The New York herald., 1875-07-16
IHE Court OF APPEALS.
Review Of the Tweed Decision
by Charles O'Concr.
LETTER IN REPLY TO JUDGE DAVIS
Wisdom of the Albany Tribunal
Called in Question.
SHARP CRITICISM OF THE JUDGES.


The subjoined correspondence between Judge
Noah Davis and Mr.. Charles VConor win be
found a remarkable addition to the vouminous
legal history OF the prosecution or Tweed and the
tnstituting OF suits against different members OF
che Ring in behalf OF the state Judge Davis ad-
dresses Mr. O'eonor and asks in a querulous
sone-why the latter did not inform him before
hand-of these views OF his on which the recent de-
cision OF the Court OF Appeals was founded. Judge
Davis, as Is Wen known, suffers grave reouke
rom the highest Court OF she State for his acElen
In piling the penalties for each dis-
Sinct misdemeanor In the charges OF which
Tweed was convicted. The Judge has
examined the Courts decision, and he
Tails to ma any authority for their conclusions
Except certain arguments OF Mr. o'Conor's.
Therefore 1t Is he addresses the latter and calls
him to account for not furnishing him Davis at
the time the trial OF Tweed was in progress
with these views which the Court OF Appeals
now bases its decision. He ask him, at the END OF
his letter, why 1t was he was not permitted to
have the light OF that argument and whether he
entertained aL the time OF Tweed's trial belief
that In pronouncing the cumulative sentences
the Court OF oyer and Terminer exceeded Its
Jurisdiction.
kr. O'Conor replies IN Q long letter, travelling
pver much more ground than Is demanded Of
mere formal response to the question OF Judge
Davis yet nevertheless, showing that It is neces-
sary to proper understanding OF Mr.. O'Conor's
Notion ana present position to digress In the
sideration OF collateral matters. Mr.. O'Conor vr-
tualy arragns the Court OF Appeals for decision
In the case OF Tweed, and shows logically that all
those ofncially concerned In his trial and i'm.
prisonment are liable TO be proceeded against BY
Tweed and to suffer fine and Imprisonment for In
Justice and violation or the law as laid down by
the Court at Albany. Tweed was sentenced on q
number OF counts OF an Indictment to imprison-
ment for twelve years. The Court OF Appeals in
eject holds tnat II on separate pleas to each
Of an Indictment like this defendant should
confess his guilt still the Court would
have no jurisdiction TO impose any
greater amount OF punishment than that
prescribed for offence. Mr.. O'Conor compli-
ments Juoge Davis ald explains satisfactorily
mat the Court OF Appeals misapprehen his posi-
lion and his argument. He holds that separate
Dnences In the one category Of criminality de-
mand individual penalties, and that the Court OF
Appeals Is in error in It's conclusions. Mr..
UConors letter is exhaustive, and by no means
neferential to the judges who formed the majority
that reached the late decision liberattng Tweed
from jail. the grounds that he suffered the
penalty count OF the indictments and was
not liable 70 suffer any other. The letter winds
up by expressing the opinion that neither the
pecuniary interests of the citizens the honor
Of the State remain safe as matters stand but the
State has an honest Executive and an entirely
new Legisature VIII be elected in the fall.
NEW YORK, June "a, 1875.
sIH-A critical examination OF the opinions de-
livered In the Court OF Appeals in rweed's case
SHOWS that that Court failed TO find any authority
for Its decision OF the question OF jurisdiction to
pronounce cumulative sentences on convictions
nj several distinct misde meanors, except In quo
tations made By Judge Allen from argument
used by you en- the nearing some years ago OF q
case before that Court. These quotations are put
forth virtually as an announcement By the Court
that at the time OF Tweed's trial you
believed that the sentences OF the Oyer and Ter
miner were without authority.
Before pronOuncing sentence In that case gave
TO the subject most elaborate and careful exam
ination, and failed, as the Court ofAppeals rave
failed, to ma in tee books a single judicial or
elementary authority adverse to the conclusion
reached, while numerous authorities OF both
kinds sustaining that conclusion, all Of which the
Court Of Appeals have disregarded, were found
and carefully examined.
Considering your relations to the prosecution OF
Tweed Tor MS frauds and crimes cannot help
thinking that, although you were not directly or
personally connected with that trial, It was your
duty as a lawyer and citizen, II you then eater
tanned the opIAion which the Court now seeks to
attribute to you, to have put into my hands when
the subject was so long under consideration the
argument Dy which the Court OF Appeals endeav-
ors TO justify Its decision.
You we're not tho employed advocate OF any pri-
vate public interest. You were known to be
acting OF your own volltIon, without any motive
or restraint beyond such your unbiased sense
Of honor and justice sneud have Inspired, and
therefore you were not affected by considerations
which may sometimes IEduce counsel. when en-
gage6 IN forensic conflicts, to withhold views
which tney deem adverse to their own success.
You could not nave been unaware or the great
respect which an argument OF yours would have
received from me, ana, though / might net have
c0ncurreu with IFS views, feel that was en-
titled TO have had an opportunity TO consider
them. Without having been cited BY any one, at
huy stage ot the case, that argument Is now
brought forward by tae Court OF Appeals as their
very spear and shield. URaer tne circumstances
tnink you Will pardon me for asking why | was
not permitted TO nave the light or that argument
before me, and also whether you entertained at
Sne time OF Tweed's trial a oeief that In pro-
neuncing the cumulative sentences tue oyer and
lermner exceeded It's Jurisdiction.
With the highest respect, an, &c.
CHARLES OCoEoR, Esq. NOAH DAVIS,