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:3 quired of him by the provisions of-this article, or who shall be
4 in any manner derelict in the performance of such duty, may be 5 removed from office by the Governor, but only after due notice
6 and an opportunity of being heard in defense, and for causes to 7 be assigned in the order of removal; he shall also be deemed
8 guilty of a misdemeanor, and, on conviction, be punished by such
9 fine or imprisonment, or both, as may be prescribed by law.
In preparing the foregoing article, the committee have been guided by the conviction that official corruption is a crime of deep turpitude, of growing prevalence, and of dangerous tendency; that the public welfare demands the adoption of more effective safeguards against its commission than are to be found in our present laws, or than can be hoped for from popular or legislative action. They believe that the needed remedy may be best attained by constitutional provisions so framed as to increase the facilities of detection and conviction, and to insure the certainty of punishment.
The article they present is designed to secure these ends. The first section defines bribery and prescribes the punishment of public officers convicted of that crime. It was deemed best to place this definition in the organic law, and to make it comprehensive, lest the legislature should do it so imperfectly as to admit of its ready evasion by corrupt officials. The measure of punishment is less severe than existing laws prescribe, but it is accompanied with a prohibition of pardon or commutation of punishment, so that the sentence will carry with it the certain loss of civil and political rights. Even with this addition, the punishment may not be deemed commensurate with the magnitude of the crime, but, in view of its increased certainty, the committee believe it will prove sufficient to deter incumbents of office from its commission.
The second section exempts the giver of a bribe from all legal penalties. Experience proves the absolute necessity of exempting from punishment one of the parties to an act of bribery, if we would
convict either. Our present statutes hold both equally guilty, and liable to the same penalties; and our Constitution declares that no person shall be compelled, in any criminal case, to be a witness against himself. We have thus sealed the lips of the only witness cognizant of the fact that bribery has been committed, for no one of ordinary understanding will voluntarily testify in crimination of himself. This renders it difficult, if not impossible, to obtain proof sufficiently clear and reliable to convict of that crime, and the consequence is that its perpetrators go "unwhipped of justice.” It is notorious that neither the givers of bribes nor those who receive them, are now pnnished. Our present laws afford perfect immu. nity to both. No one can doubt that it would be better to ex: empt a part than the whole, especially in view of the fact that it would be an effective means of suppressing the crime altogether.
The Committee are aware that both the parties concerned in an act of bribery are guilty of a flagrant wrong, but they hold that the giver of the bribe is the less guilty of the two, and that the State may properly exempt him from punishment for the sake of suppressing the evil through the conviction and punishment of the more guilty public officer, who receives the bribe.
They regard this as the only ground on which his exemption can be justified. And yet they feel that in most cases of bribery his criminality is far less than that of the corrupt official. It sometimes happens that incumbents of office will not, without a private fee, perform an act demanded alike by their official duty and the public good. In such cases public spirited citizens, without private interest in the matter, may be prompted to give the fees demanded for the sake of promoting the public welfare. In doing this they commit bribery, but they can scarcely be regarded as guilty of crime; or, if the act be criminal, it bas but a small share of the turpitude of that committed by the recipient. Again : It often occurs that measures beneficial both to the public and to individual interests, and in all respects unobjectionable, can be obtained from the proper officials only by corrupt purchase. This, again, is bribery, but no one will maintain that, in such cases, the criminality of the giver approaches that of the receivers. But if we take the worst cases of bribery,-cases in which money is paid to officials for the purpose of inducing them to commit a wrongful act, injurious to the public, for the exclu
sive benefit of the briber,--we find that, even in such extreme cases, the official must be the more guilty of the two; because, in addition to his criminality as a participant in the act of bribery for the sake of illegitimate gain, he is also guilty of violating his official oath and a sacred public trust confided to him by the people. The giver is guilty only of the crime of bribery, while the receiver is guilty of bribery, perjury and the breach of a public trust, constituting together a crime against society, which should be regarded as second only to treason in infamy. He perpetrates this three-fold crime despite the protection afforded him in the dignity, the honor, and the enhanced self-respect incident to public station. Breaking through strong safe-guards like these, of which the giver of a bribe is destitute, manifests a proneness to evil on the part of corrupt officials, which aggravates the guilt in receiving a bribe.
For these reasons it seems clear to the committee that the required exemption of punishment should apply to the giver of a bribe as the less culpable party. But to the end that a moral offense as gross as that of corrupting public officers confessedly is, may not be prosecuted with impunity, they have provided that its unsuccessful attempts shall be punished with the same rigor as the act of receiving a bribe. This will leave the official, upon whom the attempt is made, an independent witness of the fact, which will enable the prosecuting officer to furnish the proof necessary for conviction. It is believed that this provision will also have a salutary effect in deterring corrupt lobby agents from importuning inembers of a legislative body to vote for improper measures. It can scarcely fail to render that vocation both hazardous and unprofitable.
Lest these means of securing convictions for bribery, and through them the suppression of official corruption, may not prove altogether sufficient, the committee bave provided, in section three, that a person charged with receiving a bribe, or with offering a bribe that is rejected, may be compelled to testify against himself; thus withdrawing from him the protection that the Constitution of the State and the common law now afford to all persons charged with crime. It is believed that the dangerous character of this growing evil, which threatens to destroy both public and private virtue, and to bring our institutions to merited reproach, fully war. rants this innovation. It is but placing this class of offenders on a
level with all persons charged with crime in continental Europe. It is there regarded as an effective agency in the detection of guilt and in the vindication of innocence. There is no reason why it should not prove equally efficacious and salutary here in trials for bribery. It is, in fact, merely a step in approach to the principles on which, we are assured, Divine justice is administered.
The fourth and fifth sections of the article define the duties of judges of the Supreme Court and District Attorneys in cases where charges of bribery are made to them. It is the impression of many that our criminal authorities have not hitherto manifested sufficient vigilance and earnestness of effort in the prosecution of this class of criminal charges. These sections make their respective duties specific, and the sixth section provides that any want of fidelity in the performance of their duties, shall render them guilty of a misdemeanor, and liable to be removed from office by the Governor.
Such, in brief, are the leading provisions and purposes of the article herewith submitted. In framing it the committee have aimed at practical results. Their earnest desire has been to devise a plan that would effectually accomplish the object they were appointed to consider,—the suppression of official corruption. They have aimed to secure that end, not by prescribing harsh or unusual punishment for such offenders, but by making their detection, conviction and punishment so certain that it will deter incumbents of office from the commission of such crimes. They believe that in moral diseases, as in physical, prevention is better than cure; and they are firmly persuaded that the plan they propose, if adopted, will at least arrest the spread of this moral leprosy, and they venture to hope that it will entirely eradicate it from the body politic.
In exercising the power to take testimony, conferred by the Con. vention, the Committee have examined but six persons, two of whom were in rebuttal. As they stated through their chairman, when asking for the power, their object was not to investigate charges against individuals suspected of official impurity, but to obtain some specific or general facts for the guidance of the Convention. The Committee did not conceive it to be a part of the duty of this body to in. vestigate charges of crime, but they felt that some information on this subject would be useful to it in framing safeguards against offi
cial impurity hereafter. They felt it to be their duty, however, to call before them Mr. H. B. Willson, who had addressed a letter to the Convention, making wholesale charges against the last Legislature, and declaring his ability to establish their truth, if called before the Convention. He was brought before the Committee and examined at length, from which it appeared that he possessed but little direct, specific knowledge on the subject, but he gave the names of other parties who, he thought, would be able to testify to facts that would establish the charges contained in his letter to the Convention. He testified, however, in substance, that Senator W. J. Humphrey had acknowledged to him that he had received from an agent of parties applying for an underground railroad franchise in the city of New York, five hundred dollars, but that he had given it to a friend who had been unfortunate. Willson said that this money had been given Senator Humphrey to secure his support of the railroad bill referred to, or of an amendment thereto. That senator, having heard of this testimony, came before the Committee, and after hearing it read, testified that in substance it was false; that he had opposed the bill, both in committee and on the floor of the Senate; and that he knew nothing of the amendment referred to by Willson. He brought with him Senator Low, chairman of the Senate Committee on railroads, who also testified that Senator Humphrey uniformly opposed the bill referred to, both in committee and in the Senate. Willson also testified that certain members of Assembly, in some previous year, had taken consideration for their votes in cases which he designated.
The committee subpoenaed some of the persons whose names were given them by Wilson as parties from whom they would be likely to get specific evidence of legislative corruption. The one he deemed most important was Wm. R. Finch, of Coxsackie. He was summoned, but declined responding on the ground of ill health, sending a certificate of inability from his physician. The committee also subpoenaed Mr. Edward R. Phelps, another of the parties referred to by Wilson. He testified, in substance, that he had no specific facts, proving corruption, to impart, but that he was one of eighteen grantees who, in connection with fifteen other persons, procured from the Legislature, in the year 1860, a grant for what is now known as the Central Park railroad of the city of New York; that after it was secured, the grantees and their fifteen outside associates