The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1875-06-16
the Discharge OF Tweed by the Court
OF Appeals

il Oy lawyers, Will give pallIul SHOCK 10 VIC
popular sense of justice. The twelve years
for which Tweed was sentenced by Judge
Davis was a punishment not disproportioned
to the deep turpitude OF his offence. BY the
unanimous decision OF the Court Of last resort
the sentence is adjudged illegal, but in pro-
nouncing this judgment the Court will be
thought rather 10 have condemned the law
than to have freed the prisoner from the hard
ship of an unjust sentence. They have no
doubt done their duty, and the elaborate
| opinion in which they have set forth the
grounds Of this decision will command the
assent of the legal profession. This happens
to be one Of the cases in which the require
ments Of law are in conflict with justice and
common sense. There are many crimes
white in comparison with the guilt of
Tweed, against which the law denounces PEN
alties exceeding those which Judge Davis
awarded 10 him. To select, for ilustra-
ton, one instance oat OF many-the
crime Of fabricating or passing
counterfeit bank note exposes the perpetrator
to imprisonment for fifteen years; but 1t
would do injustice to counterfeItor TO COM
Il
counterfeitor may delraud the community OF
4 few thousand dollars; Tweed robbed the
city OF millions. In the eye OF justice his
sentence of twelve years was not excessive;
but the Court of Appeals declares that it was
illegal, and we must all bow to the ma jesty
and authority Of the law. The explanation of
this conflict between law and justice lies in
- tlot Ia
plated The peculiar Kind of gigantic swindle
perpetrated by Tweed, and made no provision
for its specific punishment.
There are, doubtless, cases in which the
ends Of justice would be better served by
leaving the measure of punishment to the
discretion Of judges. But the administration
OF justice must be regulated by settled gen.
eral rules; and if judges were permitted to
deviate in exceptional cases in obedience to
their sense OF equity the door would be
opened Tor making the discretion or
caprice Of the magistrate the only meas
ure of punishment. Experience has de-
monstrated that it is for the interest of society
that the laws should be made and their pen
alties prescribed by one body Of men who can
be administered by different body Of men
who have no liberty but TO apply settled rules
to individual cases. This division OF func-
tons shuts out iavoritsm, protects the admin
stration Of justice against the sway Of popular
passions, and iorewarns transgressors Of the
risks aud penalties they will incur by violat-
ing the laws. If the Legislature fails to pro-
-, 4orp ay,I
unexpected crimes that is a lesser evil than to
permit judges to extemporze toe law which
they administer and leave them tree to punish
severely or lightly in accordance with their
sympathies or prejudices. The great impor-
lance Of limiting the discretion OF judges
by prescribed rules is attested by the prohib-
ition OF what are called er post facto laws
that is OF laws which alter the grade of offences
and the degree of punishment alter criminal
act has been committed. Even an er post facto
law would not pervert the great principle
that the laws must be enacted by one body Of
men and administered BY another 1t would
only prescribe new rule to the courts OF
justice but SO important is the principle that
an offender shall be subject to no penalties Of
committed the offence that the Legislature
itself is not allowed to vary the punishment
by a retrospective act The reasons are still
stronger for Withholding from the courts
discretion which is forbidden even TO the
Legislature. The Courts are bound 10 adj
minister the laws as they find them, and are
not at liberty in any particular case to weigh
intrinsic justice against the defects of
statute
The severe sentence against Tweed, pro-
nouuced by Judge Davis, 50 fully satisfied the
general sense Of justice that the community
was pleased with the stretch Of legal in
genuity by which every count in the indict-
ment was made separate offence and visited
with separate penalty. Public sentiment
regarded the sentence with equal delight and
surprise, glad that legal astuteness discovered
resources in the law for Furnishing q great
crime in proportion to ITS dement's. Unfor-
tunately the sentence which SO fully salts
fed the public sense OF justice could not
stand the test Of legal examination. The
great length Of time which the Court Of Ap-
peaIs has taken for deliberation on this case
since the close Of the arguments nttests the
care they have bestowed upon it. and the
fact that its opinion was rendered without a
dissenting voice would be a strong presump-
ton Of It's correctness even II il we're not 50
ably supported BY judicial reasoning in the
opinion which we publish. The Court evil
IDENTIFY felt that it was rsking its popularity,
and 1t has taken pains to iortify its decision
. by an argument which will probably silence
dissent On the part Of the legal profession. II
competent judges accept this opinion as
sound law the disappointed public will regret
fully acquicsce although the Law offends
their sense II justice.
Tie main point On which this exciting
decision turns is the illegality Of innicting