 the long-run reflect, more or less nearly, the average moral and 
 intellectual condition existing somewhere in a community. A 
 community inherently corrupt will not in any event long preserve 
 a pure judiciary. That branch of the public service however, 
 more than either the legislative or the executive, can be made to 
 represent the better, more intelligent, and more virtuous elements 
 of the community : it can, by a proper machinery of selection, be 
 kept on the highest possible level of intellectual and moral develop- 
 ment. It can also, by other machinery, be reduced to the lowest 
 level. The experience of this and other countries has thrown 
 much light on this subject. Chancellor Kent once filled the chair 
 now occupied by Mr. Justice Barnard. Since the days of the great 
 chancellor, the ermine worn by him has been flung into the kennel, 
 to be snatched at and trampled on by the rabble of the caucus and 
 the bar-room. Behold the result ! The machinery now in use in 
 New York is wholly calculated to draw the material out of which 
 to manufacture its judiciary from the worst instead of the best 
 materials the community affords : it is calculated to degrade, not 
 to elevate. That responsibility for appointment which should rest 
 upon one man, is divided and lost among the many. Even if it 
 were not, and even though a party caucus of professional poli- 
 ticians were as competent to select a judge as a responsible 
 executive, yet who could aspire to great judicial eminence as the 
 result of a popular election to a term of eight years on the New 
 York bench ? The system provides an inferior material, and then 
 deprives it of its greatest incentive to improvement. Finally, who 
 
46 THE ERIE RAILROAD ROW. 
 
 that respects himself, as a great judge should and as all great 
 judges ever have, could periodically tread the miry ways of city 
 politics, to elevate himself to a bench which has become a recog- 
 nized part of the spoils of political victory ? The system has every- 
 where produced its fruits, as bitter as they are legitimate. A 
 judiciary appointed by the executive, and holding its office during 
 good behavior, has given us such names as Marshall and Story and 
 Kent and Gibson and Shaw and all that long, proud, legal record 
 which those names recall of the earlier and better days of Ameri- 
 can law: the judiciary elected by popular vote and for limited 
 terms has ennobled our history with no names which posterity 
 will not willingly let die, and has disgraced us with such proceed- 
 ings as these just recorded. 
 
WITH THE 
 
 =OFTHE= 
 
 A_i k i A a: 
 
 CONCLUSIVE PROOF 
 
 OP THE 
 
 HIGHEST AWARD 
 
 TO 
 
 CHICKIRIIIG & mi. 
 
 The following lotfors h.TTo ']n^t bncn rncoived 
 from Paris b\' Me<M <, I'li h i: i,i;i m^ .^^ Sons, 
 wliich clearly ;iihl \rrv [iluinl^ |ini\c duit the 
 GoldJIeMals, at the I'aiis KxliUiitimi, were all 
 alike and of eqiiat mine, aud that the 
 
 Cross of the Legion of 
 Honor 
 
 Was awarded hy a higher power than 
 the Juries, viz. : by tlie Emperor, as a 
 
 SUPERIOR AWARD OVER MEDALS 
 
 For the superior merit of the 
 
 CHlOKERiNG PIANOS. 
 
 Copy of a letter froui MoNSiEnE 
 Fetis, Member and h'eporter of the 
 Jury of tlie Teiitli (Uass, df the Expo- 
 sition Universclie, Paris, IKijT ; — 
 [Translation ] 
 
 Brussels, Not. 39. 1867. 
 
 Mk. CniC'KEEINC. 
 
 Sir, — I cannot refu.«e to declare, as 
 member of the -Jury of tile Fcntii Class, 
 that which is undeniably established by 
 the " Moiiitcur," of 2 Jnly,^t'67, viz: — 
 
 That tljere is onlv one single class of 
 Gold Medals for tiie E-xliibitors ; that the 
 Decoration ot the Lei::i(in ot' Honor crm- 
 stitutes a reconipeji^e of a superior ordei", 
 and that it "svas awarded to yoti by the 
 Emperor for the merit of your Instrti- 
 meuts. Accept my salutation, 
 
 (Signed)" Fetls, 
 
 Member of the Jury of tlie- Tenth ii'iss of 
 
 the Exposition Unirerselte, Paris, 18G7. 
 
 Copy of letters from Ambroise 
 Thomas and F. A. Gavaert, Mem- 
 bers of the Jury : — 
 
 Gi„NTLKME,N', — I must tell you that 
 wiiatever nja}' have !:iecn the order in 
 wiiieii tbe names "were inscribed in each 
 liind of reioinpense a^varded in the Teidh 
 Class, tbe Gold iMedal — of which one I 
 am sjieaking — is the First Afeilal. Ihere 
 are not two classes of Gold Jledals. 
 
 Receive mv salutations. 
 
 (.Siyiiedj AMrjiajisn TirojiAS. 
 
 I am laitircly of the oitinion of my col- 
 league Thomas. 
 
 (Signed) F. A. Gavaekt. 
 
 Entirely in accordance with my confreres, M. 
 M. Thomas and (iavacrt, I declare that there is 
 but one class of Gold Medals, -wliicli are .all 
 Prize Medals. Any Exhibitor honored with this 
 distinction has therefore the right to announce 
 that he has received the First MirtaL 
 
 (Signed) Ouor.GKs Kastnek. 
 
 Taeis, Oct. 2a, 1807. 
 
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 The "Law Repokts" are published in Three Series: — 
 
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Cornell University Library 
 HE2791.E68 A22 
 
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 olin 
 
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