ernor.

66

He has to make his very politest bow to these able to present their report and favor the Congentlemen-gentlemen of the "third house" Ivention with their views in respect to this subject. mean. There is a member of Assembly, two or We might thus have acted under the additional three of them perhaps. They are acquainted in light afforded by their labors and researches, and Albany. They know his Excellency, the Gov-been guided, to a certain extent, by the result of They can make or remove a district their investigations. At the proper time I intend to attorney. They know everything going on about offer an amendment providing that the appointment Albany. If there is any chance of "making" as of district attorneys, which the committee proposes they call it (I believe that is the term used in to vest absolutely in the Governor, shall be made Albany in the winter time) in getting a murderer by the Governor with the advice and consent of pardoned they will endeavor to get it done because the Senate. And as thus modified I am in favor of of their relations with the Governor and make the the report of the committee in this respect, district attorney go for it; or if he will not and trust that the provision which they have they will try to get him removed on some submitted will be adopted. I believe that the petty pretense; and if there is a burglary com- change which is recommended by them will mitted or a murder, the district attorney has be judicious; that it will be advantageous and to go and make his polite bow to all sorts for the interest of the people. I do not enter of men who have influence at the capital-upon the discussion of the subject with any the members of the general committee, the hope that the views which I shall express supervisors and board of aldermen-and ask their will elucidate the subject more happily than advice in relation to the prosecution. If he sits has been done by the committee. But as the in his office, if he is preparing a case, in will come question is one of some importance, and must some of these petty politicians, who are in the now be decided, I desire to state the reasons which habit of getting a living about the city of Albany-will influence my vote, in addition to those which job politicians-who say, "I don't want you to try have been so clearly and forcibly urged in the this man so and so. We don't want you to try explanation" appended to the report. Whenthis man at all. We have heard something about ever an office is in any degree representative, I you; you may have charges made against you in am in favor of affording the fullest opportunity Albany. You had better look out for yourself for the expression of popular opinion. It is the before you try this man." I would rather have right and duty of the people in every such case an officer elected by the people. You can see to pronounce their verdict of approval or censure how, among the most of the people in the county upon the conduct of a public officer directly at the in which he lives, he is secure and independent. polls. The theory of our government demands If he is right they will always sustain him. If he that its exercise should be unrestricted, and the is improperly removed he can be re-elected. The security and perpetuity of our institutions require Governor of the State once removed the record- that the wishes, sentiments and principles of the er of the city of New York. The people of the community should thus be manifested. But a city took him up and elected him mayor. You district attorney is in no sense of the term a rephave a district attorney. If he is appointed by resentative officer, and there is no possible comthe Governor he is constantly in fear and trem- bination of circumstances under which it can bling. The party who makes him can unmake become necessary for him, in the discharge of his him on the slightest pretense. The making and duties in an official capacity, to declare his politithe unmaking is performed by one man. The cal views or mould his official course of action in gentleman says this one-man power is to make accordance with the platform or creed of any and unmake the prosecuting officer in every coun-partisan organization. He is not to legislate; he ty in this State. I hope this amendment will be is not to inaugurate or advocate or carry into sustained by this Convention, leaving the matter operation any schemes to advance the interests of exactly as it is. In relation to the trial of indict-any particular association of citizens, or to show ments, I will say to the gentlemen, there have that a certain course of action will tend more been more indictments tried under the present to secure the prosperity of the State than the elective system by the district attorneys of the adoption of a different course. He is not even to State, so far as I can obtain information, five-fold construe or explain the laws of the State. His more, than there used to be when such officer was duty is very simple and well defined. Certain appointed. penalties have been annexed by the Legislature Mr. SILVESTER-I hope the amendment of to the commission of certain offenses. It is the gentlemen from Kings [Mr. Veeder] will not his province, on behalf of the public, to use prevail. Without expressing at present my views every legal means to prosecute the violators with respect to other questions which have already of law to conviction in order that the peace of the been discussed in connection with the report of community may be preserved, that criminals may this committee, I am opposed to the amendment be punished, and the majesty of the law vindinow under consideration because its adoption cated. In order to accomplish this the great rewould change the section proposed by the report quisites are honesty of purpose, competent legal of the committee, which recommends the appoint- knowledge, and firmness of will. And in many ment of district attorneys in place of their election. instances these are more certain to be obtained by I had hoped that the discussion of the question, the means of an appointment than a popular elecwith regard to the proper mode of providing for tion. Not that I would wish for one moment to filling the office of district attorney might have be understood as entertaining or advancing the been postponed until the Committee upon the opinion that the Governor, or any appointing Prevention and Punishment of Crime had been power, is more conscientious in the discharge of a

under the present system, will forever preclude the hope of his nomination. Under the plan which has been recommended by the committee that very person might receive an appointment with general approbation. And this would result not because the people did not recognize his merit and were not convinced of his fitness for the position but because those controlling caucuses and conventions had schemes and purposes of their own to advance, were determined that those schemes and purposes should succeed, and were apprehensive that the individual supposed might not be subservient to those schemes and purposes, but might endanger the success of their combina

duty than the electors of the State, or more desirous to perform a trust properly and honestly. I have faith in the people, in their intelligence and discrimination. I believe in the integrity of the people, and that they will reward or punish any public man for the proper fulfillment or his duties, or the neglect to act in accordance with his oath, when their attention is directed to the fact. But I also believe that an officer who is in any manner connected with the administration of justice, and especially one who occupies the position of a public prosecutor, should be able to discharge his duties, often of an unpleasant and delicate character, with that firmness, fearlessness and entire determination that justice shall have tions. Were all nominations the reflection of the her due, with that manly independence which he popular will, were all candidates uniformly secannot at all times exhibit or feel, when realizing lected by the great body of the people, and those that the criminal upon trial may have been instru- whom the unbiased wish of their own partisan mental in his nomination or election, or may have organizations even would indicate invariably sufficient political power through his own influ- chosen as nominees for the position, then I am ence or that of his friends to defeat all his aspira- free to admit that the argument in favor of an tions if again a candidate. In a republican gov- appointment instead of an election would not be erument, where there is no power superior to the of equal force. In the Convention of 1821, when law, and where the success of free institutions de- the subject of the Council of Revision was under pends to a great extent upon the impartiality and discussion, Mr. Van Buren, in an able, elocertainty with which the laws are executed, it is quent and argumentative speech, enumerated essential to the permanence of that government among his objections to that body, that it was com that the official whose duty it is to prosecute for posed in part of the judiciary of the State. He infractions of those laws should not be constantly then remarked: "I object to it because it inevita subject to the resentments and caprice of those bly connects the judiciary, those who, with pure whose merited punishment has been secured by hearts and sound heads, should preside in the his diligent and honorable exertions and devotion sanctuaries of justice, with the intrigues and colto his duty. Again, we are all aware that, with lisions of party strife, because it tends to make respect to nominations for this position, as for our judges politicians, and because such has other offices, the people as a body are very rarely been its practical effect." Now, I conceive consulted. A caucus of a few politicians in the that the same reasoning which applied several towns in a county, or the different wards to the judiciary then, is equally applicable to the in a city, select delegates to a convention, and office of district attorney. The effect of electing this convention places in nomination the candidate district attorneys must be inevitably to connect upon whom the voters are invited to bestow their them with the intrigues and collisions of party suffrages. And in the heat of a party contest, in strife. It is true, district attorneys do not the desire to secure an election, and obtain a vic-preside in the sanctuaries of justice. Yet tory in a doubtful county, availability is more fre- they practice in those sanctuaries; they quently the requisite than capability, popularity are sworn officers of the people, to see that than known inflexibility and integrity of purpose. justice has its due, that the laws are executed, And after the convention has completed its work and that every criminal is brought to condign every elector may consider himself bound by party punishment. To surround them with the exciteties and obligations to support the nominee, though ment of partisan nominations, partisan convenrecognizing the fact that he is unfit for the duties tions, and to require from them partisan exertions, of his position. I do not say that this ever has is inevitably to connect them, as Mr. Van Buren occurred in the history of the State since district contended it did the judiciary, with the collisions attorneys have been elected. As far as I am ac- of party strife, and make them politicians, bound quainted with the record of those who have filled by the obligations of party, dependent upon the this position in the different counties in this com- power of party, subject to the caprice of party, monwealth, they have discharged their duties and consequently to a certain extent susceptible fearlessly, impartially and creditably, and they are to the influences of party. From all of which the eatitled to additional commendation for the fidelity welfare, the best interests, and the very liberties and diligence which they have manifested, when of the people demand that they should be rethe tenure of their office is considered. But the moved. But it may, and doubtless will, be said principle of electing an officer of that character I that improper and incompetent persons might be consider to be erroneous, and it is in opposition to appointed by the Executive of the State, that the principle that I am contending. The very influences could be brought to bear upon him man who in the whole county or city is most pe- which would operate as injuriously as those culiarly fitted by unbending integrity, determina- which frequently control political conventions, tion of will, activity of mind and superior legal at- and that therefore the result in the one case might tainments to perform all the functions of the office in many instances be as disastrous as in the other. with the greatest advantage to the public interests, This cannot be denied. And yet there are reasons may have certain marked elements of unpopularity which will present themselves to every mind upon with leading and controlling politicians, which, reflection, inducing the belief that their occur

rence would be less likely under the system pro- cannot cast any imputation upon a caucus or conposed, than under the one which is now in exist-vention because they have ratified its action by ence. If the appointment is made by the Gover- their assistance or indifference, and without that nor, he will be held responsible by the people for ratification the work of politicians would have every dereliction of duty in the appointee; his in- been of no validity. If a prosecuting officer ability or neglect to discharge in a proper manner who has been created by the Executive prove the functions of his office will reflect upon the power faithless or incompetent the responsibility lodges which gave him his commission, and that power with the occupant of the Executive chair. He will to a certain extent be held accountable for cannot evade it, cannot deny it; his signature his misconduct. The public will require, and and official seal bear witness against him, and justly require, that the individual in whose hands the people can demand of him an immediate rethis important trust is confided, and to whom this moval of the incumbent and a revocation of his prerogative has been committed by them, shall commission; and in justice to himself, in vindica previously to its exercise be convinced that the tion of his own integrity, in defense of his own person upon whom he confers the authority of reputation, he cannot decline, and will not be prosecuting officer for a county or city, has the disposed to decline, to yield to the demand, if it qualities which render him peculiarly fitted for has any foundation whatever in truth and fact, that position, that his integrity is unquestioned, and is not entirely based upon groundless rumors his knowledge of criminal law sufficient to enable and vague reports and insinuations not sushim to execute to the satisfaction of the commu- ceptible of proof. This course of pronity the duties which he will be called upon to cedure will also be in harmony with perform, and that he has the energy requisite to the practice of the federal government where surmount the obstacles which influential criminals while every officer whose position can poswill be able to interpose to a trial or conviction. sibly become representative is chosen directly by And the Governor will be held almost as rigidly the suffrages of the electors, those whose functions responsible for misjudgment as for want of recti- are strictly confined to prosecuting offenders tude of intention. The very knowledge of this against the laws are, in all cases, appointed by the fact will induce & cautiousness of selection, a President. In looking over the Constitutions of diligent and scrutinizing discrimination, and a some of the States this morning I had the curivigilance in examining every characteristic of the osity to see what course they pursued in this person proposed for his consideration or selected matter. I find that in Delaware, Maine New by himself, which in the majority of cases cannot Hampshire, Connecticut, and New Jersey the fail to result in the designation of an individual public prosecutors are appointed by the Governor, possessing in every respect the necessary qualifi- elected by the Legislature, or selected by the cations. In addition, under the amendment judges of the superior courts. I have no doubt which I have stated I intend to propose, the that a perusal of the Constitutions of the other appointment must be confirmed by the Sen-States would disclose the fact that in the majority ate. And here will be what may be the same course is adopted as in the termed a second tribunal before which States which I have mentioned. In some the nominee is to appear, that his legal acquire- of those States, if I am not very much mistaken, ments, reputation in the community in which he the prosecuting attorney had been previously lives, and qualifications or disqualifications for elected; but in recent Constitutions which they the office may again be subjected to a rigid have framed they have followed the plan of havand searching investigation. The Senator rep-ing that officer appointed by the Governor, or by resenting the district within which are the limits the Governor and Senate. This will also be in of his jurisdiction, will be present and constitute harmony with the practice in this State until 1846. one of the members of this tribunal, and it will Under the Constitution of 1777 the prosecuting be his privilege and duty, under the obligations officer was appointed by the Governor. The proof his oath, to offer any objections of which he is visions of that instrnment remained in force until personally aware or which have been brought to the Convention of 1821; then the power of aphis knowledge, which should prevent a confirma-pointment was taken from the Governor and contion, while the people of the county or city, being ferred upon the court of sessions. In 1846 the advised that the appointment is under consideration Convention assembled which framed the Consti by the Executive or the Senate, would be prompt tution under which we now live. If gentle. and active to furnish all the information in re- men will look at the records of that Conspect to the merits or demerits of the candidate vention they will discover that among the subwhich might be necessary or desirable. If an jects brought to the attention of that Convention, improper person has been chosen under the and in respect to which a change had been elective system there is no individual to whom demanded by the people was not included the responsibility can justly attach. The res pon- any petition, request or intimation that a change sibility for his nomination and election is dif- in the manner of selecting district attorneys was fused; it centers nowhere; it is shared by an advisable or required. And immediately upon the indefinite number; and this diffusion creates a presentation of the report recommending that that feeling of security and immunity from any ac- office should be elective instead of appointive, a countability for the acts, the deficiencies, the motion was made to strike out that part of the delinquencies, the incapacity of the official, even report of the committee. I am not one of those if his unfitness for the position had been pro- who would adopt or follow a certain course of claimed and recognized previously to his selection. action simply because it has the sanction of anThe burden rests upon no one, and the people tiquity, neither would I reject it solely on that

account. If in addition to believing it to be right population, until not only individual security, but

manner

and collisions of party strife, to repress crime, to punish the guilty, to protect the liberties and rights of the people, and to vindicate the majesty of the law. And I am convinced that then, and then only, will our whole duty in this matter have been discharged when the officer who appears in behalf of the State and to enforce the claims of justice, can act with the consciousness that the criminal for whose conviction he is striving, has been rendered politically powerless to attack, powerless to injure.

in principle, it possesses the further recommenda- social order is endangered by its alarming protion that it has been tried and has not been found portions. It is the duty of this Convention to wanting, but has been eminently successful a take some step to resist the spirit of defiance of powerful, and it seems to me a convincing argument law which is so often manifested, to frown upon is presented why it should be accepted. But it this disregard of legal authority which is so premay be said that this change has not been de- valent in the community; to place those whose manded by the people. I admit that it has not; office it is to enforce the statutes of the State in that no petitions have been presented here for our such a position that every obligation imposed consideration and action upon this as upon many upon them, every service required of them may other subjects; but I am not willing to admit that be discharged and rendered in such a it would not meet with the approval of the peo- that the peace of society may be preserved, the ple. Every plan which has been submitted to us rights of person and property protected and encontaining amendments to the Constitution, by forced, offenders speedily and certainly punished, gentlemen who have carefully investigated this and equal and exact justice administered without matter, provides for the appointment of these offi- respect of persons and without fear, favor or cers. Since this report has been introduced into reward. And if nothing else should be accomthe Convention, I have taken occasion to speak plished by this body, it would receive for this on the subject to my own immediate constituents. alone the thanks and approbation of the people. I have not found a single person who did not say I do not mean to assert that all this can be that the change was desirable and that it should effected simply by changing an office which be adopted. I have consulted persons of differ- is now elective to one to be filled by appointment. ent political parties and different professions, But I am firmly persuaded that the change whose attention had been directed to the proceed-will operate advantageously, that it will tend to ings of this Convention, and without a single remove the public prosecutor from the intrigues exception in the different sections of my own county, among individuals of different professions and occupations, the unanimous opinion was in favor of making the change, and having the prosecuting officer appointed by the Governor, and thus giving him that entire independence which is necessary to a successful and fearless discharge of his duty. I do not apprehend that any such consequences would result from this course as the gentleman from Kings [Mr. Schumaker] has anticipated might ensue. I have no idea that the occupant of the Executive Chair will attempt Mr. GERRY-It was not my intention, sir, to to control the district attorneys as to the manner say a word on this particular subject, but for the in which they shall exercise their func- remarks which fell from the lips of the gentleman tions, or to prescribe their duties. I do not believe from Westchester [Mr. Greeley], and which, to a he would seek to interfere with them in the least; certain extent, constituted a personal attack upon but he would hold them to a fearless, prompt and the present incumbent of the office of district impartial discharge of their duties. And that is attorney of the city and county of New York. precisely what the people desire, what they de- Those remarks seemed to me to be designed as a mand; and with less than that they would not be serious imputation, also, upon the manner in satisfied. They would require that such a which justice is administered in the criminal supervision should be exercised, that such courts of the city from which I have the honor to а vigilant scrutiny should be practiced be a delegate. It is entirely unnecessary for me, that the slightest misconduct might be either here or elsewhere, to eulogize the present made apparent and immediately punished. incumbent of the office of district attorney in the cannot be denied that for some years past crime city and county of New York. There is no abler has been fearfully on the increase in this nation. lawyer at the New York bar than Mr. Abraham There is probably no civilized country where hu- Oakey Hall. His name is known throughout the man life is considered of less value than in this. State, in every county and in every part of it, as a There is no enlightened land where great crimi- thorough, practical lawyer, and his contributions nals enjoy an immunity from the consequences not only to literature, but also to legal science, of guilt, equal to that which is accorded to them and the fidelity with which he has discharged his in this. There is no community where superior duties during two successive terms of office, facilities are afforded for the evasion or, at least, coupled with the enormous number of notorious the deferring of the infliction of the penalty criminals he has convicted and sent to the State attached to guilt. Read the daily, weekly, yearly prisons, are the very best evidences which can be record of crimes in our great cities. See with furnished, not only of his fidelity to his office, what impunity they are often committed, how but of his competency to fill it. And I can tell rarely the most aggravated are punished with the gentleman from Westchester [Mr Greeley] that severity which they deserve, and what favors that if, in the course of his life of vicissitudes and are sometimes conferred upon the perpetrators. cares, it should yet be his misfortune to be inA writer who has devoted much time and inves-dicted for any offense in the city of New York, tigation to this subject, states that crime has when the present district attorney is in office, he increased in a greater ratio than the increase of I will realize how fervently and sincerely will be

It

his prosecution by the gentleman who, he says, (not the general sessions, because that is a separ omits to discharge the duties of his office. He ate matter), there were 302 indictments, and out would realize there a more thorough "dissection" of that number there were 159 convictions, to 143 made of himself than he has ever heretofore acquittals; 302 disposed of: and adding the enjoyed, either literary or personal. The two together, leaves none untried. By referstatements of the gentleman from West-ence to the report of the clerk of the court of chester were inadvertent. They must have general sessions of the city and county of New been so, because they are based on no York, made the same year, it will be seen that data. Mere vague, general statements that one thousand seven hundred and four indictments indictments against persons who are influen- were found during the year 1866, that there were tial and powerful are rot properly prosecuted, tried in the court of sessions one thousand one surely cannot obtain credence for one instant, in hundred and forty-seven, leaving a difference of a body like this, unless backed by some vouchers. five hundred and fifty-seven not tried; and of I challenge him to produce the name of one single these, five hundred and forty-five were discharged person occupying a position such as he has stated, either by reason of the prosecutor not appearing who has been indicted for felony or misdemeanor a very common occurrence in those courts-or in the city of New York, and who, from the fault from want of the necessary legal evidence to of the district attorney, or any laches or corrupt convict; and the total number of indictments reconduct on his part, has failed to get his just maining in that court untried throughout that deserts. One of the recent cases occurring in year is only twelve. Here is a city where there New York city affords the very best evidence to are three times as many criminals tried and concontradict the statements made by the gentle-victed in a year as in any other county of the man. It is that of a young man occupying a State; and yet there is a cry raised here against position second to none in New York city, in the district attorney of the city and county of point of fortune and social station. He stood New York that he permits indictments against there alone one of the young men of the day, influential and powerful criminals to slumber in as it was said, with an income of nearly $60,000 a his safe. Now, sir, the difficulty is this: the year; and yet, in an evil moment, actuated people who are tried in the city of New York by an insane passion for gain, he perpetrated are chiefly hardened reprobates, men who, as forgeries to an enormous amount. Every fast as they come out of one State prison, commit influence was brought to bear that could a new offense and are sent into another; and be brought to bear, either by personal or therefore the duty of the district attorney is political or social influence, to divert the almost exclusively that of convicting hardened district attorney of the city and county of New offenders and of sending them back. If any York from his plain, unequivocal duty to prose-gentleman of the Convention will take the trouble cute that young man for the felony which he had to examine our criminal statistics he will find committed. He was prosecuted with vigor, and that in at least one case out of five the offender conviction was secured by the admission of guilt is an old and hardened one. Here we have a record, on the part of the prisoner, coerced by that vigor; not a statement founded upon popular belief, but and that man, Edgar Ketchum, is now in the a substantial record of facts, which I challenge the State prison at Sing Sing, a warning to offenders, gentleman from Westchester [Mr. Greeley] to overthat social position, money, birth, education, throw. Three times as many prosecutions in the will not avail to protect them from the arm of the city and county of New York as in any other law. And I rest my defense of the district attor-county of the State, and nearly double the number ney of the city and county of New York with of convictions, and yet that district attorney is that special instance of his official integrity, pro-called "one-sided," and cited contemptuously as fessional ability, and unswerving rectitude which an instance of the disadvantage of elective disis worthy of emulation by every incumbent of trict attorneys. I do not desire any better arguthe office of district attorney throughout the ment, any more cohesive statement of facts, to State; because, had he been in any sense a weak, show that the rogues are not yet in the majority corrupt or inefficient officer, he could, without ex- in the city of county of New York; for it is au posure, successfully have availed himself of the very anomaly to suppose that the rogues would elect many influences which were brought to bear upon men to office who were most energetic in sending him to overrule the effect of the indictment by them to State prison. The returns of the State omitting to prosecute it. But I do not rest these prison show who are sent from the city of New arguments upon any mere personal opinions-I York, and it will be found that such returns tally had nearly said personal affection-which I enter- with the number of convictions that are had. I tain for the district attorney himself; for he has for one, do not consider that in the face of this been for years a warm personal friend of mine, record, the vague statements of the gentleman and I am proud here to express my acknowl- from Westchester [Mr. Greeley] furnish any evi edgments of the many personal courtesies shown dence, in the city of New York at least, of any by him, not only to myself, but to every member "profitable pandering to popular vice." And furof the New York bar. From the statis-ther, so far as the personal integrity of Mr. Hall tics placed before the members of this Conven- is concerned, the statistics show that nearly tion in our manual, I have taken the trouble to $40.000 of forfeited recognizances have been compile the statistics of 1866. I find there, on collected through and paid by his office to the pages 11, 13 and 14, of volume two, that in the County returns of the indictments found and prosecuted in the court of oyer and terminer

proper officials during the last five years. Now, in reference to the propriety of vesting the power of appointing district attorneys in the Governor