Morning herald. [volume] (New York [N.Y.]) 1837-1840, 1838-07-24
The Recorders Opinion
IN the Case Of Emms Sand, vs. the Peopl.

The Recorders Opinion
In the Case Of Emms Sand, ps the People.
The prisoner is brought before upon Habeas
Coipas, 10 which the keeper Of the Pententiary official
iy returns that he de,ans her under the commitment OF
special justice whereby it appears hat the Justice ad
judged her to be vagrant by reason of her being a
common prostitute and for that offence sentenced her
20 imprisonment in the Penientiary. On this state of
facts grave question has been rnsed for my consider
alton. On behalf ofthe People it is insisted that sin
gle justice possesses under the statute competent
shortly Court of Criminal Jurisdiction to try and
convict for the offence in question; that such conviction
Is the final judgment OF Court and not examinable
upon Habeas Corpus that ths commitment is execu
ton upon such judgment, against which, however IN
Just oppressive, relief can be had by an
exercise Of the pardoning power of the Execu.
tive and that the Recorder is bound (by r. s. e.
Sec 40 subd 2)to remand the prisoner For the pri.
is contended that though special justice may
legally commit for examination and trial by the Court OF
General Sessions he does not possess the power try
and finally determine a court charge of this des.
cripton And that the Recorder is bound 10 investi.
gate the and to decide upon the legality of the de-
tenton IL is also ureee that the prisoner is not without
for her supports that she is respectfully con-
neced and that her father respectable citizen de-
siross he procure her release take her into his
house. and provide for her. will first inquire whether
the justice is Court of competent Criminal Jurisdic
ton for if he the conviction conclusive and the pr
must be remanded; NO power save that of the
Executive. relieve her. She is convicted of being
vagrant because she is found by The justice 10 be
prostitute. This conviction is made under the
statute Of 1888, entitled An Act relative TO The powers
OF the Common Council of the City of New York and
che Police and Criminal Courts Of said city," This law
Is applicable TO the city OF New York only.
The conduct which in the country counties renders
the offender " disorderly person and only imposes
upon him the Inconvenience Of finding bail if cemnuea
IN the city Of New York, is by the statute declared
higher offence and under the denomination Of a ava
grant the delinquent is subjected trial and convic
ton before single justice without jury, and may in
the dircreton of the magistrate be sentenced to six
menths imprisonment, in the Penitetiary In the CITY,
by the statute under consideration the Justice tries con-
vcts and finally Furnishes for the same conduct for which
In the eouniry he only hold bail commit for
trial at the Sessions, LIST Statutes, 63S Uader the
last mentioned statute, the person complained of in
every instance enaed 10 give bail for good behavior
Tor one year-dRd me question Of the rioation Of the
dfion Of MS rceognfzance tried by jnyy which law is
also applicable TO the city of New York and may now
be acted upon by our Special Justices
This difference between Inc country and city, between
the general law Of the State and that
ton, is not limited to the offence of but ex
tends to many other offences Respectable aad worthy
citizens, under these summary proceedings from want
OF preparation for their defence may by hasty trial
before single jsstce he convicted and sent To the
Penitentarv, and imprisoned for half year among
felons The 9Th article, Section O. of the
OF this State, and the Bill OF Rights declares that The
trial by jury all in which it has heen heretofore
used, shall remain nvioate forever no neY Court
shall be instituted bat such shall proceed according
esswss Of the common lar.
\ XIII of the Constitution adopts as the law Of the
State such parts Of the law and Of the acts of
the legislature of the Colony Of New York as formed
the law Of the colony the 10Th of April 1875; and
the resolutions the Congress OF said COLONY and of
the Convention Of the State of New York. in force on
Goth April OF l777 hch hare expired or been re-
eaisd or altered and such acts Of the Legislature Of the
State in force and declares that they shal
be and continue the law OF this State subject to such
alterations the Legislature shall make the
same " but provides that all sneh parts Of the
and such Of the said parts thereof rspnqsanf
that Constitution, thereby abrogad This Constitu-
ton was ratified by the people in 1894
The trial by jury used before 1899, is secured in
violate forever All such parts Of the common law as
had been altered by statute, and repugnaat
tke Constitution Of 1922, were abrogaed.
Noother be established except such as shall
proceed according Ia the Of common law This
means Ire common law without the repugnant parts Of
ii abrogaed by the Constitution Of 1929.
By the statute of 9th February, l7ss, first revised
laws OF lel3-4 in force al the adoption OF the Const
tuition Of 1922 the persons enumerated in the
der consideration called dsordery persons and by
that justice authorised commit the accused
mot exceeding sixty days or, until the General
Sessions The General Sessions investigated the
charge and either dismissed punished the offender
This shews that the adoption Of the Consttu
ten OF 1922 the law vsgrsn had been abroga
ted, because by the constitution, the common law
altered by the laws Thea in force which made them dis
orderly persons And this act also shews, that the
adoption Of the constitution justice merely the
comnitting officer for the conduct for whch the
prisoner stands convicted by our justice.
The changes in the common law, made by the egisls
lures and conventions anterior 10 1921, all tend in
cerdance with the spirit Of institutions 10 the most
eectus protection Of the citizen against any invasion
OF his rights and Liberties under coer oflsw. The Con-
sttuton Of 1922 deprived the legislature OF the power
retrogade by repeating amendments by which pre-
wous legislatures had ameiiorsed the common law.
The word Heretofore in the constitution, does adj
n Of the construction that the legislature might deny
the right Of trial by jury in any in which at any
previous time il had been denied
See opinion Of Oh. J. Parker, Charles River Bridge
Va Warren Bridger. Pickering. J6s.
The statute IN question processes to give TO single
Justice who. when the constitution was adopted cauld
only commit the accused for trial at the General SEES
sions the power Of trial and convctisn. This power
did not exist by any by the common law when
the Constitution Of 1922 adopted, and therefore IL
appears TO me that the legislature have il respects
this offence, and this power try and convict
dertsken to establish court The legislature had
perfect right 10 su~h court provided its
proceedings made confurmable the course of
common law" IN other words provided the accused
allowed the benefit uf jury trial This nestima.
BILE privilege OF the citizen eng allowed In this
new tribunal its establishment not authorised but
wss in my opinion, repugnsnt TO the Constitution.
am therefore sned TO pronounce the commitment
in this case void and the prisoner must therefore be dis
charged
Il is suggested that this construction will greatly i'm
psde the administration OF criminal justice IN this city
do not think So The statutes which adequate Tor
the police Of The country aud Of all the other cities 81
state and which until late period as 1888 suced
for this CITY, are in my judgment, still sufficient but v
they ere MOI, aud crimes are to be declared new
punishmens denounced, and new courts created 10 de-
Ter our people lrsm wee and immortality the npuucuons