The sun. [volume] (New York [N.Y.]) 1833-1916, 1875-09-16
The Law and Letters of the Tweed
Case.

official post recently occupied by its author
as Acknowledgement of the State of New
York. 1t is virtually long apology for
the conduct OF Moan DAVIS in imposing
the cumulative sentence which is now as
notorious as II was unlawful, and will be
rs infamous. The need of some kind of an
apology will readily be conceded MIR.
BARIow's sagacity was not Mt fault in per-
ceiving that defence was his judicial
friends supreme necessity and he was
wise enough TO make il apologize rather
than aggressive. A broader and truer
view would have prevented him from
writing his letter at all: for it would have
shown him that resignation Is the only
apology that should he accepted from the
passionate Judge who forgets the law in
his pursuit Of popularity.
The unlawfulness Of the cumulative sem
teuce In the TWEED Gaze II not disputed by
Mr.. BARLOW. 1t was not disputed by Mr..
OCoNoR. IL has not been disputed by any
reputable lawyer in the State, save the
counsel for the prosecution on the argu-
ment in the Court of Appeals. We think
We are quite within bounds In saying that
even prior to that argument, there was an
all hut universal opinion among the MEM
beers of the bar in this city that the sen
tence could not stand. With all his ma
levolence toward the Court of Appeals,
Mr.. O'CoSoR has admitted that he thought
it Illegal, although several journals have
sought to convey contrary impression as
TO the contents OF his letter reviewing the
decision. In estimating the conduct OF Mr.,
Justice DAVIS, II makes no difference what
were the motives which actuated the
Judges Of the Court OF Appeals in coming
to their conclusion, or whether the case
should have been brought before them by
writ of error or writ of habeas corpus.
The question by which he was 10 stand or
fall was the legality of the sentence. Aud
he tell.
The kindly consideration which Mr.. BAR
LOW now mvokcs in his behalf is asked for
on two grounds: first. because four other
Judges OF the Supreme Court affirmed the
correctness of the cumulative judgment
pronounced in the TWEED case; aud, sec
ondly, because the preccdents in support
of such n judgment are sufficiently numer-
Gus TO show that 1t may have been rem
dered conscientIously, even If enormously.
Neither of these grounds VIII bear exam
ination.
The habeas corpus proceeding was begun
before Mr.. Justice BARRETT, who decided
IL solely upon the objection raised by the
prosecution to the form of the remedy.
and without regard to the lawfulness of
the sentence, upon which he did not pass
| at all. His opinion, therefore, cannot
properly be cited to sustain Judge DAVIS
on that question. 1t was considered, how
ever, by the General Term, rs appears
from the opinion of Mr.. Justice WEST
BROOK; but even there the Court went
no further than to decide that the sem
tence was not so absolutely void rs to war
rant the prisoners discharge on writ of
habeas corpus simply declari ng its inabil-
ity "to hold that the presentation OF the
several charges against the relator in one
indictment was so irregular and informal
as TO render the whole proceeding void
and the conviction n nuluty." The prin-
cipal basis of the General Term decision
was the supposed napproprateness OF the
habeas corpus proceeding, and n, tho
correctness of the senten" =, which :,
affirmed only to the ss,ent we have irdi.
Gated p'a''' .ntlmating possibility that
IL III 1ut be reversed upon writ of error. But
even il these three Judges had Numbered
to the extent which Mr.. BARLOW would
have us believe, IL Is difiicult 10 perceive
how their mistake could help Judge DAVIS
One OF them is mentally his slavish fol.
lower, and the others are new to the bench
and notably inexperienced in the admins
tIaiion OF criminal law.
But when NOAH DAVIS came to the tria
of the TWEED case he was no inexperi
enced criminal lawyer. lie knew perfec {
" well what was the law of the State OF
New York rs to cumulative sentences anC
he laid it down thus:
." have never known an Instance where IN,
. party cuuld he embarrassed ny the cnmhnhtlol
OF n great rietv OF misdemeunors. ON th
contrary, IN my judgment, the party who IL thu
CHARGED Win IA variety OF misdemeanoTs In
nny lndictrents against him, IL greatly relieve,
from the consequences Of the offences from tn
very fact that they are brought ia single IN
In this case there might be nftv-nve punish
ments II these counts are all true, ana Their
were lfty-hve indictments found, while tn
, the single act Of uniting them In single indict
ment, rs understood, will reduce the punish
ment 70 single one. The result Is That III
defendant, instead Of being injured, Is suhstan
| merOus lunishmcnts for the same offence.
This was the solemn enunciation OF tn
| law from Tue Ups Oh u Jusllcc ol lht ~
prcme Court before whom Il citizen wa
on trial for his liberty-a man who, II
3 matter how grave his offence, was entitle
TO be fairly tried. All the counsel agree
that it was the law Of the land. FroI
, that hour until the rendition of the vel
e diet which consigned the chief of Tan
I many to prison, no whisper was breathe
= TO the contrary. Then, law was throw
| to the winds. on the prompting of amb
Y ton, and the judicial demagogue asscrto
a himself. He reversed his own decision
I and imposed fifty punishments where
Q had previously declared that but sing
I one could be inflicted. OF these, twely
were terms Of Imprisonment and the r.
q maindeT were fines
Y Now the citation from various law r
= ports of cases which Judge DAVIS la
= never then heard Of, and OF which M
y BARLOW was evidently ignorant until
y appropriated them without credit fro
= the briefs of the counsel for the prosecl