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O'Conor, and George F. Comstock, in Respect to the Decision of the Court of Appeals with Regard to Cumulative Sentences. AFTER Tweed had been confined in the penitentiary for over a year and had paid one fine of two hundred and fifty dollars, upon his application a writ of habeas corpus was granted to inquire into the legality of his continued imprisonment. The Supreme Court at Gen- eral Term in the First Judicial Department held that Tweed was not entitled to be discharged upon the habeas corpus. The case was taken to the Court of Appeals; and in June, 1875, that Court decided unanimously that all the sentences, except one year's imprisonment and one fine of two hundred and fifty dollars, were illegal. (People ex rel. Tweed v. Liscomb, 60 New York Reports, page 559.) Mr. Charles O'Conor was greatly chagrined at this result. In response to a communication to him from Judge Noah Davis, he wrote a letter (which appeared in most of the newspapers), assailing the Judges of the Court of Appeals with great virulence. He not only denied the correctness of the law laid down by them, but he attacked their motives with merciless severity. Had almost any other lawyer written and published such a letter, he would probably have been severely punished for contempt of Court, and might have been disbarred. Hon. George F. Comstock, an ex-Judge of the Court of Appeals (who argued the case in that Court on be- half of Tweed), replied to Mr. O'Conor in a letter in which he vindicated the Judges. The letters of Judge Davis, Mr. O'Conor, and ex-Judge Comstock, are as fol- lows: "NEW YORK,
June
24, 1875.
"SIR, --A critical
examination of the opinions delivered
in the Court of Appeals in Tweed's case shows that the Court failed to find any authority for its decision of the question of jurisdiction to pronounce cumulative sentences on convictions of several distinct misdemeanors, except in quotations made by Judge Allen from an argument used by you on the hearing some years ago of a case before that Court. These quotations are put forth virtually as an an- nouncement by the Court that at the time of Tweed's trial you believed that the sentences of the Oyer and Terminer were without authority. "Before pronouncing sentence in that case I gave to the subject a most elaborate and careful examination, and I failed, as the Court of Appeals have failed, to find in the books a single judicial or elementary authority adverse to the conclusion I reached, while numerous authorities of both kinds sustaining that conclusion, all of which the Court of Appeals have disregarded, were found and carefully exam- ined. "Considering your relations to the prosecution of Tweed for his frauds and crimes, I cannot help thinking that, al- though you were not directly or personally connected with that trial, it was your duty as a lawyer and a citizen, if you then entertained the opinion 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 by which the Court of Appeals endeavors to justify its decision. "You were not the employed advocate of any private or public interest. You were known to be acting of your own volition, without any motive or restraint beyond such as your unbiased sense of honor and. justice should have in- spired, and therefore you were not affected by considera- tions which may sometimes induce Counsel, when engaged in forensic conflicts, to withhold views which they deem ad- verse to their own success. "You could not have been unaware of the great respect which an argument of yours would have received from me, and, though I might not have concurred with its views, I feel that I was entitled to have had an opportunity to con- sider them. Without having been cited by any one, at any stage of the case, that argument is now brought forward by the Court of Appeals as their very spear and shield. Under the circumstances I think you will pardon me for asking why I was not permitted to have the light of that argument before me, and also whether you entertained at the time of Tweed's trial a belief that in pronouncing the cumulative sentences the Oyer and Terminer exceeded its jurisdiction. " With the highest respect, I am, etc., "NOAH DAVIS.
"CHARLESO'CONOR,
Esq."
"NEW YORK,
June
30, 1875
"HON. NOAH
DAVIS :
"SIR, The campaign against official malversation com- menced through the Press in 1871, and mainly carried on by proceedings before the Courts, has now reached a point which demands earnest attention from the taxpaying and burden-bearing class. Courage always wins for a Rinaldo not only the admiration of his banditti, but a somewhat affectionate and not altogether undeserved loyalty. It is a controlling element of success, as the foremost delinquent has proven. Either in his own person or through a repre- sentative he has thrice bearded public justice in that high tribunal whose voice is law, and on each occasion has re- ceived its award that, as against him or his, the weapons de- vised by the people's advocates were vain and hurtless. Bowing dutifully to the image of virtue which imagination may place in front of the justice-seat for the decent homage of its occupants, the learned Judges deprecate the possibil- ity that atrocious robberies such as are imputed should ulti- mately go unredressed ; but in every case against the pecu- lators a majority hold, with unvarying constancy, that the law forbids such a remedy as that then under review. 'Try again' is the implied advice ; and if the patience of the public prosecutor shall hold out, this generation may expect to witness throughout its allotted term, as a species of amusement, periodically recurring proofs how thick-witted the people's lawyers are, and how admirably astute, in the same uniform direction towards impunity, the Judges of the last resort are when dealing with peculators. "It is a highly probable result, unless there shall arise among the suffering class a determined resistance to the power by which they are enthralled, and an inflexible re- solve to reform existing abuses. For some years prior to 1871 the machinery of faction in this State was so organized that a certain not very respectable portion of each party co- operatively controlled the government. Increasing debt, in- creasing taxation, and numerous indirect devices for plun- dering individuals or masses constituted the quarry from which these co-workers drew their reward. Party differ- ences were but a name. Just enough of party spirit was exhibited to color the pretended conflict of those who, con- trolling the visible movements of a nominal opposition, were in perfect accord as to the attainment of ends. These ends included great frauds, through public works upon the canals or elsewhere in the State, and enormous plunder, through numerous instrumentalities, in the metropolitan city. The managers were not in all respects alike. Nominally they differed in political opinions. There were other differences. Some were bold defiers of moral sentiment, who regarded success as a consecrator, robbed the public almost without attempting concealment, and lived in open violation of com- mon decency; others were sneak-thieves, who enriched them- 
HON. CHARLES O'CONORselves secretly ;. still another class were contented with mod- erate pecuniary. gains and the enjoyment of respectable po- sitions, wherein, actually deceiving others, and possibly to some extent deceiving themselves, they exhibited a propriety of. deportment which saved the government from fatal un- popularity. It was when this system had reached a vicious maturity that Samuel J. Tilden, in 1871, undertook the task of reforming the Democratic party, whose organization was then controlled by Tweed and his associates in New York, in alliance with certain peculators hailing from both factions, and residing in the metropolis or along the lines of the ca- nals. The city men were, however, the real masters of the field. "Mr. Tilden's course and career form, in this connection, an interesting subject; still only a brief reference will be made to it. Notwithstanding his unqualified demand for purity in administration, be seems to have retained his party relations. How he accomplished this object sufficiently to secure a nomination for Governor it is difficult for one of the uninitiated to comprehend. He did so, however, and he was elected. How knavery failed to make an effectual re- volt during the canvass is another enigma. The spirit of satanic opposition which, tardily and late, reared its head against reform in the Assembly elected with him, and which then struggled so confusedly and ineffectually, is also a fit subject of study at this time. "A glance at the names that, during the preliminary can- vass, came into notice as his rivals for nomination to the Executive chair would be suggestive of pertinent inquiries. To the light derivable from these sources nothing need be added here. The Press has already made public all else that could be desired for some relevant and instructive cal- culations in the arithmetic of events. A general assault along the whole line occupied by peculators was not practi- cable in 1871, or at any time afterwards, until the advent of Governor Tilden to office in the present year. Legisla- tion in the interest of reform, with a vigorous and inflexible Chief Magistrate to enforce it, was necessary, and this was unattainable. What, if anything, has been effectively or- ganized in this way during the present year remains to be seen. "The frauds committed in New York having been dis- covered, thoroughly exposed, and remaining actually unde- nied, it was supposed, in 1871, that ordinary judicial reme- dies could be put in force against the perpetrators. The local Judges had, in most instances, received their offices through the favor of Tweed and his associates. Of course the lawyers who were charged with the duty of prosecuting for the public anticipated difficulties in the early stages of their suits; but they had no suspicion that like agencies had influenced the construction of the highest Court. They felt assured that in all cases against the robbers, whatever might happen elsewhere, the final judgment of that tribunal would be not merely in accordance with law, but that in pronounc- ing it the Judges would be animated by an earnest love of justice and an active zeal for its advancement. In this con- fidence measures were initiated. In the civil suits to recover the moneys fraudulently taken, it was quite impossible to secure that animus against the peculators which is always necessary to success, except by prosecuting in the name of the State ; and, accordingly, that course being necessary, it was adopted. The circumstances were seemingly so favor- able that the results must be regarded with surprise. "Six millions of dollars had been literally stolen by means of County bonds issued in the form prescribed by what was called the Special Audit Act of 1870. (See Laws, page 878, section 4.) This was made the subject of an action by the State against Tweed, Ingersoll, and others. Another like fraud, perpetrated by one Thomas C. Fields, Attorney for the City Corporation, and member of Assembly, through an issue of City bonds not authorized by any law, and amount- ing, with interest, to about $500,000, was prosecuted against that person. This was also in the name of the State. A brief account of these test suits and of their fate may be useful. "All now admit that the $6,000,000 theft under the Special Audit Act could not have been sued upon by the City Cor- poration. There was, however, within the city a local en- tity of very narrow and limited powers called the County, whose investiture with corporate functions was never need- ful and was the result of inadvertence or of some evil design. It had never brought a suit, and it never had been success- fully sued. That it should be the plaintiff was a point which, under the circumstances, would naturally have sug- gested itself to any desperate litigant who had no defence on the merits. It should be added that this very peculiar entity had never been legally entitled to a cent of money or to property of any sort, except by some express statutory grant made to it. If it could create a debt or incur a lia- bility or be sued, it had no property that could be levied on. It was, however, an official machine put in motion from time to time by special enactment to impose a local tax for some specified use or purpose ; and there was in the Special Audit Act, as subsequently modified, an authority to impose such a tax for the repayment of those who should advance money on these special audit bonds. That authority was, in fact, irrepealable, for the Supreme Court of the United States, when needful, would compel the County officers to levy the tax. When the tbeft was perpetrated and public justice demanded a legal remedy against the thieves,. this corporate entity called the County had, in law and in fact, no shadow of concern with the matter, except the liability of its officers as the State's taxing agents, to be put in motion for the benefit of the bond-holders. If the thieves had repented and redelivered the stolen money to the County officers, no lawful disposition could have been made of it except by the State Legislature. Never in any shape--in substance, in terms, or in intent--had any part of this money been granted to this entity called the County. Raised for no purpose but immediate payment to the fraudulent holders of the false audit certificates, it could not lawfully be applied to any other purpose. The bond-holders were reimbursable, not by the County, not by its people or inhabitants, nor by any one save and except only the future unknown and as yet unas- certainable taxpayers, under a levy to be made for this special purpose. It could not be proved that one of these future taxpayers was yet born when the theft took place or when the suit was brought. The only persons injured were this future unknown and unascertainable class. All the judicial opinion ever appealed to, including that of the Court of Appeals itself in this very case, expressly declares that this local entity called the County was not the representative of that class. It seemed to the people's Counsel that the State represented them, and was the proper plaintiff to sue in their vindication. But in the suit against Tweed and Ingersoll the Court of Appeals (Judge W. F. Allen delivering its judgment) held that the County alone could sue, and allowed Ingersoll's demurrer, thereby discharging him from the suit. A lucid, decisive, and fully reasoned opinion to the contrary was delivered by Judge Rapallo, in which Chief Justice Church concurred. Subsequently to the first argument one of the learned Judges departed this life, and, besides a tem- porary appointee in his place, Judges Folger, Andrews, and Grover concurred with Judge Allen. This constituted a majority, and judgment passed against the State. For the present this brief summary must suffice. A critical exami- nation of Judge Allen's opinion cannot be conveniently pre- sented to the jurists of our country until the judgment shall have appeared in the regular reports. "This was the peculators' first triumph. The second should also be stated. It was in a case which presented other features, but no complexity. The question on which the Court and the State's advocates differed was simple in the last degree. It will be perfectly intelligible to every tolerably instructed jurist in Britain or America. It is dif- ficult to find an excuse for the party that erred. The ma- terial facts can be stated in a few words. An act was passed in 1870 which, as construed by all the Courts, authorized Comptroller Connolly to issue bonds of the City Corpora- tion for a certain purpose to the extent of $50,000. Con- nolly issued bonds for ten times the amount, and paid the proceeds to Fields. A suit was brought against the latter by the State for this unlawful disposal of the public moneys. Lawyers will understand the grounds of a difference in the practice from that adopted in the first suit. The City Cor- poration was made a co-defendant with Fields, the complaint alleging that its officers fraudulently colluded with Fields, the receiver, and neglected to prosecute for the money. Judgment passed by default against the City Corporation, and a recovery by verdict was had against Fields. On his appeal to the Court of last resort this judgment was re- versed. Judge Folger delivered the opinion. It concurs in all the positions, of the State's Counsel, save one. Admit- ting the original wrong as alleged, admitting that the fraud and collusion of the city officials were fully established for all necessary purposes, and further admitting that the judg- ment in that case, if permitted to stand, would protect Fields from any claim by the City, he held, nevertheless, that the State could not sustain its recovery. The same Judges who concurred in the Tweed-Ingersoll case concurred in this opinion, and made it a judgment. There has been no inten- tion to criticise it. As a judicial and literary performance it is without a blemish deserving serious notice, unless there was error in the conclusion. The point was fully and fairly met and directly decided. Jurists skilled in the common law throughout the world need only to be told that in this State legal and equitable remedies are allowed in the same procedure. They will pronounce upon this decision. It was the second triumph of peculation. "Whatever may become of these two decisions, the third is likely to live in story. It forms the precise subject of your inquiry. William M. Tweed was accused of fifty-one misdemeanors in as many separate counts of one and the same indictment. He was tried for them all at once, and convicted of them all. The trial was had in a Court of Oyer and Terminer, held before you ; and several succes- sive or cumulative sentences were pronounced against him for these offences, amounting in the whole to twelve years' imprisonment in the New York Penitentiary, with fines amounting to $12,750. For a single offence of this sort the utmost punishment allowed by law is one year's imprison- ment and a fine of $250. Tweed spent a year in prison, paid to the proper receiver $250, and then sued out a writ of habeas corpus, claiming to be discharged. After decisions against him in the subordinate tribunals, his case came be- fore the Court of Appeals, and, as usual, peculation was tri- umphant. He was discharged. And here we enter upon a view of the circumstances which give this event a deep in- terest. As above remarked, Tweed's government had quite too much influence in the New York local tribunals to ad- mit of success in criminal prosecutions at the outset of the campaign against official swindling. But time and persist- ent effort wrought changes. Some of the local Judges were impeached, and by their compulsory resignation or disquali- fying conviction, together with the destruction of Tweed's control over the ballot-boxes, the local Judiciary was changed. Events are approaching which will guide intelli- gent opinion in the inquiry whether it was completely puri- fied or still needs expurgation through the impeaching power, four-fifths of which will soon be elected. Other Judges were chosen by the people in the belief that they would administer justice. Among these was yourself, and none will deny that in trying the indictment against Tweed you faithfully, diligently, and honestly endeavored to per- form your duty. "But it is said by the Court of Appeals that, however just and legal it might have been to inflict them on as many dif- ferent indictments, these successive punishments should not have been imposed in a single case and under one indict- ment. Your integrity and love of justice are not questioned, but you are said to have violated law. The highest Court has pronounced you just, but not learned or wise. Honest, but not able, is the sentence retorted upon you by the liber- ated malefactor's friends. They exclaim in triumph that you are subject to public humiliation, and that your judicial reputation has received a blow. It is confidently asserted that the judgment of the profession at large anticipated that of the upper Court, and pronounced your action errone- ous. That high Court has tendered one evidence of this. It has condescended to accept, adopt, and promulgate, as aptly expressing its own, my opinion against the practice pursued by you at the trial. That citation has forced upon me the duty which I am now performing. "The judgment of the Court of Appeals was not pro- nounced on a writ of error brought to review a decision by which Tweed was compelled, against his objection, to ac- quiesce in a hearing of all these charges at one time. It was a determination that no tribunal in this State has power to try and punish a defendant for several distinct and sepa- rate offences under one indictment. Even though the de- fendant should acquiesce in the union of several pending accusations against him in one trial, and even though he should prefer that course, as he well might under some cir- cumstances, it is decided, as a matter of jurisdiction, that there must be a separate indictment and trial for each separate offence which is to receive the full punishment. Nay, more; the settled forms of pleading, which are the best evidence of the common law, allow numerous counts in the same indictment, and require each count to allege a separate and different offence; yet it is held, in effect, by the Court of Appeals, that if, by separate pleas to each count of an indict- ment thus framed, a.defendant should confess his guilt, still the Court would have no jurisdiction to impose any greater amount of punishment than that prescribed for one offence. "This decision draws after it many serious inconven- iences. Some of them may be adverted to. If there was no jurisdiction to adjudge against him confinement beyond the term of one year, the detention of Tweed in the penitentiary during the last five or six months was.altogether unlawful. A civil action in tort will lie against every one concerned in it for such damages, remunerative or vindictive, as a jury of twelve men may see fit to award in the exercise of their un- limited discretion. In this predicament are included the Warden of the Penitentiary, yourself (the Judge), the clerk of the Court, the Counsel who moved for the sentence, and many others. Indictments would lie, and each of these per- [479] sons might be put to an appeal for Executive clemency as his only relief from a doom to the occupancy of Tweed's vacant cell in the penitentiary. Had some one not affected by the Tilden animus been nominated and elected to the Governorship after the peculator's first judicial triumph--an event not then deemed impossible--the chances of these well-meaning but misguided delinquents to escape the ven- geance of peculators' law might be less perfect than it is as things have turned out. "Another circumstance deserves notice. After the full year had elapsed, our venerable Governor Dix, indignant at the favoritism which screened Tweed from the punitory treatment dealt out to common offenders, took measures to compel a more rigorous course. The sharp rebuke contained in his letter of November last will be remembered. Thus it may appear that he also brought himself under the lash of that law now announced by the Court of Appeals. Let not these suggestions be deemed visionary. On the 23d inst., the day succeeding Tweed's deliverance from the peniten- tiary, the following announcement was made in a city jour- nal whose area of circulation is the whole civilized world, and whose credit as a chronicler of current events and of the various sentiments of classes is equally extensive same day in Ludlow Street Jail, may seem no gain ; but it is really a great one, all things considered. Tweed has not recovered his liberty, but he has put off the degrading striped dress of a convict criminal. He is no longer sub- jected to compulsory labor, no longer forced to eat the food doled out to felons, and sleep in a narrow cell, but is allowed to dress as he pleases, to select any diet he can pay for, and to employ his time according to his inclination. He also enjoys whatever grim satisfaction there may be in the pub- lic humiliation of the Judge who pronounced his illegal sen- tence, and who has been compelled by the unanimous de- cision of the Court of Appeals to sign the order for his release. Revenge is sweet, and besides enjoying this blow at Judge Davis's judicial reputation, Tweed has probably revolved in his mind the question of exacting satisfaction for that part of his imprisonment which the highest tribu- nal of the State has declared to be illegal. Tweed enjoys the change as he could not if it had been the effect of Executive clemency. To be set free by the law is a very different thing from a pardon, and the fact that his Counsel have been so successful in the great. matter of getting his heavy sentence annulled encourages his confidence in their future efforts in the new suits. It is, therefore, idle to as- sume that Tweed does not think himself better off than he was in his convict's suit on the Island.' "So far as that article might be thought to imply on your part censurable motives or detected ignorance, it does not express the journalist's belief, nor was it intended to be so understood. It was merely designed to exhibit prominent- ly in the editorial column the common sentiment and pub- lic bragging of the great peculator's friends. In the news column of the same and the following day the public are informed, in their chaste phrase, how Davis had been forced by the Court of Appeals `to eat his words.' We thus find, as a consequence of the peculator's third triumph in the Court of Appeals, that you, sir, can escape the loss of your estate in damages only through Tweed's forbearance, or that of a partial jury. You, as well as Governor Dix, and near- ly all who have been actively moved by hostility to Tweed's peculation, can only avoid taking his place in the peniten- tiary through some similar indulgence. One point, more important than all these in every true man's estimation, af- fects you. You must submit to mental humiliation. You go down in your judicial history stained with the imputa- tion of having been led into illegal oppression by ignorance. At least, this is so unless you can be vindicated at th- cost of others. This is not a pleasant issue. "Let us then see how this matter of the cumulative sen- tences stands as between yourself and the Court of Appeals. That high tribunal, by Allen, J., among other things, thus argues in support of its judgment : "`Eminent Counsel claim, with great plausibility and show of reason, that the rule permitting the trial of a person on several offences at the same time is not authoritatively es- tablished, and that it ought not to be so. I cannot do bet- ter than to quote literally from the brief of Mr. O'Conor above referred to, and adopt his language, for the reason that he very clearly and tersely expresses the position and the arguments in support of it, and which I deem worthy of consideration. That eminent jurist, after referring to the analogy between civil actions for penalties and criminal prosecutions, says : "And accordingly, except under some statute expressly authorizing such a course, it has not been the practice to allow two distinct offences to be tried at the same time, either by indictment or penal action. Besides the confusion and embarrassment in which a trial at one time for many offences would involve the accused, such a practice, if tolerated, would break down and utterly obliter- ate many principles of law that are not only well establish- ed, but essential to the safety of the citizen. Nothing is bet- ter settled than that the evil reputation of the accused shall not be offered to strengthen the proofs against him. That other misdeeds shall not be alleged, proved, or attempted to be proven, is equally well-known law. If the public prose- cutor or a common informer in a penal action could put an unpopular person on trial for every delinquency imputed to him by common fame, such a one (however innocent) might often sink under the weight of unmerited opprobrium. The usage of employing numerous counts to guard against a pos- sible variance between the allegation and the proof is the sole cause of any misapprehension concerning this matter which may appear in some few judicial opinions. Because there may be many counts in an indictment or declaration, and each on its face must be for a different offence, it has been hastily assumed that distinct and different transac- tions occurring at different times and places, and constitut- ing so many different offences, may be given in evidence on the trial of an indictment or a penal action. The few cases that are to be found giving an apparent sanction to this no- tion are not sufficient to establish it." "`The learned Counsel, with his usual acumen and dis- crimination, reviews the cases in a note to the brief, and shows that his position is not without foundation, and I in- cline to concur with him in opinion. His arguments appear to me unanswerable.' "There was a pungency in this citation. A lawyer, not suspected of favoring peculators, is shown to have condemn- ed, with `unanswerable' force, the practice adopted against Tweed. Whether the learned Court was happy in this edi- torial performance may be best determined by a comparison of this extract with its own action in judging of the same precise point a very short time previously. "My argument thus cited against your action was de- livered before the Court of Appeals in the case of Philo Johnson v. The Hudson River Railroad Company, in Sep- tember, 1871. The plaintiff had sued for and recovered in one action 526 penalties of $50 each for as many different offences of the same kind. (2d Sweeny's Reports, 314.) An appeal was taken to the Court of Appeals, and the en- tire judgment was there reversed on the merits, without any reference to the question whether a party could be tried for numerous delinquencies at once and subjected to numerous penalties in the same action. Judge Rapallo, while at the Bar, was of Counsel for the defendant, and, of course, he took no part in the hearing on appeal. I argued the case in the upper Court. It never has been, and is not now, suggested on any hand that, as it respects this point of joining several offences and punishments in one trial and judgment, there is any difference between penal actions and indictments. In principle there is none; all the authorities plainly show it, and it is on that account alone that my argument, thus cited by the Court of Appeals, had any relevancy to its decision. "Although it turned out not to be necessary to an actual decision in the Johnson case, or perhaps in any other, the point was relevant in many suits then pending on appeal, and it is presumable that this very argument was urged upon the Court by other Counsel in these other cases. However this may be, the Appeal Judges, as we shall see, considered it, and finally disposed of it. On December 12, 1871, while the Johnson case was yet under advisement, Fisher v. The New York Central and Hudson River Railroad Company (46 New York Reports 569) came up and was decided. Judge Grover, in delivering the opinion of the Court, spoke as follows : " 'This makes it unnecessary to determine whether, if several penalties are recoverable, they can all be recovered in one action, or whether a separate action must be brought for each penalty. I dismiss this part of the case with the simple remark that, irrespective of what was the early com- mon-law rule, or how the question as an original one should be determined upon principle, the rule has been too long considered settled and acted upon in this State, that they can all be recovered in one action, to permit any departure from it by this Court.' "Of course, Judge Rapallo declined to vote, and he stated the reason. We have seen that he was `interested in the question as Counsel.' This very declinature, eminently proper as it was, lends force and point to this statement, if either was needed. It shows how distinctly the question was brought under the notice and consideration of the Court. Chief-Judge Church and Judges Allen and Fol- ger are expressly named as concurring with Judge Grover. Thus, for the guidance of Counsel, prosecutors, and inferior Courts, the rule permitting the infliction of numerous pun- ishments for delinquency, through one trial and judgment, was declared to be perfectly established -so completely, in- deed, that the Court could not `permit any departure from it.' The volume of State Reports announcing that the ob- jection had thus received its quietus was published on May 20, 1872. Scarcely eighteen months had elapsed after that date when, on Tweed's trial, you applied the `rule' thus prescribed to you. Had any one then read to you my brief in Jolnson's case, as persuasive evidence of the law, it must be presumed that you would have promptly referred to Fisher's case. Yon might have added, `If that argument cannot be answered it can be overruled. The deliberate opinion of the highest Court in the State is against it. Whatever I might think of its legality, the rule laid down by that Court controls me, and I must obey it.' Had you not followed the rule so recently proclaimed you might have been pronounced inexcusably ignorant of it, or justly censured for insubordination. "Whether the doctrine so recently and so emphatically repudiated should have been at once approved and adopted when its effect was to open the prison doors and exempt a peculator from penalties, the Appeal Judges may answer as they best can. It is not the question propounded to me. The dates show that my argument, however irrefrag- able, was before the Court, and was repudiated by it when Fisher's case was decided. Of course, I did not believe when Tweed was tried that you would have treated that argument as valid. You asked whether I supposed that the Court of Oyer and Terminer was exceeding its jurisdiction when you proceeded to impose the cumulative sentences. The above-recited utterance of its views by the Court of Appeals, in deciding Fisher's case, forbade my regarding that act even as an irregularity or an error. The notion that it was an excess of jurisdiction never found place in my mind even for an instant. There does not seem to be any color for it. Had the Court of Appeals entertained this point anew upon a writ of error brought by Tweed, and, after duly reconsidering its former conclusion, reversed it, I, at least, might have been. well satisfied. Doubtless I would have been as much flattered as surprised. Public justice could not have suffered any material prejudice, nor would crime have been furnished with immunity. The only con- sequence would have been a new trial, conducted in con- formity with the altered views, more enlightened than those expressed in Fisher's case, which fuller reflection or abler arguments had generated in the minds of the Appeal Judges. But by changing their opinion, and carrying the point to a denial of jurisdiction, they have let in great practical mis- chiefs. Some of these have been already noticed ; practi- cally, the most serious is the complete deliverance of the culprit from any punishment for fifty crimes of which a jury has pronounced him guilty. The judgment stands unreversed and in full force, though the penalties are re- mitted; and if prosecuted for any of these fifty unpunished delinquencies, he can now plead, as an effectual bar, his former conviction. The decision that the joinder, found by the Court's new lights to be erroneous, affected the jurisdic- tion, and was, therefore, reviewable on habeas corpus, will not be approved by the great body of enlightened jurists, whose scrutiny its importance will naturally invite. They will not be apt to recognize in it any other merit than con- sistency, nor any consistency except that which may be discernible in its similitude to the two former judgments of the same tribunal in the civil cases. If it be true, as alleged by the delinquent's party, that all those who con- stituted the minority in the former cases have joined them selves unto the other four, so that unanimity now reigns within the Court, the fact is to be regretted. It presents an exigency which should be met. Unanimity in seeking a remedy should prevail. Neither the pecuniary interests of our citizens nor the honor of our State can be deemed safe as matters stand. But we now have an Executive opposed to peculations, and in November an entirely new Legislature is to be elected. What is yet unstolen in the hands of the people may be preserved to them if they will act promptly, and employ for their own rescue the means which are in their hands. "Yours respectfully, "CHARLES O'CONOR."
habeas corpus case of William M. Tweed, recently decided by the Court of Appeals, seems to me to render it proper that I should submit a few observations upon the published let- ters between Judge Noah Davis and Mr. Charles O'Conor. Under the highest sense of professional obligation I accept- ed from the prisoner a retainer in the belief that the law of the land had been grossly violated in the accumulated sen- tences pronounced upon him, and it became my duty to give to the case a long and laborious examination. While other members of the Bar can, and no doubt do, keenly appreciate the insult to the Bench, the more exact knowledge of the case which I possess may perhaps better qualify me to make some statements, and suggest some views intended, and I may hope calculated, to remove the impression, if enter- tained in any quarter, that the highest judicial tribunal in the State is not entitled to the fullest confidence of the public. "The correspondence between the two gentlemen named is certainly most remarkable. lower Court may have a sounder basis in law than the judg- ment of the appellate Court which reverses it. But appel- late Courts are a part of every respectable system of juris- prudence, and they are necessary on account of the uncer- tainty sometimes of the law itself, and the far greater un- certainty of its application to the ever-varying combinations of fact in human affairs. or a bad performance of official duty, as auditor of certain accounts--an offence for which the maximum imprisonment prescribed by law was one year. The punishment in its ac- cumulated severity was more than twice greater than the law would have tolerated if he had been guilty of the lar- ceny of forty millions of money. And yet there was not in the whole record a single charge or suggestion that the accused had been guilty of larceny, embezzlement, or re- ceiving improperly in any form a single dollar of the public money. * * * "This is not an occasion for a dry and technical discussion of the question which the Court of Appeals has determined. That duty has been performed in its appropriate place. But laymen and lawyers alike can understand the overwhelm-- ing force of the argument derived from universal and im- memorial usage in this Commonwealth. We have been an independent State for about one hundred years, with a juris- prudence of our own, and we have hundreds of volumes of reported cases. There is no record of a criminal prosecu- tion in which distinct offences have been united, tried, and punished under a single indictment. The oldest man at our Bar has never known or heard of such a case. There is no tradition of such a case. It remained for Judge Davis to attempt the introduction into our law of a principle so alarming, so full of real danger to the rights of every citizen. And this is the kind of justice which Mr. Tweed (in Mr. O'Conor's language) `bearded' by appealing to the high and distinguished tribunal chosen by the whole State to hold in even balance the scales of justice and pronounce the same rules of law for sinners and for saints. * * * "I have less to say of Mr. O'Conor's letter. Its sharply cut sentences, its pungent paragraphs, and its general tone of denunciation may be put aside as of no account. Its grand purpose is an assault upon the Court of Appeals, the sole grounds of the attack being, first, the decision of the Court adverse to the civil action conducted by the assailant in the name of the people of the State for the recovery of moneys alleged to belong to the taxpayers of the city of New York; and next the decision on the habeas corpus case of William M. Tweed, adjudging that all the accumulated sentences imposed by Judge Davis at the trial were void. "As I have never given my time or my thoughts to an examination of the first-mentioned case, it would be pre-- sumption in me to express my opinion in regard to it. I can see that the question was a grave one, and that its solution was not without its difficulties, because the Judges them- selves were divided in opinion. It was decided in accord- ance with the judgment of the Court below, and I accept the decision as the law of the land. No further observation seems to be called for, except to say that I have heard many expressions of professional opinion, and that they happen to have been uniformly in accordance with the decision of the Court. "As to the Tweed habeas corpus case, it is a circum- stance of great significance that Mr. O'Conor in the whole course of his letter nowhere ventures upon an opinion that the accumulated punishment inflicted by Judge Davis could be sustained upon any legal principle. He does, however, intend to say, if, I correctly understand him, that the error, which he seems to concede, was remediable by a writ of er- ror only, a proceeding which would result in a reversal of judgment and a new trial, and that it was not remediable at all under the writ of habeas corpus, the successful result of which was the discharge of the prisoner without any new trial for the same offence or offences. On this point I must take a direct issue with Mr. O'Conor. I think it presented the chief difficulty which the case had to encounter in the Court of Appeals, and the favorable judgment of that Court was won not only upon clear principles, but by the cita- tion of precedents and authorities in such number and of such great force that no Court in which law is decently ad- ministered could disregard them. This is a question to which Mr. O'Conor does not pretend to have given a special examination. I will take his opinion with the most pro- found respect after he has made such examination in the light of the authorities, with an easy reference to which I will cheerfully furnish him. Until then it would be be- coming to withhold his abuse of a high tribunal, which has carefully and laboriously considered the question and de- cided it. "In reference to the broader question, whether the accu- mulated sentences under review were sustainable in accord- ance with the settled rules of law, Mr. O'Conor appears to be greatly incensed that the Court of Appeals should have quoted in support of the decision his own brief in a prior case, and he alleges that the same Court overruled his brief in still another and later case. This is altogether a mistake. In the only portion of the brief quoted by the Court of Ap- peals it was asserted in substance that no man could be tried and punished for more than one crime under one indictment. In the subsequent case it was expressly adjudged that, ac- cording to the terms of a certain statute, only a single penalty had been incurred, to be recovered in a single civil action. Judge Grover, in pronouncing that as the judgment of the Court, casually remarked that it was unnecessary to decide whether, if several penalties had been in fact in- curred, they could all be recovered in one civil action, ex- pressing the opinion, however, that they could be. The judgment of the Court in the actual case before it baving determined that only one penalty was recoverable, how could the mere dictum of a single Judge decide that in some other conceivable case more than one could be re- covered? It scarcely requires a lawyer to answer so plain a question. "But the want of analogy between civil and criminal suits is too striking to escape observation. Once establish the principle that under one indictment more than one offence may be tried and punished, and the same rule must be car- ried through the whole field of criminal jurisprudence. You cannot arrest the sweeping influence of this pernicious principle. The administration of the law must run into the wildest extravagance, the right of challenge must be subverted, and all the safeguards of liberty and life must be thrown to the winds. To this great question the Court of Appeals gave its patient and laborious attention, and its decision, rendered under all the circumstances and sur- roundings of the case, will, as I believe, establish more firmly than ever the public confidence in the learning, the independence, and the uprightness of that high tribu- nal. "Enough has been said, I trust, to show the utter ground- lessness of this assault upon that Court, and I have little else to say. I have long known Mr. O'Conor, and have long been accustomed to think of him with all the respect which is due to eminent talents and unsullied purity of charac- ter. His best friends, among whom I wish to be reckoned, must deeply regret the step he has taken. Most profoundly do I regret it. But I remember that the greatest and best of men have sometimes great faults. If Mr. O'Conor has such, they are only the spots on the shining orb of the sun. If I might venture a word further, I should say: Alas! with all his admirable qualities, he is despotic and intolerant. Woe to the luckless wight who stands in his way! Woe to the Judges who presume to decide against him in a case which he has nursed and upon which he has bestowed his affectionate regard! GEORGE F. COMSTOCK.
" SYRACUSE,
July
22, 1876."
To the present generation and to those who
were not
acquainted with Mr. O'Conor it must seem strange that he should with such virulence assail the Judges of the highest Court in the State of New York. That Court, by reason of the great learning and ability, as well as integrity and impartiality, of its Judges, was second to no State Court in any of the States of our Union, and was scarcely second to the Supreme Court of the United States. In the Ring cases Mr. O'Conor had maintained his original and bold legal propositions with such pow- erful arguments that he seemed so to overawe judicial tribunals as to sweep all before him, until he reached the Court of last resort. Success in these cases, with Mr. O'Conor, was to be the crowning glory of a long and illustrious professional career. After achieving success all along the line in his professional warfare, to have vic- tory at the last moment snatched from him, even by a high and dignified Court, was more than he could bear. His patience was exhausted; his self possession gave way; and of fortitude he had none. In some respects Mr. O'Conor's intellectual " make-up" was unprece- dented. Some of his mental traits were startling and incomprehensible. We can understand how a lawyer of small mental caliber, of superficial acquirements, may become so absorbed with his side of a case as to look upon an adverse decision of a Court as a personal affront. But why Charles O'Conor in his greatness should have been infected with such littleness is a psychological mystery which mortal man can never solve. One is almost tempted to say that at one and the same time Charles O'Conor was the greatest lawyer in America, and the smallest lawyer in Chris- tendom. This was by no means the only occasion on which Mr. O'Conor had shown that however much he might respect a lawyer who would argue against him, he had no re- spect for a Judge who would decide against him. In the case of Horace F. Day against the New England Car- spring Company, tried in the Circuit Court of the United States for the Southern District of New York in 1854, Mr. O'Conor, who was Counsel for the defendant, assailed the presiding Judge (Betts) with extraordinary bitterness because he decided against him in respect to the admission of certain evidence after he had patiently listened to an argument from him of several hours' duration. The trial lasted forty days, and was then brought to an abrupt conclusion by the death of one of the jurors. Mr. O'Conor refused to go on with the other eleven jurors. After the trial had thus ended Mr. O'Conor addressed the following letter to James W. Gerard, which was published in the New York Herald, August 2, 1854: "IN THE CIRCUIT COURT OF THE UNITED STATES FOR THE all the then subsisting interest of Edwin M. Chaffee in the extension of a patent granted to said Chaffee. The defend- ants had used the patented improvement subsequently to such assignment, and this action at common law was brought to recover damages for such uses as an infringement. The defendants set up in their defence a certain agreement in writing between Chaffee and one William Judson, dated September 5, 1850, and a license to the defendant made by Judson, professedly under and in pursuance of the powers vested in him by the said agreement. The cause was tried before the Hon. Samuel R. Betts, District Judge, and a jury. In the progress of the case it was asserted by Counsel that the instrument dated September 5, 1850, was not duly sealed by Chafee. But before any doubt was suggested as to that fact, and after the subscribing witness had sworn that Chaf- fee, when of full age and sound mind, laboring under no in- capacity, with full knowledge of the contents of the paper, had, knowingly and intentionally, sealed and delivered the same as his act and deed, the following question arose upon the trial : The plaintiff proposed to prove by oral testimony of witnesses that Judson was the attorney of Chaffee in pro- curing the extension ; that in order to induce Chaffee to con- sent to and execute the said agreement, he had threatened un- justly to harass and vex him with suits at law, and to cause him to be turned out of employment, and had made divers false and fraudulent representations touching matters of law and fact to him, with a view to deceive and defraud him (said Chaffee), and induce him to consent to execute said paper, and become a party thereto. "There was, of course, no pretence that the case came within the Revised Statutes of New York, Part 3. Chapter 7 ; Title 3, Article 8 ; 12th Howard's U. S. Reports, 361 to 367--or that the New York Code of Practice was ap- plicable. "The Counsel for the defendants objected to the said evi- dence on the ground that an agreement in writing, under seal, could not be impeached in an action at law between privies--such as the present action was conceded to beby any such evidence ; that upon the trial of such a case before a jury such evidence was wholly inadmissible for the purpose of vacating, annulling, or impairing the effect of the agree- ment, and that the only mode of obtaining that kind of re- lief upon such testimony was by bill in equity. "But the Judge said that of common right, fraudulent representations (though not in any wise affecting the fact of due execution), and by which the party was deceived and induced to execute an agreement under his seal, might be proven by parol before a jury in an action at common law, for the purpose of avoiding the agreement, to the same ex- tent as in equity ; and that, if satisfactorily proven, they would render the agreement void at law. And he accord- ingly ruled that the evidence so offered by the plaintiff was admissible. "The learned Judge premised this decision by calling the attention of the jury to his remarks. He also referred to the great and unusual length of time which had been consumed in the argument of this incidental point, and stated that the principle announced in his decision and the practice under it were so familiar that he did not doubt but that a decision to the same effect could be found in every volume of John- son's Reports. "Now, my dear sir, having been the Counsel who alone argued the said points for the defendants, and having occu- pied about four out of the six or seven hours which were devoted to its discussion, I am constrained to regard the remarks of the learned Judge as involving an impeachment of my personal and professional character. His Honor's statement clearly imputed gross and inexcusable ignorance upon a point with which every law student of a year's stand- ing should be familiar, or a perverse and wilful waste of valuable time in urging at great length an objection which was sure to be overruled by any Judge of ordinary learning and experience. Therefore, to vindicate myself as far as practicable from such aspersion, I hereby deposit with you my check for one thousand dollars, payable to your order, which I authorize you to indorse and deliver to Mr. George Betts, if at any time within six months from the date of this letter he shall produce you any one of such decisions in any volume of Johnson's Reports, or if he shall produce to you a certificate in writing from any of the under-mentioned persons that there is one such decision in Johnson's Reports, or that, in the opinion of the writer of the certificate, the aforesaid opinion and decision of Judge Betts were con- formable to law. The persons, any of whom may give such a certificate, are as follows : The nine Judges of the Supreme Court of the United States, the four Judges of the Court of Appeals of this State, the five Judges of the Supreme Court in this District, the six Judges of the Superior Court, the three Judges of the New York Common Pleas, and the Judges of the District Courts of the United States for the respective Districts next adjoining this District. "If this offer was made to the author of the decision, it might not be deemed entirely respectful to the Court, and therefore it is made to one who, both from his relations to the learned Judge and from the circumstance of his being of Counsel for Mr. Day in some of these India-rubber con- troversies, will feel a natural and proper readiness to vindi- cate the correctness of the decision. "If the point were not as familiar as the learned Judge himself stated it to be, and as every lawyer of any experience will admit it to be, it might be improper to suggest a refer- ence to it in this form to any judicial-person ; but when a useful purpose may be served thereby, I presume a Judge may, without impropriety, certify the existence of any of the common legal truisms which are universally known and ad- mitted by the Bench and Bar. "It may not be amiss to add, as an additional reason for this conclusion, that his Honor's decision cannot come under consideration before any Court of review, as no verdict was rendered in the case. "I am, my dear sir, "Yours respectfully, "CH. O'CONOR.
"To JAMESW.
GERARD, Esq.
"July 20, 1854." The following is the reply of George F. Betts to the above letter of Mr. O'Conor " NEW YORK,
August
4, 1854.
"To the Editor of the New York Herald: "I was somewhat surprised to see in the Herald of the 2d inst. the signature of Mr. Charles O'Conor to a letter offer- ing to me a wager of one thousand dollars, and announcing that the money had been actually put up and was in the hands of the stake-holder, Mr. Gerard. "The endeavor to appeal from a judicial decision to a newspaper controversy to sustain a professional opinion by a bet, and the assault made publicly upon a father addressed to the son, all were matters of surprise. It could scarcely have been expected that such a peculiar position before the public should have been taken by one enjoying so high a professional reputation and social position, who professes to be a gentleman, and in whose veins flows the blood of an- cestral Celtic kings--a lineage publicly claimed by discard- ing the plebeian name of O'Connor for the regal O'Conor. But though the lawyer, or the gentleman, might in the pet- ulance of offended pride temporarily forget himself thus far, no man but one whose loins were barren and his home childless could have so far violated the sanctity of the rela- tion of parent and son, and the obligation of filial honor that results from it both by nature and God's commandments, as thus publicly to point to the son the father's fault, if fault there had been. If Providence should grant to him, as to the patriarch of old, a son now in his age, he will per- haps appreciate the sweet courtesy of an attempt to imbue the mind of that son with prejudices against him, and to diminish that filial love and reverence he would then deem his due. "Although the high standing and influence of Mr. O'Conor may control public opinion to a great degree, I scarcely be- lieve that this attempt made by him to ingraft upon legal arguments the mode of decision heretofore peculiar to the prize-ring and the cockpit will fail to change what I deem to be a healthful and settled public sentiment. That public sen- timent is in accordance with my own feelings and sense of propriety, and I must therefore decline to enter into a pub- lic discussion for a wager, as he proposes. And, apart from any personal feelings, I never could consent that the de- cisions of a Court should be made the subject of a gambling discussion, that men should stake their money upon them as they would upon a sparring-match or a bear-bait. If such is henceforth to be the mode of discussion, it must be without my aid as one of the disputants. I cannot accept either Mr. O'Conor's bet or his bounty; and, while that wagering offer remains, I must therefore refuse any participation in a dis- cussion which that circumstance renders, in my judgment, disreputable. "But it is due to Judge Betts, in his absence from the city, to state that I have no satisfactory information that those points arose and were decided which are set forth in Mr. O'Conor's letter. The Judge's remarks, as printed, stated the points very differently, and as I took no part in the trial personally, and was not present when the point arose or was decided, I addressed a note to Mr. Stoughton, the senior Counsel for Day upon the trial, asking for infor- mation as to the accuracy of Mr. O'Gonor's statement. I annex his answer, from which it will be perceived that he differs entirely from Mr. O'Conor in his views of what prop- ositions of law were laid down by Judge Betts. I have no information except from those sources what his decision was. I entertain no doubt that the proposition stated by Mr. Stoughton, and that printed in the Judge's remarks, are sound in law, and those are the only points that I can admit, without further information, to have been ruled by the pre- siding Judge. "Your obedient servant, "GEORGE F. BETTS."
The following is the letter of Mr. Stoughton referred to in the letter of Mr. Betts : NEW YORK,
August
3, 1854
"GEORGE F. BETTS, ESQ.
"MY DEAR
SIR,--I have received your note of the
2d
inst., calling my attention to the letter of Mr. O'Conor to J. W. Gerard, Esq., published in the morning Herald of that date. You inquire of me whether the point as therein stated actually arose, and was decided by Judge Betts upon the trial of the case of Horace H. Day against the New England Car-spring Company in the Circuit Court of the United States. "I have read the letter to which you refer. I recollect the circumstances under which the points therein referred to arose. They were as follows : The object of the suit was to recover damages for the infringement by the defend- ants of a patent granted to Edwin M. Chaffee, and by him assigned to Mr. Day in July, 1853. On the part of the plaintiff, the issuing of the patent to Chaffee, its transfer to Day, the value of the invention, and its use by the defend- ants had been proven; and thereupon their Counsel, among other defences, sought to establish that by an agreement be- tween Chaffee and Mr. William Judson, dated September 5, 1850, the latter became either the owner of the patent in question, or vested with authority to license the defendants to use the improvement, and that he did so license them be- fore the transfer of the patent to Day. To establish these defences, it became necessary for the defendants to prove the execution of this agreement by Chaffee. It purported to have been executed under his hand and seal in the pres- ence of George Woodman, whose name appeared thereupon as subscribing witness. Although it is a well-settled rule in the law of evidence that where the execution of an in- strument attested by a subscribing witness is to be proven, he must be called for that purpose; and although Mr. Wood- man was present in Court, attempts were made and con- tinued by the defendants' Counsel, through several days, to establish the execution of the agreement by other evidence. These attempts were opposed by the plaintiff's Counsel, who believed that if Woodman was called by the defendant his cross-examination would show that the instrument in ques- tion was fraudulently obtained; and it is not uncharitable to suggest that the apprehension of this led to the ingenious and prolonged efforts which were made to establish the ex- ecution of the instrument without the aid of his testimony. They failed, however. He was sworn, and stated that he saw Chaffee execute the agreement. Thereupon the plain- tiff's Counsel was proceeding in the usual manner to cross examine the witness, when Mr. O'Conor asked the object of such examination, and what was expected to be proven thereby; whereupon I, as Counsel for Mr. Day, stated in substance that we intended to prove by that and other evi- dence that the agreement of the 5th of September was pro- cured from Chaffee by Judson through fraudulent repre- sentations and practices, some of which were then stated by me, but which need not be here repeated; and that it was so obtained while Judson stood in the relation to Chaffee of his attorney and legal adviser. After I had made this state- ment Mr. O'Conor objected to the cross-examination, and insisted that the proposed evidence was inadmissible at law to impeach the validity or destroy the effect of the agree- ment, and he thereupon declared to the Court that he was prepared to maintain this proposition by argument, and by the most conclusive legal authorities. "This was the question presented; these the circumstances under which it arose. I then entertained no doubt of the plaintiff's right to introduce the proposed testimony, and that opinion was confirmed by the argument which followed and by the authorities which were referred to. I have be- fore me what I believe to be a correct report of the decision of Judge Betts upon the point. In that he says: `I wish to make the decision explicit, so as to afford the parties every benefit of exception, and therefore state that in my opinion a party whose interest may be affected by a paper, under seal or not, which is offered in evidence against him in the trial of a cause at law, may give parol evidence to satisfy the jury that the paper originated in fraud, that it was procured by fraud, or that it was set up fraudulently to answer purposes it was not created for.' "This appears to me to be a sound and quite irreproach- able doctrine, and I think it had become inseparably inter- woven as a part of the fabric of the common law many generations before the first volume of Johnson's Reports (mentioned by Mr. O'Conor) was published. I trust it will be many generations before it is abandoned or violated by any Court, either of law or equity. I should have great confidence that all of the learned Judges to whom Mr. O'Conor refers in his letter would follow the ruling of his Honor Judge Betts in any case where the same point should judicially arise before them. "Very truly yours, "E. W. STOUGHTON."
To the letter of Mr. Betts, Mr. O'Conor responded as follows: NEW YORK,
August
7, 1854
"To the Editor o f the Herald:
"I was not surprised at the irritation
of Mr. George F.
Betts as exhibited in his note to you dated the 4th inst. A public attack upon me by the father was rightly enough fol- lowed up by the son. He has, however, travelled too far out of the record to admit of my following him. His allusion to my very great misfortune in not having children before I was married might appear more advantageously in some other place than in an attempted vindication of his father's judgment. Still, as his good taste has brought that unhappy circumstance before the public, I must ask a reasonable sus- pense of opinion as to any unfavorable inference Mr. Betts may have intended to draw from it. If the legal question which I have presented is to be further pursued, I respect- fully submit to Mr. George F. Betts the expediency of omit- ting any further reference to pedigree, family pretences, or that other subject to which, with equal pertinency to the point in hand, delicacy of taste, and purity of language, he has so felicitously alluded. Of the propriety of following this suggestion he will judge ; suffice it to say, that no fear of comparisons has dictated it. Far from imagining the sinful design imputed to me, my sense of right approved, and still approves, as most appropriate, the call upon Mr. Betts to vindicate at once the accuracy of his father's judg- ment and in some degree the rectitude of his client's cause. So far from.offering to lay a wager, which would have been unlawful, I offered a liberal reward for the discovery of a valuable truth.' So far from wishing to give just cause of offence, my language was courteous to all concerned. I imputed no `fault' to Judge Betts, but only by inference from my own opinion suggested error. With this all our Judges are constantly charged in the Courts of review. "But to the point in hand. Mr. Betts does not meet the question at all. He appends a note from Mr. Stoughton. To that gentleman's statement on any subject I would pay the greatest respect. I am sure he is, and I hope I am, incapable of a wilful misrepresentation. I deny no matter of fact con- tained in his letter. He neither denies nor varies any matter of fact contained in mine. Any lawyer reading both letters will perceive this, though it may not be obvious to gentlemen who are not experts in questions of mere technical practice. "There is not, and never can be, any dispute about facts in this case. The question distinctly arose precisely as I have stated it. It was by the learned Judge distinctly, di- rectly, and without any equivocation met and decided. I need not repeat my invitation for proof of the correctness of his judgment, nor restate my reasons for seeking and offering to pay for the proof. They are plainly before the public in my letter to Mr. Gerard. "Your obedient servant,
CH. O'CONOR."
[501] Afterwards Judge Betts prepared and filed an elabo- rate and very able opinion, citing numerous authorities, and among them several from Johnson's Reports sus- taining the doctrine of the decision given by him on the trial. Mr. Clinton well remembers another occasion on which Mr. O'Conor assailed, with vehemence and acrimony, a Judge who, on the trial of an important case, gave a decision against him. A prominent and esteemed citizen of an interior county in the State of New York, after the death of his father-in-law, presented a claim against his estate for thirty thousand dollars, the amount of a draft in his favor purporting to have been executed by the decedent in his lifetime. The claim was rejected on the ground that the signature was a forgery. The party brought a suit against the executors to recover the amount in dispute. The defence of forgery was in- terposed. He succeeded upon the trial and obtained a judgment for the amount claimed. Afterwards he was indicted in the City of New York for forging the draft on which he had obtained judgment in his favor. The trial came on in the Court of Oyer and Terminer for the City and County of New York about fifty years ago, Judge Edmonds presiding. John McKeon, District Attorney, and Mr. O'Conor conducted the prosecution. Joshua A. Spencer, of Utica, David Graham and Am- brose L. Jordan, of New York City, conducted the de- fence. At the close of the evidence Counsel for the defendant made a motion to the Court to direct the jury to acquit on the ground of an entire failure of proof to make out even a prima facie case of forgery. Mr. O'Conor opposed the motion in an argument of great length. Judge Edmonds, after hearing both sides fully, held that there was no evidence of forgery, and he there- fore directed the jury to render a verdict of acquittal. After the decision was rendered, Mr. O'Conor arose and made a long, bitter, and fierce argument against the cor- rectness and propriety of the decision. He cited case after case of judicial tyranny and oppression. The tone of his argument was extraordinary, and it was still more extraordinary that Judge Edmonds should, after he had rendered his decision, hear an argument, and especially such an argument. But it was even more extraordinary that, after listening for hours to Mr. O'Conor, Judge Ed- monds should recall his decision and permit Counsel on both sides to address the jury. After Counsel for the defence had closed, Mr. O'Conor addressed the jury for ten or eleven hours. Judge Edmonds delivered a strong charge to the jury in favor of acquittal. He made no effort to conceal his opinion of the merits of the case, although in form he left it to the jury to decide. The result of the timidity and vacillation of Judge Edmonds was that four of the jurors were for conviction. This was not strange after they had witnessed the extraordi- nary scene of Judge Edmonds withdrawing his decision directing the jury to acquit. When they saw the Judge and the lawyer change places, O'Conor overruling the Judge and the latter yielding a submissive obedience to the former, it was but natural that some of the jurors should become confused as to which de facto was the Judge and which was the lawyer. This, however, was the end of the prosecution, as the case was never again tried. Should Charles O'Conor be held up as a model for young and rising lawyers to pattern after, it should be remembered that he had his limitations. Too much cannot be said in condemnation of the trait above re- ferred to. To treat with proper respect every Court and every Judge before whom a lawyer practises is the first lesson he should learn. No lawyer, under any cir- cumstances, should ever depart from this rule, unless he is sure that the Court or Judge is corrupt. Above all things, a lawyer should entertain kindly charity tow- ards his opponents and Judges who differ with hirn. When we take into consideration the different stand- points from which lawyers and Judges view facts and the law applicable to them, it is not strange that differ- ences of opinion are so great. Lawyers, despite their utmost endeavors to embrace within their intellect- ual vision both sides of a case, are very apt to see but one side; and that is the side on which they are re- tained. Young lawyers should understand at the outset that a lawyer's practice, if he be of any importance at the Bar, is an alternation of successes and defeats. At times it will seem as though defeat followed swift on the heels of victory, and vice versa. Successes will not continue so long and with such uniformity as to be- come monotonous. Lawyers should not forget that if in their cases sometimes success should run on continu- ously, with scarcely a break for a considerable period, suddenly their "luck" will change, and for a still longer period they will be beaten in most of their trials and arguments. Of one thing any lawyer may rest assured --that too often, when in his own mind he is positive, absolutely certain, of success, he will be defeated; and in not a few instances, when, had he himself officiated as Judge or jury, his decision would be adverse, he will be successful. But come what may, success or defeat, there can be but little excuse for a lawyer, young or old, who, under any circumstances, be the provocation ever so great, fails to maintain his self-possession, or to observe the proprieties of professional life. Notwithstanding Tweed's sins of omission and com- mission, the termination of his career was a sad one. His success in the habeas corpus case, which by the de- cision of the Court of Appeals released him from fur- ther confinement in the penitentiary, did not restore him to liberty. He merely exchanged the penitentiary for the county jail. In April, 1875, while he was a prisoner on Blackwell's Island, a suit was commenced against him in the Supreme Court in the name of the people of the State of New York to recover about six millions of dollars, on the ground that as a member of the. Board of Audit for auditing claims against the county of New York he had caused fraudulent :claims to be paid by the county. When discharged from Blackwell's Island he was arrested under an order made in that suit and confined in Ludlow Street Jail, the amount of the bail called for by the order being three millions of dollars. On the 4th of December, 1875, David Dudley Field and William Edelsten, Counsel for Tweed, had an in- terview with him at Ludlow Street Jail in regard to important legal matters. They left him about half-past twelve o'clock. About three o'clock in the afternoon of the same day Tweed left the jail in company with three of the Sheriff's deputies. After driving through the Park they went to Tweed's house in Madison Ave- nue (on the east side, near Sixtieth Street) and dined there. After Tweed had seated them at the table he excused himself, saying that he desired to talk with his family. When the deputy sheriffs had finished eating and drinking they inquired for Tweed. He was gone. Tweed's escape caused great sensation in the city of New York and throughout the country. The search made for him was in vain. If one escapes from criminal or civil process and desires to hide, there is probably no place in the civilized world where he can be secreted with as much prospect of safety as in the City of New York. There is no doubt that Tweed remained con- cealed in this city for several weeks. Nor can there be much doubt that one person, if he were now living, could tell exactly where Tweed spent his time during that period. That person was his private secretary. His name was Foster Dewey. Before Tweed was captured the suit above referred to was brought to trial. It was vigorously and very ably defended. Tweed's Counsel upon the trial were David Dudley Field, his son (Dudley Field), Robert E. Deyo, and William Edelsten. David Dudley Field was a very distinguished lawyer of world-wide renown. His ad- dress to the jury on the trial of this suit for six mill- ions of dollars was masterly. The following extracts from his address, published in the Albany Law Journal, March 18,1865, will give a faint idea of his great ability : "From the time when this suit was brought, last spring, down to the time of trial, we heard nothing but denuncia- tions of the defence for impeding the course of justice. There was, indeed, no real defence, it was said, and repeated so often that they who said it, at first in ignorance or bad faith, may have come at last to think they had reason to believe it. Wa have now reached a decisive trial of the merits, if a first trial of a cause so important can ever be thought decisive, and, after two months of hard labor, what is the result ? Why, that the plaintiffs are already defeated in respect to more than two millions of their claim, a sum worth contesting for, to my thinking, and we are now com- ing to you, gentlemen, to decide whether the claim shall not be still further reduced or rejected altogether. "Above all other things is justice. Success is a good thing ; wealth is good also; honor is better; but justice excels them all. It is this which raises man above the brute, and brings him into communion with his Maker. To be able to stand impartial in judgment, amid circumstances which excite the passions; to maintain your equipoise, how ever surging the currents may be around you, is to have reached the highest elevation of the intellect and the affec- tions. To have the power of forgetting, for the time, self, friends, interests, relationship, and to think only of doing right towards another, a stranger, an enemy perhaps, is to have that which man can share only with the angels, and with Him who is above men and angels. "The part which you are now called to perform in an official act, designed to be an act of justice, is unhappily beset with difficulties. The just indignation of a betrayed and defrauded people, the abhorrence that every true man feels of robbery, public or private; the cry for redress, the thirst for vengeance, the suspicions which fall alike upon the innocent and the guilty, the corruption of our politics, long accumulating and more and more corrupted by the demor- alizations of the war; the malversations in office, which seem to grow day by day--the stories of these wrongs repeated, exaggerated, distorted by a Press which lives upon sensa- tion, and operating upon a people becoming every year less sedate and more impulsive, until it seems ready to fall under the reproach once cast upon an ancient race, `Unstable as wa- ter, thou shalt not excel'--all these things have brought us into a condition as frightful as it is abnormal, wliich would almost justify for once the language which the greatest of English dramatists has used for other turbulent times, " 'O judgment, thou art fled to brutish beasts,"It is easy to see what act of each of us would commend us most to the clamorers of the hour. If the learned Judge who has presided with so much dignity and patience had yesterday announced from the bench that the defence is a miserable subterfuge, unworthy of a moment's serious con- sideration, instead of ruling as he did, he would have been applauded this morning by half the newspapers of the city as a Daniel come to judgment ; if you, gentlemen of the jury, were to render a verdict for the whole amount claimed without leaving your seats, you would be greeted with the welcome of `good and faithful servants' ; and if we, who are conducting the defence, with what fidelity you may judge, were to betray our client, and suffer judgment to pass against him, with only a seeming effort in his behalf, we should have the comfort of being informed in the same newspapers that we had half redeemed ourselves from the disgrace of defending him at all. This might happen to-day But how would it be ten years hence ? If you should then look back to this court-room and these surroundings, read the journals which you read this morning, and those others which you have read from day to day during the trial, what would you say or think ? Are you sure that you would then regard most of the comments on this trial which you now see printed and spread before your eyes each day as any thing better than the babblement of idiots ? "How will it be with each of us in our judgment of our selves? How will it be with a new question ? What you do, what the Judge does, what the Counsel do, will be thought of for a long time hereafter. There are many other people than those who now surround us who will observe, criticise, and judge all our acts, without partiality and without passion. "For myself, personally, this trust has been an occasion of great embarrassment. Severe illness in my family dur- ing the whole period has caused me anxiety by day and in- terrupted sleep by night, which have, in a measure, unfitted me for the discharge of my whole duty to my client. What that duty is--that is to say, what is the duty of an advocate to his client--I have had frequent occasion to explain, and every day's experience and observation have but served to confirm the convictions of my earlier life. The ignorant and the wicked always wish to take the law into their own hands. The wise and the good get the best Judges they can, procure as good laws as they are able, and leave the ad- ministration of justice to those to whom it is confided and who alone are competent to its due performance. "In this country we, who rejoice that we are the heirs of all the ages, have, in our own conceit at least, built on broader foundations than our fathers, and with stronger walls, the defences of human rights, and among them all there is not one of greater significance than this, that no man shall be deprived of life, liberty, or property without due process of law. The people of our State have placed it in their State Constitution, and since the late troublous times the people of the whole country have placed it in the Constitution of the nation. There it stands, and will ever stand, so long as either the nation or the State remains. Manet, et manebit. How idle, then, it is to talk of exclud- ing any person whomsoever from defence or opportunity of defence to any charge whatever! In conformity to this fundamental law, a summons is served upon every defend- ant to answer a written complaint. It is his right to an- swer. How can he exercise that right without the aid of Counsel ? Therefore he, whoever he may be, who denies the right and duty of Counsel to defend any man, seeking his aid as in defence, denies the right of the man to defend himself, and whoever in this country denies the right of any man to defend himself must be accounted as either a knave or a fool. "I am quite indifferent to the reproaches that out-of doors have been cast upon me for my defence in this case. When, however, the reproaches come into this court-room, and are made as if they could affect you, I feel bound, for that reason alone, to take notice of them, so far, and so far only, as to say that I despise them. I prefer the judgment of my brethren of the Bar. If the Press were unanimous, which it is not, nor anything like it, the Bar is stronger than the Press. It does not make so much noise, but its in- fluence, though silent, is irresistibl |
