New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1875-08-30
LAW OF THE TWEED CASE.
AN OVERLOOKED PRECEDENT FOR CUMU.
LATIVE PENALTIES.


THE DECISION IN TIE FISHER CASE AyrERwARD
RrAFPIRMED IN THE CASE or sUYDAM AGAINST
SMITH BY THE PRESENT COURT OF APPEALS.
WITH THE EXCEPTION OF JUSTICE MILLER.
TO the Bdttor or The Tribune.
SIR: John Smith is q common name enough tho
Engl,h-speaking world all over and in the lands
of the Dutch is the name of Henry Suydam. 1t
needs some explanation, therefore, why tho COM
bination of these two familiar patroDyrncs in the
legal formula Of Suydam agt Smith should possess
particular interest inst now for the inhabitants Of
the City and State Of New-YOrk; and that explana-
tioa proceed to give for tho special information OF
such of your readers as have studied the letters of
Mr.. Charles OConor and cx,Judges COmstock and
Leonard, which have been printed recently, con-
corning the decision of the New-YOrk Court of APP
peas. that enabled our recent ruler, Mr.. William N.
Tweed, to exchange the freze jacket which he wore
few weeks ago on Backwell's Island for the broad
cloth with which he now clothes himself in tho Lul-
low Street Jail.
In his opinion in the Tweed babeas cOrDus case
which was the representative opinion Of tho Court
OF Appcals-.Judge Allen conceding Tor rather as
Stunning, as above, any need Of concesson), the anal
ogy between actions for penalties and indictments
for msdcmeanors. relied for his main and leading
point upon "Mr OCono's argument in Johnson's
case" and pronounced it unanswerable." Public
attention then being called to the fact that the Court
Of Appeals in Fishers case 46 New-YOrk, CID had
"answcred' that very argument, exJudSe Com
stock and other gentlemen who were anxious to VIM
dcate the COur, from the palpable Inconsistency.
have asserted that what said in the Fisher case
concerning the recovery of many penalties in ono
action o5itr dicum Of the Judge, and not the
opinion of the tribunal -',-
The judgments of q court Of last resort ALSO
lutcy binding in tho particular in which they
l,nf fb. .r,in
them, OF the reasons the principles which tho
opinions enuncate, do not bind like legislative
act either the same court any other than inferior
tribunals. A subordinate court, from motives OF
deferentia respect will not listen TO argument
upon point of law decided by its official SUPERIOR
and in its discretion court of any grade generally
will refuse to reconsider point of law deliberately
decided by itself. Bat the most solemn judicial opn-
ion is not binding further than this in any subse-
quent case, although it is in point" and its
line of logic is essential to the judgment
to be rendered therein. court is always
at liberty to review and override its own for
mer conclusions. 1t is liberty liable TO abuse, but
almost indispensable to the progress Of CIVILIZATION
Even the highest courts sometimes avail themselves
of it. The "legal-tender" cases in the Supreme
Court Of the United States furnish recent and
familiar instance of it's exercise; and in the Genesee
Chief agt. Fitzhugh II How. 49, the same high
court overrule1 whole series of its own decisions.
Numerous other examples will occur to every stu
dent of Jurisprudence. The weight and authority
of any previous decision consist wholly III the cvi.
Gehcc il affords the suppositon it warrants, that
enlightened and impartial judges have fully con-
sidered the question, thus presumptvcly excusln9
their successors from repeating the task.
The opinion of q court is, therefore, not lar o.
itself for any other than the very case then decided
H. "a rtu
evidence of the law or less persuasive and con-
vncing according 10 the circumstances This Is
doctrine familiar in the elementary instruction
given in every law-schoOl in the land. All sound
iurists understand it well, and treating opinions
when cited, as merely evidence Of the law, they
classify them on rational principles, as they do wit
ncsses in a matter Of fact. scale of technical
nomenclature has been adopted to designate these
classes An opinion III point" or logically ncces
sary TO the decision, is entitled to the highest
respect in the scale, from the reasonable presumption
that it was carefully considered. This last circun-
stance constitutes all its claim to be treated as if it
was absolutely authoritative. mere passing
remark, in judicial opinion, upon some proposition
more ess pertinent or analogous but not necessary
to the decision, is called obter COB ter in itinee)
Latin equivalent to tie English phrase "by tho
way"
ity of judicial opinions and obi;er dc'a therein upon
which it would not be needful thus to discourse but
for the fact that Tweed's defenders, having under
taken, like Hudibras, to prove that geese are
Justices" like him employ the BabylOnish dialect"
OF words " cut on Greek or Latn,' surprising that
when with hasty noise they speak 'em
Tho ignorant for current take en-
Now for tho truth about Fishers case. In it, and
in series of cases then pending and the calen
dars, which wero brought upon the same penal
statute, the general common law question, whether
many penalties could be recovered in action not
withstanding the defendants objection to ther
jonder, was constantly recurring There mui.
tule of these cases 1t was possible for the court
to decide them in favor Of the defendants upon
peculiar feature of the penal statute that it was
rot necessary to determine the general question OF
pleading Yet the expedicncy of setting that ques.
ton at rest, by decision one way the other upon
it, was obvious. To the parties the counsel and the
Court alike it was very important that it should be
adudicated. Therefore, i'll Fishers case, the Judges
of the Court of Appeals gave 1t deliberate ccnsid
Grafton for useful purpose and having done So
published their conclusion to the world, to vii, that
any number of penalties could he united and rccov
cred in one action No decision in any court of last
resort could be more binding upon all ITS suborinate
than this announcement. Ii was distinct and deci
siye that the question had been duly weighed and
was set at rest Bat Tweed's counsel now cry obi
ter obite, and by this scrap of Latin strive to
found persons less skilled than themselves in Baby
lon n dialect" Jr the use of mere legal lingo This
should not prevail, even if the argument stood on
Fishers case alone. Ii does not, however, stand
solely on that case.
Two wars laier and inst before TWeeds trial the