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AS PROVEN, Barnett Collins
O'Donnell Wilbor Bennett E. Cornell La Bau
Wolcott Campbell Gibson
AS NOT PROVEN,
H. C. Murphy Sessions Sutherland
T. Murphy Stanford Williams
11 The Clerk then read the eighth charge preferred against the accused, as follows:
8th. That the said George W. Smith, being such county judge as aforesaid, did heretofore, to wit, on the 10th day of March, 1865, and at other times, at Utica aforesaid, and also at Rochester, endeavor to procure from the said Aaron Richardson certain letters and telegrams, addressed and sent to him, and certain other paper writings delivered to him by the said John A. Haddock, which papers tended to prove that the said Haddock had been guilty of misconduct and mal-administration in his office of acting Assistant Provost Marshal General of the western division of New York, with a view to suppress the evidence contained in said papers and to screen said Haddock from just censure and punishment, he, the said Smith, well knowing the character and general contents of said papers and the purposes for which their return was bought.
The President proposed to each Senator the question, “Senator, how say you, is the eighth charge preferred against the accused proven ?” when each Senator rose in his place, and responded as follows:
AS PROVEN. Barnett
E. Cornell Humphrey H. C. Murphy Wilbor Bennett Folger
6 The Clerk then read the ninth charge preferred against the accused, as follows:
9th. That the said George W. Smith, being county judge as aforesaid, habitually neglected the duties of said office, and was unreasonably absent from his office, without any sufficient reason or excuse, and that he was engaged, either for himself or others, in the business of furnishing recruits and substitutes, and bounty brokerage, a business inconsistent with the proper discharge of the duties of his place, and to the great loss and detriment of persons having business before him as county judge, or in the county court of said county; that such neglect has extended through the whole of his term as county judge.
The President then proposed to each Senator the question, “Senator, is the ninth charge preferred against the accused proven ?" when each Senator rose in his place, and responded as follows:
AS NOT PROVEN.
Mr. Williams moved that the further consideration of the case be postponed until Wednesday next, at 10 o'clock A. M.
The President put the question whether the Senate would agree to said motion, and it was decided in the negative, two-thirds of all the Senators present not voting in favor thereof.
The President then put the qnestion to each Senator, “Shall George W. Smith be removed from his office of County Judge of Oneida county, for the cause stated in the item of the charges preferred against him, which you have found proven ?" when each Senator rose in his place, and responded as follows:
3 Mr. Gibson moved that each Senator be permitted to place upon the journal bis reasons for the vote which he has given.
The President put the question whether the Senate would agree to said motion, and it was decided in the affirmative.
Upon the question of removal, Mr. Stanford before voting said:
Mr. President-I have, after as careful consideration of the testimony and arguments in this case as it was in niy power to give, voted that most of the charges against the defendant are not clearly and fully proven. But while to my mind enough has been proven, in the main, to justify me in voting for his removal from office, as I am called upon to base my final decision upon the specific charges which I find proven, I feel compelled to vote, as I do, against the removal.
Under the resolution of the Senate allowing each Senator the privilege of placing upon the journal of the Senate the reason for his vote on removal of Judge Smith, Mr. Gibson submitted the following:
Mr. President—My reasons why George W. Smith the respondent, ought to be removed from the office of county judge of the county of Oneida, are: That from the evidence, I am satisfied that he was guilty
, of extortion, in taking a fee for a service rendered by him while county judge, the service being connected with an official act, when no fee for buch service was allowed by law. This is forbidden by statute, (2 R. S. 5th Ed. 930.) This service was rendered under the statute, organizing the National Guard, by which the county judge was required to hear and determine all applications for exemption from any draft made under the act. The respondent acting under this statute, prepared the proof required by the act to be "presented to the county judge,” and heard the application and discharged the applicant, receiving thereon a compensation for drawing up the affidavit.
This was a violation of the statute. In 2d Revised Statutes 275, section 5, he is forbidden to receive compensation for advice in matters before bim, and by the Session Laws 1847, chapter 470, section 52, he is forbidden to charge or receive pay for drawing any paper in any matter before him. This evil of extortion by public officers had become so great, that judges were required by law to charge grand jurors, specially as to the law upon the subject. And in order that it might be more fully abrogated, the fundamental law in 1846, ordained that no judicial officer, except justices of the peace, should take to his own use any fees or perquisites. (Art. 6, Sec. 20.)
The excuse made is that the respondent was not aware of the law making this act extortion. It is difficult to see how he could be ignorant of it. It was directly connected with the taking of fees by him, and is in the act regulating the amount of fees to be taken for official services by judges, and is the only act forbidding extortion; and the law requires that he should as judge, charge the grand jury specially as to this offerce at every session of the court. He must have frequently performed this duty. Again: the law presumes that he knew what was his duty, and it is against public policy to allow an officer to shield himself from removal, by saying in excuse he did not know his duty.
It is rather an aggravation of the offense than a mitigation. It is like the excuse of drunkenness which is never admitted as a defense, because if allowed as such, any one wishing to commit crime, could always free himself from punishment by merely getting intoxicated. So here, the judge or officer could avoid the penalty, by pleading that he was not aware of the law. Ignorance of the law has always been held to be no excuse for its violation, and should not be in the case under hearing,
But even were his ignorance as to the offense of extortion, to excuse him, he does not profess any ignorance as to the statute forbidding a judge from allowing his partner to practice before him. This statute is positive and express, (Session Laws 1847, chapter 470, section 2,) and was clearly violated by the appearance of Utley as counsel, before the respondent as county judge. The violation of any statute by any officer is a misdemeanor. (3 R. S 4th Ed. 980 )
The respondent was therefore guilty of two offences, for which he might have been indicted and punished. He prostituted his authority and dignity as judge, by allowing his law partner to procure the bailing of Norton before him. This whole transaction was grossly contrary to his duty as a judge. In the first place it was forbbiden, as we have seen by the statute. In the second place, he allowed himself to be used for the base purpose of putting money in the hands of the firm, of which he was a member, by bounty brokerage of the most disgraceful decription.
In regard to his conduct with Haddock and Richardson, the evidence is conclusive that the three were jointly guilty of conspiracy, in various forms and for various purposes. Smith and Richardson to get unlawful aid from Haddock, Haddock and Smith to obtain and suppress the evidence in the possession of Richardson, showing the guilt of Haddock. I do not wonder at the answer of Smith, when asked to characterize some of these transactions, when he said to the counsel: "characterize it yourself.” Look at one transaction. (See evidence at pages 366, 364, 245 and 246.)
Haddock and Smith on the 3d of March, feeling the toils of justice gathering around them, got together at Elmira, and as Smith testifies, conclude to "boldly" meet the difficulty, by apparently disclosing the state of affairs at Utica, and Smith then writes the telegrams to Washington, as to the “bounty thieves” at Utica. This was actually done on the third, and yet the telegram was not sent until the fourth, and must have been purposely held back, because Smith though draw ing it on the third dated it on the fourth. Why held back? Smith was to meet Richardson at Rochester on the fourth, and get the papers implicating Haddock, and the telegram to the War Department from Haddock could then safely be sent. How did Richardson know of that telegram on the 4th of March, unless he derived the knowledge from Smith? It is hardly possible he could have got it from any other source, and Smith testifies it was spoken of. No doubt Smith gave him the information, and why? Because he wanted to induce him to give up the evidence, that would endanger all concerned. Richardson saw his opportunity for greater privileges, and would not give np the papers, and did not. Then followed other negotiations, and the offer of the $5,000 from Richardson to Haddock, the respondent all the time the "go-between," and accommodating assistant between the parties. He carried the bribe of the $5,000 to Haddock, but did not, as he states, deliver it to him or offer it-only "showed” it to him, so that Haddock saw what it was—only "called his attention to it.” But this was a mere evasion or attempted evasion of the statute, and availed nothing to defeat the prohibition.
The respondent, under the facts proved, was guilty of conspiracy. This offence by statute consists among other things in these: “Where two or more persons conspire to commit any act injurious to the public health, to public morals, or to trade or commerce, or for the perversion or obstruction of justice, or the due administration of the laws—they shall be deemed guilty of a misdemeanor.” (2 R. S. 691, Sec. 8.)
And, under this act it has been determined, that where there is a conspiracy to suppress evidence, and the conspirators apply to the party for that purpose, and persuade him, such acts are overt, whether they succeed or not. (People vs. Chase, 16 Barb. 495.)
To my mind, the conduct of the respondent, in this connection, was wholly unjustifiable. His best excuse is that he sought to “betray" and ruin his client Richardson, in order to aid his "friend” Haddock. This is not left to inference, but is acknowledged under oath by the respondent.
The question to be determined by the Senate, is substantially whether it shall be adjudged as a precedent that our judges may be guilty of indictable offenses subjecting them to trial and imprisonment in the county jail, and yet proceed and administer justice themselves? Whether a judge can be guilty of fraud and betrayal of the rights of his client and adjudge as to the rights of others? Whether he can conspire to suppress the evidence of guilt, and yet try the felon? Whether he can be the go-between of criminals and the accessory, before and after the fact, to their crimes, and yet be allowed to hold and retain his office of judge?
I cannot give an affirmative answer to these questions.
The courts are established to adjudicate upon the rights and duties of the people—to sustain and enforce the laws. They exercise one of the highest attributes of God, and justice is beautifully said to have its origin in His bosom.
The administration of the laws requires that the judge shall possess the most perfect integrity, and the moment that the people cease to feel that the courts are possessed of this essential qualification, they will of course cease to have confidence in their judgments. Would the people be likely to believe that the laws were fairly and faithfully administered, where the judge spends a good portion of his time in the exercise of extortion, in conspiracy to defeat the ends of public justice by the suppression of evidence, in the bribery of a public officer, in the betrayal of à client, in consorting between two bounty broking thieves to fill the armies of the Union with the “scum of the earth,” in enabling deserters to escape from military service, in violating the general regulations of the government as to recruits, and in turning the aid of his official station to the benefit of himself and his partner at the expense of the true interest of the people, and in plain violation of the laws of the land?
If there was ever a time when faithfulness and unfaltering courage was the plaiu duty of all in official station, that time is now.
"The land wants such
Unto the bad, is cruel to the good.” The case is not one proper for the exercise of mercy on the part of the Senate. The guilt of the respondent is palpable, and the offense is one connected with the administration of justice, and if left unpunished saps the vitals of the State.
In order to guard against the perversion of judgment to the injury of the people, the fundamental law has provided for the removal of all the judges, not only by the slow process of an impeachment, but also by the summary action of both Houses in the case of a Justice of the Supreme Court, and by that of the Senate alone in case of a county judge. The intention that this action should be summary is clear–because it is given in addition to this remedy by impeachment—which was well known to be tedious.
In the case of a county judge, the constitution only requires that notice shall be given to him and he have an opportunity to be heard. This notice has been given and the opportunity had, and the charges have been fully sustained, and to my mind justify removal.
It is not necessary that any crime should be proved in order to remove a judge. If he is shown to be imbecile from age, infirmity, illness or otherwise, or is permanently insane, or so shamefully immoral that his influence and example tend to degrade the administration of justice, I think he may be removed.
In the case of this respondent, however, in addition to offences degrading to the ermine of a judge, he has also been guilty of actual crime, and clearly ought to be removed.
I shall therefore vote that he be removed from the office of county judge of the ceunty of Oneida.
Mr. Collins moved that when the Senate adjourn it be until Monday evening at 74 o'clock.
The President put the question whether the Senate would agree to said motion, and it was decided in the affirmative.
Mr. Lent moved that the bill entitled "An act to incorporate the Samaritan Home for the aged of the city of New York,” be recommitted to the committee on charitable and religious societies, and retain its place on general orders.
The President then put the question whether the Senate would agree to said resolution as amended, and it was decided in the affirmative.
The Senate then resolved itself into a committee of the whole, and proceeded to the consideration of general orders, being the bills entitled as follows:
"An act to provide for a supply of water in the city of Schenectady."
Assembly, "An act to amend an act entitled 'An act providing for the erection of a public hall in the village of Palmyra, and the means for paying the expenses thereof, passed April 10, 1866.”
"An act to amend an act entitled 'An act to prevent fraud in the opening and laying out of streets and avenues in the city of New York, passed April 24, 1862.”
Assembly, “An act to extend the time for collection of taxes, in the several towns and cities of this State."
After some time spent therein, the President resumed the chair, and Mr. Godard, from said committee, reported in favor of the passage of