New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1875-09-07
Law OF THE TWEED CASE.
LETTER FROM EX-ATTORNEY-GE GENERAL
RiPJ OW

JUDGE DAVIS BASED UPON THE ENGLISH COM
MON LAw-THE PRECEDrNrs OF MANY STATES
AND THE FREQUENT DlCTA OF JUDGES OF TnB
STATE.
To tie Editor The TRIBUNE.
SIR Under all the attacks of Tweed's counsel
Judge Davis has wisely remained silent But the friends
of Judge Davis not concluded by his silence They at
least may say TO Judge Comstock and the others II
the Court of Appeals needs defense your hands you
to think be made by abuse of any other
court Judge, however ted that abuse be-
IL should not be forgotten that the appeal In Tweeds
from the judgment OF q General Term of the
supreme Court composed of three able judges whose
decision alrmancc of that Of Justice Barrett,
before whom the habeas corpus proceedings begun
Those judges held upon very careful consideration rs
their opinions bear witness. that the judgment Of the
Oyer and Tcrniner correct in law; aud that n any
occurred the trial. they not subject to
view habcas corpus II four able and upright judges,
with the benefit OF deliberate argument and long advise
ment fell into the same error with the Judge at Oyer
and Telnner who had not the benefit OF those advan-
tages to the extent does not deceucy require that
portion of the kindly consideration accorded to
them should be extended to HIM
It would he waste time notice al-peFhaps it is
notice any-of Mr.. Comstocks charges against Judge
Davis public rebellion against the highest Court of
The State" is among the least In Tweeds when
before the Supreme Court bret signed by Geo. F. Com
stock contains words We have passed be-
yond the period when judges supposed incapable of do
Ing wrong may do they please without remedy They
at least supposed 60 be like other men, neither
worse" How then is it 'pubic rebellion 10
doubt the ufability of the Court of Apealst Judge
Davis had refused enforce its judgment to recos
nize its authority in ike before him. there might
have been some show OF decency in Judge Comstocks
mpu.aGon In common with mcst lawyers, Judge
Davis doubtless astonished when he the brief OF
Mr. OConor repudated by the same Court res'ir-
rected and largely shelter lis late decision II
spectacle yet q scwd stroke Of policy. more
worthy a caucus Of politicians than court of Justice 10
make the great leading who had given years OF
voluntary labor 20 the exposure and punishment OF
Tweeds crimes appear To furnish "unanswerabie argi-
ment" against the adequate punishment of those very
crimes But there it was, brief never before cited in
any stage the and it is not surprising shat Judge
Davis should ask distinguished author why that bnef
brought his notice. when he was holding tie
question of Tweeds punishment SO long under consdera
ton. Mr.. OConOrs answer Is before the public ahc
seems satisfactory the people than to the counsel
of Tweed; yet il asking that question that Judge
Davis is denounced by Judge Comsock as in public
rebellion against the highest court Of tine State"
THE TRIALS OF TWEED
At the first trial of Tweed Judge Davis the writer
had opportunity know, of IN" impression that the
Court of Appeals in the several penalty cases. had SUD
stantiay ruled against the power OF the courts 10 IN
pose cumulative punishmenis and at early stage Of
or compel an election of counts he expressed that op-
ion The question of punishment not before him,
and was not argued, and occasion arose upon that
trial for its argument consideration If any such oc
had arisen every respectable lawyer Knows that
it would been the Judges duty 10 have heard argu
ment and have considered and passed upon the qes
ton Notwithstanding incidental expression he nigh;
have given during the trial. and to have decided in ac-
cOrdance with the law as he should then conclude Ii 10
be- judge who Will not reconsider and If con-
vnced change his incidental rulings i'll the course OF
tic same trial, would justly lose the confidence
and respect of the Bar. But the second trial, which
took place ten months after the first, at no time during
its progress was syllable uttered either by counsel
or by indicate any opinion or impression OF
any kind whatever on the subject of punishment. A.
counsel Tweed judge COmtoch had the printed case
before him. and doubtless had searched it diligently To
find kind. lie not present at che trial.
butte the yearafterward fethe undertakes
TO assert rs matters within his knowledge, things
which did not happen, and never had an existence
Willie he member of the Court OF Appeals IL was
held by that Court that person who asserts things as OF
his own knowledge, which in fact not true. and
could not he known him true is guilty o. false
hood and fraud equally with who asserts As true that
which he knows TO be false. Since then morality has
not changed
TIE JURY.
He with elual posiveness that the jury were
undoubtedly Influenced in rendering their verdict by
what the Court had said the former trial, ten months
before The jury the last trial was body OF itelu
70 mt and honest They kept car fully secluded
from all outside influences They heard nothing SAID III
the court OH the subject OF punishment To assert that
they were render special veIdcts OF guilty OF fifty
two distinct oenscs tie Judge on the former
trial had expressed an opinion that but could be
punished is a ostrous libel upon their intelligence and
integrity. 1t is well known there was no conflict III
the juy-roOm the question OF Tweeds guilt The
ONLY question whether he should be convicted on all
the counts on which verdicts of guilty finally
rendered, or throe-fourths Of that number. what
nonsense 10 suppose that the jury dispung over
the number OF convictions if they believed there could
be punishment for but Onc when the jury In for
instructions second time little was known by them
on the subject Of punishment that one juror inquired
whether the fourth of the Indictment charged
felony missemcanor and being told that all the counts
charged only ncneanors, the jury retired and almost
Immediately returned with their verdict
TWFFDs COUNSEL NOT "ENTRAPPED."
The assertion OF Judge Coplstock that Tweed and his
counsel were dcuded and entrapPed by the Court TIL
after the veIdcts rendered. and that "then the
masked battery uncovered then the tremendously
accumulated sentences fell upon the deceived and
wrctchcd prisoner would be udicrous were not fol-
lowed with the emphatic affirmation: know Of no such
precedent the times when Jefreys and Scroggs
administered the criminal Law OF England"
The argument of this accusation is that Twecds co,ln
sci did not him they could and would have done
If they had supposed more punishment could be
inflicted 1t hoped those counsel appreciate the CON;
pliment Why does rot Judge Coiastock tell lis what
more they could or would have done Having no merits
and no witness call they fought the case inch by nch
count by count and point by point every concciv
able objection technically and bubble thai fertile and
ingenious brains could invent and tremendous fees III
sprc They began with the Judge, to drive him from the
bench they attacked the jurisdiction OF the court they
assaied the Grand Jury and its proceedings; they
pounced every form the Indictment they challenged
of the sheriff. and in he