New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1875-08-24
THE TEEED CASE.


tbo CORRESPONDENCE between Judge Davis and
MIR. Charles O'Conor respecting the decision of
the Court of Appeals in Twced's cases to en-
able one to form deliberate opinion OF It's
merits Nh. O'Conr charges the Court OF APP
peals with grave deficiencies, not, as has been
enormously supposed, with the commission OF
inDeaChable onenses-the suggestion as to
impeachment referring to local Oihcers-Dut
with a moral ObQuty of vision probably I'M
known to and even unsupported by themselves.
1t is virtually charge of bias for the wrong.
Our object now is not to attack or defend
either the Court or its accusers, but simply to
present naked statement of what the Court
of Appeals could have done and what it has
done.
No cultivated lawyer will deny that its func-
tons are quite as much Legislative as strictly
judicial that vastly more law Is made by the
courts than by the Legislature. The great
difference is, that the power Of the courts TO
make law is limited TO questions that may
arise in the concrete cases before them. The
Legislature may enact laws at its will. True,
if a case happens to be within the precise
terms and spirit of statute, courts are bound
to so decide. If it happens to be within the
precise tcrlilS anu spun VI "hl'ih7 piSN'
dent. i. e., former decision of the same court
OF an appellate court, they are bound, though
less 1igidly, to follow the precedent. The vast
number of explained and Oyerrued cases
shows the pliable nature OF the obligation
But there are very many cases presenting
Questions for the solution of which there Is no
statute and no precedent; questions which
must be decided according to What the Judges
think the law ought to be; questions to an
swer which the policy and consequences and
convenience of the rule to be established must
mainly be considered; questions that require
| consideration of the state of society, the dan
GERS to be apprehended and their sources,
wherein it il safe and where il needs prOtec-
| ton. These questions must be solved pre-
| cisely as q Legislature would solve them, for
the decision when made not only decides the
concrete case, but becomes a precedent and
law. When court decides question of this
character its decision is open to criticism
as would be a statute of the Legislature.
Precisely such questions are last described
were presented to the Court of Appeals in the
Tweed cases, to the last of which we shall
confnc our consideration. In that case the
Court held, as Tweed claimed, that the effect
ment. of fifty-one distinct Oflenses, was to make
him punishable for but one. 1t was the same as
if in a civil action the Court had held that
the suing of tifty-one promissory notes III a
single action WAS proper and legal, but that
the Court could render judgment for the
amount of but one though the effect OF the
Judgment would be to bar all the others. MI.
Justice Allen, in his opinion, says:
The question had the Court of Oyer and Termner
the poer pronounce the several judgments and Inlet
The accumulated lunishments upon the conviction OF the
prisoner of the Oense charged in the single ndct-
mentq Whether was Join in the same indct-
ment counts seceul distinct oGenses or whether the
Court should have compelled the prosecutor to elect be-
tween the several counts, not questions that can bo
considered upon this hearing. They do not 80 to the
Jurisdiction of the Court and only come up OH error
from the judgment
Nay, he even comedies the legality of
cumulative punishments. provided they do not
together exceed the time allowed for one
Offense. He says:
IT, as has been done in cases, the maximum pun
ihmcnt which the law permits or the grade and charac
ter Of distributed among The several oenses OF
which the prisoner Is convicted according TO the dement's
of each the gate punishment not being in excess OF
that allowed by law for single ofense Of the same kind
and degree there would probably he nothing Illegal.
cedng that person accused Of crime may be tried upon
one indictment for several and snct onenscs committed
ut different times.
The Justice thus holds that the question Of
ioinder cannot he reviewed on that proceed
ing and that if distinct offenscs are joined
they may be cumulatiyely punished. lie, how
ever, invents the limitation that the total of
the several punishments shall not exceed the
limitation prescribed for one. The Justice
then expresses his own "inclination to the
opinion that such joinder of distinct Ofenses
in one indictment should not he allowed, and
adds
But the practice should be regarded firmly
Te the result OF distinct judgments and cumulative
punshncnts does not follow legally logically,
sarily.
The Justice thus seems to feel that the prac-
tce of joining distinct oflenses is too firmly
established in this State to be reformed except
by the Legislature, and yet by singular non
seQuifur concludes that on a conviction for
several oifenses though each Offense may be
punished, and cumulatively, the aggregate
punisments shall not exceed that allowed by
law for a single Ofiense. In other words the
accused may be subjected to the danger and
confusion concerning which the Court of APP
peals express so great alarm) Of defending