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 Fentou 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. with faithfulness and with zeal. It seems to me, He procured a great number of convictions. Such sir, that he cannot do so while he is under the convictions could not be obtained since the pres-pressure of public opinion, as he is under the proent 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?

Mr. GOULD-He sent Governor Seward in a particular case-it was to aid in the trial of Big Thunder.

Mr. SCHUMAKER-Did he not send Rufus W. Peckham?

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?

visions 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 aud county of New York.

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 elec true 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

"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 | council on the first election of that officer, in 1855, this committee to go uninformed of the fact in which he says: 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 discharge 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.

the custody of the peace, order, property and lives 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. GERRY-Will the gentleman give way for a moment to allow me to ask him a question? 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 mat ers. 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

"Their constituents on their on business or pleasure, peculiarly require the protection of a vigilant and energetic police.

charities, the guardian of its emigrants, may most | of Legislature:
improperly be appointed by local authorities, and visits to our city,
best selected by the central power; for, although
their sphere of action is local, and their subordi-
nates hold local habitation, their duties affect the
police, or the commerce, or the health and well-
being of the whole State.

66

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, pensioned 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 elector will be kept sacred; when polls must be of an arriving emigrant, or to the person of guarded, and when fraud will not lurk under the wealth visiting it to embark for Europe, "Mes-ballot-box; when the mhabitants of a great city sieurs, 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 not prepared now to say, but that it should come the opposition remonstrance of March, 1855, from some other source than from the people occurs this language in speaking of the members directly in the city of New York, I, for my own

"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."

part, entertain no doubt. Mr. Chairman, some ten years ago the district attorney of the county of New York suddenly died; I refer to Mr. Nathaniel Blunt. Mr. Joseph Blunt was appointed his successor, and he inaugurated a new era by the indictment of a large number of the members of the common council and other public officials; his very name became a terror to evil doers. He was the appointee of the Governor; he held the office for some five short months, and when the time came around for re-nomination he did not receive the nomination of either of the political parties of that day. It was not possible for him to receive it. He had offended too many men. He had pursued his duty fearlessly. He had caused the indictment of too many officials. That thing has not occurred since, under the elective system. No district-attorney, whose name I can recall to mind, has discharged the duty as fearlessly as Mr. Blunt did during the short time he held appointment as appointee of the Governor. Bad men will undoubtedly be appointed and bad men will undoubtedly be nominated and elected. That is not the point. It is, how will you get the most active, efficient and fearless officer? Will it be the one who depends upon primary meetings and nominations and elections in the city of New York, or the man who receives his appointment from some other source. ·

Mr. GERRY-I want to ask the honorable gentleman who has taken his seat, whether the late Mr. Joseph Blunt ever tried those members of the common council after he took the trouble to get them indicted by the grand jury, and whether he did not entirely abandon the prosecution of those indictments, and of every one of them; and, secoudly, whether Mr. Blunt's politics were not the persuasion known as republican. I would also like to know whether I understood him as asserting that the Attorney-General has not the power at his own option to supersede the district attorney of any county in any trial in which he may be engaged, and conduct the trial himself on behalf of the people of the State of New York?

Mr. BURRILL I move that the committee do now rise, report progress, and ask leave to sit again.

The question was put on the motion of Mr Burrill, and it was declared lost.

The question then recurred on the first part of the amendment of Mr. Veeder, providing for the election of district attorney.

Which was lost, on a division, by a vote of 50 to 40.

-

Mr. BICKFORD I move the committee do now rise, report progress, and ask leave to sit again.

Mr. E. BROOKS-There being no quorum voting, the Chair is bound to report that fact to the Convention.

The CHAIRMAN-The point of order is well taken. The Chair is of opinion that there is a quorum present.

The question was again put on the second portion of the amendment of Mr. Veeder, and it was declared lost, on a division, by a vote of 39 to 51. Mr. SMITH-I move a reconsideration of the vote by which the election of district attorney was carried. I do it because some have voted under a misapprehenslon in that regard. Which was laid on the table.

Mr. BICKFORD-Does the Chair hold that the motion to reconsider must lie on the table? It was held differently from that in the committee the other day.

The CHAIRMAN-The Chair is of the opinion that this committee may not meet again, and it is practicable to entertain the question now.

Mr. VEEDER-I rise to a point order: that the same rules in the Convention apply to the Committee of the Whole. A motion to reconsider should lie on the table.

The CHAIRMAN-The Chair is of the opinion that the point of order is not well taken.

The question was put on the motion of Mr. Smith, and it was declared lost.

The hour of two o'clock having arrived, the Convention took a recess until half-past seven o'clock P. M.

EVENING SESSION.

The Convention re-assembled at half-past seven o'clock, and again resolved itself into Committee of the Whole on the report of the Committee on Town and County Officers, etc., Mr. BELL, of Jefferson, in the chair.

The CHAIRMAN announced the pending question to be on the amendment of Mr. Greeley, to strike out the words "town and county officers in the third line.

Mr. GERRY-As the Convention was about adjourning this forenoon, I took the liberty of asking the gentleman from New York [Mr. Hutchins] who preceded me in his argument, a question in regard to the power of the AttorneyGeneral, which he did not see fit then or subsequently to answer. On reflection it occurred to me that the question might seem a captious one; but in order to show him that the question had a motive in it, and in order to show the entirely erroneous statement of the law by the gentleman to the Convention, I propose to show beyond a doubt that the Attorney-General has the power I suggested in my remarks. By the section of the Revised Statutes relative to the power of the Attorney-General, it will be seen he has precisely that power. It is there made his duty to prosecute and defend all actions, in the event of which the State shall be interested, and by the subsequent sections of the statutes to be found at large in the 1st volume of the 5th edition at page 437-8, powers are specifically couferred on the Mr. VEEDER-I call the attention of the Attorney-General to conduct criminal prosecuChairman to the fact that there is no quorum tions. And in connection with that the case of voting. The People against McLeod, 25 Wendell, 483,

The CHAIRMAN - The motion is out of order at this time.

The question was put on the last part of the proposition of Mr. Veeder-for the election of register and clerk in the city and county of New York, and register in the county of Kings.

Which was declared lost, on a division, by a vote of 37 to 38.

572, and also reported in 1 Hill, settles the point | him, and an opportunity of being heard in his beyond a doubt. The supreme court there laid defense.

down the rule conclusively that the Attorney- Mr. ANDREWS-Mr. Chairman, I offer this General is the supreme executive officer of the substitute for the reason that while it contains the State in the prosecution of all criminal proceed-substance of the remaining portion of the section ings, and that the district attorneys are merely reported by the committee, it seems to me to his representatives. The case, it will be remem- express in simpler language and without unnecesbered was a proposition, or rather a motion, that sary prolixity the idea which that section contains. the court be directed to enter a nolle prosequi in The committee have reported a provision in place the case of Mr. Leod, who was indicted for mur- of that contained in the section of the existing der. The court said: Constitution, declaring that a sheriff shall not be "At common law the Attorney-General alone re-eligible or act as under sheriff or deputy for the possessed this power, and might, under such pre-succeeding term; but that the retiring sheriff shall cautions as he felt it his duty to adopt, discon- finish all business remaining in his hands at the tinue a criminal prosecution in that form at any expiration of his term, for which purpose his time before verdict. The power and practice under commission and official bond shall continue in it are laid down in 1 Chitty's Criminal Law, 478, force. I know of no necessity for that prohibiedition before cited. It probably exists, unim- tion with respect to the sheriff acting as paired, in the Attorney-General to this day; and under sheriff or deputy after the termination it has been by several statutes delegated to dis- of his term of office; and the part of the sectrict attorneys, who now represent the Attorney- tion providing that he shall finish the business reGeneral in nearly everything pertaining to indict-maining in his hands at the expiration of his term. ments and other criminal proceedings local to and that his commission and official bond shall their respective counties. The Legislature finding continue in force during that time is a mere statethe power in so many hands, and fearing its abuse, ment of the existing law upon that subject. This by the 2 Revised Statutes, 609, 2d edition, § 54, matter is now entirely under the control of the provided that it should not thereafter be lawful for Legislature, and that power has been properly exany district attorney to enter a nolle prosequi upon ercised. The amendment I propose differs from any indictment, or in any other way discontinue the section reported in the last clause. The comor abandon the same without leave of the court mittee say that the Governor may remove any offihaving jurisdiction to try the offense charged." cer in this section mentioned for incapacity, neglect of duty, malfeasance, intemperance, turpitude or crime, first giving to such officer a copy of the charges against him, and an opportunity of being heard in his defense. The existing Constitution reads that "the Governor may remove any officer in this section mentioned within the term for which he shall have been elected, giving to such officer a copy of the charges against him, and an opportunity of being heard in his defense;" differing from the section before us in omitting the statement of the specific causes of removal upon which the Governor may .act. The section as it stands in the present Constitution is, in this respect, more comprehensive than that proposed by the committee. is better, I think, that we should not attempt to define the particular causes of removal upon which a Governor may act. It is hardly to be

Mr. SMITH-I rise to a point of order. The gentleman [Mr. Gerry] seems to be addressing himself to the question of district attorneys; we have passed upon that question, and it is not now before the committee.

Mr. GERRY-I have nothing further to say, having accomplished all I desire in citing the authority.

The question was then put on the amendment of Mr. Greeley, and it was declared lost, on a division, by a vote of 41 to 33.

A DELEGATE-There is no quorum voting. The question was again put on the amendment of Mr. Greeley, and it was declared lost, on a division, by a vote of 47 to 37.

Mr. ANDREWS-Is a substitute now in order to the first section?

The CHAIRMAN-It is.

It

Mr. ANDREWS-Then I offer an amendment supposed that this exercise of power on the part by way of substitute.

of the Governor would be undertaken except for The SECRETARY proceeded to read the sub-reasons which would authorize his action. I stitute, as follows:

think we had better leave it as it is.

SEC. 1. Sheriffs, clerks of counties, including Mr. SMITH-Mr. Chairman, in regard to the the register and clerk of the city and county of language of the two sections, that is a matter of New York, coroners and district attorneys, shall taste, and not a matter upon which it becomes me be chosen by the electors of the respective coun- to speak. Upon the question of prolixity, howties once in every three years, and as often as va- ever, if the gentleman will take the pains to comcancies shall happen. Sheriffs shall hold no other pare, he will find that the section reported is no office and be ineligible for the next three years longer than the one in our present Constitution after the termination of their offices. They may which is offered as a substitute. In reference to be required by law to renew their security from the necessity for the provision that a sheriff shall time to time; and in default of giving such new not act as deputy or under sheriff for the succeedsecurity, their offices shall be deemed vacant. But ing term, I would say that, in my opinion, there is the county shall never be made responsible for the a necessity for such a provision; for it sometimes acts of the sheriff. The Governor may remove happens that a man holding the office of sheriff any officer in this sectiou mentioned within the and desiring a re-election, but being ineligible term for which he shall have been elected, giv- under our present Constitution. procures some pering to such officer a copy of the charges against son who does not care to perform the duties of the