they will occur until we make some provision that | past twenty years. I submit this is a perfect the burden of these prosecutions shall rest upon answer. The truth undoubtedly is, that the Exsomebody besides the citizens of the county of Albany. Mr. VEEDER-With the permission of the committee, I will withdraw the amendment I offered and offer another amendment it its stead. The SECRETARY proceeded to read the amendment as follows: After the words "county clerk," "district attorney, a register and clerk in the city and county of New York, a register in the county of Kings." ecutive has not removed these district attorneys, because there has been no necessity for it. I do not desire to make any reply to this billingsgate which has been so generously indulged in by the gentleman from Westchester [Mr. Greeley], in his opposition to my amendment. I do not represent that class of the community of which he speaks, and which he pretends this amendment of mine will benefit. I never have allowed myself to use such language, and I do not propose to answer it. If it suits the taste of the gentleman from Westchester I am not disposed to disturb his pleasure. Mr. VEEDER-I desire to explain my object in withdrawing my former amendment and offer- Mr. GARVIN-The gentleman from Kings ing this amendment. It is at the suggestion of [Mr. Veeder] in proposing his amendment, several gentlemen who are disposed to be favor- phrased it in a different form from that used in able to having a county supervisor. I wish to the present Constitution. In the present Consti. leave that question open for the present, and who-tution the words are "register and clerk of the ever may be opposed to the provision for the city and county of New York." I propose that election of a county supervisor will have the the word "city" be stricken out. opportunity afterward to vote on the amendment Mr. VEEDER-I am willing to modify my of the gentleman from Westchester [Mr. Greeley].jamendment in that way. The committee in their discussions have carried Mr. BARKER-I ask that the question be dithis subject directly to the question of the election vided. or appointment of district attorneys, and my Mr. GREELEY-Allow me simply to state my amendment comes right to the point of the elec-position in a few words. I say what no man here tion or appointment of district attorneys. And I will deny, that there is a largo class in our great desire, therefore, to submit a provision now which cities, but especially in the great city, commonly will meet the question directly. The committee known as the "criminal population"-otherwise will also observe that I have made provision for known as the "dangerous classes." That class, election of the register of the city and county of in the city of New York, controls some thousands New York, and for the election of the register of votes. I assert that this class has a distinct of the county of Kings. I wish to say just this interest of its own, and a perfect comprehension word in regard to the election or appointment of of its interest; and that interest is, that the laws district attorneys, as I understand the article pro- shall be laxly administered and carelessly executed, posed by the committee. They propose to place and in many cases not executed at all. I assert in the hands of the power that shall remove an that this class values its class interest- that officer the power to appoint. Taking their argu-is, impunity in vice and crime entirely ment as true, that the duties of the office of dis-above the success or defeat of any trict attorney have not been properly discharged: political party. I assert that this class will either that the district attorneys of the various counties nominate a district attorney under our present have neglected their duty and have failed to pros. party machinery, or, if not successful in that, ecute notorious criminals, and have allowed crim- will defeat the nomination of whichever party inals to escape; also have failed to prosecute their may be obnoxious to it. I say, while you elect bail bonds. I desire to call the attention of the district attorneys, you will continually expose the Convention to this fact, that the power already public to this ever-present danger of having men exists in the Governor, under the present Consti-as district attorneys, whom the criminal class have, tution, to remove these men from office for any of these alleged charges. If there is a charge preferred against a district attorney elected, the Governor has the power under the present system, to remove him if found guilty. And why is it, in view of this alleged neglect of duty, that thus far the Governor has invariably failed to act? How are we to provide for greater security in the administration of justice, when for twenty years past our Governors have failed to Mr. GOULD-I take it, sir, that this Convenremove one of these district attorneys? Why tion is not engaged in the trial of A. Oakley Hall, place the power of removal and the power of nor of any other individual whatever. The true appointment in the hands of the Governors when object which we have in view is to ascertain they have failed to perform their duty as the Con- whether, on the whole, taking all the counties of stitution now stands, provided the complaints the State together, this system of the election of made now against district attorneys are true? district attorneys has worked well, or whether it You propose to change the manner of selection, but has worked ill. Now, sir, this, like all other you do not propose to change the manner of questions of a similar character, must be decided removal. You leave it in the same hands upon the facts of the case. I was very desirous where no power of removal has been ex- that this Convention would be willing to adjourn ercised, except in one or two instances for the 'this discussion until the coming in of the report by their casting vote, elected, and who are naturally flexible to the interests of that class. I desire to guard the public against this great peril, and I see no other way to do it but to give the appointment of this officer to the Governor of this State, who represents the whole State, who is the chief executive of the laws of this State, and to hold him sternly responsible for the exercise of this power. of the Committee on the Prevention and Punish- | shall be able to do so by and by. Let me state ment of Crime, who would have a large collection one case which occurred in my own county, and of facts, arranged in an orderly manner, which I am satisfied would aid this Convention very much in coming to a correct conclusion in regard to the matter; but as they choose not to do so, let me call their attention to one single fact, and then they will be able to judge whether this system has worked well in the county of Albany, and I take the county of Albany for an illustration, not from any invidious motives whatever, but simply because she stands at the head of the list in alphabetical order. In the county of Albany, in the ten years last past, there have been found 3,606 indictments by the grand jury, while all the criminals that have been tried in the criminal courts of the county of Albany during that period amount to 262, showing that only one indictment out of fifteen has been tried there, the remainder have been either discharged by the court or dismissed on bail which has been estreated and never collected; while the indicted criminal has been left at full liberty to prey again upon the community. Mr. SCHUMAKER-Will you please state the nature of those indictments? The mere fact of indictments amounts to nothing. Do you know anything about the kind of indictments? Mr. GOULD-The facts of which I am speaking are those which are returned by the county clerk of the county of Albany, and are in the most general form; there are no specific statements with regard to the matter. Mr. SCHUMAKER-Then you do not know anything about the contents of the indictmentsfor what crime parties were indicted? merely know the naked number indicted? You Mr. GOULD-That is all that this resolution called for. But the fact remains that out of 3,606 indictments only 262 have been brought to trial, and it strikes me as a very significant fact, which should be pondered well by this Convention before they determine the question before them. And I may remark, in general, that this is a fair statement for the whole State. I have only time to sum up the statement by saying that in the county of Columbia, out of 264 indictments that were found, only fifty-five (or one out of five indictments) has been tried; and it runs very much the same way in other sections of the State. There is a very great want of careful trial of indictments, and that is the reason why crimes are so rife in this community; because the variety of means of allowing our criminals to escape is so very great that district attorneys do not try them as thoroughly as they ought to do. Mr. SCHUMAKER-Do you not know that there are certain indictments which can be settled without being tried? Mr GOULD-Ö yes; there may be some such thing Mr. SCHUMAKER-Do you know what kind they are? Mr. GOULD-I cannot tell you all the kinds. Assault and battery, I think, is one of them. Mr. SCHUMAKER-Do you know what relation assault and battery bears to the whole number of those you have mentioned? Mr. GOULD-I have not summed them up; I that will illustrate the carelessness which is manfested all over the State. I speak of a case of arson occurring in the town of New Lebanon, which stirred up the whole population of that place as probably no crime ever committed stirred up that population. The person indicted for that offense was allowed to go free for three years, and when he was brought up before the court of general sessions he was remanded back to the court of oyer and terminer, and from the oyer and terminer back to the general sessions; and in that way, like a battledoor and shuttlecock, he was played about for three years. Finally the gentleman whose store was burned determined that he would urge the district attorney to try the case, and the district attorney dared to do no otherwise than try it, and he obtained a conviction. The case was then appealed to the supreme court on a question of law, and as soon as that appeal was entered the district attorney applied to the court to allow this man to give bail, and the bail was given in the sum of $2,000; and the men against whom executions had been returned nulla bona were taken as the signers of the bail-bond Mr. SCHUMAKER-That was the fault of the judge. Mr. GOULD-And the man went off, and has never been seen since. The county of Columbia incurred an expense of $4,000, and that is all that ever come of it. Mr. SCHUMAKER-Was it not the fault of the judge? Mr. GOULD-It certainly was granted by the judge, but at the motion of the district attorney. Mr. SCHUMAKER-In the case that you refer to the judge granted the prisoner bail on habeas corpus. Mr. GOULD-At the motion of the district attorney. Mr. SCHUMAKER-The district attorney had nothing to do with it. He was brought before the judge on a habeas corpus. I understand the case well. Mr. GOULD-That is not as I understand it. Let us take another case. The amount of the estreated bail in the county of Albany, as returned by the county clerk, amounted to $17,250. I suspect that that is very greatly underrated, for, in the year 1865, I went through the books of the general sessions and of the court of oyer and terminer for the county of Albany, and, unless I am greatly mistaken, the amount of estreated bail in that year amounted to at least $40,000. Let us, however, suppose that the statement of the county clerk is a correct statement and that that amount has been estreated during the past ten years. What are the facts of the case? Not one dollar of estreated bail has been paid into the treasury of the county of Albany; and I assert, sir, that there are not over ten counties in the State of New York where a single dollar of estreated bail has been paid into the county treasury during the last ten years. There is a large amount of bail estreated in every county in the State. Over one and three-quarter million of dollars have been already reported. But who gets the benefit of it? That is the question. We certainly know, and know officially, that the county treasury does not get the benefit of it. It seems to me that these things, which are well ascertained facts, show that the present system is erroneous and that it ought to be changed, and that some remedy should be found for all these evils. Mr BARKER-During your investigation, did you try to find how these facts compare with the record prior to 1846? in conversation with Governor Fenton only yesterday afternoon, and I put this question to him; whether, in the discharge of his duties, he felt bound to watch over the administration of criminal justice in the State of New York, and whether, without being specially called upor., he would interpose and send the Attorney General there. His reply was that he did not feel himself bound to watch over this matter, unless his attention was specially called to it by persons interestMr. GOULD-No, sir; I have not examined.ed, in the different counties, and was not in the But my memory runs back to that time, under habit of doing it. He does not feel, and no other the Constitution of 1821, when the district attor- Governor has felt that interest in the thing which neys were appointed by the criminal courts of the it is absolutely necessary some one should have. respective counties, and I know for a certainty It seems to me that if any proposition is perfectly that these things were done a great deal better plain, it is that the district attorney, for the reathen than now. I know in my own county of sons mentioned by the gentleman from Columbia-during the anti-rent excitement, the Rensselaer [Mr. M. I. Townsend]. which he trials arising out of those anti-rent quarrels-the has stated very lucidly and clearly, in my then district attorney, who is now a judge of the opinion, should be entirely independent supreme court of that district, and who was of popular clamor and popular passion. appointed by the court, discharged his duties His sole duty should be to administer the laws fearlessly and well, in a strong anti-rent county. He procured a great number of convictions. Such convictions could not be obtained since the present Constitution has been adopted. It stands to reason, sir, that a district attorney desiring to be re-elected will pay great attention to public opinion. Mr. SCHUMAKER-Did not the Governor of the State assist the district attorney of Columbia county? Mr. GOULD-In one case, and but one; the others were conducted by Mr. Miller alone. Mr. SCHUMAKER-Did he not send special persons to the county of Columbia, to try particular cases? with faithfulness and with zeal. It seems to me, sir, that he cannot do so while he is under the pressure of public opinion, as he is under the provisions of the present Constitution. I must confess, sir, that I should prefer-and at the proper time I shall introduce an amendment-to make the general criminal court of a county the appointing power, as it was under the Constitution of 1821. It was admirably managed in that case, and if the judges of the criminal courts are invested with the power of appointment or removal of the district attorney, I have no doubt that a very great improvement would be effected. The CHAIRMAN announced the question to be upon the amendment of Mr. Veeder. Mr. VEEDER-In the Constitution where it speaks of clerks I wish, by my amendment, also to include the register and clerk of the city and Mr. GOULD-He sent Governor Seward in a Mr. GOULD-I think he did in one case; but the other cases were conducted by Judge Miller alone, and conducted fearlessly and faithfully. You would get no such fearless and faithful trials since this last Constitution was adopted. It is perfectly evident why it is that these district attorneys are careless in this matter. They are paid just as much salary for doing nothing as they are paid for doing something. Now, sir, when the court is held, and a large criminal calendar is to be tried, the district attorney has a number of private cases which it will pay him to engage in ; is it not perfectly natural that the district attorney should engage in cases for which he is paid, rather than those for which he is not paid"? Mr. SCHUMAKER-I will ask the gentleman whether he knows that there are district attorneys in this State who are not paid a salary? Mr. FOLGER-I wish to ask the gentleman why he wishes to make the register of Kings county a constitutional officer when he is now an officer by statute. Mr. VEEDER-My object is to avoid any misunderstanding about it; this office having been established by a separate clause in the Constitution of 1846, and the register of Kings county having been established since, I want it put in, in a way that there shall be no mistake about it and have it included, as the register of New York was in the Constitution of 1846. Mr. FOLGER-There is also a register in Westchester county, but I do not see any reason for making him a Constitutional officer. Mr. HUTCHINS-It was not my purpose to say anything on the question now before the committee and I should not had not some remarks fallen from the lips of the gentleman from Mr. GOULD-No, sir; I think not. It has New York [Mr. Gerry], which I think should not been said that the Governor of the State of New go unanswered at this time. I speak more parYork has the power to send the Attorney- ticularly for the city and county of New York. General, in cases where the public opinion of That district attorneys in most other counties of the county is very much in favor of the com- the State may very properly be elected by the mission of any particular kind of crime-as people, and that an equal and perhaps better in the cases of anti-rent rebellions. It is very class of officers may be secured by electrue that he has that power, but no Governor has tion rather than by appointment I am felt himself bound to exercise that power. I was willing to concede; but, sir, so far as the council on the first election of that officer, in 1855, in which he says: "It was thought that making the police hold office during good behavior would remove it entirely from political influences; but whilst the power to appoint, suspend and remove is political and elective, it will be expecting too much of human nature to suppose that political influence can be excluded altogether. The whole police board was elected at the late election, two of the late board (the recorder and the city judge) being candidates for re-election, and policemen would have been more or less than men if they could have remained indifferent spectators of the result. I am confident the judiciary is not the proper authority for determining police matters; nor are its members qualified, either by habits of life or train of reflection, to make good commissioners. The bench and the service would each be benefited by a separation. My colleagues on the present police board fully concur in these opinions." He then quotes from a letter written by Mr. Wood to the then Lieutenant-Governor of the State as to the propriety of the election of these commissioners by the people. He says: city of New York is concerned, I cannot allow this committee to go uninformed of the fact that the gentleman who holds the position of district attorney of the city and county of New York, if he was here to speak for himself, I think would advocate appointment by the Governor, rather than election by the people. Why, sir, in 1857, when the question was before the Legislature whether there should be formed out of the city of New York and adjoining counties a metropolitan police district, the commissioners to be appointed by the Governor on the confirmation of the Senate, Mr. Hall, the present district attorney of New York, was the earnest, able, and persevering advocate of that measure, and it was owing to his influence and labors almost entirely that it became the law of the State, and, I may add, remains so to this time. What is your district attorney but a branch of the police, a part of the power to see that the law is executed? The police arrest the offender; the district attorney sees that he is indicted and properly tried; sees that justice is done between the people and the prisoner. He acts not alone as the counsel of the people, but as the counsel of the prisoner, to see that justice "The commissioners are to be elected by the peois done between him and the people. No feeling ple. It will not do to assume that the members of pride to point to the number of convictions of the Legislature are ignorant of the mode of obtained by him should control the action of the conducting our primary elections in this city by district attorney in the discharge of his duty, dwelling upon objections to this way of making and the fact stated by the gentleman from commissioners, who are to be clothed with the New York [Mr. Gerry] of the number important power of appointing, trying, punishing of convictions in that city as showing and removing policemen in whose hands are placed how honest, and faithful in the dis- the custody of the peace, order, property and lives charge of his duties the district attorney is, I think proves nothing. He has to see that justice is done; to see that those who are guilty are convicted, and that the innocent do not suffer, The gentleman from New York [Mr. Gerry] said to the gentleman from Westchester [Mr. Greeley] that if there was anything wrong the AttorneyGeneral could come down to the district attorney's office, overhaul his papers and records, and see that all was made right. This is not so. The Attorney-General has no such power over district attorneys; he cannot go into his office and interfere with him in the discharge of his duty. The Governor may give him direction to attend the court of oyer and terminer and assist the district attorney in the trial of cases (or a justice of the supreme court may give that instruction), and there his power and duty ends. Mr. GERRY-Will the gentleman give way for a moment to allow me to ask him a question? of nearly three-quarters of a million of inhabitants. There are some propositions so evident that no argument or statements are required to elucidate them; that a police system founded upon this principle, deriving its appointment from this source, will be destructive to every semblance of what constitutes police, is one of these." That was the language of Mr. Wood in 1855, when mayor of the city of New York, and probably understanding the politics of this State as well as any gentleman upon this floor, or any other gentleman of this State. Mr. Hall then proceeds to say: "The first objection made to this proposition is its assumption, by the State, of power in government which belongs to local authorities. Police, according to Blackstone, is defined to be 'the internal government of a kingdom or State.' The Legislature, which is the representative of the whole police power of the State, under constitutional grants, selects its depositories of that power. That selection must vary under circumstances. The minor village of a sparsely settled district, or the smallest city of the interior, may be very well allowed its local government uncontrolled, even should it see fit to utterly neglect the advantages and abuse the power conferred; for these may be of no concern, except to their own immediate citizens. Mr. HUTCHINS - No, sir. The Governor or judge of the supreme court can give that direction, and that is all the power that the Attorney-General can exercise in these matters. Now, if the committee will pardon me, I will give the views of the present district attorney of the city of New York on this subject. They are contained in a communication to the Committee on Cities and Villages of the Senate of 1857, and are "Government, within a subdivision of the State, so well expressed, strongly put, cogent and pow-developes in magnitude and importance according erful that nothing I could say would add to their to its size, to its wealth, to its population, to its force. In the first place, he refers to a message intercourse with other subdivisions. Thus, the of his Honor, Fernando Wood, then mayor of the harbor-master of a great port, the wardens, the city of New York, presented to the common principal officer of its health, the almoners of its charities, the guardian of its emigrants, may most of Legislature: "Their constituents on their improperly be appointed by local authorities, and visits to our city, on business or pleasure, pecubest selected by the central power; for, although liarly require the protection of a vigilant and entheir sphere of action is local, and their subordi-ergetic police. nates hold local habitation, their duties affect the police, or the commerce, or the health and wellbeing of the whole State. 66 elector will be kept sacred; when polls must be guarded, and when fraud will not lurk under the ballot-box; when the inhabitants of a great city and the travelers of a great State may feel that life and property are not to be solely guarded under the instincts of the law of nature. "It is tauntingly said that no member of the Legislature from New York city desires these reforms. Granted that this may prove so; the "The police department of New York city, as at question is pertinent whether justice to their own present organized, is an innovation upon democra- constituency does not require that the country cy, in that it contains within it a standing army members should assist them to a practical climax. almost subject to despotic control. Grant that 'Many experienced citizens of New York city this latter is expedient, must you not avoid the believe that the general theory of the proposed absurdity of mingling the democratic and aristo- act is capable of practicable accomplishment. cratic elements so freely as to neutralize each other They believe that, under its auspices, the time in operation? New York city is one of the main will speedily come when, with regular and special gates of the State. Within it the citizen of every policemen, the great metropolis will be guarded town, hamlet and village enters with his merchan- by vigilant men, who, unawed by the political dise, his superfluities of wealth, or his sacred per whip, not enervated by favoritism, diligently inson and life. Millions of denizens from other spected, carefully instructed, urged by honorable States, or foreign lands, also seek its portals year emulation, rewarded by promotion, pensiored in by year. Its cleanliness, its order, its health and sickness, and insured at death, will constitute a its security for property or life, are matters of department as perfect in operation as the peculivital importance to the whole State. Selfishness arities of human nature or as "moral insanity" cannot sustain its logic when, in the great metrop-will permit; when a great army may instantly be olis of the Empire State it says to the Buffalo for- raised to combat riot or control pestilence; when warder, or to the Rochester miller, or to the cleanly streets will be attained at comparatively Oneida tanner, "Your property, when in New slight cost, and without regard to the whims or York city, concerns none except the local au- perjuries of a negligent contractor, or the disthorities, who will protect it as they please." honesty of a sworn official, defying alike the law Nor when it argues to the unsophisticated and his civic associates; when the person of the country gentleman, or to its citizen-relative of an arriving emigrant, or to the person of wealth visiting it to embark for Europe, "Messieurs, you may walk into Peter Funk shops, be robbed by midnight marauders, be preyed upon by designing sharks, and be dealt with as they may please to treat you, but this government is our sole local concern." The peculiar circumstances which cluster around the geographical situation of New York city, and in relation thereby to the whole State, and the connection of its soociety and wealth with the interior of the State, render fallacious the argument which local pride would thus make. Suppose that the local That law was passed, Mr. Chairman. We have authorities of the city choose to let their gutters lived under its action for ten years, and I have reek with filth: to allow a plundering of the ware- heard of no wish for its repeal, certainly no petihouses of goods in transitu by marauding bands tion of that kind has come up to this body, and I of political allies; to permit Broadway at night to can only say in conclusion that all the arguments rival Hounslow Heath, cannot the sovereign pow- that applied in the case of the formation of the er of the State interfere and take back from the Metropolitau police board, to taking the power of local agents the delegated power which it gave selecting the commissioners away from the people, and bestow it upon others? and under such cir- applies equally to the election of district attorney cumstances ought it not to do so? To borrow the of the city and county of New York. I do not rhetoric of Mr. Wood, in the last extract, "It stand here to find fault with Mr. Hall in the will not do to assume that the members of the discharge of his duty; I am willing to concede Legislature are ignorant" of the growing insecu- that he has been a capable, and energetic rity of property and person in the city by "dwell-officer, but it is impossible for a man looking for ing upon" detail which the press have made house- re-election or for election from that class of inhold words from Sandy Hook to Suspension habitants which he describes in the communicaBridge; an insecurity which relates, according to tion referred to (and they are the class who conofficial statistics, as much to the strangers in our trol primary elections); it is utterly impossible metropolis as to its citizens. Fully one-half of that he should be that independent public officer the criminal cases brought before grand juries con- that he would be if he derived his appointment cern non-resident complainants defrauded from some other source. Whether it should come by baggage-smashers, passenger agents, mock from the Governor or county judges, as under the auctioneers, disreputable houses, dock thieves, Constitution of 1821, or some other authority I am hotel burglars and midnight marauders. And in the opposition remonstrance of March, 1855, occurs this language in speaking of the memberg "The rural districts of the State contribute largely to the wealth and magnificence of its metropolis. May not the people of the latter hope that the so-called rural members of the Legislature will at least interfere for the protection of their own constituency by the improvement of the police in the city of New York." not prepared now to say, but that it should come from some other source than from the people directly in the city of New York, I, for my own |