The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1856-02-18

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THE DISPUTED JuDoEsHIr-The late scenesiD
the Supreme Court demand public remark
and observation. The Courts are the property
of the people, and when their proceedings are
likely to end in general contempt it is time
that the public sentiment should be expressed.
The case is q very simple one. At the time
of the last election, it was supposed that there
were two places to be filled on the bench Of
the Supre me Court one for the long term of
eight years, and one for the short term, to ill
the vacancy occasioned by the death OF Judge
Morris. For the long term, Aessrs Whiting
and Cowles were run, and Mr.. Whiting sue
ceeded. For the vacancy, Messrs Davies, Hill
ton, Leonard and Peabody ran, and Mr.. Davies
received the highest number of votes--some
1900 against 5000 received by Mr.. Peabody.
Mr. Davies, prima facie, was entitled to his seat,
and would have taken it Immediately, had not
Mr.. Cowles, in the meantime, accepted COM
mission from the Governor to fill the vacancy.
This presented an obstacle which the Court Of
Appeals finally removed by declaring that Mr..
Davies was legally elected He stands, there
fore. at the present time, as the only person
whose rights have been adjudicated by the
highest tribunal, and became entitled to exer-
else the duties of his Office few days ago.
But when he goes to take possession, be finds
that Justices Roosevelt and Clerke have de-
termined not to recognise him, but to adopt
Mr.. Peabody as their associate. Mr. Peabody,
tbereupon, takes his seat, although he had re-
ceived the lowest number of votes of all the
candidates, holds no certificate from the Cam
vassers of Election, holds no commission from
the Governor, and has no adjudication of any
Court in his favor. 1t was, therefore, a strange
and unprecedented proceeding for the two JUS
tees to say that he should be recognised, and
that Mr.. Davies, having the largest number Of
the popular vote and judgment of the Court
Of Appeals in his favor, should be ignored.
So, then, we have two gentlemen, both claim
ing the same seat and exercising the same
functions, to which only one of them is en-
titled. What, then is to be done? The public
interests suffer by the wrangle, and the dignity
of the Court is impaired. Their rights cannot
be settled by physical force-they must be de-
termined by the legal tribunals. Both parties
concede this. Who, then, shall take the initia-
tive? Who shall commence the proceedings,
Davies or Peabody? We say, unhesitatingly,
Mr. Peabody. Mr.. Davies claims by title of
the Court of Appeals-Mr. Peabody claims by
no adjudicated title whatever. Mr.. Davies
should, therefore, be allowed to 60 on with his
duties without molestation or interference, and
if Mr.. Peabody or his advisers consider that the
judgment of the Court of Appeals has not adju-
dicated upon the particular question between
him and Mr.. Davies, he should apply for quo
uargaato, and have the question settled between
them by that Court. AS the case stands now,
one of them must yield and apply for the quo
marranto. Let Mr.. Peabody do it, and abstain
from judicial duties until the case is decided,
and then We shall have an end to squabble
which is getting to be disgraceful.
This would have been the course if Judges
Roosevelt and Clerke had not unnecessarily
and most unwisely undertaken to decide tn.
case, without suit and er parte. Let them revoke
their order, and recognise Mr.. Davies for their
associate, until judgment Of the Court Of
Appeals is produced to them in favor of some
other person as better entitled to the seat.
KANSAS MoyEMENTs-We lay before our rea-
ders to-day an interesting compilation of the
various Kansas movements on foot throughout
the country, pro-slavery and no-slavery. It
will he seen that IN both sidaa those mova