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Albany, January 29, 1839.


DEAR SIR: I have received your letter of the 26th instant, and the newspaper therein mentioned, containing an account of the case of Prince Maticé. You inquire whether in any similar case which may occur hereafter, it would be in my power as governor to afford relief.

While it would certainly be right that I should represent the case to the executive of the state in which the emergency should arise, I am not aware that by the constitution and laws I have any power to compel the release of the party imprisoned. I am not aware that there could be any objection to the governor's submitting such a case, when it occurs, to the legislature of this state, and I certainly agree with you, that when the party oppressed is unable to bear the expense of legal proceedings to recover his liberty, the state ought to assume the burden.

However inconvenient and expensive it may be to test the constitutionality of the laws of sister-states in such cases, I know of no other remedy unless it be by an act of Congress. Proceedings at law are always slow and often expensive. But they are, nevertheless, the true and rightful remedies, and in the end more safe and certain, than any other form of redress. Your obedient servant.





Albany, January 30, 1839.

DEAR SIR: I acknowledge the receipt of your letter of the 25th instant, in which you mention that you hold the several offices of Master in Chancery, Examiner in Chancery, and Supreme Court Commissioner, and propose to retain the two former and relinquish the latter, or vice versa, and request my opinion on this proposition.

I am obliged to say in answer thereto, that it would be inconsistent with the rules I have prescribed to myself, in the exercise of my official duties, to advise you in the premises.

Far from being desirous that my power shall be increased, by the occurrence of vacancies in the public offices, and unwilling by previous stipulations to embarrass myself as to the manner in which they shall be filled when vacancies shall occur, I most cheerfully leave this, and all similar matter, to the natural and ordinary course of events.

I am, very respectfully, your obedient servant.





Albany, June 29, 1839.

SIR: The Reverend Michael Gilbride, a Roman Catholic clergyman residing at Carthage, represented to me that he is pastor of a mission in Jefferson county, embracing Lowville and Martinsburgh, in the county of Lewis; that Lawrence M'Carthy, a prisoner in the jail at Martinsburgh, who was recently convicted of the murder of Asahel Alford, and was sentenced to suffer death on the first day of August next, is a member of the Roman Catholic church; that the said Gilbride received information that the prisoner desired his spiritual aid; that he thereupon proceeded to Martinsburg for the purpose of administering the rites of his religion to the said prisoner; and that he was informed by the jailer, Mr. Daniel S. Bailey, that he was instructed not to admit any person to the prisoner, unless the said jailer should be present and hear the conversation between him and the prisoner. Mr. Gilbride further states, that he consulted the district attorney of Lewis county, to ascertain whether he could obtain admission to the prisoner by making personal application to you, and was informed by the district attorney that you had conversed with him on the subject, and had said that you considered yourself bound by the statute not to admit any person to the prisoner alone, and that consequently his application must be denied. Upon this representation, Mr. Gilbride asks my interposition in the premises.

Where the constitution and laws give to the executive no control over other functionaries, it would be disrespectful to them, and disorganizing to the administration of justice were I to assume authority. But the general duty, "to take care that the laws are faithfully executed," undoubtedly authorizes me to advise other executive officers upon any question which may arise touching the manner of discharging their duties. I deem it,

therefore, not improper to express respectfully to you my view on the subject thus brought before me.

In the first place, I am not satisfied that you have refused compliance with Mr. Gilbride's request. The conduct of the jailer, and his refusal to admit Mr. Gilbride unless attended by himself, were clearly right. It is a prudent precaution against the prisoner's escape, to provide generally that no person shall visit him except in the presence of an officer, and the jailer might well adhere to this line of duty until otherwise expressly directed by you. Mr. Gilbride ought not to have been deterred by the information given him by the district attorney from making his application to you personally. He has, therefore, no right to presume that a personal application to you would have have been denied.

But the subject is one of grave importance, and the time of a man lying under sentence of death is inestimably precious. I have therefore thought it proper, under the circumstances of the case, to express my opinion upon the reasonableness of the request itself.

It is the manifest duty of the sheriff to keep secure the persons of individuals lying under conviction and sentence of death. It is equally clear that a proper precaution should be used, to forbid access to, or conversation with them, except in the presence of an officer of justice. The provision of law which bears on this subject is contained in the 11th section of Article I., Title I., Chapter 3, Part 4, of the Revised Statutes, vol. 3, page 633:

"§ 11. Prisoners detained for trial may converse with their counsel, and such other persons as the keeper, in his discretion, may allow; prisoners under sentence shall not be permitted to hold any conversation with any person, except the keepers or inspectors of the prison, unless in the presence of a keeper or inspector."

It is true that so much of this section as relates to "prisoners under sentence" is broad enough to embrace all classes of offenders who have been convicted and sentenced to punishment, whether that punishment be death, imprisonment in the stateprison, or imprisonment in the county jail. The policy of the law doubtless is, chiefly, to guard against the escape and rescue of prisoners. So far as concerns those who are confined under sentences of imprisonment in the county-jail, it may have the further object of regulation and even severity of punishment. But it can have no such object so far as prisoners detained under sentence of death are concerned.

VOL. II.-38

Indeed, an examination of the first section of the article above quoted will show that the legislature had probably no reference in that article to this latter class of prisoners. The first section is as follows, page 632:

"SECTION I. The common jails in the several counties of this state shall be kept by the sheriffs of the counties in which they are respectively situated, and shall be used as prisons

1. For the detention of persons duly committed in order to secure their attendance as witness in any criminal case;

"2. For the detention of persons charged with crime, and committed for trial; "3. For the confinement of persons duly committed for any contempt; and "4. For the confinement of persons sentenced to imprisonment therein, upon eonviction for any offence."

Persons imprisoned under sentence of death and awaiting execution are indeed included among those for whose custody the article makes provision, but their imprisonment is incidental, and it may well be supposed that is not regarded as a part of their punishment. From this view of the statute, I think it manifest that the spirit of the law does not apply to the prisoner confined in the county-jail under sentence of death, or of imprisonment in the stateprison, and awaiting execution or removal.

The condition of a human being under sentence of death is undoubtedly most fearful and unhappy. Our laws, content with the atonement of the prisoner's death, do not require or contemplate the addition of any circumstances of terror or unnecessary privation. They require duress only because it is necessary, and they enforce it only in such manner as is necessary to prevent the prisoner's escape or rescue. Humanity dictates that the prisoner's condition should be made as comfortable and cheerful as it can be consistently with this purpose. The chief consolation of the prisoner is derived from the visits of friends and humane individuals, and experience has shown, that of such visitation, the most consoling and most effectual in producing penitence and hope is that of ministers of religion. Hence it is that the duty of visitation is enjoined by the Christian religion itself. It is declared to be one of the grounds of acceptance by our final Judge-"I was in prison, and ye came unto me." So far as my knowledge goes, no Christian sect has failed to enjoin the performance of this duty of visitation upon its ministers, while some of them, as the Catholics and Episcopalians, have rituals prepared for such occasions. What Christianity enjoins, our laws and customs both tolerate and encourage. From time immemo

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