The New York herald., 1850-01-06
Criminal Jurisprudence in New York.

GOVERNOR FISH.
NEw YoRx November 90, lS49
SR--ln compliance with the request contained In
your favor Of the 18th inst proceed t. ans wer thu
questions propounded to me-
giancy.
Very after my appointment as Circuit Judge Ii
February, ]os5, my attention called this subject
By the very frequent applications made to dis.
cnsSge on hsoeas corpus, persons committed for
grancy, and soon became aware Of the ssusss prsc
used IN thst regard One was, that persons, at sub
Jects only for the aims hsuse committed to the
Ienifenti.ry. Another the of the pen.
tentiary into hospital tor diseassd prostitutes The
practice very generally obtained for these absn
aoned females when diseased to be unable fol-
low Their calling, to go the police ofice"give them
selves up az it was termed, and their confes-
sion be committed as vagrants until they recovered
their health, when they would return to their former
magistrates and the aldermen discharge at pleasure
even after conviction, any who had influence
practice of the pslice justices to try sentence and
etmmit without the parties being present having
any opportunity of defence And another was, the
imperfect and illegal manner In which the accused
were committed and this was 90 gsrpg that almost
every vsgrant who demanded his discharge hs5ess
sorpus was entitled to, and obtained It,
This was well understood, that the keepers of
hostes ct prostitution would drive their femsss into
the freets when diseased that they might be sent
unn vsgrsatsi and cured before the xpiration
their sentence they would be got out either by dis
charge from police justice or an alderman, or
writ Of habtas corpus
Writs Of haCeas corpus we're consequently matters Of
almost daily occurrence at the chambers Of the judges
We were obliged to allow them. and they became q
Of much annoy snce that we took some pa ms
60 cofr.ct the evil Therefore it vas, tina. in August
1896 with the concurrence Of Chief Justice Jones and
Judge Oakley, OF the Superior Court, prepared an
thete summary convictions legal, and caused It to be
published Ia the newspapers You will find 1t In the
Ns~ YORK Lss! Oosrer for April ls47 volume page
Very little effect produced by this. The police
Justices and their clerks disregarded the Law thus
plainly stated; in some from of time TO
attend to II, amid the of their other duties
and In ,ope instances, purposely, that the commit.
menf might be Illegal and the prisoners be entitled 10
discharge at any time for asking for 1t
My next effort by directing the attention Of the
oisnd Jury TO the subject. They investigated the
matter and msde presenment, which laid before
the Common Council; but action was had by that
body and that effort also. was fruit!ess. IL at
haceas corpus at once to dchargs that pri
soners who 1t appeared from the Of the keeper
o. the penentiaIy were detained beyond the period Of
In the Deastime, the prison association, Of which
WAS ap active oeer 60 long my ocal duties would
allow me any time to devote to its affairs, took up
subject and ade various represe TO the pub
lie. have the honor herewith, to transmit for your
perusal the second and third annual reports that
society aud beg leave particularly refer pages II
to "a, ~ 80 81 81 81 of the vecond report and to
psgts 81 TO AZ and 81 Of the third report
The necessary reforms not yet wing been attained
TOOK occasion at the December Oyer aud rerminer Il
year again to call the attention OF the Grand Jury
to the subject The public attention being then d-
rected TO The nj uees In the entsry thought a
hitting time to revive the subject on the STU Of Ja-
ic@s u ~ DOuy. amer . month 1nvestiRation
mad. pressn Inent, which hereby trans nit aud beg
lrsve parucuaIy TO refer to my letter them be
found On PAGES 80 to IS Out of that presentment
sprapg an association Of some 20 Of citizens who
istu.d In February last address to the public which
nlso transmit. That address foilowsd by an ap
Phcation to the Legislature, which most fortunately
resulted In the passage Of the act estsbhns an i1
dependent Beard Of Governors tor the Aims House and
Prison psp.Itment Of eur city goversment
This detail though somewhat protracred, will not
apprthtnd, be without Its value; for while II will
chow you how far pubic attention has already been
directed to the subject IL viii show you In its progress
and more particularly In the documents referred to-
the evils complained Of and their nature and extent
nus " VII appear that my investisa,ion, to which
mi,,,a ,r., =, a. -s'--,y, 7,s ~s.s n,Se..,y com
hn.d because the police magistrates had omitted to
make any record Of conviction: by r, asou of fatal
clerical nitisk.s for emitting TO state the charge
preferred or the evidence to support IT, and
the ofsnce for which commitments had been granted
VI. poverty sickness or desttstion, and vagrsney
was siartled and embarrassed much by the dis
covery OF this result The Law made IL my duty forth
with TO discharge the whole number. TO do might
seriously leopard the peace Of the community, aud
would certainly then In the dead Of winter be attended
with much individual suffering. To guard sgsinst
hese evils and at the time TO enable TO per-
form my duty, made Q communication to the Mayor
Informing him Of the position ia which was placed,
and calling upon him, the chief magistrate. OF the
ever vas paid to my Communication, AID l vas left
With the cruel alternative of either neglecting my
duty or o smptrs our prison at one instant Of seven
hundred and hity of Its inmatss, and turning them
loose to prey upon cur community suffer and die In
its very midst.
You will thus have gained some iiea-thouxh, am
fan to believe, it will be inadequate one Of the
character and extent Of the evil to vhich you aiuds
aud turn nest to your inquiry whether IL arises from
the practice of the magistrates under the law whe
ther the Law Itself IL detective.
There nothing in tho Law itssf or In the nature Of
the subject TO render 10 tmpfaotcable for the mags
trstes TO make their mitnsns legal, aud sm not
aware of the nscssey OF any other law than such
nov exists 10 compel them 70 such result IL Is In
the Of the Governors of the Almsbouae 10
dy all tie evils growing out Of the ill-gsty of the
nmitu ebts IL must ought to b. In their poser
TO provide hospital for diseased prostitutes and de-
bssebees separate from the prison aud IL Is In their
90 exact. from the police magistrates, strict
piar o. With the law with them II N u-t ueoe.-
,nTily amid their other duii.. be work of time ana
that their attention Z. already directed to
the subject aud that they have tatsn some action In
70 tgsrd 20 IL continuance of their action aud stten-
tisn will ere long work cut the desired reforms In
the regard.
must not however, be understood to say that the
lev cannot be sn.Bded We have taken our practice
aud our ftatutes In regard to summsry convictions
fom England; but We have not kept pscs With that
country In their Improvements The reason for this
srpreh nd, TO be- found In the fact that with us the
I umb Der is much smaller than with them. Thus With
us vssr.ney Is almost the only police offence saleh
yolstis ne o. their game aud excise Laws are sdted
Hence, In that country they amount 20 about one
net exceed three four thousand and the necessity
u im proving and perfectng their lass the sub
eoi has been more apparent there than u has been
To quote my own spgusg. In regard 10 these convic
tons. they are radical departure from the great
principle which pervsdss whole ursprudspce that
for instance Of securing TO every person accused of sn
offence trial by jury Hence. they are regarded wth
great jealousy In the Law and various rules have from
time been adopted and applied 10 them, In or
der 10 guard r.rsots herty sgsnst an sbuse of the
power aud either tyrsnnica carelefs exercise ~ IT,
The Importance Of some such rules wili be manifest
fr, the consideratons that the msxtrsts sits alone
without ssspcister that appeal n sl0s cd from bis
decision. jury T. allowed Co the prisoner aud the
power of the magistrate extends to an inprsonmsnt
Tor six months y
The ssiring,ncy Of those rules and the strictness
with which the higher courts tor the reasons have al
ready meptiou.d sdbre 20 them render ~ dhcut for
ope not we'll vered In the law TO conduct summary
convictions 90 their terminaon In such manner 70
,utsn the cose scrutiny 90 which they sometimes
subjected. u this diffculty which indscsd me st
the request of the aldermen 60 prepare set ~ forms
v bich coming into use. Carefully aud judi
uis ufed Inclined 90 think the former gsity
usy be svodsd far the records of conviction
coDcerped
And IL vas To gusrd against this diculty ths; the
sw Of England wss amended, By alio~ing general
TORN Of q record
such general form would, DOUBTLESS remove much Of
The evil % vboh you sluse bot IL vould leave. and,
indeed suemeut, another aud very serious one. mas
much a. ~ would remove the only protection
stirG against abuse a COT