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1873, IN THE COURT OF OYER AND TERMINER OF THE CITY AND COUNTY OF NEW YORK Incidents connected with his Second Trial.--Charge of Judge Davis to the Jury.--Result of the Trial.--Proceedings against Tweed's Counsel for Contempt of Court. IN the month of January, 1873, Lyman Tremain and Wheeler H. Peckham, Counsel for the prosecution, brought on the trial of William M. Tweed in the New York Oyer and Terminer, Hon. Noah Davis, Supreme Court Judge, presiding. The indictment (which contain- ed over two hundred counts) charged Tweed with neglect of duty as a member of the Board of Audit, in omitting to properly examine and audit certain claims against the County of New York. About two weeks were consumed in impanelling the jury, after which the trial proceeded at great length. A strong and overwhelming case on the part of the prosecution was established by the evi- dence. Tweed's guilt was proven beyond a shadow of doubt. The fraudulent and criminal conduct of Tweed in not properly auditing claims against the County of New York is well and clearly stated in the following extract from a pamphlet issued by Mr. O'Conor: "In the Laws of 18770 (page 878, section 4) it is enacted that `all liabilities against the County of New York incurred previous to the passage of this act shall be audited by the Mayor, Comptroller, and present President of the Board of Supervisors, and the amounts which. are found to be due shall be provided for by the issue of revenue bonds of the County of New York, payable during the year eighteen hundred and seventy-one ; and the Board of Supervisors shall include in the ordinance levying the taxes for the year eighteen hundred and seventy-one an amount sufficient to pay said bonds and the interest thereon. Such claims shall be paid by the Comptroller to the party or parties entitled to receive the same upon the certificate of the officers named herein.' "Hall was Mayor, Connolly was Comptroller, and Tweed was President of the Board of Supervisors. "These persons directed that the County Auditor col- lect from the committees of the Board of Supervisors all the bills and liabilities provided for, and ' that the evidence of the same be the authorization of the said board or its ap- propriate committees on certificate of clerk or president.' "This so-called County Auditor was one James Watson, since deceased, then a clerk in the Comptroller's office. He made up numerous claims ; and Hall, Connolly, and Tweed, separately, in pretended compliance with the above-recited act, but without any examination, certified them. "Such certifications amounted to a sum slightly exceed- ing $6,312,000. The Comptroller issued and sold to bona fide purchasers the prescribed bonds to that amount, and deposited the moneys obtained. thereon with the Broadway Bank to the credit of an account there kept by the Cham- berlain of the City of New York as County Treasurer. "Immediately upon such pretended audit and allowance of each claim, a check or warrant on said bank in favor of the certificated claimant for the payment thereof was signed by the Comptroller, the Mayor, and one Joseph B. Young, as clerk of the said Board of Supervisors ; and such checks or warrants were accordingly paid by the bank for and on behalf of the County Treasurer and to the debit of his said account. "The accounts or claims so audited were all false, ficti- tious, and fraudulent ; they were made up by fraud and col- lusion between the said James Watson and the defend- ants, Andrew J. Garvey, James H. Ingersoll, and Elbert A. Woodward ; and the payments on such warrants respec- tively by said bank were, pursuant to a corrupt, fraudulent, acid unlawful combination and conspiracy to that end by and between all the defendants, agreed to be divided, and were divided accordingly, between the defendants Ingersoll, Garvey, Tweed, and others unknown, their confederates. "The certificate of allowance on each claim, the check or warrant for its payment, the actual payment thereof by the bank, and distribution of the proceeds among the conspir- ators were in each instance substantially contemporaneous. All these frauds occurred between May 5 and September 1, 1871. A large portion of these took place after the first Monday of July, 1870. (Laws of 1870, page 483, section 11.) After that date Tweed was not an officer or member of the Supervisors' Board ; but as a private individual he continued Auditor under the section in question." These facts were substantially shown in evidence by the prosecution. They were not in any manner dis- proved by the defence. Although Tweed was defended by some of the ablest and most distinguished mem- bers of the Bar, in reality there was no defence. The evidence having closed and the jury having been ad- dressed by Counsel on both sides, the Court delivered a very strong and able charge in favor of conviction. Tweed knew his jury. All he wanted of them was to vote for his acquittal. The result was that, after the case was given to the jury and they retired, upon a ballot being taken, nine voted for acquittal and three for conviction. Of the three, two said they would vote for acquittal if the third juror would do the same. That third juror held out for conviction to the last, and thus prevented a shameful verdict of acquittal. It was not 
WILLIAM M. TWEED
Alderman, Member of Congress, New York State Senator, Superviser of County of New York, Commissiioner of Public Works of City of New York, and for years the imperial "Boss" of the Democratic party of the City and State of New York. strange that the prosecution were discouraged. Their efforts for a year to bring the Ring criminal trials to a successful termination had resulted in disastrous failure. Usually, in case of disagreement of a jury, if the major- ity of the jurors were for acquittal, the further prosecu- tion of the case is abandoned. Such a course in this case would not have promoted the ends of public justice. Tweed was in high feather. To all intents and purposes he had scored a great victory. All, or nearly all, the offences of which he had been guilty in his connection with the Board of Audit were embraced in the indict- ment in this case. One vote more in the jury-room would have given him an acquittal upon the whole of them. So far as the criminal law was concerned, he had a very narrow escape from obtaining " a clean bill of health." One more trial with such a result would probably have put a stop to all further prosecution of the Ring trials. During the summer Tweed went to California on a pleasure trip. Whether he should be tried again was a matter of indifference to him. He had no objection to taking his chances before any jury which Mr. Tremain and Mr. Peckham might impanel. Charles O'Conor, by an act of the Legislature, was placed in control of these cases, in conjunction with the Attorney-General. They both insisted that on the next trial Mr. Clinton should act as one of the Counsel for the prosecution. They desired especially that he should impanel the jury. It was represented that Mr. O'Conor had said that Mr. Clinton was the only lawyer in the City of New York who could in that case impanel a fair and impartial jury, which could not be tampered with by Tweed or any of his tools. Mr. Clinton was averse to having any further connection with the Ring crim- inal cases. But after careful consideration, thinking that he might prevent a lamentable failure of justice, and thus render the public a great service, he con- cluded to waive all personal feeling, and consented to accept a retainer from the Attorney-General. It was conceded that about all which was necessary to be done for the prosecution was to obtain a fair and impartial jury. If this were accomplished conviction was sure; otherwise defeat was certain. Everything but empanel ling the jury was an easy matter. The examination and cross-examination of witnesses, and the arguments to be made, were matters easily attended to in fact, they were almost matters of form. The ground had all been gone over on the former trial; and it was well known that Tweed had no defence. Therefore, if an honest and impartial jury were obtained, the prosecution's case was won. To all intents and purposes the verdict would be known as soon as the jury was impanelled. Mr. Clinton proceeded at once to investigate the lists of jurors, and to superintend investigations as to their character, business, and associations. Instead of detec- tives to hunt up their antecedents, a small army of young lawyers was employed. These lawyers were systemati- cally divided and subdivided, so that each one made a thorough and skilful investigation with respect to the names given him. They made reports as to each juror on a slip of paper, stating his business, his character for integrity, or the reverse, what his neighbors and business friends said about him, together with any other points that were thought to be of importance; also, an opinion as to whether he would make a good or a bad juror. These reports, as fast as they were made, were given to Mr. Clinton, and he caused them to be pasted in alpha- betical order in a large black book. Probably no more thorough investigations as to the qualifications of jurors were ever made. These young lawyers were keen, alert, discreet, and persevering. It was not known until just before the trial began that Mr. Clinton was in the case. Tweed, supposing that, as a matter of course, Messrs. Tremain and Peckham would impanel the jury, hurried back from California, so as to be on hand promptly at the time appointed for the trial. On the 5th of November, 1873, the second trial of Tweed was brought on in the New York Oyer and Terminer. Hon. Noah Davis, Supreme Court Judge, pre- sided. Lyman Tremain, Wheeler H. Peckham, Henry C. Allen, Assistant District Attorney, and Mr. Clinton appeared as Counsel for the prosecution. The Counsel for the defence, before the trial actually commenced, handed Judge Davis the following paper: "The People, etc., against William M. Tweed. present to the Court the following reasons why the trial of this defendant should not be had before the Justice now holding this Court "First. The said Justice has formed, and upon a previous trial expressed, a most unqualified and decided opinion un- favorable to the defendant upon the facts of the case, and he declined to charge the jury that they were not to be in- fluenced by such expression of his opinion. The trial by jury, influenced as it necessarily would be by the opinions of the Justice formed before such trial, would be had under bias and prejudice, and not by an impartial jury, such as the Constitution secured to the defendant. "Secondly. Before the recent act of the Legislature of this State, providing that challenges to the favor shall be tried by the Court, any person who has assumed a position in ref- erence to this case and this defendant such as said Justice has assumed would have been disqualified to act as trior. The defendant is no less entitled to a fair trial of his chal- lenges now than he was formerly. What would have dis- qualified a trior then must disqualify a Judge now. "Thirdly. Most of the important questions of law which will be involved in the trial have already been decided by the said Justice adversely to the defendant, and upon some important points his rulings were, as we respectfully insist, in opposition to previous decisions of other Judges. Although there may be no positive prohibition of a trial under these circumstance, it would be clearly a violation of the spirit of our present Constitution, which prohibits any Judge from sitting in review of his own decisions. "The objection to a Judge who has already formed and expressed an opinion upon the law sitting in this case is more apparent from the fact that in many States where jurors are judges of law as well as fact he would be absolutely disquali- fied as a juror.
proceedings occurred, according to the report in the New York Sun of the 6th of November, 1873: "On the formal opening of the trial Mr. Fullerton, after consultation with his associates, presented to Judge Davis a paper understood to be a protest against Judge Davis sit- ting to try the case. Judge Davis read the paper, and in- quired of Counsel what action they proposed should be taken on it. "Mr. Fullerton. `I suppose it remains for the Court to say what action will be proper. It is suggestive on our part. Of course we can make no motion in regard to it. All that we could do was simply to present it for the Court to take such course as seems right and proper in your judg- ment.' "Mr. Tremain requested that Counsel for the prosecution be made aware of the contents of the paper. "Judge Davis ordered it to be handed to him, saying: 'The gentlemen have handed me a paper of which, of course, I am not qualified to form or express an opinion, although some of the statements are entirely inconsistent with truth, and must have been known to be so when presented. One statement is entirely untrue.' "Mr. Tremain, having read the document, returned it to the Court, adding that it was an extraordinary time to present sent such a paper, after the case had been set down and called for trial. "Judge Davis. `I think it my duty, under all the circum- stances, before proceeding, to consult with my brother Judges, to see what course, with proper respect to myself, the Court should take.' "Mr. W. O. Bartlett. `I wish to say one thing--if I have understood the remarks of the Court correctly--and that is, that we take no course with reference to the Judge pre- siding in this case that we would not take if a saint from heaven were on the Bench under the same circumstances. We make no statement in that paper, and are incapable of making any, which we do not believe to be absolutely true.' "Judge Davis. `It would be hard to convince me that the Counsel or anybody else present at the former trial believes one statement in that paper to be otherwise than inconsistent with the truth.' "Mr . Fullerton. ` Will the Court he kind enough to say what that statement is ?' "Judge Davis. ` It is unnecessary. I will take a recess, with a view of consultation with my brethren of the district as to the proper action to be taken to sustain the dignity of the Court.' "Judge Davis's face was flushed when he ascended the Bench after recess. He was evidently laboring under strong emotion, and could with difficulty control his feelings. He said : `In respect to this extraordinary paper that has been handed to me, I and my brethren concur very fully as to the view I ought to take of it. I shall proceed with this case--indeed, this extraordinary paper leaves me no alterna.- tive, if I have any self-respect whatever, but to go on; but I shall reserve for a future occasion such proceedings as in my judgment are required to vindicate the dignity of the Court, and of the profession itself, from what I deem a most ex- traordinary and unjustifiable procedure.' "Mr. W. O. Bartlett. `I did not hear the last words, if your Honor please.' "Judge Davis (pale and knocking with the gavel). `Sit down, sir! I have examined the charge given by myself, and it nowhere sustains any part of the statement, which I find to be as unfounded as it is untrue. No further notice will be taken of this paper at present, but such action as may be deemed proper will be taken hereafter. Proceed with the case.' "Mr. Graham. `I wish your Honor would permit an ex- planation now.' "Judge Davis (interrupting). `I cannot allow any remarks on the subject.' "Mr. Graham. `All I ask is an opportunity to show that the facts alleged in that paper are true.' "Judge Davis. `No, sir.' "Mr. Graham. `You say, in the presence of the jury, that we have departed from the truth; and I say, in the presence of my Maker, that I have not departed from it.' "Judge Davis (rapping with his gavel). `Counsel need not have any fear but that an opportunity will be afforded them.' "Mr. Graham (after a brief and whispered consultation with Messrs. Bartlett and ex-Judge Fullerton). `Will your Honor allow us an opportunity to consider whether, after that disparagement, we ought not to retire from the case?' "Judge Davis (quickly). `This case must go on. It must go on.' "After another brief consultation with Mr. W. O. Bart- lett, Mr. Graham said : `Not knowing what the Court's ac- tion will be, whether it would adjudge us in contempt or not, we ask an opportunity to send for Counsel and put ourselves under his direction.' "Judge Davis. `Have you any question to make in re- spect to these proceedings?' "Mr. Graham. `I have this to suggest in advance whether we ought not to have time to consult with Counsel as to the course we should choose to take with respect to Mr. Tweed. If we determine to desert him now, it will be impossible for him to supply himself at once with Counsel competent to carry on his case.' "Judge Davis. `This case must proceed, sir. I shall give no time for Counsel to mutiny against their client.' "Mr. Graham. `If we are entitled to an exception, I respectfully take an exception. I except to the remarks of your Honor, and especially to the word "mutiny." My oath knows no such word as "mutiny."' "Judge Davis. `No exception can be allowed. I told Counsel in advance that no action can be taken on this paper until the trial is closed.' "Mr. Graham. ` We except, if an exception is worth any thing.' "Mr. W. O. Bartlett. `The only point, your Honor, is that you leave us to go through the trial resting under an imputation that we feel to be unjust. Will you not, from a sense of fairness, give us an opportunity to vindicate ourselves to your Honor?--not to any one else but your Honor.' "Judge Davis. 'No action can be taken on that paper at present. The trial must go on. If Counsel remain under an imputation through the trial, Counsel may as well respect the fact that the Court remains under an imputation also.' "Mr. Graham. ' The Court can serve us both by granting us a hearing now.' "Mr. W. O. Bartlett. ' Is that decision so fixed that you will not hear reasons which, in fairness to us and justice to yourself, you ought to hear ?' "Judge Davis. `I wish to hear nothing more on that sub- ject. Counsel will have both time and opportunity hereafter. You must go on with the trial.' "Mr. W. O.. Bartlett. `We fear it will injure our client."' The trial at once proceeded. When the jurors were called and challenged, Mr. Clinton had occasion very often to refer to the book in which were pasted the slips containing information in respect to them. A great deal was said in the newspapers in regard to " that mys- terious black book." Many of the jurors reported to Mr. Clinton as "good" he rejected as bad, as he had much information respecting them which was not ac- cessible to those who investigated them. The difficulties in the way of impanelling a fair jury in the case of Tweed were much greater than in Mayor Hall's case. Tweed had been virtually monarch of the city. To a large extent the officials of the City and County of New York were his friends, and had secured their positions through his instrumentality. The ma- chinery for turning out jurors was supposed to be in his interest. His power, though weakened by recent events, was still great. There were many--very many--who would not only still swear by him, but would swear for him, if they could thereby get upon the jury and serve him. The difficulties were increased by the recent change in the law respecting the trial of challenges to jurors. Messrs. Tremain and Peckham, having been so singularly unfortunate in selecting a jury on Tweed's first trial, secured from the Legislature a change of the law, so that challenges to the favor, as well as those for principal cause, had to be tried by the Court. Formerly, when challenges to the favor were tried by triors they could reject a juror for almost any reason, although all his answers to questions might on their face imply that he was unbiased, and was in all respects a fit juror. His manner, his anxiety to go upon the jury--the very ex- pression of his countenance--might convince them that he was biased; whereas the Court on the trial of a chal- lenge to the favor would be loath to hold that the juror was biased, unless there was something in his testimony which on its face implied an unfitness to serve as a juror. It would be but natural that the Court should desire to have some evidence on record to justify its findings. Many jurors who were called and challenged to the fa- vor, who were, in fact, biased, and who were the friends of the defendant, testified to the absence of bias and to their extreme impartiality, and their determination, if they went upon the jury, to be governed entirely by the evidence. On the face of their evidence they would have made model jurors. With such it was no easy task to develop on their cross-examination enough to justify the Court in rejecting them. Yet the informa- tion of Mr. Clinton in respect to these jurors was such that he was able to accomplish this result in every in- stance, with a single exception. Never, in any trial that ever occurred in the City of New York, was it so diffi- cult to obtain an impartial jury. The task seemed al- most impossible. The selection of the jury proceeded slowly. As they were decided to be competent and fit jurors, and accepted as such, they were not sworn at once, but set aside. This continued until the entire twelve were selected. When the Court adjourned, those selected were permitted to go to their homes as usual; but each was "shadowed "--that is, watched by an of- ficer of the Court. One day, among those selected was one who appeared to be an Italian. Upon a challenge to the favor, when asked if he knew Tweed, he said "Who is Tweed?"--he had never heard of such a man. Upon being questioned with regard to other members of the Ring, he answered that he never heard of any of them, and he did not know if there ever were any such persons. Mr. Clinton took an especial dislike to this juror and did his utmost to extract from him some an- swers that would justify the Court in rejecting him ; but all in vain. When the Court adjourned that day, the officer in command told Mr. Clinton that be was short of officers and that there were not enough to watch all the jurors. He asked Mr. Clinton if there were any one juror he desired especially to be watched. Mr. Clinton told him by all means to have this particu- lar juror watched closely. This was done; and before twelve o'clock that night he was traced in communica- tion with Tweed. The next morning when the Court convened this juror was dismissed with a scathing re- buke from the Court. Finally, a full jury was selected and sworn; and from that time until the end of the trial they were kept together. When they went to their meals, and when the Court adjourned for the day, they were put in custody of twelve officers--one officer for each juror. These officers were required to make constant reports, and to permit no one to have any communication with any of the jurors except by special permission of the Court. Lest some of these officers should prove derelict in their duties, twelve watchers were appointed to watch them, and they were required to make a daily report. Then, in order to make assurance doubly sure, twelve more were appointed to watch the watchers, and they also were required to make a daily report. With so many persons to make a daily report, there was not much danger that any of the jurors would be tampered with. During the progress of the trial the jurors were furnish- ed with an illustration of the consequences of jurors vio- lating their duties. In the case of Stokes, tried a short time before for the murder of James Fisk, several of the jurors bad been charged with, and convicted of, corrupt practices. One day during the progress of the Tweed trial the District Attorney's representative asked the Court to suspend proceedings, for a short time in order to enable him to make a motion in another case. The Court granted his request, upon which he moved that the Court pronounce sentence upon the convicted jurors in the Stokes case. The Court at once sentenced them to several months' imprisonment in the penitentiary. Then the trial of Tweed was resumed and went on as usual. The evidence given on the second trial was about the same as on the first trial, with a single exception. Andrew J. Garvey testified at great length on the former trial. The defence before the jury in large part consisted of denunciation and invective heaped upon him. On the second trial, upon consultation of the Counsel for the prosecution, it was determined not to call him as a witness, inasmuch as the main facts to which he would testify positively could be established by circumstances; and the inferences from such cir- cumstances,would be quite as effective as the positive testimony of one who had turned State's evidence. This was a sore disappointment to Counsel for the de- fence. John Graham, the leading Counsel, and the most able, brilliant, and distinguished criminal lawyer at the New York Bar, made great preparation for the cross-examination of Andrew J. Garvey. It was said that the night before it was expected that he would be called Mr. Graham sat up all night preparing an elabo- rate brief from which he expected to cross-examine this witness. When the prosecution rested without calling Garvey, Mr. Graham was dumfounded. No lawyer was ever bereaved of his " thunder" under more painful cir- cumstances. The best part of his address to the jury would have been the excoriation of Garvey. To address the jury with no Andrew J. Garvey in the case was like the play of "Hamlet" with Hamlet left out. On the 18th day of November the Counsel on both sides, after the evidence was closed, having addressed the jury, Judge Davis delivered the following charge "If it were consistent with my sense of the duty which I owe to the high office which has been conferred upon.me, and to justice, I would most gladly refrain from saying a word to you in connection with this case. I would willingly hand over the case to you, telling you to judge of the argu- ments of Counsel on both sides and the evidence laid before you, simply saying, `Take it, and do what you think is fair and right' ; but I cannot think that that would be a proper discharge of my duty. I do not believe with those who think that a Judge performs his duty when he submits naked propositions of law and refrains from laying before the jury what he deems to be the points of fact in the case, and the application of the established rules of evidence to those facts. In all cases the jurors are the judges of the facts, and I do not wish to trench upon the duty which the law has imposed upon you in that respect. There is in this country no law for the rich that differs from the law for the poor. All men are entitled to a just and even-handed ad- ministration of the law regardless of their position in life or society, their wealth or their poverty, their standing, whether high or low ; and if, unfortunately, in the adminis- tration of justice it turns out in practice that the law is per- mitted to operate differently upon the humble and the poor and upon the rich and powerful, it is not because the law is not in itself right and equal, but because Courts and juries are weak, and sometimes worse than weak. It arises from the nature of our institutions that all civil officers are the servants of the people ; that the people select from them- selves persons to fill offices who are clothed with powers and duties to be administered for the well-being of the whole community. It is, of course, impossible for the people to gather together in a body, acting for themselves in the ad- ministration of the laws ; that duty must be intrusted to the selected agents and servants of the people. If at any time in the future it should become the permanent idea of officials that their offices are the means of enriching themselves re- gardless of the interests of the people, and if upon that there should grow up another still worse--namely, that officers who have violated the law and plundered instead of protect- ing the public interests have with the money thus obtained 
HON. NOAH DAVIS
Presiding Judge of New York Supreme Court, First Department. the means of purchasing their own immunity--then, indeed, our government would be an absolute and an awful failure. "The real question involved in this issue is a very simple one, and lies in a nutshell. Strip the charge of its surround- ings, its adventitious, and in some respects false, circum- stances, and place on trial on the same charge some indiffer- ent person who has not exercised power, not possessed wealth, not acquired large influence, and the case will be very simple and easy of determination. I desire in what I have to state to you to submit as clearly as possible the exact proposi- tions on which your judgments will have to be pronounced. In 1870 the Legislature of this State saw fit to provide a mode of auditing several existing county liabilities, and for that purpose they selected a board, or commission, which, to adopt the name given it by Counsel, was known as the Board of Audit. The Legislature gave to this body a very large power. It provided that the officers named, of whom the defendant was one, should audit all existing liabilities prior to April 26, 1870. Three officers were named who were clothed with powers the effect of which was to protect the citizens from unjust claims and liabilities. The three were to consider such claims as were laid before them in their collective capacity. "In the indictment in this case it is charged in the three first sets of counts that the defendants neglected to perform the duties imposed upon them as auditors, and upon that sub- ject a good deal of evidence has been produced before you. It is said that these three gentlemen had no meeting but one, and that instead of acting as the statute provided, they all left the whole subject to certain clerks, and, without meeting themselves, simply gave certificates which were sent from one office to another. If that were so, and if you are satisfied from the evidence that, instead of convening for the purpose of passing upon these accounts a proper judg- ment, they intrusted the matter to other officials and signed certificates on the basis of the action of others, and that the defendant did that, then it is your duty to pronounce him guilty under the three first sets of counts, in which a verdict is asked by the prosecution, because in that case he would have failed to have performed the duty enjoined upon him by law. If an officer clothed with power to do a particular thing neglects to do it, and does something else not in conformity with law, he is guilty of wilful neglect. "During the period between the 5th of May and 1st of December, there were the accounts of twenty-six days which were audited, or professedly audited, so far as the papers before us disclose. In connection with these twenty-six oc- casions of audit is there any evidence tending to show that A. Oakey Hall, William M. Tweed, and Richard B. Con- nolly ever met in active council? I am at a loss to call your attention to any evidence showing that they convened to pronounce judgment upon the accounts in their collective capacity, as required by law, but if there is any evidence of that character, of course it is your duty to recollect and ap- ply it for the benefit of the defendant. I ask you whether, in looking over the evidence in the case, you can say wheth er or not these three gentlemen, instead of meeting after the first occasion, intrusted the whole matter to somebody else, and allowed that somebody else to judge as to whether the accounts were right or wrong ? If so, there must be a con- viction under this indictment. "Your attention has been called to the several claims presented, and I will refer to them without any particular regard to the order in which they were mentioned. In the first place, the claim of McBride Davidson was brought to your notice as tending to show that the Board of Audit in- tentionally omitted to perform the duties required of then by law. McBride Davidson had an account against the State of New York to the amount of sixteen thousand two hun- dred and forty dollars ($16,240). That claim, he said, was a just one, but somebody, it is asserted, converted it into a false claim of forty-nine thousand dollars ($49,000), and the Board of Audit granted a certificate for it at that sum, a large portion of the money being on the very same day transferred to the account of Mr. Tweed at the Broadway Bank. What the reasonable conclusion to be drawn from that is, it is for you, and not for me, to say. Without a sol- itary explanation touching the accounts, what is the con- clusion which a fair-minded, honest man, sitting in the jury-box, would draw from the evidence ? That question is one of fact for you, and not for me, and I submit it to you for your consideration in the absence of all explanation touching the subject-matter. Now if it be true, as shown here, that a portion of Davidson's bill, amounting to forty nine thousand dollars ($49,000), passed into the hands of Woodward , and was thence transferred to Tweed, forming a part of his credit in the Broadway Bank--if that be true, and you are satisfied of it from the evidence, you will have to ask yourself what would be a reasonable conclusion as to whether that, degree of diligence required by law was omit- ted or not in ascertaining the true character of the amount. It may be claimed that after all there was some indebted- ness which Woodward was paying in making the transfer, or that there was some mistake, and that it was retransferred to Woodward instead of being drawn out by Tweed, or that there was some transaction which explained the final trans- action of paying the money in that form ; but in the absence of all explanation, all that is left to an intelligent juror is to say what is the truth as to whether or not these gentlemen exercised their duty as a body in examining that account. If you say they did not, and that the city has been defrauded of the amount of the difference between $16,000 and $49,000, then what is your duty on the question of the guilt or inno- cence of the parties connected with it? But if that case stood alone in respect to the action of the board, you might more reasonably, perhaps, feel it your duty to conclude that there was some mistake, that the Board of Supervisors had it under consideration, or that it was accidentally omitted ; but when you couple with it the fact that one hundred and ninety other vouchers, as shown by the books of the bank, were passed upon by that same board, and find that out of the one hundred and ninety vouchers, amounting to over six millions of dollars, there went into Woodward's account the sum of $3,581,254.26, and into Ingersoll's account $3,549,- 320.18, and when you find that of these sums that went into Woodward's account, concurrently and on the same day the credit was given to Woodward, there passed from Wood ward by transfer into the account of Mr. Tweed $932,858.50, what, then, I ask, will be your judgment as to the charac- ter of the transaction ? Now as to the question whether or not they did their duty in examining and auditing the ac- counts. I call your attention to these claims of Ingersoll & Co. Keyser & Co. have sixteen accounts, and we have ten of their vouchers. Now the point is this, whether or not these gentlemen, when they came to act as auditors, did take up these accounts, pass upon them as the law required; or wheth- er they took somebody else's ideas, and failed to pass upon them as a Board of Audit. "In the first place, Keyser's accounts are produced, and, according to his testimony, they are of this character. He said he had claims running back four or five years presented to the Board of Supervisors, and there they remained. He was directed by Watson to take these accounts and make out new bills to be presented to the Board of Audit. In stead of stating them as accounts which had occurred years before, he put to them false dates in the years 1868 and 1869. There is nothing on the face of these accounts to show that any of them occurred in the year 1868; on the contrary, the reverse is evident, but they were presented as having occurred between these dates. The accounts, accord- ing to these statements, were false in respect to their dates. Then their character, as appears upon their face, is an im- portant subject in determining whether or not they were audited. You saw some of them. I have one now before me ; it commences, `Board of Supervisors, to work done for new Court-house, including plumbing, etc., and furniture omitted in general bill.' It commences with the date July 20, 1869, and specifies a series of items, and then it contains various other items of a similar character, making the ag- gregate $16,015.50. If that account were brought to you without giving any man's name, and stating it to be items omitted in general bill, the first inquiry would be, Whose bill is this? Where does it come from? and similar in- quiries. But this bill is passed upon and certified on its face by Mr. Tweed as correct. ` We certify that this bill is correct.--William M. Tweed, Chairman.' That bill is passed for the whole amount, without the slightest appearance on the bill itself in whose favor it was drawn out. The bill being for items in the general bill, a proper inquiry would be, Where is the general bill from which these items were omitted ? Does the passage of such a bill under such cir- cumstances indicate that they examined it at all? That is a question for you solely. Here is a bill for work done to the county offices of the new Court-house, which is dated May 4, 1869. The principal item is for plumbing work and gas work for $17,944--without a solitary item. Where are the bills rendered for that? We have no evidence that any such bills were rendered, except, as this gentleman states, that bills were rendered long before which were brought into these bills, and we have no evidence that they were be- fore the gentlemen of this commission at all ; and yet there is an allowance here of seventeen thousand dollars in that item upon a simple claim of bills rendered. I call your at- tention to these circumstances as bearing on the question whether or not the Board of Audit performed its duty in ex- amining these accounts and passing upon them as required by law. If they did not, and you are satisfied of it, then it will be your duty to render a verdict of guilty under the law of au omission or neglect of audit, because they cannot be excused upon the ground of ignorance of the law. If Mr. Tweed participated in that neglect, the offence is made out against him. The character of these accounts is stated by Keyser ; and what became of them ? Every dollar of the whole amount, the entire sum of $400,000, or a little more, went into Keyser's account. Keyser says he never got any of it, and on the same day that these several bills are appar- ently certified by the Board of Audit, on that same day they go into Woodward's account in forms of warrants, and simul- taneously a sum equal to twenty-four per cent. of the whole amount is transferred from Woodward's account by checks to Tweed. What is the character of the transaction ? And this is a point to which you will direct attention, and which is for you exclusively to determine. "Let us look for a moment at the character of Garvey's accounts. These are among the lost vouchers, and the Court held that the circumstances justified the admission of secondary evidence as to the contents of those vouchers. Unfortunately, we have not the vouchers, but the warrants that were drawn. The witness says he took from several accounts the items, so as to state on these warrants for what they were drawn. Here is the first warrant--May 6, 1870. It shows that these gentlemen, who met May 5, certified this account so that the money was paid on it. It states on its face for plastering [and the Court here read off from the list a large number of bills presented by Garvey, dated from May to December, and all amounting to something like $45,000 each]. Now, gentlemen, I call your attention to the character of these accounts, to show whether or not there were on the face of these accounts something that would give notice to the Board of Audit, so that they would pass upon these bills without inquiry as to their correctness. All these bills were for repairs to the new County Court-house, and certainly it had an unhappy habit of falling out of repair, if these accounts are correct. Another question for you is this: Did Mr. Tweed per- form the duties the law required in looking into these ac- counts; or did he simply sign whatever was brought there by somebody else? You are to look at these various ac- counts of Garvey, in the aggregate $1,177,413.72, in order to see what disposition was made of them; and here--as appears by the books of the bank, which were not controverted, for nobody has attempted to say that they are not true--you find that out of that amount $779,615.69 were transferred to Mr. Woodward; and then on the same day and at the same time, as also appears by the books of the bank, a sum equal to twenty-four per cent. is transferred to Mr. Tweed's ac- count. Now I am simply stating what appears in the papers, and the question whether these papers were fabri- cated is to be decided solely by you. I have gone through the whole account in this cursory way for the purpose of calling your attention to the responsibility of the defendant for the transactions of the several members of the board, and himself as one member. For, as a matter of course, you are to find that he himself participated, or he cannot be convicted ; he is not liable for the misconduct of either of the others. He is liable for his individual neglect of duty, and he is liable with the others for joint neglect of duty. It is a mistake to suppose that in such a case as this a party must have been proved to be guilty of neglect jointly with somebody else. If there is in this case evidence against Mr. Tweed, it is no matter whether or not there was evidence against the others. "I have said all I wish to say in respect to the first three counts in regard to the claims of Garvey, McBride, David son, and Keyser. If you come to the conclusion on the evi- dence that Tweed neglected his duty in not meeting for the purpose required by law, and signed certificates which were not audited, then it is your duty to convict him under the first of these several counts ; and if you come to the conclu- sion, also, that Mr. Tweed neglected to ascertain the cor- rectness of these accounts, by which neglect the people were injured, then he is liable to conviction under the second of these three first counts. As to the question of official mis- conduct, the evidence in that is the evidence I have gone over on the question of evidence, coupled with the evidence of the amount of money he possibly received from these various amounts. The amount he received, as shown by the books of the bank, is over one million dollars, and, with the sum of two hundred thousand dollars that went into his ac- count from other sources, the aggregate amount received by Tweed is over one million two hundred thousand dollars. It is for you to say what is the fact in such a state of facts, especially where the circumstance is unexplained. The law does not presume guilt, but the law presumes that there is something which needs explanation and requires satisfactory evidence that this transaction was not a corrupt transaction. That is for you to say. I submit it to you, that of these millions which were passed, more than three millions went to Woodward's account, and that of that amount more than a million went directly to Tweed's account ; and then when we have these facts presented to us upon the proofs of the books of the bank, the vouchers, etc.--when we have all these facts--then it becomes the question for the jury to determine, in the absence of all explanation, what that means. It is true that Mr. Tweed is a competent witness here, if he desires to be sworn ; but nothing is to be pre- sumed from the fact that he does not put himself upon the stand. So far as the explanation might have come from his own lips, you are not to infer anything by reason of his own personal silence. But the explanation could have been made by Mr. Tweed what these enormous amounts were for, and what he did to obtain them. If you ask yourselves these questions, you have the right to ask what are the just and fair consequences ; and if you come to the conclusion that this was a transaction by which Mr. Tweed, in connection with other officers of this city, instead of protecting its funds, entered into a conspiracy which resulted in bringing a mill- ion dollars into his pocket, and you come to the conclusion that this is the truth, then the law requires at your hands that you should convict him, and you should not hesitate to convict, as otherwise there is no protection for the com- munity against the rapacity and avarice and wickedness of public officers. I am asked to charge you, also, that the pre- sumption of law is that a man is innocent of crime. That is true, and Mr. Tweed has undoubtedly the benefit of that presumption so far as it goes. He is entitled to that pre- sumption until it is overthrown by the evidence, and you fail to convict until the evidence renders conviction a neces- sity beyond reasonable doubt. That is the law. Reasonable doubt is that doubt which springs from the character of the evidence. If it is of an unsatisfactory nature, you are bound to acquit ; but if the evidence produces moral conviction that the party is guilty, then it is your duty to convict him. If it fails to do that, and leaves that question in what the law denominates a state of reasonable doubt, then it is your duty to act accordingly. I am asked to say that there are two presumptions in favor of Mr. Tweed--one a reasonable pre- sumption of innocence and the other the presumption that in performing an official duty he acted right. All I have to say is that the latter proposition, like the presumption of his innocence, stands up to the time when the jury is satisfied by evidence of its falsity. In taking this case to the jury room, all I desire to say, in addition, is that I hope you will prepare to pass upon it with a view to your own personal responsibility; first, as to your oaths and your own con- sciences ; secondly, to your obligations to protect society against the rapacity of public officials who have been guilty of offences against the law; and, lastly, with the view, if the evidence fail to establish guilt in the case within the rules I have given you, you will give the defendant not only a reasonable doubt, but the failure of proof and acquittal. "I observe in this Keyser indictment there are sixty-four counts in all. Three of them in each set are for direct negli- gence, and the fourth one for misconduct in office. If you find him guilty in respect of these, you will state your ver- dict to be that you find him guilty upon the sixty-four counts in relation to the Keyser account. If you find him guilty of part--not of the whole--you will state for how many of these counts you find him guilty. If you find him guilty of the Davidson account, you will state whether you find him guilty of the whole or part. You will so state, in respect to the Garvey accounts, of which there are a large number, and it will be sufficient if you find a verdict of guilty on these counts in the indictment, as being counts in the Garvey claims. Of the remainder of the counts in the indictment, I do not think there is sufficient evidence given. There is some evidence in the various counts, but it is not followed up by proofs--by the production of such evidence as seems to me should find the defendant guilty. If you find a verdict of guilty on the others, the Court will find a verdict of 'not guilty' upon these, so you will not have to discriminate. If you fail to convict him on any of the counts in the indictment, it is your duty to render your verdict of not guilty." The jury retired to consider their verdict. Tweed, to all appearance, bore up bravely. He had been accus- tomed so long to defy public opinion and to achieve re- sults by corrupt practices that he could not realize that with him the tide had turned, that disaster was so near, and (with the exception of a short period as a fugitive from justice) the next twenty-four hours would be the last day of personal liberty he would ever enjoy. The offences charged against him in the indictment were simply misdemeanors. He was on bail; and, after the jury retired, he could have crossed over to Jersey City or to Hoboken, where he would have been safe in case of an adverse verdict. He could not have been brought to New York upon a requisition on the Governor of the State of New Jersey. Mr. Clinton was informed that during the evening, when the jury were out, one of Tweed's friends told him he did not like the " appear- ances of things," and advised him to slip over to New Jersey ; and that Tweed's reply was, " Don't you bother yourself--I know it is all right." It is probable that Tweed paid a very large sum of money to some one to "fix" one of the jurors. If so, Tweed himself was badly cheated. When the jury agreed, after having been out about twenty-four hours, and came into Court, Tweed was present and heard the verdict " Guilty " pronounced against him. He was immediately ordered into custody. For the first time since the Reform movement began, Tweed realized his position. He was a convict and a prisoner! How was the mighty fallen ! There was the man, with the legal brand of crime upon him, who, less than three years before, wielded a power more vast in extent, more fatal in its far-reaching consequences, than that of any crowned head in the Old World. How changed the scene from the days of his prosperity, when the vulgarity of his grandeur was only relieved by the sublimity of his crimes; when there were few, indeed, in the city of New York, or throughout the State, in public or official station, who with respect to him would not "Crook the pregnant tinges of the knee,There he was, shorn of power, deserted by friends that had basked in the sunshine of his prosperity, shunned by all, including the parasites and sycophants who swarmed about him in the day of his power! If, in his prosperi- ty, his example breeded crime and moral pestilence, the lesson of his fall surely would not be lost on the rising generation. "But yesterday, the word of Caesar mightDuring the progress of the trial, Henry C. Allen, As- sistant District Attorney, suggested that the Court had power to pronounce cumulative sentences; that is, that it had the power to sentence to fine or imprisonment for every offence embraced in the indictment under which the prisoner had been convicted. All the Counsel for the prosecution examined the question and reached the conclusion that probably the Court had that power. The question was new in this country. In the Tich- borne case, in England, the Courts had decided in favor of the existence of the power. Mr. Clinton thought that the question ought to be settled by the Courts of New York; and that the case of Tweed was a proper one to test it. This question was elaborately argued be- fore the Court by Counsel on both sides. Judge Davis held that the power to impose cumulative sentences ex- isted ; and he proceeded to exercise such power. The indictment upon which Tweed was tried contained two hundred and twenty separate and distinct counts, each charging a misdemeanor--namely, a neglect of duty, as a member of the Board of Audit, in respect to claims against the county of New York. Upon two hundred and four counts he was found guilty. Judge Davis sen- tenced him upon twelve of the counts to twelve succes- sive terms of imprisonment of one year each, and to fines of $250 each upon these twelve counts; and upon other counts to additional fines, amounting in all to twelve thousand five hundred dollars. At the close of the trial, Judge Davis, addressing Counsel for the defence, said: "During this case an occurrence took place that I gave notice would be taken into consideration after the close of the trial. If it will be convenient to deal with it on Mon- day, the Court will enter upon the inquiry. The matter is in relation to the action of Counsel at the beginning of this case. They will easily understand to what I refer." On Monday the matter was adjourned until the ensu- ing Friday. After hearing affidavits of Counsel for the defence, and what they had to say, Judge Davis in ren- dering his decision, among other things, said, according to a report in the New York Daily Times: " 'This paper, then, says that "he declined to charge the jury that they were not to be influenced by such expressions of his opinion." That I characterized, when this paper was brought to my notice, as an untrue statement. * * * If the original paper had been handed or sent to me privately, or out of Court, so that I could regard it as to me only as a Judge or as a private citizen, I should be willing to adopt the views and suggestions of the learned Counsel in respect of its objects and purposes. Indeed, if it had urged me under such circumstances it would have dropped silently into oblivion. * * * Looking at this whole paper, and it is an extraordinary paper, I am at a loss to see on what possi- ble grounds Counsel can justify its presentation to the Court under the circumstances. It struck me at the moment, as it strikes me now, as an effort to induce the Judge before whom that case had been moved to leave the bench and sur- render the position in which he was sitting ; in short, by the combined effect of the names of a large number of eminent Counsel, intimidate the Court from the performance of the duty the law and the Constitution devolved upon him, not withstanding the statements made. Receiving them, as I mean to do, with all respect, I cannot but remain in the be- lief that, in the extraordinary case depending before this tri- bunal, Counsel thought it possibly their duty, thought it a part of their professional tactics, which a great exigency justified, to drive, if possible, from the performance of his duty, a Judge who they feared might be sitting to hold the Court. I have no hesitation in saying that it is my firm conviction that if such a paper as that had been presented to one of the tribunals of England at this hour, clothed as those tribunals are with power which the laws of this coun- try withhold from its Judges, not one of the Counsel who signed that paper would be sitting before any tribunal to day, and not one of them would find his name upon the roll of lawyers, or barristers, or counsellors of that country a single hour after that paper had been presented. * * * And I feel it my duty now in this case--while I will do nothing harsh or unkind whatever--to make the mark so deep and broad that if it has been heretofore, as has been insinuated, the custom to drive Judges from the bench by the presenta- tion of such documents, or by the oral presentation of such suggestions, the boundary between the past and the present shall not be unobserved ; but, on the contrary, all members of the profession shall know that at least hereafter such ef- forts are obnoxious and open to censure and punishment. I have no disposition to do anything to degrade any of the gentlemen before me. I shall not do that. I shall not com- mit any of them to imprisonment, but I deem it my duty to impose a fine upon some of these gentlemen to the extent the law permits. I shall impose upon John Graham, William Fullerton, and William O. Bartlett, a fine of two hundred and fifty dollars each, and order that they stand committed until the fine be paid. " ` In respect to the younger gentlemen of the Bar whose names appear in this paper--Elihu Root, William Bartlett, and William Edelsten--I have this to say : I know how apt young Counsel, when associated with more experienced and distinguished gentlemen, are to follow their lead rather than to act upon their own judgment. I know it from my own experience ; and I am fain to believe in this case that neither of those gentlemen, of his own motion or suggestion, would have felt it his duty to have presented such a paper as this to the Court. Mr. Edelsten did not take any active part in the trial, therefore I do not speak of him. I have concluded this, in respect to these three gentlemen : that I will impose upon them no penalty except what they may deem such in these few words of advice. I ask you, young gentlemen, to remember that good faith to your client never can justly re- quire bad faith to your own consciences; and that however good a thing it may be to be known as successful and great lawyers, it is even a better thing to be known as honest law yers--[great applause] ; and there is no incompatibility whatever in the possession of both of these characters.' " |
