Crime and Punishment in Federalist New York: Editorial Note
Crime and Punishment in Federalist New York
Years of experience as chief justice for the New York Supreme Court of Judicature (1777–79) and the Supreme Court of the United States (1789–95) had instilled Jay with a certainty that the just practice of law was necessary for maintaining good governance and social harmony. Jay affirmed this belief in his inaugural address before the state legislature: “One great object of which a people, free, enlightened and governed by laws of their own making, will never lose sight is, that those laws be always so judiciously applied and faithfully executed, as to assure to them the peaceable and uninterrupted enjoyment of their rights.”1 The principle of administering justice in a manner both equitable and consistent had guided his judicial decisions in the previous two decades and continued to do so during his two terms as New York’s chief executive.2
In his bid to uphold the efficacy of New York jurisprudence, Jay urged legislators to overturn or at least improve upon the most serious defects therein. As with his predecessor George Clinton, Jay focused much of his efforts on ameliorating the state’s draconian criminal laws through the application of Enlightenment principles.3 “It continues to be worthy of consideration,” he remarked to state senators and assemblymen in January 1796, “how far the severe penalties prescribed by our laws in particular cases admit of mitigation; and whether certain establishments for confining, employing and reforming criminals will not immediately become indispensable.”4 Two months later, lawmakers moved by the “dictates of humanity and the principles of justice” altered the criminal laws of the state so that the “punishment of crimes should be proportioned to the different degrees of guilt of the offenders.”5 Prior to the passage of this bill, those convicted in New York of committing sixteen different felonies, including forgery, burglary, and arson, would receive a death sentence.6 However, under the new law, only treason, murder, and theft from a church were still categorized as capital offenses.
Further provisions in the statute called for the construction of two state penitentiaries in New York City and Albany.7 Penal reformers such as Thomas Eddy anticipated that confinement would serve as more than merely a primary form of punishment; in their eyes, imprisonment, along with a steady regimen of discipline, labor, and religious practice, would create an environment suitable for rehabilitation in which offenders would recognize and contemplate their past mistakes.8 Whereas construction on New York City’s Newgate Prison began in the summer of 1796, a lack of adequate funding forced legislators to cancel the Albany project after several months.9 Located on the east bank of the Hudson River, Newgate Prison comprised four acres containing cells, workshops, dining facilities, hospital, gardens, yards, and guard towers.10 With the completion of the prison in November 1797, the governor issued a proclamation announcing that the institution was now “ready for the Reception of Prisoners” from throughout the state.11
The implementation of penal reform measures met with mostly positive responses. Samuel Bayard wrote from London congratulating the governor on his successful collaboration with state lawmakers. The resulting legislation, he asserted, was “erasing from our laws every vestige of blood—& [was] in the mild & benevolent spirits of the religion we possess.” Bayard predicted that a system of justice based on principles of “repentance & amendment” rather than those of “legal revenge, disgrace, and punishment” would have a unifying impact on the state and diminish existing political and social divisions.12 Not all New Yorkers, however, shared Bayard’s enthusiasm. Jay acknowledged that most citizens supported penal reform, yet he also observed much resistance in Albany and throughout the northern counties.13
The state of New York granted its governor broad discretionary powers for pardoning criminals, making Jay a central figure in reforming the penal code.14 Article 18 of the New York Constitution authorized the chief executive to pardon and commute the sentences of all convicted criminals, excepting those found guilty of treason and murder. In the latter two cases, the governor could grant a reprieve until the next sitting of the legislature and also recommend that lawmakers show mercy to the condemned.15 The more recent statute passed in March 1796 further empowered the governor to commute a death sentence to a term of imprisonment in the state penitentiary with conditions of hard labor or solitary confinement.16
Jay reviewed recent capital punishment cases in the months prior to the passage of the reform bill. Between November 1795 and April 1796, he issued several stays of execution.17 On the advice of Robert Yates, the chief justice for the state supreme court, Jay granted reprieves to three men found guilty of burglary and forgery, thereby delaying their death sentences until state legislators could introduce a new penal code.18 Yates alerted the governor to a similar situation three months later regarding another trio convicted of forging promissory notes.19
Jay viewed the power to pardon as a crucial instrument for carrying out his executive duties and one that demanded his adherence to the “steady Principles of Sound Policy combined with those of Benevolence” when determining whether someone was deserving of clemency.20 Such responsibility, he averred, was “to be considered as a trust to be executed, not according to my will and inclination, but with sound discretion, and on principles which reconcile mercy to offenders, with the interests of the public.”21 Jay therefore recognized the necessity of disregarding his personal views when taking up the question of pardons. In such matters, he asserted, “Prudence and Discretion” must dictate the governor’s decision-making process. Jay further confided that “very few Convicts would be long imprisoned” if he made judgments based on his own “wishes or Feelings.”22
The governor’s response to forgery cases involving Israel Stone and Stephen Belknap, both of whom hailed from Connecticut, sheds further light on how he handled the pardon process. Facing life imprisonment, Stone relied on powerful allies residing in his hometown of Litchfield—such as Tapping Reeve, Uriah Tracy, and Benjamin Tallmadge—to secure his release through the intercession of Governor Oliver Wolcott.23 Stone possessed a manner and temperament commensurate with that of “other young Men of his rank in life” the petitioners explained to Wolcott, so his participation in such a crime could only occur under the influence of “evil counsellors”.24 They made an additional appeal based on the status of Stone’s family and friends within the community, emphasizing that his father, Jonah Stone, possessed an “upright Deportment & respectable Character”.25 Wolcott forwarded the document to Jay, adding his own recommendation for clemency.26 Although respectful of Wolcott and his fellow advocates, Jay remained unconvinced that a pardon should be issued for Stone. The nature of forgery, Jay observed, entailed “a very great Degree of cool deliberate Wickedness,” and unlike most other crimes, it does not result from acts of “Passion, Ebriety or Precipitation.”27 He further noted a disturbing trend in the rising number of forgery cases, warning that such an increase will prove especially harmful to a “Commercial Nation” like the United States.28 Speaking to the issue of Stone’s social status, Jay remarked that many forgers shared the same “decent and reputable” background as Stone and considered it an injustice to “look with a more favorable Eye on those who become criminal in spite of a good Education and of good Examples than on those Offenders who from Infancy have lived destitute of such advantages.”29
Like Stone, Stephen Belknap of Norwalk was given a life sentence for his forgery activities. Belknap received further punishment for taking part in an escape with other inmates from the New York City jail in April 1798. Upon his recapture shortly thereafter, authorities added eighteen-months of hard labor to his current sentence and transferred him to the newly built state prison.30 Belknap pinned his hopes for a gubernatorial pardon on the efforts of Norwalk’s leading citizens. In a petition sent three months after his jail break, Belknap’s supporters pleaded for leniency by highlighting that his father had suffered a grave wound while serving as an officer in the war of independence and was now reduced to an invalid status.31 Neither social connections nor family conditions, however, swayed the governor in his decision not to issue a pardon. Moreover, given Belknap’s participation in the recent jail break, Jay saw little reason to look favorably upon one whose “offence included disrespect to the laws, opposition and defiance to their authority, and a most unjustifiable combination to break from their control by force of arms, and without regard to the blood and lives of faithful officers and innocent citizens.”32 The governor further pointed out that releasing Belknap would potentially undermine both the authority of “civil magistrates and ministers of justice” who carried out the law and the public belief that pardons and the recently enacted penal reform would establish a more secure and more just society.33
Whereas anyone had the right to submit a petition to the governor, the episodes involving Stone and Belknap highlight the fact that those seeking pardons frequently turned to persons of prominence and authority to plead their cause. In several instances, Jay declined pardon requests from persons with whom he was well acquainted, including Alexander Hamilton, Philip Schuyler, and Stephen Van Rennselaer.34 Jay certainly had no intention of offending or alienating his close friends, relatives, and political allies, yet he understood that his duties as an elected state official took precedence over other considerations. Such was the case in August 1798 when Hamilton wrote to Jay on behalf of Janus Ross, “a very simple lad” with “respectable connections” in his home state of South Carolina.35 Ross had attempted to pass a forged check after mismanaging funds loaned to him by a family friend. Jay refused to grant amnesty, however, and explained to Hamilton that since “the Power to pardon is a Trust” conferred upon him by the people and the state of New York, it should “be exercised in Principles of sound Discretion, combining Policy Justice and Humanity.”36
In deciding whether or not to issue a pardon, Jay often solicited advice from the magistrates who deliberated on the specific court case under review. For instance, in October 1797, Jay requested that Richard Varick and James Kent consult and advise as to whether a pardon should be granted to Peter Heaton.37 Two years later, George Barneswell appealed on behalf of his teenage son who had been convicted of manslaughter. Since the crime was the unfortunate result of a “^playful^ Indiscretion” and was deemed accidental in nature, Jay assured Barneswell that his son’s punishment would probably only be severe enough to leave a “suitable Impression on the public mind”.38 Nonetheless, the governor was determined to “form a correct opinion on the subject,” and delayed making a final decision until he had first discussed the issue with the judge who had presided over the trial.39
Jay received many pardon requests on behalf of inmates serving their sentences at the state penitentiary. When deciding these cases, he regularly sought out information about the prisoner’s conduct and character from the staff overseeing the institution. One such petition was submitted in December 1797. Two months previous, Thomas Sterling Jr. had received a yearlong sentence for stealing a gold watch. Prior to issuing a pardon in February 1798, Jay inquired about how Sterling had “conducted himself during his Imprisonment” and asked for other pertinent “Facts and Circumstances.”40 He followed a similar course of action that same month for the case of John Garret. At the behest of John Lansing Jr., the newly appointed chief justice of New York’s Supreme Court, the governor looked into the possibility of reducing Garret’s life term to seven years with hard labor. Jay requested a report on Garret’s stay at Newgate from Isaac Stoutenbourgh, the chairman of the prison’s board of inspectors. The governor anticipated that the prospect of an early release would motivate Garret and other inmates to exemplary behavior.41
Proponents of penal reform in New York agreed with the governor that the use of pardons would have a positive impact on convicted felons. Robert Bowne,42 an inspector at Newgate Prison, professed confidence that pardoning would encourage “Industry, Sobriety, and general good Behaviour” among the imprisoned population.43 In his published account of the institution, Thomas Eddy shared Bowne’s assessment and noted with approval that the governor had sought the advice of Newgate’s board of inspectors when considering whether a prisoner was deserving of pardon.44
The governor’s confidence that pardoning would improve the status of inmates, as well as his optimism concerning the efficacy of penal reform, would be tested during his final years in office. Beset by overcrowding and unsanitary conditions, Newgate Prison experienced a series of escapes and uprisings. In June 1799, a planned breakout by fifty to sixty armed prisoners was disrupted by the rapid mobilization of local militia forces.45 The situation worsened the following summer when the militia was again called out to subdue rioting inmates; in a separate incident, fifteen prisoners successfully escaped and made their way to New Jersey.46 In an attempt to prevent future disturbances, authorities called for the formation of a “State Prison Guard” to provide permanent security at the penitentiary.47 Jay expressed his frustration with these developments in an address to the state assembly. Noting that the pervasiveness of escapes from Newgate had created a sense of “anxiety and uneasiness” among the public, he criticized the current “mild system of punishment” as failing in its purported goals and counselled legislators to create harsher penalties for those attempting to flee from the prison.48
1. JJ’s Address to the New York State Legislature, 6 Jan. 1796, above.
2. The charges that JJ delivered before jurors in New York State and on the Eastern Circuit convey his measured stance in matters of justice and his insistence on equal treatment for all before the law. See Charge to the Grand Jury of Ulster County, 9 Sept. 1777, , 1: 480–81, and John Jay’s Charge to the Grand Juries of the Eastern Circuit, 12 April–20 May 1790, , 5: 238.
3. Clinton frequently voiced criticisms against New York’s harsh penal code during his later years in office. Clinton to the New York State Legislature, 7 Jan. 1794, and 6 Jan. 1795, , 2: 335–36, 349–50; Albany Gazette, 9 Jan.; Columbian Gazetteer, 16 Jan; Catskill Packet, 21 Jan. 1794; American Minerva (New York), 13 Jan.; Daily Advertiser and Herald (both New York), 14 Jan.; Mott and Hurtin’s New-York Weekly Chronicle, 15 Jan. 1795.
While in London a few years earlier, Jay viewed a model of Jeremy and Samuel Bentham’s proposed model prison, the Panopticon, and probably discussed the topic of penal reform with them. JJ to John Sloss Hobart, 12 Aug. 1794, and notes 4–5, and 9, above.
4. JJ’s Address to the New York State Legislature, 6 Jan. 1796, above.
5. Greenleaf’s New York Journal, 1 Mar. (extract of draft); Daily Advertiser (New York), 9 Apr.; Albany Gazette, 19 Apr. 1796; “An Act making Alterations in the Criminal Law of this State, and for erecting State Prisons,” 26 Mar. 1796, , 20–24, quoted material located on page 20.
6. “An Act for Punishing Treasons and Felonies, and for the better regulating the Proceedings in Cases of Felony,” 21 Feb. 1788, : 73–80.
7. “An Act making Alterations in the Criminal Law of this State, and for erecting State Prisons,” 26 Mar. 1796, , 22–24.
8. For the intellectual currents shaping penal reform of this era, see Benjamin Rush to JJ, 9 July 1796, below, and W. David Lewis, From Newgate to Dannemora: The Rise of the Penitentiary in New York, 1796–1848 (Ithaca, 1965), 1–28.
9. JJ to PJM, 21 Jan. 1797, below; “An Act to suspend the powers of the Commissioners for erecting a State Prison in the County of Albany,” 3 Feb. 1797, N.Y. State Laws, 20 th sess. (1797), 19–20. For the controversy surrounding the placement of the prison in Albany, see JJ to the Commissioners for Erecting a State Prison in the County of Albany (Philip Schuyler, Abraham Ten Broeck, Jeremiah Van Rensellaer, Teunis J. Van Vechten), 1 Aug. [17]96, LbkC, N: Governor’s Lbk. 1 (EJ: 03032).
10. , 17–20.
11. Proclamation on the Completion of the State Prison, 25 Nov. 1797, below. In March 1797, PAJ reported to his father that much progress had been made on the penitentiary: “I walked out this afternoon to look at the new Prison it is considerably advanced and seems to be excellent workmanship— It is expected that it will be ready next Autumn to receive the convicts who may then be in Goal.” PAJ to JJ, 10 Mar. 1797, ALS, NNC (EJ: 06057).
13. JJ to PJM, 21 Jan. 1797, below.
14. In addition to noting the influence of granting pardons for capital punishment crimes at the state level, JJ also recognized the significance of this policy for national affairs. For GW’s seventh annual address to Congress, JJ wrote a section on the necessity to “extend clemency and pardon” to John Mitchell and Philip Vigol (Weigle; Wigel), two whiskey rebels found guilty for treasonous activity and who had their death sentences commuted by GW. GW had earlier consulted with JJ in 1790 on whether he should pardon or commute the sentence of Thomas Bird, a mariner hailing from Bristol, England, who had been found guilty of murdering his ship’s captain off the African coast. JJ also advised GW the following year concerning a possible pardon for Clarkson Freeman who was charged with counterfeiting U.S. securities. Draft of George Washington’s Seventh Annual Address to Congress, [28 Nov.–7 Dec. 1795], , 19: 464n18. See also Philip Vigol Stay of Execution, [16 June 1795], , 18: 242–43. For the Bird case, see Thomas Bird to GW, 5 June 1790, , 5: 478–81; GW to JJ, 13 June 1790, , 5: 260–61; , 5: 517; JJ to GW, 13 June 1790, , 5: 261; , 5: 518. For the Freeman case, see William Lewis to GW, 7 Mar. 1791, , 7: 521–22; JJ to GW, 11 Mar. 1791, , 7: 543–47.
15. : 10.
16. “An Act making Alterations in the Criminal Law of this State, and for erecting State Prisons,” 26 Mar. 1796, N.Y. State Laws, 19th sess. (1796), 24.
17. The governor continued to grant stays of execution in the latter years of his term. See, for example, those issued in the cases of Benjamin Holmes and John Pastano. JJ’s Address to the New York State Senate, [29 Jan. 1800], ALS, MHi: Washburn (EJ: 04799); PtD, New-York Gazette, 10 Feb.; Spectator (New York); 12 Feb. 1800. , 2: 454.
18. Rosewell Herd and Abner Stockwell, convicted of burglary in Montgomery County, and Jessup Darling, convicted of forgery in Columbia County, were all scheduled to be executed on 18 December 1795. Yates to JJ, 18 Nov. 1795, LbkC, N: Governor’s Lbk. 2 (EJ: 03206); JJ to Yates, 30 Nov. 1795, ALS, StEdNL-M (EJ: 09235); JJ to the Sheriff of Montgomery County, 30 Nov. 1795, LbkC, N: Governor’s Lbk. 2 (EJ: 03319); 30 Nov. 1795, LbkC, N: Governor’s Lbk. 2 (EJ: 03207); 2 Mar. 1796, LbkC, N: Governor’s Lbk. 2 (EJ: 03219); 7 Apr. 1796, LbkC, N: Governor’s Lbk. 2 (EJ: 03224); JJ to the Sheriff of the Columbia County, 30 Nov. 1795, LbkC, N: Governor’s Lbk. 2 (EJ: 03208); 2 Mar. 1796, LbkC, N: Governor’s Lbk. 2 (EJ: 03218); 7 Apr. 1796, LbkC, N: Governor’s Lbk. 2 (EJ: 03225).
19. Jo. Webb, who used the alias Josiah Stiles, Isaac Storr Hutchinson, and Noah Gardiner were sentenced to death by the supreme court of judicature in January 1796. The governor issued stays of execution before the sentences could be carried out in February and March. All three eventually received pardons and had their sentences commuted to life imprisonment. Yates to JJ, 5 Feb. 1795, LbkC, N: Governor’s Lbk. 2 (EJ: 03213); JJ to the Sheriff of the City and County of New York, 11 Feb. 1796, LbkC, N: Governor’s Lbk. 2 (EJ: 03210); 11 Feb. 1796, LbkC, N: Governor’s Lbk. 2 (EJ: 03211); 11 Feb. 1796, LbkC, N: Governor’s Lbk. 2 (EJ: 03212); 7 Apr. 1796, LbkC, N: Governor’s Lbk. 2 (EJ: 03221); 7 Apr. 1796, LbkC, N: Governor’s Lbk. 2 (EJ: 03222); 7 Apr. 1796, LbkC, N: Governor’s Lbk. 2 (EJ: 03223); JJ to Lewis A. Scott, 30 Apr. 1796, LbkC, N: Governor’s Lbk. 1 (EJ: 03005); 30 Apr. 1796, LbkC, N: Governor’s Lbk. 2 (EJ: 03320); 30 Apr. 1796, LbkC, N: Governor’s Lbk. 2 (EJ: 03229); Carolyn Strange, Discretionary Justice: Pardon and Parole in New York from the Revolution to the Depression (New York, 2016), 45–46.
20. JJ to Wolcott, 20 Oct. 1797, below.
21. JJ to the Justices and Selectmen of the Town of Norwalk, Conn., 2 July 1798, WJ, 1: 398; , 4: 246.
24. Ibid. Tallmadge followed up with personal appeals on behalf of Stone. See Tallmadge to JJ, 29 Sept. 1797, ALS, NNC (EJ: 07159); JJ to Tallmadge, 20 Oct. 1797, LbkC, N: Governor’s Lbk. 1 (EJ: 03100); Tallmadge to JJ, 1 Dec. 1797, ALS, NNC (EJ: 07160); C, NHi: Tallmadge (EJ: 00654).
26. Wolcott to JJ, 19 Sept. 1797, ALS, NNC (EJ: 07277); this letter appears on the same document as Petition to Oliver Wolcott, 15 Sept. 1797, ALS, NNC (EJ: 07276).
27. JJ to Wolcott, 20 Oct. 1797, below.
28. Ibid. JJ held strong convictions on the crime of forgery. In August 1798, he admitted to AH that “It is with me a question whether any Person convicted of Forgery ought to be pardoned at present, when offences of that kind abound.” While serving as the chief justice of the United States Supreme Court he had emphasized the dangers that forgery posed to the young republic. JJ to AH, 30 Aug. 1798, ALS, DLC: Hamilton (EJ: 10782); , 22: 170; , 4: 250; Charges to the Grand Jury, Circuit Court for the District of Vermont, [Bennington, 25 June 1792], , 5: 425–27.
29. JJ to Wolcott, 20 Oct. 1797, below.
30. Argus, Greenleaf’s New Daily Advertiser (New York), 30 Apr.; Weekly Oracle (New London), 5 May; Commercial Advertiser (New York), 13 June; Federal Gazette & Baltimore Daily Advertiser, 15 June; Greenleaf’s New York Journal, Spectator, and Weekly Museum (all New York), 16 June; Weekly Oracle (New London), 23 June 1798.
31. , 1: 396–97.
32. JJ to the Justices and Selectmen of the Town of Norwalk, Conn., 2 July 1798, WJ, 1: 398; , 4: 247.
33. Ibid.; WJ, 1: 398–99; , 4: 247–48.
34. AH to JJ, 27 Aug. 1798, below; Schuyler to JJ, 7 Sept. 1797, ALS, N (EJ: 00981); Van Rensselaer to JJ, 12 July 1796, ALS, NNC (EJ: 07224).
35. AH to JJ, 27 Aug. 1798, below.
37. JJ to Varick, 5 Oct. 1797, below.
38. Barneswell to JJ, 12 Dec. 1799, letter not found, but mentioned in JJ to Barneswell, 23 Dec. 1799, Dft, NNC (EJ: 09000).
40. JJ to the Inspectors of the New York State Prison, 23 Dec. 1797, LbkC, N: Governor’s Lbk. 1 (EJ: 03113). For related documents, see JJ to Scott A. Lewis, 7 Feb. 1798, LbkC, N: Governor’s Lbk. 1 (EJ: 03120); and JJ to Isaac Stoughtenburgh, 10 Feb. 1798, LbkC, N: Governor’s Lbk. 1 (EJ: 03121).
42. Robert Bowne, Quaker merchant and founding member of the NYMS.
44. , 67.
45. Weekly Museum (New York), 15 June; Albany Gazette, 17 June 1799. For reports on how individual prisoners responded to the riot, see Bowne to JJ, 10 Dec. 1799, ALS, NNC (EJ: 08672). Local officials increased the security at Newgate Prison by appointing a brigade of twenty firemen who were to be “properly armed & accoutred” in order to “quell or suppress any conspiracy or insurrection.” , 2 Dec. 1799, 2: 585.
46. Prisoner of Hope (New York), 7 June 1800. See also the activities of the state assembly for 9 Feb. 1801, , 66.
47. Matthew Clarkson to JJ, 12 Mar. 1801, ALS, NNC (EJ: 09795); Richard Varick to JJ, 12 Mar. 1801, ALS, NNC (EJ: 09305); , 29.
48. See the activities of the state assembly for 17 Mar. 1801, , 196; JJ’s Message to the New York State Assembly, 17 Mar. 1801, , 2: 478.