The New York herald., 1873-11-09
The Tweed Trial-That Mysterious
Paper.

The mysterious paper handed to the Court
by the counsel for the accused in the Tweed
case at the commencement of the trial ap-
pears to have exercised an influence over all
the subsequent proceedings, and the tits
between the Bench and the Bar threaten to
rival those which recently occurred on the
Tichborne trial in England. All manners Of
rumors naturally find currency in regard to
the paper, VIII : is at present held IN the close
custody of the Court, and as much curiosity
is felt on the subject the HERALD reporters
have sought information as to the con-
tents The defendants counsel, however, re-
fused to make any explanation, on the ground
that it would be contempt of Court, although
they declared that the publication of the docu-
ment would be satisfactory to them. 1t is
stated that the paper is in effect protest
against the trial of the cause by Judge Davis,
on the ground that the Judge is politically
prejudiced against the accused and has SO ex-
pressed himself.
IF these charges are made in the
protest and are true the Judge would not be
disqualified thereby from trying the cause.
In French law and under the law Of Louisiana,
which is based on the French law, the right
of recusation exists; judge can be recused
or challenged for supposed partiality and set
aside. But no such proceeding is known to
our law, and the Judge must decide for him
self and settle with his own conscience
whether he is in condition to try cause
impartially or not. Nevertheless, judge
could be impeached if it should be proved
that he had concealed some important inter-
est he might have had in cause and tried it
in partial manner. In the trial of Anson
Herrick for alleged maleteasance as an Alder
man of the city, eighteen years ago, Mr.
Brady, the counsel for the defence, objected
to the Court, Judge Roosevelt, on the ground
of political prejudice against the accused, and
on the further ground that the Judge was .
material witness in the case; but Judge
Roosevelt disregarded the protest and con-
tinued to preside. On the other hand Recorder
Hackett refused to try the late misdemeanor
case against Mayor Hall on personal grounds,
although no person questioned his entire fair
ness and impartiality. In q marked instance
occurring in one of our highest courts some
years since one of the judges, who could well
have been spared from the bench, asked to be
excused from participating in the trial OF a
cause because he had formerly given legal
opinion, for fee, on one side of the case.
The Court refused to excuse him on that
ground, and he continued to assist in the
trial, The point is yell settled, therefore,
that previous expressions Of opinions on a
case do not disqualify judge from trying the
cause under our laws. At the same time the
peopieNwould like to he officially informed OF
the contents Of the mysterious paper handed
to Judge Dasis. They are curious to learn on
what ground an alleged criminal claims to
select his own Court. 1t would be curious
sequel to the information they have already
gained as to the Importance of an eighth juror
who is permitted by the Court to roam about
under the careful guardianship Of a deputy
sheriff Is there any reason why the contents
Of the Tweed protest should be kept secret ?