The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1856-03-23
The Disputed Judgeship.
LETTER FROM JUDGE COwLHs TO TIE BAR OF NE

LETTER FROM JUDGE COwLEs TO TIE BAR OF NEW
YORK.
cannot permit the extraordinary letter of Mr. Pea
bcdy bearing date the 18th ins addressed to Judges
Rootsvsat and Cerke to pass without notice. Many,
think ns of number regarded the votes cast by
eectsa at our November election to fill the vacancy
caused by Judge Norris death void from want of time
under any statute for the ary of State to give
tce Of an election to AL it. The Governor WAS ad
vsed and thought He regarded it his duty to fill the
by appointment and pleased to tender such
appointment TO Ny determination to decline i.
changed into conclusion to accept by reason tho
quest signed by OF your number that would do
did accept it. In doing SO, however, announced my
determination to propose to Mr. Davies, who claimed to
ba elected to the vacancy, immediate and annie Abe
submission to the Courts 1t the question whether the
mace such proposition Mr. Davies, and assured him
would, by every means IN my power, facilitate the
earliest possible ee'isitn upon the question by the Court
of Appeals, thinking that In every respect 10th
gsrded the public interests we'll ourselves judi
ca determination Of important question OF consitu
Mr.. Davies fully acquesced in these views and upon
consultation with his counsel determined upon putting
the matter in the Shape OF o 'carrao against myself
Up that period Mr.. Peabody had not so far as am
aware, ever dreamed that he had or could have any
claims TO the Office Indeed he at that moment upon
1856 Caused BY the Iesgna, Of my remaining term,
his part suppose, inconsistsnt with any
idea that he was EMIT 70 hold BY election In the place
g..
Mr.. Davies and myself, through our counsel, agreed
upon plesdiDs which we supposed would fully AID i-lx
the question whsther the Governor had the
70 appoint Or whether ne was elected BY the people, We
The power Of the Governor the only question had
on sI
Now, bad Mr.. Peabody at this time supposed himself
entitled to the Office he had cny BY the proper appca
ton, to bring himsef In . party to that suit. He
could have done 80 at any time before IL went 70 the
Court Of Appeals and in my Judgment after tho decision
Ha ~ do AnI hApa lo<
say utterly untrue that there ever existed between
Mr. Davies and myself any, the slightest understanding
party should omit the doing of any and every act which
coud OF right be done by either in the progress Of
the suit had 1t been in character as hostile it
All the understanding Mr.. Davies ard myself ever had
was that would both expedite the suit TO the earliest
sort. And Mr.. OConor in intimatng in his letter to
Mr.. Peabody, dated1he slstJanuszy last the contrary
But to resume Until the case reached the Court Of
Appeals was held that the Governor had the power Of
appointment, The Court Of Appeals, by vote Of five to
three reversed the judgment and determined that the
Governor had not such power-that II . vacancy &C.
CURED no matter how soon before general election,
I'LL it, and that no notice from the Secretary of State
was necessary.
about month only after the suit comm enced.
The Court gave me twenty days to answer over
vent into court on Monday the 2lst, simply oreceivs
the verdict Of jury then out and retired from the bench
performing no further judicial acts than settling bills
OF exceptions, and cases already tried SO with full
determination not to my phase upon the bench
even during the twenty DAY and this for the reason
that as the Court OF Appeals had that the Coz
y, no mao not power to appoint could have NO elaine
At this point Mr. Peabody, far as my infor nation
goes for the first time supposed himself to be entitled to
That the Court Of Appeals right their interprs-
tation Of the constitutional provision which controlled
corollary to that proposition that At the November
election there we're two vacancies In fac-one five
years. created BY the death Of Judge Norris the other
for about five weeks to tie 1s J,nuary 1856
BY the death Ct Judge Edwards That at such ,tion
NJ Davies ballots printed thus =" For Ju.tics
while his own were written thus -aFor Justice sa-
preme Court to fill the vacancy for the residue Of the
expired term caused by the ceath Of Robert Norris,
Charles A. Peabody" That, consequently, Mr. Davies
ballots about 49, 000 In number void for NOT desg.
mating which vacancy the electors intended, while his
nate the particular vacancytherefore, he Judge,
not Dawes.
answer setting up these iacts-by which answer Mr..
Davies would be kept of the seat Aud then he mr.
Peabody would ask to be made party to the suit Jointly
and himself.
You viii perceive gentlemen that in such litigation
could have further interest than such was
to every citizen Of the State; for IL tho Governor
could not appoint under circumstances could claim.
The reasons urged upon me for answering wereof two
/. To aid Mr.. Peabody in settling his claim vita Mr.
Davies
O. duty owe to the public not to allow the wrong
man to be seated which it was said by answering could
do.
maturey considered the whole SUBJECT and declined
for these reasons to answer over
Fs-I could have personal interest in the eontro-
versy.
Second-I could not put in an answer and ALLOW tbs
suit to progress further in my NAME without seeming TO
the world to be still graspng at the place. which would
put me in false position in the eye OF the public, and
compromise, not myself alone. but the dignity Of the
Office itself.
7bird-If did put in an answer was still deter mined
uafa hin IN \ MIA tba hans
litigation between Mr. Peabody and Mr.. Davies since
could not regard either respectful proper after h
Court of Appeals had decided that the power of an
pointing did not vest in the Governor And ii would
seemed to me- right to conduct as to prevent sny
nom acting TO the obstruction Of the pu bic bust
pess.
Fsulth-It seemed to me most proper that snv oues-
tions arising between Messrs. Davies and Peabody And
in which they alone we're interested should be settled BY
the remt6les which were open as between Mr..
Davies and myself were also open both of these gentle
men,
These were my for declining to answer II IL
not ue ~ stated in Mr. Peab ;dys letter that INV dec
SION IN tnat regard was In compliance with the urgent
such rsaton controlled me. / was importuned nv Nr
TO act. - "
Upon these facts, gentlemen, leave others to pro-
nounce upon the character Of Mr. Peabodys extraordl
nary letter. Portions OF II seem to have no other object
self 10 those portions choose here to make no reply
accepted An appointment believed the Governor he'd
the power to make. The court of last resort deter
mined otherwise. bow to IT. mandate, not only with
out hesitation, bat with no feelings Of chagrn.
But were 1t otherwise would emulate no ONE ia sees-
FINN dissu ohlav Nv