New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1875-07-30
TIE COURT OF APPEALS.
A LETTER FROM EX-JUDGE LEONARD.

SIR: Ii IL with Gclt1Ctance tDdt NtItuTt sofH0
observations respecting the severe criticism of our
learned Court of last resort by Mr. OConOr In his recent
letter That tribunal would require no defense against
aspcrsons OF ordinary character Ido not mean thas
they would defend themselves, for the dignity OF the
Judiciary forbds they should enter the arera "a dis
putants concerning the merits OF the Judgments which
they have pronounced. Not even the calumntous sug
psLions OF the letter OF Mr.. OConor induced them 10
utter any complaint or remonsrance They have hith
crto enjoyed the profound respect ana Veneraton not
Only OF the profession but OF tho general public
suggestion Of the impeachment OF the Judges Of
tho Court Of Appeals would hardly have found
| place in any respectable public Journal
coming from any other quarter Indeed 1t IA respect
for Mr. OConor Us gentleman OF truth and honor that
has enabled him to deal blow that seriously tends TO
weaken the usefulness OF the Court Of Appeals and sub
vert the ycneton of tho general public for tie fountain
of Justice and its confidence In the purity integrity and
Justice OF tho Court. No greater misfortune can beiaN
tic cause OF public virtue than that of court consisting
OF seven members basey uniting In pcryerson OF jus
and law in order screen from punishment one OF
the most extraordinary malefactors OF whom we bave
any account
In later portion Of this letter shall make few eta
tons from the opinions Of must learned and respected
uris, concerning immunity Of Judges from private
prosecutions for OF Judgment and the credit which
ought he accorded public grounds TO those who
ntriscd with the administrator OF public justice
do not intend to condemn criticism OF the judgment oe
the disposition OF causes before them IL public injury
II not crime and be justified Only cases OF real
| cupabilliy. l think 1t will appear that Mr. OConor
has such usc alton. and ,hat his Suggestions OF ns
conduct tle part of the Court OF Appeals aro I'M
founded ana nde far the statements OF his
letter are to be basis Having often associated In tho
cause of justice with several Of the gentlemen composing
that Court, while they well myself were members
OF the Supreme Court vi the SL,u and relations OF po
sonl friendship and intimacy having continued with
mny Of them for years. 1t may perhaps be permitted 10
me to present some considerations 10 the weight and
importance OF the charges brought by Mr. OConor This
ought to be the permissible those Judees are I'M
der an imposition Of silence in their own behalf can
only express my regret that their yinca,ion has not
! fallen to an ADLER pen
WHY TIE ACTIONS wTEE NOT SUSTAINED.
Mr. OConor's first complaint is that Tie actions brought
ia behalf OF the people OF the state Of NewYork to re-
the money pundercd from the treasury OF the city
and County OF NewYOrk were not upheld by the Court
OF Appeals These actions were novel in character.
They were money which the plaintiff the peO-
lle did not own and OF which they not tie trustees
The money had been raised by local taxation for local
purposes only. The actions wholly unprecedented
No reason IL assigned Tor not pursuing the plain and
| natural remedy OF an action BY the County oil
New-York to whom the money coniossedy belonged ex-
cent want of confidence by Mr. OConor in the Judges
who had received their nominations from the cniits
All the judges who had been suspected of dishonesty had
resigned under impeachment by the time these
actions were brought. The New-loik Common Pos
was equally open redress these Injuries ~ the supreme
or the Superior Court None of the judges Of the New
York Common Pleas had been suspected OF any want OF
integrity There was not, truth. reason 20 doubt
the remaining members Of the two other courts All OF
them would have rejoiced II the chance hhd pecn NJ
for,led Them on competent evidence to have yndcatd
the cause Justice against the pundercr- The course
pursued for the reason ascribed mjusty Illuminating
ftIf AL MI
have never met with any gentleman skilled IN the Inv
and have spoken with many on the su'Ject-"ho did
not press opinion that the actions mentioned conid
! never be maintained When the decisions were an
nolnced no one expressed any surprise but the learned
counsel who had = persistently begun and con-
nucd them. The Judgment Of the court OF last resort In
these eases met with tue general appreciation OF the
whole profession
Tie Judges cannot advise with counsel to wha, they
can or will do in advance of the case to be presented
nor ia it ever done.
MR.. O'CoNOE's BRIFP.
The letter OF Judge Davis contained inquiry to Mr.
OConor'. views these subjects II related 10 his rea-
| son for not communicating his opinion to acoumu
lated sentences when the OF Tweed WAS before him
for judgment at tho oyer and Tcrmincr II h. then enter
tanned the views that subject which were contained
I'm his brief from which Judge Allen had made citation,
| in deciding tho habcas on Tweed's imptisOn-
ment. Judge Allen cited from this brief. ~
| his opinion states, on account OF tho clcarnoss
and torseness with which Dr. OConor had
expressed the positions and arguments on the subject OF
tie trial several otenses by indictment or penal
! action The In which Mr.. O'Conor prepared ms
brief from which Judge Allen made the citation was
civil action to a large number OF penalties by
private informer q single suit. lie there stated that
it had never been the practice to allow two distinct
ofen-es to he tried at the time either by indic
ment or penal action. That action was penal ono. lie
further stated that such practice would cause CONFUSION
| and embarrassment ON the part of the accused aud
break down and oIllterae many principles OF law well
established and essential 10 the safety of the citizen
It will be observed that the brief is not cited rs author
y but on account OF It's apncss OF In which
the learned lawyer certainly excels Mr.. OConor In no
part OF bis long letter TO Judge Davis says that no
has altered his opinion this subject But he says
TIE Court Of Appeals have OYerrued or rather nave de
cid,A against his positions lie seeks to convict tho
Court Of Inconsistency understand him TO convey ho
idea that the decided in the OF Fisher agt NJ
y c. and II. Il. r. Il. Co.. reported in 10th n Y liep
GIL that two or more p nate5 can be recovered Ia
| single action. That was not the decision
The Court decided that only single pen
atty could he recovered la that acton under tho
statute giving the penalties sued for The reference ny
judge Grover to other decisions under other statutes,
thai several penalties could DC recovered in the same
civil action was a mere passing remark. what i- known
a. an OJcr dicth3, Of force authority whatever,
and ent.ly foreign to the Judgment. There had been
recovery by the Judgment Of the Court below from which
the appeal had been taken to the Court OF Appeals fol
large number OF penalties by an iniorner in one eiv nc
nou The Judges of the Court OF Appeals concur q
! IN reducing the recovery to a single penalty
whether they concuTed in the opinion cxples cd
by Judge Grover that many penalties could be recovered
In the same action does not appear. as that question
could not decided, 1t did not arise. IN case where
only one penalty allowed to be recovered. II when
Mr. OConor made bis argument referred to IL had not