Samuel J. (Samuel Jones) Tilden.

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the public officers to the impropriety as well as the illegality
of such a system, and to exert whatever influence I have
against its continuance.

Such appropriations ought not hereafter to be allowed, unless
in cases where there can be a clear excuse for an expenditure
not provided for by law in some actual public necessity, and
where it can be affirmatively shown that the State received a
full consideration and is under a clear obligation of equity to
make provision for a payment which it had not previously

The tax and appropriation in the present year for canal
awards and certificates of indebtedness is one fifth of a mill,
or $433,861.57, against a tax and appropriation for the same
purpose last year of seven thirty-seconds of a mill, or $474,536.09.
The reduction is $40,674.52.

1875.] VETO-MESSAGES IN 1875. 195


The Reappropriation Bill is fully discussed in the memoran-
dum appended to it. That Bill reappropriates, after the items
struck out are deducted, 8340,079.19, against 8917,319.63 re-
appropriated last year. The diminution of reappropriations
is 8577,240.44. The amount raised by former taxes now re-
claimed into the treasury is 867,765.69.


This Bill (Chapter 260, Laws of 1875) passed the Assembly
and Canal Committee of the Senate, with but a trifling reduc-
tion from the appropriations of last year, exclusive of the
8250,000 provided last year as a separate item for deficiencies.

The budget for extraordinary repairs as originally prepared
proposed an expenditure of 81,400,000. In the ordinary course
of things, the additions which would have been made to it
during its passage through the two Houses by the friends of
local objects able to influence those bodies would probably
have swollen it to as great a magnitude as the Bill of last year
for the same purposes, which amounted in tax to nearly
81,900,000, and in appropriation to nearly two millions.

It was in this condition of things, when the routine, which
had become so firmly established, was likely to bring for my
action bills which could not be totally rejected, and perhaps
could not be effectually altered, and which would practically
continue the existing systems of canal expenditure against
which I had objected in my Annual Message, and invoked re-
trenchment and reform, that I felt it my duty to enter upon
the investigation, which resulted in the Special Message of
March 18, 1875.

The discussion which ensued generated a spirit in the legis-
lative bodies and among the people that triumphed over and
broke up the routine hitherto dominating, which, like an


enchanted ship moving onward in its course without a crew,
was drifting us into a repetition of all the improvidences, abuses,
and frauds so long infesting this department of the public

The results of this discussion will be found in a reduction of
the appropriations for expenses of collection, superintendence,
and ordinary repairs, and in the extinction of expenditures for
extraordinary repairs. The appropriation for expenses of col-
lection, superintendence, and ordinary repairs for the present
year will be 81,109,150, anc ] $150,000 for the Upper and Lower
Mohawk aqueducts and the sixteen locks, against $1,424,510
for the same objects last year, besides 8250,000 for deficiencies.
The reduction will be 8415,360.



This Bill, by the revolution which it had undergone before
its passage and the consequent rejection of it from Executive
sanction, will in its final disposition allow a saving to the
State of nearly two millions of dollars. No retrenchment
could possibly be so satisfactory.

I am convinced that, of the eleven millions of outlay levied
by taxes for extraordinary repairs during the last five years,
very little has resulted in any practical utility to the State,
in my judgment, not over one third, probably not more than
one fourth, very possibly less than that proportion of this enor-
mous sum. I do not mean that so large a share of this expen-
diture has been realized as plunder by those dealing with the
State. It has often happened that jobs practically useless to
the State have been contrived and lobbied through the Le;is-


lature in order to furnish fat contracts with liberal profits,
where the money expended and the work performed were a
waste by the State far larger than the profit realized by the
contractors. In regard to a very large share of such work,
what was not stolen was wasted, and what was not wasted was

1875.] VETO-MESSAGES IN 1S75. 197

It cannot but be gratifying that in rescuing to the taxpayers
of the State such enormous sums, we abandon or lose no real
utility ; we withhold no expenditure that will hereafter need to
be made; we abstain from nothing that can conduce to the
prosperity of our people or to their happiness ; we merely
pluck up by the roots the noxious growth of peculation, fraud,
and wrong.

I had caused to be carefully examined the forty-one several
items of expenditure for which this Bill provided when it came
to me for signature, and had resolved to object to more than
half the amount appropriated, even if I should conclude to let
any part of the Bill stand. A larger examination and more
reflection, however, brought me to the conclusion that it was a
duty I owed the people of this State to refuse my approval to
the entire Bill. There are items in it which I should be content
to allow if the Bill had provided any mode of lawfully paying
for the expenditures which these items involve. But there is
nothing which is equitably due to individuals that this Bill
would be effectual to pay ; there is nothing proposed therein
which is at the present time essential to the safe and efficient
working of the canals.

Senate Bill No. 331, entitled, "An Act in relation to Police
Justices in the City of New York."

Not approved.

Among the acts concerning the administration of justice in
the city of New York that have come before me are three.

The first provided for the election of an additional criminal
judge, with powers similar to those of the city judge, and the
appointment of an additional assistant to the district attorney.
It was urged as necessary by the Recorder, City Judge, District
Attorney, and others. It was finally assented to on condition
of a retrenchment in the salaries of the existing and other
officers which defrayed the expense of the new officers, and


made, in addition thereto, a net saving of twenty thousand
five hundred dollars to the city.

The second was Assembly Bill No. 149, in relation to courts
of record, giving the sheriff the service of process issued out
of courts of record, and was understood to operate on cases
arising in the Marine Court of the city of New York. The
jurisdiction of the Marine Court except as to marine causes
and its procedure were originally similar to those of courts of
justices of the peace. The marshal was the constable, who
served processes in the petty cases arising in that tribunal.
A series of acts have revolutionized the position of the Marine
Court. Its jurisdiction was early extended from fifty dollars to
two hundred and fifty dollars. In 1872 it was enlarged to one
thousand dollars, and by an Act of the present session it was
further enlarged to two thousand dollars. It has become a
great tribunal, possessing the external characteristics of the
Supreme Court, with six judges, a clerk, deputy-clerk, twelve
assistants, four stenographers, an interpreter, and twelve at-
tendants, and holding general terms, special terms, trial terms
in parts, and chambers. It has absorbed a large share of col-
lection cases ; and, with the recent enlargement of its jurisdiction
to two thousand dollars, will become the great " common pleas' 1
of the people. This court has outgrown the constable. The
execution of its process occupies a domain which, in all the
other counties of the State, is assigned to the sheriff, and was
assigned to him here until his functions were superseded by the
change of a justice's court into a great common pleas.

In the controversy which this question produced were, on the
one side, the marshals, many of the attorneys practising in this
court, and others whom their influence could affect; on the
other were the sheriff, most of the judges, many of the lawyers
practising in the higher courts, and the Bar Association.
Among numerous papers submitted was a copy of a resolution
adopted by that body at their March meeting, as follows :
" Resolved, that in the judgment of this Association all pro-
cess of attachment and replevin, orders of arrest, and writs of

1875.] VETO-MESSAGES IN 1875. 199

execution issuing out of courts of record of this State or city,
and to be executed within the city of New York, except when
the sheriff is a party, should be executed by the sheriff of the
City and County of New York."

On principle there would seem to be no reason for creating
or maintaining an anomaly in the system already existing
throughout the State. If there are abuses in the sheriff's office,
they should be corrected ; if the system is wrong, it should be
changed : but there is no reason why a homogeneous system
should not be maintained. If the sheriff's office is stripped of
its usual functions, the cost of its support will be thrown upon
the county. The recent Bill enlarging the jurisdiction of the
Marine Court is the consummation of a series of progressive
changes which have revolutionized the character and position
of that court, and by a logical necessity draws after it an appli-
cation of the general rule as to its processes.

The present Bill adds two new police justices to the eleven
now existing. The necessity on public ground for the measure
is the subject of some difference of opinion, but it cannot be
said to have been established. Eight of the ten justices the
office of one being vacant have made a communication to me
in which they state that the business for the six months end-
ing April 30, 1875, was nearly 14 per cent less than last
year ; that the Court of Special Sessions can, with the present
number of justices, be held daily, if expedient ; and that " any
increase in the number of police justices is quite unnecessary,
and would serve to create additional expense, to be borne by
the city without any corresponding benefit." This communi-
cation is accompanied by a statement of the Clerk of the Court
of Special Sessions as to the amount and condition of the busi-
ness of that court which seems to confirm the views of the
justices. Nor is the Bill commended as forming part of a sys-
tem, the general operation of which would improve the methods
and lessen the excessive expenses of the administration of
justice in the city of New York.


Senate Bill No. 159, entitled, " An Act in relation to the State
Prisons and Penitentiaries"

Not approved.

The first two sections of this Act provide, in substance, that
a person sentenced to imprisonment for life, or for a term of
twenty-five years or upward, who has conducted himself prop-
erly in prison, may, at the expiration of fifteen years, he dis-
charged by the Governor from actual confinement, and that the
residue of the term shall be remitted, unless he is convicted of
some other crime, or fails to receive a full pardon within ten

Although the discharge is in the discretion of the Governor,
he would, as at present in the case of prisoners confined for
shorter terms, ordinarily feel bound by the expression of the
legislative will, and uniformly release the prisoner upon re-
ceiving from the proper officers a certificate of his good

While some slight provision is made for the sentence of a
convict guilty of crime committed after his discharge, it is
evident that such provision would be rarely, if ever, executed ;
and if executed, that it would be rather as a punishment for
the latter offence than for that of which he was originally con-
victed. The practical effect of these sections, therefore, would
be to reduce the punishment for the offences now punishable
by imprisonment for life, or for twenty-five years or upward, to
imprisonment for fifteen years in the case of a convict conduct-
ing himself properly in prison.

The object of these provisions is to offer to life convicts the
same inducements to good conduct that are held out to other pris-
oners ; and it is thought that their adoption would tend greatly
to promote the discipline of the prisons. It may be that this
would be the case, and that the enactment of this Bill would
tend to secure good order among the convicts ; but, in my
opinion, this anticipated advantage would be much more than
counterbalanced fey other and graver considerations. To the


heinous crimes of murder in the second degree, rape, and arson
in the first degree should be attached a punishment proportion-
ate to their enormity. In many other States and countries that
punishment is death. Formerly in this State the same dread
penalty was exacted. In my judgment, the punishment should
not be less than imprisonment for life. In saying this I try
to realize the suffering of a life-long incarceration ; but I also
consider the nature of these crimes. As a general rule, persons
guilty of these offences are unfit ever again to associate with
their fellows. A man who proposes to himself the commission
of either of these felonies should have before him, as an element
of his calculations, the prospect of being forever immured within
the walls of a prison.

The terror of the law, which now deters men capable, through
revenge, passion, or lust, of committing these crimes, would be
greatly lightened by a change which provides for their libera-
tion, even at the end of the long period of fifteen years.

Even for the sake of promoting good order in the prisons, I
cannot assent to an enactment which tends to lessen the just
sense of the atrocity of these crimes, or of the wickedness of
those who commit them. In particular cases, where the circum-
stances will allow, Executive clemency may now be exercised ;
and in this manner only should any proper indulgence be

Assembly Bill No. 373, entitled, "An Act to amend Chapter
219 of the Laws 0/1871, entitled 'An Act to provide redress
for ivords imputing unchastity to Females? '

Not approved.

The second section of this Bill declares that every person who,
either verbally or by written or printed communication, accuses
a female of unchastity is guilty of a misdemeanor, punishable
by a fine not exceeding five hundred dollars, or by imprisonment
not exceeding one year, or by both. It contains no qualifying


At common law, spoken words are not the occasion of a
criminal prosecution. A man may orally charge another with
rape or murder, and he is thereby made liable to only a civil


In libel, where the defamation is deliberate, in an enduring
form, and generally obtains considerable publicity, it is perhaps
riirht that the defamer should be liable to criminal prosecution,
although the reason given in the books for such liability,
namely, that the publication tends to produce a breach of the
public peace, is somewhat fanciful. It has, however, been
doubted by many jurists whether, on the whole, any good has
resulted to the public, or even to the parties immediately con-
cerned, from the trial of an indictment for libel.

Where the defamation is oral, made in words which pass with
the breath in which they were uttered, made usually in the heat
of discussion or controversy, greatly liable to be misunderstood
or misrccollected, I can see no reason for making it a public

If this statutory slander, created by the Act of 1871, is to be
made a criminal offence, I can see no reason why slander at
common law should not be. To alloAv this would foment neigh-
borhood quarrels, encourage litigation, block the courts with
trifling causes, and benefit no one, except the class of small
lawyers who thrive on this sort of cases.

But there is another objection to this Bill, which, with me, is
conclusive. It does not permit the person charged with the
offence created setting up in his defence a justification, or of
his putting in the plea of a privileged communication. If a
father should inform his son of the lewdness of a woman whom
the latter was about to marry, neither the truth of the allega-
tion nor the privileged nature of the communication would be a
defence to an indictment against him. If, contrary to the gen-
eral rule, oral defamation of this particular character is to be
made punishable criminally, the prisoner should at least have
all the latitude of defence which is allowed to a defendant
upon an indictment for libel at common law.

1875.] VETO-MESSAGES IN 1875. 203

Senate Bill No. 156, entitled, " An Act to provide for the
Payment of certain Certificates issued to the Militia of the
State for services in the War 0/1812."

Not approved.

After the law imposing taxes for the support of government
had passed, after all the Appropriation Bills had passed, after
the Supply Bill had gone to the Committee of Conference,
and the financial means of the State had become fixed, and
two days before the final adjournment of the Legislature, this
Bill, appropriating $100,000, came into the Executive Chamber.
The next day another Bill, appropriating $60,000, appeared.

The origin of this Bill is remarkable. In 1857, by Chapter
597 of the Laws of that year, a commission was appointed to
ascertain and determine the sums due for contingent expenses
of the militia and Indians rendering material services in the
war of 1812. That law provided that, when the amount of these
claims should be ascertained, proper measures should be adopted
to obtain payment thereof from the Treasury of the United
States. That law also provided that certificates, with the name,
residence, and amount due of claimants, might be issued, and
that upon such certificates the comptroller might indorse th
statement that the amount thereof should be paid as soon as
the money should have been received by the treasurer of this
State from the Government of the United States in the satis-
faction of such claims.

Chapter 176 of the Laws of 1859 changed the personnel of
the commission, but it did not change the nature of the
relation which the State bore to the transaction. It provided
for a distribution pro rata among the claimants of such sum
as should be received from the United States.

In 1866 a concurrent resolution was passed by the Legisla-
ture, asking Congress to appropriate 8877,629 to pay these
claims. Certificates, expressing on their face that their pay-
ment was to be made in pursuance of the Act of 1859, were
issued. In 1869 an appropriation of 850,000 was got through


the Legislature, for the payment of such certificates. In 1870
another appropriation of $100,000 was made, and in 1874 a
further sum of 8100,000.

The Comptroller of the State has communicated to me the
information that the addition of this appropriation to the
charges now existing against the treasury will create a defi-
ciency in the means for their payment. The 8250,000 which
has been appropriated has not sufficed to pay in full the first
class of the beneficiaries. It is estimated that not less than
81,000,000 more would be required completely to satisfy the
claims of all the classes of beneficiaries. It is quite clear that
this Bill, under such circumstances, ought not to become a

Senate Bill No. 185, entitled, " An Act to amend an Act
entitled, i An Act to amend Chapter 467 of the Laws of
1862, entitled, " An Act to prevent the Adulteration of Milk,
and prevent traffic in impure and umvJiolesome Milk" passed
May 2d, 1864.' "

Not approved.

This Bill re-enacts Section 4 of the Act of 1862, omitting
the prohibition of the sale of swill milk. The Board of Health
of the city of New York apprehend that it might legalize the
dilution of milk by water. It certainly would legalize the sale
of milk obtained from cows fed on distillery slops. Protests
against such an enactment have been received from the Board
of Health of New York, from the Society for the Prevention of
Cruelty to Children, from the Society for the Prevention of
Cruelty to Animals, and from the Sanitary Superintendent
of Brooklyn. Extracts from medical authorities opposed to
the use of such milk have been submitted. On the other hand,
certificates from eminent chemists favoring such use, and
fortifying their opinions by analyses, have also been submitted.

It is enough to say that a strong and general public judg-
ment adverse to allowing the sale of such milk was formed

IS75-] VETO-MESSAGES IN 1875. 205

some years ago, and there is now no reason to suppose that
judgment has been changed. The subject was the occasion of
an extraordinary excitement among the people of New York
and Brooklyn, which was appeased by the enactment of the
prohibition now proposed to be repealed. If in any respect
that legislation can be safely or wisely modified or qualified,
the change should be made only after the fullest knowledge by
the public, the most ample opportunity for discussion, and the
most careful consideration by the authorities having the care
of the public health. Nothing of this kind has been done. This
Bill, if it should become a law, would be a complete surprise to
the people. It cannot receive the Executive sanction.

Senate Bill No. 303, entitled, " An Act to authorize Cities to
provide Railways for rapid transit of persons and property,
and to create Corporations for that purpose"

Not approved.

Three bills providing for rapid transit were before me on the
adjournment of the Legislature. The one amending the acts
relating to the New York Elevated Railroad was carefully con-
sidered. In its present form it is free from the objections alleged
against the Bill of last year. The apprehension that it might
allow of the use of the Boulevards has been removed by provi-
sions inserted in the general law, commonly known as the
Husted Bill, and by acts done or to be done under those pro-
visions. On the whole, the Bill seems to be as free from just
objections as such a measure is ever likely to be. The road, so
far as now constructed, is used with great convenience and
advantage by many of our most intelligent citizens, whose
opinions, founded on their own experience, have been submit-
ted to me. The Bill has been signed in advance of the general
Bill, in order that its provisions should be controlled by the
general law wherever the two are in conflict.

In choosing between the two general bills designed to pro-
vide for rapid transit, I have no hesitation in preferring


Assembly Bill No. 739, commonly known as the Husted Bill ;
nor have I any doubt that it is inexpedient to establish two
general systems.

It is therefore necessary to disapprove of this Bill, independ-
ently of the grave objections of a specific nature which exist
against it.

Assembly Bills Nos. 186, 247, 488, 489, 607, amending Chapter 721
of the Laivs of 1871, entitled, " An Act to amend and consoli-
date the several Acts relating to the preservation of Moose,
Wild Deer, Birds, and Fish ; No. 312, relating to Fishing in
Tonawanda Creek, in the County of Wyoming ; No. 640,
relating to Fishing in the waters of Clinton County, except
Lake Champlain ; and No. 718, relating to Fishing in the
Niagara River, within the County of Erie"

Not approved.

Although a general law was passed so late as 1871, regulat-
ing the killing of game and the taking of fish, the whole sub-
ject is now in the greatest confusion, owing to the numerous
and ill-considered acts which have since been enacted.

The Act passed at the late session, extending the powers of
boards of supervisors, confers upon these boards the power of
regulating these subjects within their respective counties. It
may be desirable that, where a body of water is situated in
more than one county, the Legislature of the State should pre-
scribe the regulations for fishing therein. No one of the bills
now before me is, however confined in its operation to such a

The belief that the power is likely to be as well exercised

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