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5 years thereafter the annual report of the superintenO dent of State prisons portrays the consequences as they have been found in practical administration under such laws, and proven by the figures and facts submitted, in the course of his official duty, to the Legislature. He says: "By the law of 1888 all prison industries were abolished. The result was necessary idleness and the evils which always attend such a state among imprisoned men. Hence in 1889, a new prison system was established under a law which aimed to afford employment to the prisoners, while it was framed to reduce the competition of the labor of the prisoners with free labor to as low a point as possible. The results of the business carried on under this law, since 1888, have been consolidated, and the superintendent is gratified at the satisfactory report presented in the following tables." The approved system avoids all unreasonable and cruel punishments, but still is hampered with restrictions to please that minority, always most clamorous, who claim the support, and speak in behalf of, manual labor. Contract work was prevented. In certain industries not more than 100 prisoners could be employed, and in none more than five per centum of the free labor engaged therein. It is observable that this is further reduced by the estimate that three convicts do not do one free man's work. In fact, not one per centum of competition has been found by statistics. Such a system, after five years of proof without cavil, seemed free from open attack. Nevertheless, coupled with the wise, but in such place unnecessary and perfunctory, exordium, that, "the Legislature shall by law provide for the occupation and employment of prisoners sentenced to the several State prisons, penitentiaries, jails and reformatories in the State," the new Constitution adds a prohibition to take effect after two years, and in the cautious language of the annual report, radically limits, after the date named therein, the field for the employment of the prison population." Prison reports, the world over, show that this practically sweeps away safe productive labor. The injunction, moreover, is futile and useless until we return, as in England, to the treadmill. This and similar purely punitive


labor should be, if at all, under a law similar to that of England classifying the prisoners, and the classes of hard labor should be designated by legislative


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1893, p. 10. In Pennsylvania and Rhode Island no power had been reserved by charter or Constitution for amendment, but such power was held to be inherent in the people of the State. In the latter State the question arose under the charter granted by Charles II in 1663, but the Amended Constitution was adopted in 1842.

Unwilling to proceed in this direction, or to continue in the way which reminds us of the bronze horses of Berlin, each arrested and thrown back by the head, christened by the stolid wits of that capital "Advance backwards," "Forwards retreat," the Legislature of 1895 sought to restore the law by the amendment above referred to, which, adopted in due course by concurrent resolution of the Senate and Assembly, 10 now awaits the session of 1896 and, as it is hoped, final submission to the people before January, 1897. It is a prudent and praiseworthy measure to be supported by every wellwisher to prison reform, because it is the only practical means in the limited interval which remains before this part of the Constitution shall take effect. We could have wished, a more signal return to the beneficial results of the constitution of 1846 and the law of 1889, and that in the course of that progress of prison reform, which has been marked by stately and confident steps for the last twenty years, the power of the Legislature over prison labor had been left untrammeled, and that the constitutional office of the Superintendent of State Prisons, the same in terms under both Constitutions, had been enlarged in discretionary authority and proportionate responsibility. Yet as by precedent we are bound to presume the wisdom of constitution makers, and the amendment follows the method they themselves have provided, we may assume this article with its contradictory and meaningless clauses, if they be construed together, was left for deliberation, and

to be amended as indicated above. If of doubtful

purpose, the new article should not be permitted to rule by omission or accident. It is not paradoxical to say that the amendment is necessary to maintain the law, but to leave the new Constitution without amendment is to change the organic law.

Organic law touches the rights of men, protected both by written and unwritten law, as Blackstone in his commentaries says of latent powers of society "which no climate, no time, no constitution, no contract can ever destroy or diminish." Such are involved in prison reform. Moral and economic reasons bring to this side of the argument the, inother side the cry of the prisoner, wearing the semterests of the majority of citizens, while on the

blance and form of man, is not lost in the oubliette and hands to help him, if the law permits and if he and dungeon of a past age. There are cars to hear be one who can possibly be restored to usefulness and safety. We claim for him a right to labor so long as it is his right to live; and that in a rational way, to some reasonable end, to some relief of society as well as of himself. It is as necessary to the development of sound life in a man, as air to

101 N. Y. L. 1895, p. 1011. Assembly, April 24, 1895. Senate, May 14, 1895.


breathe, and the elements of food. In idleness his grasp has seized them, and the stamp of its treatmind rots as does his body. ment is made. Their baneful influence is to be excluded, if crime, which is a greater object than the criminal, is to be repressed.

The proper mode of punishment is a problem of State wherein the moral predominate over the economic questions. Yet the latter have a double bearing. Our State maintains three prisons at a cost of over half a million dollars, for which under the new Constitution there would practically be, with the increased expense, no return. They were self-sustaining not long ago. What, however, if it be a failure of another sort? "The prison," say many writers, "is a manufactory of the phthisical, the insane and the criminal.". Un-profitable, yet vengeful enough when mishandled. Thus we may picture the State prison as a factory, its materials men, its laboratories for some advantageous use.

Another example may serve. Mark amid lovely scenery on our river's bank the site of a chemical factory. Upon the foliage of adjacent hills in a long and distinct line is seen the path of its poisonous gases swept away by the wind, destructive of leaves, of twigs and growing vegetation. Within its walls is wrought out a product, safely, because skillfully treated, needful to the arts, and


doubtedly, without occupation for the prisoner such is its tendency. A forcible writer speaks thus of the English system of 1879 and his words are a warning even to our own day."1 "Nothing could be more clumsy and inefficient, except for evil. Then there is the expense of the system, which does not reform nor get rid of the thief; in old days gaol fever did the latter when the halter failed; ours merely hoards him up for awhile to turn him loose on society more wolfish than ever. As we deal with the thief he is our most costly national luxury." In France and on the Continent the ruin of convicted men and the chief cause of recedivism has been found by the courts and the inspectors-general of prisons in the prison and its regime." The gaols of Ohio, with half a dozen exceptions; have been called by an important committee of investigation in that State, moral pest houses and schools of crime. Emile Gautier speaks of the prison as a hot house for poisonous plants. Like reports come from many countries and States, that prisons seem to increase rather than diminish the number of habitual criminals against whom society must ever be on its guard, and for whom it so liberally provides, that the prisons are preferred to work-houses. Proverbs and popular songs describe the folly of any other opinion than this that, He who says the prison punishes, he is deceived," and we recall the judgment and saying of Lacassagne that "every society has the criminals it deserves." This refers less to the origin, than to such parts of their lives as the State is in a measure responsible for, after its

Our State Prison Report of 1891 maintains the position that for such physical, mental and moral well-being, as is attainable in prison, the continuous employment at labor of the prisoners is necessary. It adds, "the economical question is not referred to at all. Continued employment of some description is absolutely essential." The reasons are many for this rule and no writer of importance, no enlightened prison management fails to insist upon its adoption wherever possible in any way. Their experience unites in the conclusions, warranted by the facts in our own State under the law of 1888, until it was repealed, that "Nothing can be more cruel and inhuman than to keep prisoners in idleness; " "indolence made obligatory by law is the worst feature of the jails; without productive

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labor there can be no reformation of criminals."

11 Sketches from Shady Places, Thor Fredur (1879), 306-7.

12 Ellis Criminal, pp. 249, 253. Enquête Parli mentaire V, pp. 345, 381, 542. Dr. Strachan, Westchester Rev., June, 1895, says the majority of recedivists are instinctive criminals and consequently are "incapable of keeping within the law while free agents. Their will power is weak or altogether absent and their instincts are strong. Being thus constituted they fall at the slightest temptation whatever the threatened punishment may be."

Arrived again at our starting point, the first sentence of the 29th section of the third article of the Constitution, we find it not abrogated by the proposed amendment, but it may be held to contain the settled and deliberative judgment of our State. This proposal is, that "All prisoners sentenced to the several State prisons, penitentiaries, jails and reformatories of the State shall be kept occupied and employed at labor." Such is the language of the amendment now before the people.

"What shall be that labor?" asks the Superintendent of State Prisons in his report of 1894, and the same question was heard from many a side at the meeting of the National Prison Association at St. Paul, 1894. No State in the Union has completely

answered it and yet in most the restrictions are fewer than in our own. In England and on the Continent the principle prevails in the words of the English act is that the expense of maintaining in prisons prisoners who have been convicted of crime should in part be defrayed by their labor during the period

13 Report of Commissioners of Prisons, 1894, pp. 28, 106.


of their imprisonment." Yet success has not been fully attained, and the last report of the English Commissioners of Prisons shows that with the greatest variety, fifty-nine employments in fiftyseven prisons, besides those of the first class of hard labor, consisting of work at the tread-wheel, shot-drill, crank-capstan, stonebreaking, or such other like description of hard labor as may be appointed,” etc., embarrassment occurs "in finding suitable industrial labor for prisoners who know no trade which can be carried on in prison, and whose sentences are not long enough to admit of their being taught one." The warden of Michigan prison reported that out of 850 convicts in one prison, 200 were not employed and with most half time, and work on alternate days had to be pursued. Superintendent Scott, of Massachusetts, in his able address last year at St. Paul, had this to say that "if prison discipline is simply to be maintained, many forms of unproductive labor could be introduced, and the crank and tread-mill would be preferable to idleness, and the question might be solved through unproductive labor." The opinion that "this can be accomplished by the introduction of instructive labor at the sacrifice of remuneration, and at a somewhat additional increased expense" is given, but he adds: "Probably since industries were first started in prisons they were never in greater peril than now owing to existing legislation in New York and Ohio and pending legislation in Massachusetts and Kentucky."

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of the body 9,000 feet per day, a merely animal
function, but as the early report of Auburn prison
states, fifty convicts can be more easily governed
at work than ten in idleness, and one of the com-
mittee to investigate its working, whose report
was published in 1828, finds its chief recommenda-
tion in the discipline; that the convicts sleep better
after its use, and that they are less given to idle
talk. Small attention was given to the herding of
the prisoners in this work of gangs, or that with
the care of the prisoners, all individuality, all
ideals, all hope, all progress towards reformation
were ground away.
Labor is ennobled when we read that "Manual
qualification is the strongest safeguard against
crime, and one of the most potent influences in the
reformation of the criminal;" when we think of it
as an educator, as well as preventive of evil habits
and evil thoughts, and men taught, as they feel
their powers grow, to rise in the plane of human
activity, and become independent beings, with some
information of responsibility. But labor is debased,
even to the eye of a convict, in the tread-mill,
certainly it is to all its apostles who guard free
labor so jealously, when in this age of the triumphs
of intelligence and genius, when steam and elec-
tricity multiply as we will all brute power, we re-
duce labor to a mere feeble animal process, to a ser-
vice not equal to that of a dog or a mule.

It is, alas, a true bill of indictment, and unless relief comes, the judgment will be, that we return to the tread-mill. We go back to September 23, 1822, for the first operation of this instrument in the New York penitentiary, and its titles in the literature of the day, and also in the argot of criminals, sound strange to us now; in thieves' slang, "The everlasting stairs," "The wheel of life," "The caregrinder," officially known as "The Stepping or Discipline Mill" or Tread-mill, in England Tread-shirt industry was suspended required tact and wheel, with its substitute for use in the cells, the patience to avert unpleasant consequences." crank. The London Society for the Improvement of Prison Discipline seems to have published the first description and recommendation of it that we had in our State, but it was earlier used in Hartford, and speedily sought for in Albany and Maryland. It was worked either by men or women in groups of from thirty to fifty on a wheel, and as in England now, it did service then as power to grind corn or pump water for prison use. The daily task is recommended in the last report of the English commission* to be equivalent to raising the weight

The opposite and pleasant extreme we see in the State prison of Japan, where prisoners who are worthy are engaged in works of art, in cloisonné work, in wood carving, pottery, fan, umbrella and basket making, and descend through their grades of capacity to stone breaking as the last, to which only thirty out of two thousand convicts are left.15

The usefulness of interesting labor was exhibited, and a pathetic picture was drawn, when the warden of Clinton prison reported in 1891, that "the moroseness and sullenness of idle men when the

1828 are interesting. Messrs. Isaac Collins, Stephen Grollet and Thomas Eddy, of the Society of Friends, were most instrumental in securing the necessary attention in 1822 to the disciplinary advantages of the tread-mill and furnished illustrations, some of which are published with the report of the mayor, October 28, 1822. The commissioners of prisons, England, instituted medical inquiries in 1893 upon the requisite amount of labor, and their conclusions are given with some detail in their report of 1894. They have discontinued the shot drill.

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With one further reflection on the State's responsibility to the young we shall leave this subject. Boys from ten to eighteen years of age fill the reformatories of the different States; in one prison of California four hundred prisoners were under twenty-five years of age; of the entire prison population of our State last year over fifty per cent were less than twenty-seven years of age. In England by the last report fiftyfive per cent of youthful criminals had been previously convicted from once to eight or ten times; and it is supposed the same ratio would prevail here. Survey from what quarter you will the field of crime, you find the roots and the blossom and the flower of poisonous plants overspreading it, and to an alarming extent. It is the devil's harvest that is constantly gathered in. In 1850 the criminal was one in 3,442 of population, in 1860 one in 1,647, in 1870 one in 1,171, in 1880 one in 855, in 1890 one in 757. Even from the Utilitarian point of view, society is to be protected by the law, and its burdens grow less if one out of 1,000 convicts can be turned from habits of crime. We know that with the best prison methods of this decade in many countries the ratio of reclamations has been encouraging, and in many instances has been large. At all events such humanizing endeavors are in the right direction. Any correct rule for prison labor will be for something more than discipline, and for the prevention of the sources and causes of crime.

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be called to account for theft. But although they be not chargeable in an action on theft, they must be liable in an action to produce, if they be in possession or have fraudulently brought it about that they be not in possession; and so after the production of the article, they will be liable in a vindication (a). A condiction likewise lies against them. It is equally conceded that an heir may sac in an action on theft; for the prosecution of certain wrongs is given to heirs; so, too, the heir has the action of the Aquilian law (b). But the action on It is held outrages does not belong to the heir. not only as to that on theft, but also as to the other actions, whether civil or honorary, which arise from wrongs, that the mischief follows the person.

ULPIAN. Several wrongs concurring never bring it about that impunity is given to one; for one wrong does not diminish the penalty of another wrong. One, therefore, who has stolen and killed a man is liable in the action on theft because he has stolen; in the Aquiliau because he has killed; and neither one of these actions extinguishes the other. The same is to be said if he has robbed and killed; for he will be liable both in the action for robbery and in the Aquilian. It has been queried whether if a condition have been brought on account of the theft, an action can be brought nevertheless by virtue of the Aquilian law? And Pomponius has written that the action could be brought because the action under the Aquilian law is for one valuation, the condiction on account of theft for another; for the Aquilian takes valuation for the highest at which it was during the year, but the condiction on account of theft does not go back of the time of joining issue. But if it be a slave who has committed these, in whatever action he has been surrendered for amends, the other action is barred. In like manner, if one have beaten a stolen [slave] with a stick, he is liable in the two actions, on theft and on outrages; and forsooth if by chance he have killed this same person, he will be chargeable in three actions. In like manner, if one have stolen

(a) § 15 I. de actionibus (IV. 6): We term actions in rem vindications; actions in personam, in which it is contended that [some one] ought to convey or to perform, condictions. Condicere, in ancient language, is to give notice; now, however, we call the action in personam whereby the moving party claims [something] ought to be conveyed to himself by misuse, a condiction; for nowadays no notice is given in that name.

(b) L. 1. D. ad legem Aquiliam (IX. 2). The Aquilian law annulled all laws which prior to it related to unlawful injury, those of the XII. tables as well as others, § 1. The Aquilian law is a plebiscitum, in that Aquilius, tribune of the people, obtained for it the approval of the populace.

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[Abstract from paper read before the Medico-Legal Congress in New York city.]

of detailed study than those to which your attention is called for a few minutes this morning.

They present in some respects such marked contrasts and in others such confirmations that they form for the jurist, the toxicologist, and the physician a rare opportunity of judging of the methods of conducting criminal causes, of the limitations of expert medical testimony, of our knowledge or our lack of it regarding the effects of certain poisons, and the value and necessity of chemical research on occasions where it would apparently be valueless.

The very titles of the cases arrest our attention at first glance. "The People Against the Rev. George B. Vosburgh," "The People Against Henry Meyer, alias William Reuter, alias Henry Meyers, alias Hugo Mayer, jointly indicted with Maria Meyer, alias Emilie Bauer, alias Maria Meyers."

It is of paramount importance, in prosecuting a of alleged homicide by to prove the

T be difficult to find in the annals of

I medico-legal literature two cases more worthy purchase or possession of the poison. The cause of

The records of antimonial poisoning, except in a few accidental cases, show that it has been resorted to by persons in the better walks of life and possessing more than the average intelligence. These cases follow the rule. The reverend gentleman who was brought to the bar, was not so unfamiliar with toxic agents as would appear from his testimony, as was shown, unfortunately, subsequent to his acquittal. Meyer was possessed of considerable medical knowledge, though his practice was irregular-he was known as Dr. Meyer. Vosburgh, from his calling, could not have bought or kept poison about him without exciting suspicion; Meyer, on the other hand, was entitled to have and use poisons.

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Had the prosecution in the Vosburgh case been able to produce the evidence they obtained just after the case was closed, of his having purloined the tartar emetic from the store of a druggist friend, and with whom he had had desultory talks on the subject of poisons, the defendant never would have sworn that "I have never had tartar emetic in my hands, until I passed a powder of it over the table in this courtThough acquitted by the jury, the druggist's disclosure brought from the public so strong and general a verdict of guilty, that the pastor speedily departed for regions where his true char


acter was unknown.

Meyer was one of a party of rascals leagued together to defraud life insurance companies, and one of his pals turned State's evidence and declared that Meyer had shown him a paper in which was "brechweinstein" (tartar emetic), and that he had witnessed the use thereof on the food given the poor deceived wretch who was party to the plot, but lost his life through the treachery of those he thought his friends.

the people against Vosburgh met one of its greatest obstacles in not being able to prove the former at the time of the trial. Every effort was made through detectives and the evidence of druggists who had sold tartar emetic, both in Jersey City and New York, to secure this important evidence.

Most of the druggists questioned had not sold any antimonial preparations, even the one to whom Vosburgh went, and he never dreamed that his store of tartar emetic had been depleted until, by some inexplicable impulse, he was led to look at the bottle on his shelf, when the whole question of where Vosburgh got his supply became clear. About an ounce of tartar emetic was missing from the bottle.

The defense in the Vosburgh case was conducted along remarkable lines. They made no opening. They put the defendant on the witness stand, but not the wife. Nor did the wife appear for the people. Poor, frail, delicate and over-wrought creature, she wavered between substantiating the averments of her family in accusing her husband and her affection for him, with perhaps an added fear of disclosures concerning their married life, which might be brought to light under cross-examination by the defense. During the trial she ran away, fearing she might be compelled to take the witness stand.

While the defense did not deny that antimony had been discovered by chemical tests in medicine,

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