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to be on the side of loose legislation, what is our and claim him to be a gentleman in all the walks remedy? I propose that you allow these coun- of life, a good lawyer and an experienced and able His reputy boards to legislate only in case three-fourths district attorney. The present able district attorsuch calumny. State 18 too well of all the members sustain that legislation; and ney of Kings county, Hon. S. D. Morris, if they are unanimous, and record the yeas and deserves nays, placing each supervisor on the record, tation throughout the This county supervisor is not known as a successful and indefatigable proseI am content. likely to be any better than a county clerk. Sup-cutor of evil doers to need any encomium from pose a county supervisor happens to say "Yes," me. He is sure to convict all the guilty (provided or not to say "No?" Some bad measures go the police catches them and keeps them until he through. Where is your remedy? I wish to can do so). His conviction of murderers within have it so that a political majority in a county the last few years is unparalleled in the world's 1 spirit, and when he believes he is right he cannot will not be enabled to raise the salaries or allow-history. He is possessed of a bold and defiant ances of their county clerks or their treasurer. wish to have it so that the minority party can be diverted from doing his duty from fear or "1 as it was called. object, and thereby stop the increase of salaries, favor. I will cite an instance. Years ago he was or by any kind of objectionable affirmative legis- one of the counsel emp'oyed by the liquor dealers lation whatever. I argue that this proposition to oppose the "Maine law,' now before us, is a seeming, a seeming security to When the present excise law was passed he was the people-one which really means nothing. I district attorney, and those men whose interests wish it stricken out, in order, when we come to he had advocated successfully as an attorney came the second section, we may provide real securities. to him and asked his opinion as to the constituMr. SCHUMAKER-I can only answer for my tionality of such law. He said it was constituown county, and from what I know of history tional and stuck to it, and the court of appeals susconcerning the city and county of New York, tained him, but his former old friends howled and "profitable pandering to popular vice" as the gen- raged about him. But he was unmoved, and contintleman from Westchester [Mr. Greeley] terms it, is ued to prosecute for violations under such law. man by appointing him. of bad a not the business of the district attorneys of the Is there any more chance of making a good man the past shows that men apcounties of New York and Kings. I should gather out are just many bad from the remarks of the gentleman from Westches- The experience of ter [Mr. Greeley] that it is their present duty to there sustain low rum holes, houses of prostitution and pointed, and more too, than there are elected; for gambling houses. Now, I have known in my short if a man in a community is a very bad man, no life a great many district attorneys in New York one finds it out sooner than the people. If a man and a great many district attorneys in Kings has a reputation for being a scoundrel, it is whiscounty, and I have known of no profitable pered about throughout the town where he lives, pandering to popular vice in Kings county, and and the whole county. The people, when they the only profitable pandering to popular vice that go to the polls, vote according to the reputation ever was known, or rather that I ever heard of of a man, whether he be good or bad. I would was in the city of New York, and by a district say to my friend from Essex [Mr. Hale] that if a attorney who is now a great reformer, and who district attorney expects to be re-elected in any was county he cannot be re-elected by not doing his was appointed by the Governor. an appointee, and this common rumor may duty, and not prosecuting men for murder or robknow bery; he can only be elected by doing his duty be only a slander upon him. county and doing his duty well, because people who are and honorable interested in having crimes punished, will look to men, and this remark is applicable both to those it to see that their prosecuting officer does his who were appointed and to those who were elected, duty in every particular. In our county for the who went into office with independent fortunes last twenty years (although I have had the honor and accumulated no money while in office. I to occupy that position once myself), there have have known most of the district attorneys who been very few murderers who escaped, and those have held office in New York city, and can bear who have been convicted, have been properly conwitness to the fairness and fidelity with which they victed. The gentleman cannot point his finger have performed their duties, especially those who to one case in Kings county, where the district have been elected. I have never heard of Mr. attorney there has been guilty of "profitable panHall or Mr. Waterbury or Mr. Sweeney accumu- dering to popular vice," in any particular! I lating any money from their official positions. Mr. defy him to do it-he cannot do it. I will give Blunt was district attorney of the city and county the gentleman [Mr. Greeley] the opportunity now. of New York, and he amassed no fortune. II'll permit him to interrupt me to do it. He is attribute personal feeling as the cause of my silent; that shows he cannot state one case. By learned friend, Mr. Greeley, making these bold appointment by the Governor, you do not assertions against the present district attorney of remove the district attorney at all from any He and Mr. temptation to profitable pandering to popular the city and county of New York. Hall hate each other cordially, and each take every vice. Do you? opportunity that occurs in the press of the day, and in public and private, of soundly abusing and ridiculing each other. But those who know Mr. Hall intimately differ from the gentleman in relation to his fitness and efficiency as a public officer,
that the district attorneys of our
Mr. GOULD-It appears that in the last ten years $427,000 of estreated bail has accrued in the city of New York, and only $39,000 has been paid into the public treasury. Will the gentleman account for that?
Mr. SCHUMAKER-I will tell you. There should be appointed from, this executive chamber is a great deal of straw bail in the cities of this State. But, do not lay that to the account of district attorneys. Judges take bail-district attorneys do not. By the Revised Statutes, two good freeholders can become bail for any man. Two men appear before the judge and he takes the bail. He notifies the district attorney that the prisoner is in court, and desires to give bail The district attorney examines the persons and finds out they are A, B or C, owning real estate in different portions of the city, and they swear to property sufficient to make them competent bail, so the prisoner is bailed. Then when you come to prosecute the bail bond, sometimes you find that A, B and C swore falsely, and were men of straw. This is what we call straw bail.
Mr. GOULD-Why was it, that from the year 1857 to the year 1861 not one single dollar was collected for estreated bail in the city of New York?
here is the very worst and the very last place. He will have all sorts of visits from all sorts of persons, from Governors' private secretaries and persons hanging around that chamber. They come to the district attorney and say, “Do you know John Doe, Mr. District Attorney?" "Yes, I know John Doe." "Well now, has not be been in State Prison long enough? Is not the policy of the law reformation?" "The Governor would like to do it, but your letter is not quite strong enough. Could not you make it a little stronger ?" Now this comes generally from the officials and those who hang about the Governor. How will that talk answer to the person who is appointed in that room? Would it not have more effect than it would to go to a man who is elected by the people? There have been almost weekly missions from that room. I do not say it is so now, because I have no intelligence from there now. But from the old executive chamber of this State there were weekly trips to the city of New York
Mr. SCHUMAKER-I suppose the money could not be made. That is not such a singular and Brooklyn to ascertain whether something fact. In some counties in the State there never could not be done for poor Peter Dawson or for has been a dollar collected of estreated bail. Some- Four Fingered Jack, or poor pickpocket this, or times courts direct that recognizances shall not pickpocket that. Now, if you have your district be prosecuted; sometimes, after bail has been for attorney appointed in that room, I ask you, and feited, the bondsmen bring the criminal into court this Convention, whether there is not room for and deliver him up, and he is tried and convicted. grave fears that the district attorney will be imIn such case his bondsmen should not suffer. I posed upon by the satraps and hangers-on of the do not believe that a bail bond has been prose- executive chamber, in relation to all sorts of letcuted and the money collected upon it in the ters that a district attorney may write. For county of Kings, in ten years. Ithink it is almost God's sake don't let the pardoning power make impossible to collect money upon a bail bond if the and unmake your district attorneys. party does not appear for trial. There is always Mr. GREELEY-I present this case: There some rascality about it, or some personation of is a local sentiment hostile to a general public parties who are good, by parties who are bad. In law of the State. Now, I wish the gentleman nine cases out of ten it is found the party who would tell us by what means that law is to be gave the bail bond is utterly bankrupt, or that he executed against that local hostile sentiment, and is not the person he represented himself to be. he secure his election or re-election. Will not I remember a case of this kind. A cele- the district attorney have his hands practically brated burglar was arrested in Brooklyn, and tied so he will do nothing? two men appeared and offered to go bail for the Mr. SCHUMAKER-I will tell the gentleman. prisoner. One represented himself as living in Let the Governor send there the Attorney-General Elizabeth street, and the other professed to live of the State, who is a sort of general supervisor in the Bowery, possessed of fine real estate in of its criminal interests. If there is a trial for their respective places. They were examined to murder in some portion of the State, let the Goverthe satisfaction of the county judge; they were nor send the Attorney-General to conduct the trial. taken as bail. Upon the trial the defendant did It always has been done; and I suppose when not appear. The parties who went bail were occasion requires it will be done again. I was about looked up. Men were found in each of the places, to say, before I was interrupted, that this infoin Elizabeth street and in the Bowery, who ence pervades and embraces every action of the represented the same amount of property, as was district attorney. I have not seen much of it, sworn to by those who appeared before the but when the district attorney is appointed, there county judge, but they were different persons is no independence carried with it at all. How is altogether. The persons who went bail were he appointed? In the first place, the general "straw bail," who personated those two men committee has resolved that Peter Kernips shall from the fact of their having entire knowledge be district attorney of a county. of their property. They could not be found. When a man gives good bail he generally is present at the trial. He stands his trial, and if he is convicted there is an end of it. That may be the reason why prior to 1867 there was no money paid on estreated bail bonds in the city of New York, from the fact that the worthless straw-bail bonds were the only ones upon which judgment had been obtained. Before I was interrupted I was about to say that of all places on the face of the earth, where a district attorney
are there of this general committee? Forty or fifty. He has to make his bow to them. One lives in this place, another lives in that place, distributed throughout the whole county. There are other leading and special politicians who are about Albany all the year round, who know everything about Albany which has money in, and who have influence with the Governor. They live in the county where the district attorney is to be appointed from; and they have something to say. He has to ask their influence in getting his appointment.
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. 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 ernor. 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 absolutelg 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 hving 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 uumake 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 uumaking 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. 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. iustances 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
duty than the electors of the State, or more de- under the present system, will forever preclude sirous to perform a trust properly and honestly. the hope of his nomination. Under the plan which I have faith in the people, in their intelli- has been recommended by the committee that very gence and discrimination. I believe in the integ-person might receive an appointment with genrity of the people, and that they will reward or eral approbation. And this would result not bepunish any public man for the proper fulfillment cause the people did not recognize his merit and or his duties, or the neglect to act in accordance were not convinced of his fitness for the position with his oath, when their attention is directed to but because those controlling caucuses and conthe fact. But I also believe that an officer who is ventions had schemes and purposes of their own in any manner connected with the administration to advance, were determined that those schemes of justice, and especially one who occupies the and purposes should succeed, and were apprehenposition of a public prosecutor, should be able to sive that the individual supposed might not be discharge his duties, often of an unpleasant and subservient to those schemes and purposes, but delicate character, with that firmness, fearlessness might endanger the success of their combinaand 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 ernment, 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 comthat 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 inevitasubject 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 this convention places in nomination the candidate upon whom the voters are invited to bestow their suffrages. And in the heat of a party contest, in the desire to secure an election, and obtain a victory in a doubtful county, availability is more frequently the requisite than capability, popularity than known inflexibility and integrity of purpose. And after the convention has completed its work every elector may consider himself bound by party ties and obligations to support the nominee, though recognizing the fact that he is unfit for the duties of his position. I do not say that this ever has occurred in the history of the State since district attorneys have been elected. As far as I am acquainted with the record of those who have filled this position in the different counties in this commonwealth, they have discharged their duties fearlessly, impartially and creditably, and they are entitled to additional commendation for the fidelity and diligence which they have manifested, when the tenure of their office is considered. But the principle of electing an officer of that character I consider to be erroneous, and it is in opposition to the principle that I am contending. The very man who in the whole county or city is most peculiarly fitted by unbending integrity, determination of will, activity of mind and superior legal attainments to perform all the functions of the office with the greatest advantage to the public interests, may have certain marked elements of unpopularity with leading and controlling politicians, which,
office of district attorney. The effect of electing district attorneys must be inevitably to connect them with the intrigues and collisions of party strife. It is true, district attorneys do not preside in the sanctuaries of justice. Yet they practice in those sanctuaries; they are sworn officers of the people, to see that justice has its due, that the laws are executed, and that every criminal is brought to condign punishment. To surround them with the excitement of partisan nominations, partisan conventions, and to require from them partisan exertions, is inevitably to connect them, as Mr. Van Buren contended it did the judiciary, with the collisions of party strife, and make them politicians, bound by the obligations of party, dependent upon the power of party, subject to the caprice of party, and consequently to a certain extent susceptible to the influences of party. From all of which the welfare, the best interests, and the very liberties of the people demand that they should be removed. But it may, and doubtless will, be said that improper and incompetent persons might be appointed by the Executive of the State, that influences could be brought to bear upon him which would operate as injuriously as those which frequently control political conventions, and that therefore the result in the one case might in many instances be as disastrous as in the other. This cannot be denied. And yet there are reasons which will present themselves to every mind upon 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 vindicapreviously 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 Constiby the Executive or the Senate, would be prompt tution under which we now live. If gentleand 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 delinquencies, the incapacity of the official, even if his unfitness for the position had been proclaimed and recognized previously to his selection. The burden rests upon no one, and the people
motion was made to strike out that part of the report of the committee. I am not one of those who would adopt or follow a certain course of action simply because it has the sanction of antiquity, neither would I reject it solely on that