Year: 1873




witnessed at any legal tribunal in this country.
The scene was Justice triumphant over counsel,
who, with unwonied and INSCRIPTIONS audacity,
had dared to defy her, and, through attempted in
timldation, shield from his just behests the great
''Ring" leader in the municipal robbery and cor
ruption that had made our city government the
subject OF such widespread scorn and opprobrium.
The history OF the mysterious protest. $50 called
from it's purport being long kept from the public
knowledgel. presented by counsel at the COM
mencement OF the trial. has already been published
in the HERALD. Judge DAVIS, as is weI known,
very quietly put the document aside after receiy-
ing Ii. and gave no intimation or its pur-
port until last Monday he called to account the
matter Mr.. Tweed's lawyers. The severe lecture no
gave the gentlemen on this occasion was un.-
versay pronounced masterpiece in its way, and
vet. while uttering the most scathing rehukes TO
counsel for their brazen hardihood in submitting
to him such = document, was characterized by a
most dispassionate calmness and quiet dignity.
He gave the, counsel until yesterday TO prepare a
reply in selEjustitcation. As might naturally be
expected, the occasion was one attaching TO itself
unusual, if not to say extraordinary interest For
some time before the opening OF the Courts the
room vas denscy crowded. 1t was not the fre-
quent deputations OF the ..great unwashedn who
so frequently fill our court rooms but made up
principally of the leading members OF the bar OF
the city. As Judge Davis took the Bench the court
room was silent as II he were about to pro-
nounce the death sentence upon q noted criminal


THE MYSTERIOUS PROTEST.


With view to an intelligent understanding OF
the grave subject matter at issue, IL is better in
the outset to lay before the reader t.e mystical
document ITSELF otherwise known as the 'myste-
rious protest.n 1t is as follows:-


CovRr or oYER Asp rERsIsER The PEOPLE; sc. vs.
why the trial o. this defendant should not be


Frsrhe said Justice has formed, and upon previous
to the deendaas upon the facts Of the case
and he declined to charge the jury that they were mott
4iai y dry, ialasnsed nesessary would be
by the opinions Of the Justice formed before such tune
impartial jury such as the constitution secured to the


ScOad-Beore the recent act Of the Legislature Of this
state providing that to the favor shall be ried
reference 10 this case and this defendant such said
Justice has assumed would have been disqualified TO act


The defendant no less entirled fair trial of his
challenges now than he was formerly. What would
have disqualified trier then must disQualy Judge


ThirdMost of the important questions of law which
will be involved in the trial have already been decided
important points his rulings were, respect
fully insist In opposition 10 previous decisions OF other


Although there may be positive prohibition of
-
PROMPTS any judge from sitting in review Of his own


The objection to Judge who has already formed and
more appare Mt the that in many States where
jurors judges OF Law well facts he would be
DAVID BUpTgs fliTfgHss'pfiH Piahb Ii gUaRIL


SSAEHf


THE ANSWER OF COUNSEL


In response to the remarks made by Judge
"A,
pre- pared an elaborate reply. This answer, which
takes up seriattn all the charges made against
them was read by Mr.. Fullerton. After general
disclaimer OF any intent or disrespect to either
Judge or Court, IL insists that the motives imputed
by the Court we're unfounded, and such as they, as
honorable counsel, could not have entertained.
They recall that In presenting this paper TO Judge
DAVIS they were contending professionally against
current prejudice against their client They say
that the protest was made some time ago. pre-
sented when first the occasion for its use arose
and presented IN the most delicate way. II would
have been premature and indelcate Tor them to
have presented this paper before 1t appear ed that
the Judge would sit. In fact they had heard that
Judge Davis was making efforts TO secure another
Judge. After calling attention to the TACT that MIR.
Burrill communicated his withdrawal from the case
to the Judge before he communicated 1t to his asso
ciates, they dIsclaim any intent such as supposed
by the Judge to intimidate him or drive him
from the Bench nor can they understand how the
Judge could have supposed the paper was for pub
licaton when ne had been informed that il had
never been given to the public. They submit that
where their action is consistent with high motives
and strict professional conduct other motives
should not be imputed 1t then proceeds to dis
cuss the remarks OF the Judge on the substance OF
the communication, and said that while respect
Tor the Court prevented them from entering into
controversy with 1t as to the 1alsity OF certain
statements In the paper, they must direct the at
tention OF the Court to the stenographic report
which had been made Tor them and on which they
had relied.


Judge Davis here directed Mr.. Fu.lerton's atten-
tion 10 the fact that in quoting he omitted SEN
tences which qualified the sentences quoted.


Mr.. Fullerton said they had not quoted more
than seemed 10 them necessary TO establish the
right OF the counsel TO believe their statement to
be trne, and proceeded 10 read the statement,
claiming that they were at least so lar justified in
their statement that 1t could not be declared
untrue They disclamed any intent impute
any Improper motive 70 the Judge when they said
that persons who had assumed such q position
to the case would be disqualified as triers. 1t
was merely that under the old law trers we're
required TO be entirely indifferent between the
parties, and the Court should not appoint as trier
any one Objectionable TO the prisoner. The point
OF their suggestion was whether the Judge, in
view OF this was willing to assume the duty OF the
trlers. II was no answer 10 say that the statute
conferred on the Court the duty OF selecting a
juror, since they claimed that the acts OF ls72s73
taken together, we're unconstitutional and IL
would be a novelty 10 punish counsel for taking
points OF law which the Judge overruled, and sup
porting them by logic which the Court deemed un-
sound He called the attention Of the Court TO the
laws OF Wisconsin, allowing change OF venue for
prejudice IN the Judge That statute Is az follows-
"Any defendant, on an indictment found in any
county IN this state, may apply for change OF venue
on account OF the prejudice Of the Judge OF the
court where such Indictment IL found, IN the man
ner provided by law for change or venue in civil
actions and u shall be the duty Of the Judge or
Court 10 which such application IS made to award
Sucn change OF veDne.n He also referred TO the
United States statutes allowing transfers TO the
United States Courts in case OF prejudice or local
influence affecting the state tribunals. The por-
tons OF the Judges charge on the former trial
which the counsel regarded as an expression Of
opinion uniayorable to the prisoner were as lo
lows


NOW gentlemen / am asked Ia charge vou
upon various propositions by the defendant, ana
~ Is my duty 70 call attention to them, In order
that they may take exceptions II they desire and
to 10 IL a. brieny az can. The FIRST proposition
~ that the questions OF fact are entirely for the
Jury 70 decide. That Is true, You the Judges
oi the iact Although you may be able TO
sce as nope you are, that have but one opinion
oi these transactions myself individually, yet you
are not TO be governed by that opinion. That
opinion ~ not TO be controlling mon you. " you
thInk those things Just and iar It IL OF no con
sequence that think otherwise"


After the conclusion OF the charge on the FIRST
trial, Mr.. David Dudley Field sad ~ observe that
IN first there Ia uuIte a significant