A R G T M E N T 
 
 WILLIAM CURTIS NOYES, ESQ, 
 
 si 
 
 ON THE TRIAL OF 
 
 HON. FREDERICK A. TALLMADGE, 
 
 GENERAL SU PERIINTEIN DENT : METROPOLITAN POLICE, 
 
 (The t»oavL) of (Commissioners of police. 
 
 REPORTED BY P. H. CAREY, 
 
 STENOGRAPHER. 
 
 NEW YORK: 
 BAKER & GODWIN, PRINTERS 
 
 PRINTING -not* SE SQUARE, OPPOSITE CITY HALL. 
 
 1 858. 
 
 V 
 
iEx ICtbrtfi 
 
 SEYMOUR DURST 
 
 When you leave, please leave this book 
 
 Because it has been said 
 "Ever thing comes t' him who waits 
 
 Except a loaned book." 
 
 om~ ~7 / "7 l 0^ *° 
 
 A vi ky Auc urn en rai and I ; im Aris Library 
 OUT OF Seymour B. Durst ()i d York I.ihr \m 
 
A R ( i 1 M E N I 
 
 WILLIAM CURTIS NOYES, ESQ, 
 
 ON THE TRIAL 01 
 
 HON. FREDERICK A. TALLMADGE, 
 
 GENERAL SUPERINTENDENT OF METROPOLITAN POLICE, 
 
 BEFORE 
 
 Cljf $oarb of C dmmtssioiurs of goitre. 
 
 REPORTED BY P. H. CAREY, 
 
 B T E N <> <; B A P BIB, 
 
 NEW YORK: 
 BAKER & GODWINj PRINTERS, 
 
 rr.lNTiN«;-HOl"SE BQVAXS, OPPOSITE CITY hall. 
 
 1858, 
 
CLASSICS 
 210 
 
 JtSft 
 
ARGUMENT. 
 
 Thursday, September 30, 1858. 
 
 The Board met for the purpose of hearing the argument of Win. Curtis 
 Noyes, Esq., counsel for Mr. Tallmadge. 
 
 Present — Messrs. Nye, Boweii, Stranahan, Stillman, and Mayors Tie- 
 maun and Powell. 
 
 Mr. Noyes said : — 
 
 I shall be obliged to solicit the indulgence of the Commissioners some- 
 what more than is usual in cases of this description, as well on account of 
 my own physical condition, as because of the importance and gravity of the 
 matter which I am to speak about. I have no doubt, however, that every 
 member of the Board will bear with me, with some degree of patience at 
 least, while I put before them the views which I have entertained of this 
 very important case — important, not only in reference to the individual 
 who is accused, but important also in reference to the public interests 
 involved, and the character of the outrages which have led to this investi- 
 gation. I claim for myself, in the trial of this cause, as the counsel for the 
 accused, that the utmost liberality and fairness, and the utmost freedom 
 from technicality of every sort, have been exercised ; and this has been 
 done on the part of my learned associate, Mr. Tracy, and myself, because 
 we were anxious that eveiything should be investigated, and were desirous 
 only of arriving at the exact truth. We were surprised, indeed, at what 
 seemed to us the haste Avith which the suspension of the accused was made 
 on the 6th of September ; and yet it finds its apology, and one is necessary, 
 in the fact of the great public clamor and, indeed, the individual solicita- 
 tion to which this Board was subjected ; for we know that a celebrated 
 public journalist, on the morning of the 7th of September, claimed that he 
 had brought the Board of Police Commissioners to the proceeding which 
 
4 
 
 has occupied our attention now for nearly a month ; and we know, too, 
 that he declared that unless the investigation was satisfactory to himself, he 
 would advocate a repeal of the law under which the Board was constituted. 
 T do not suppose that that threat, the ad terrorem argument, will have any 
 influence whatever with this Board. I only mention it as showing that, on 
 occasions of this sort, when the public attention is awakened, and when 
 the public terror or horror is aroused, a great many steps will be taken, 
 and a great many means resorted to, which on other occasions would find 
 no favor. In truth, the clamor which has been raised on this subject, not 
 only against the General Superintendent, but against the Board, lias put 
 the Board itself upon trial — has put the Board of Police Commissioners, 
 themselves, individually and collectively, upon trial ; and the question has 
 been often asked, whether the investigation here was for the purpose of 
 ascertaining the guilt of the accused, or for the purpose of self-exculpation. 
 This state of things has been brought about by the inconsiderate acts of 
 those who claim to control and direct public sentiment, who are usually 
 hasty and inconsiderate in what they do, and who have, in addition, very 
 seldom an accurate knowledge of the facts, P and scarcely any knowledge of 
 law. It will be a part of the duty of this Board, not only to the accused, 
 but to themselves, to place this whole matter upon its true basis, and to 
 place the responsibility, too, where it properly belongs. The state of the 
 public mind, as well as of individual feeling, to which I have alluded, 
 is quite unfavorable to the just and impartial determination of such a ques- 
 tion as this. One of the first elements of established order, is a profound 
 sense of justice, and a determination to have it honestly executed ; but 
 justice is never properly executed in the midst of clamor, because clamor 
 always results in persecution. One hundred years ago, in England, a dis- 
 tinguished naval officer was unsuccessful in relieving Fort St. Philip, in 
 Minorca. A clamor was raised against him by excited mobs and by the 
 press. lie was tried for not doing "the utmost in relieving Fort St. 
 Philip," and was convicted, through the base efforts of an imbecile admin- 
 istration, lie had misjudged, probably, as to the best means, and he was 
 shot disgracefully, as Voltaire sarcastically has it, "for the encourage- 
 ment of others." Public sentiment, as well as public history, have elevated 
 that man into a martyr ; and this is one of the ways in which martyrs are 
 made. It behoves this Board to beware lest another martyr be added to 
 the list of the persecuted. No justice can properly be administered without 
 coolness and reflection, and in the absence of clamor. I mention this 
 historical fact, and allude to its causes, as precautionary. 
 
 There is another subject to which, in frankness, I am bound to call the 
 attention of the Commissioners. I have never, in the course of my profes- 
 sional life, appeared before such a tribunal as this. Never. Here are 
 accusers, witnesses, judges — judges who condemned in advance and 
 

 
 without a bearing, — all combined, and now met t« > determine the final 
 question as to the guilt of the accused ; their preliminary judgment baring 
 been given under the influence of the clamor and the causes to which I 
 have adverted. And I appeal to the individual judgment of every member 
 of this Board, if I am not .right in saying, that these circumstances should 
 lead them to the most careful scrutiny — not scrutiny of the evidence, 
 but scrutiny of their own hearts and their own feelings; so that they may 
 be positively sure that the judgment which shall be pronounced, shall be 
 one which they can always recall with satisfaction, and reflect upon without 
 regret. 1 have no distrust of this tribunal : I have had the pleasure of 
 know ing for many years, some of its members, but I cannot shut my eyes 
 to the consideration that while all these three great functions are embodied 
 in the same tribunal, the tribunal itself is, substantially, on trial before the 
 people, in reference to this great matter. I do not believe there is any 
 determination to shake off responsibility — any determination to place it 
 where it does not properly belong; but so long as human nature is frail and 
 erring — so long as we are unconsciously biased by the peculiarities of our 
 own position, just so long should every man search his own conscience, 
 and take care that no prejudicial influences operate on his conduct. I am 
 uot insensible to the consequences of this case. Personally, I feel them 
 very deeply. If the General Superintendent is removed from office, the 
 twelfth section of the statute junder which this Board is constituted, imposes 
 on him an absolute ineligibility for life, to any other place, however inferior, 
 in the police force. It would not only deprive him of a position as durable 
 as good behavior, which is the tenure by which he holds his office, but it 
 would prevent his ever being appointed, no matter what state of things 
 may occur, to any position in the department. And hence the inference, 
 which, I submit, is a legitimate one, that it is only for great offenses, for 
 serious neglects of duty, for that which comes up to the degree of absolute 
 unfitness for place, that was intended to be visited with such serious 
 consequences. Aside from the reflection which even a censure would cast 
 upon his character, a removal would produce much more serious couse- 
 quences in the public estimation, and a sensitive man, as he is, would be 
 keenly alive to a judgment in any form, however mild it might be, which 
 would necessarily convict him of a dereliction of duty. 
 
 I think I may say one word in relation to him personally. The place 
 which he now occupies was not sought by him. It sought him. He left a 
 profession much more lucrative in its annual compensation than the salary 
 he receives as General Superintendent. He accepted it, too, after several 
 persons had declined it — declined it, because they were unwilling to take 
 office under a law which our citizens regarded with disfavor and opposed, 
 and the constitutional validity of which was denied ; and he accepted it 
 for the purpose of inaugurating this new r experiment in the government 
 
6 
 
 of a large district, which met with so much opposition in this city ; and his 
 large popularity and uniformly kind and urbane manners contributed not a 
 little to its success. lie had occupied a great many public positions before. 
 He went into them with small means. He was insensible to the uses which 
 could be made of office by way of filling the purse, and he came out of them 
 w Lth as small means as when he went in. ' No man has ever dared to make 
 the imputation against him that he ever made use of his office to advance 
 his pecuniary interests. The very office which he now holds, is one which 
 might be perverted, in a large way, in that direction. Nobody has dared to 
 suggest that he has ever done so. And while I claim for him no merit for 
 abstaining from practices so common in this city, and which have disgraced 
 and at the same time enriched so many men, it is proper that it should be 
 alluded to in his behalf, as showing the purity and integrity of his char- 
 acter, and his freedom from the prevalent official corruption. So much, 
 then, if the Board please, for these preliminary matters. I have regretted 
 the necessity of alluding to them at all. Perhaps I should not have 
 alluded to them. T preferred erring, however, if I erred at all, on the 
 side of my duty — a duty in some degree filial. If I am blamed for it, 
 I am ready to take the consequences. 
 
 Now, I come to the charges. I lay out of view the resolutions which 
 were passed at the time of the suspension. They have not been the sub- 
 ject of consideration at all ; and, as I understood it, they are substantially 
 abandoned, because it is quite clear that there was a great mistake, a grave 
 error, in supposing that he had violated any order given to him by the 
 Board, or by the President, — for none was given. I repeat, there is some 
 very great mistake about it, I think it is attributable, in some degree, to 
 the clamor to which I have already adverted, because I observe that in 
 the same editorial article to which I alluded, it is stated that one of the 
 Commissioners told the editor, in so many words, that an order had been 
 issued, directing a given number of men to be sent to Quarantine, and 
 that it had been disobeyed, because the General Superintendent thought it 
 was inexpedient to obey it. An abundant cause for removal, if true. I 
 say, there is some great error about all this. I pass it over, however, w ith- 
 out further remark, as it forms no part of the charge, or of the specifica- 
 tions, which I am to consider. 
 
 Now, the charge is one of absolute disobedience; for, although called 
 neglect of duty, the specification brings it up to disobedience. The speci- 
 fication is, " In that he did not repair in person to the Quarantine, on the 
 morning of the 2d of September (when notified by Oapt Weed, that sev- 
 eral of the public hospitals had been fired by a mob,) as required to do by 
 Section 45 of the Rules and Regulations of the Department." It is, then, 
 for absolute disobedience to a standing order of tine Board. It is not for 
 ;in ern»r of judgment, or for not doing that which he did not deem it 
 
7 
 
 expedient to do. An error of judgment is no offence. It is not a subject 
 about which an officer, situated as he is, can be tried. But it is for posi- 
 tively violating the order. Now, what is the order ? 
 
 "§ 45. It shall be hi> duty to repair in person to all serious or exten- 
 sive fires in the cities of New York and Brooklyn ; to all riotous or 
 tumultuous assemblages within the district, and take command of the po- 
 lice present to save and protect property, and arrest such persons as he 
 may find disturbing the peace, or inciting others to do so." 
 
 It is not to go and take cognizance of an exploded riot> or a dispersed 
 mob. It is to go to an actual riot, — to the assemblage of rioters. It is 
 idle to go where there is no mob, or where there are no rioters. He is to 
 u take command of the police present to save and protect property," — 
 the property which the rioters are destroying, — " to arrest such persons as 
 he may find disturbing the peace, or inciting others to do so," — that is, 
 to arrest those actually engaged in the commission of the offences pointed 
 out by this order. Is not this the true construction of the order ? And 
 while I concede that it might be judicious to send some one — (as De- 
 tectives were sent at the suggestion of a member of this Board) — to see 
 what had been done, I deny that it was the duty of the General Superin- 
 tendent, or the duty of any member of the Board, to go to Quarantine and 
 see what was the condition .of affairs there, on the morning of the 2d 
 of September; I deny it, and I will give my reasons for that denial 
 more at large, by-and-by. Now, upon the construction of the order, in 
 reference to his own position, I maintain, and I maintain it with a con- 
 viction which will findno doubt unless this Board decide the contrary, — 
 and scarcely then, — that his appropriate place, his appropriate position, was 
 at his office, at Head-Quarters, during the day, in order to determine what 
 should be done, upon consultation with the Board, and on the requisition 
 of the Commissioners of Emigration. And I say that if he had gone 
 away on that occasion, and had not been accessible to this Board, or to 
 any other persons who might have seen fit to apply to him, he would have 
 been derelict to his duty. For example, if he had gone down and staid 
 all day, without being in a position to communicate with the force. Under 
 the tenth section of the act organizing the Metropolitan Police District, he 
 takes the place of the Mayor of the city for the purpose of executive duty, 
 expressly ; the Mayor being superseded. Was it not then his duty to be at 
 his office, when he knew the mob had dispersed, and when he knew that 
 going down to Quarantine would be a mere idle ceremony, so far as the 
 protection of property and the arrest of offenders were concerned ? The 
 whole theory of the act is, that he is the executive head, subordinate to 
 this Board, and that he must be in communication with them, ready to 
 2 
 
8 
 
 receive and execute their orders, or ready to cany out orders originating 
 with himself, provided he receives none from them. He has deputy su- 
 perintendents, he has captains, and he has policemen under him. They 
 are the hands and arms which he is to use. He is to send them to 
 places where they are needed to ascertain the condition of things, whilst 
 he is to remain at his post, ready to advise, to he consulted, and to give 
 orders. It is never, in military affairs, deemed the duty of a general, to 
 be at every portion of the field, or to be at any particular portion of it, 
 unless in cases of great emergency. Never. Why, it is said that General 
 *3ates fought the battle of Saratoga chiefly in his own tent; and there is 
 •no instance on record in the history of the most sanguinary battles, of the 
 general placing himself in such situation, unless in some great emergency, 
 or when his presence will restore courage to those who are giving way, or 
 will accomplish some other great result. But more than that, and what I 
 regard as fundamental in this case, and what must never be lost sight of in 
 its argument, or in its consideration, is the great fact, that the whole Quaran- 
 tine property was in the charge of a body of men, the Commissioners of 
 Emigration, to whom its exclusive care and control were confided. By 
 the sixth section of the law of 1849, amending the act of 1847, we find 
 that the Quarantine property — the Marine Hospital, and all its connec- 
 tions, so far as they belong to the State — are declared " to be held in trust" — 
 mark the language — " by the Commissioners of Emigration, for the People 
 of the State, and the sole and exclusive control of the same is given to 
 them except in regard to the mere sanitary treatment of the inmates." 
 As General Superintendent of Police, then, Gen. Tallmadge had nothing 
 whatever to do with this Quarantine, nothing to do with its protection as 
 such, nothing to do with going to see it, or providing for its safety. It was 
 only when there was in actual existence a mob, endangering its security, 
 that he was to be there ; and even then, it was a matter of discretion 
 whether he should go there or send somebody to look after it These 
 Commissioners of Emigration, then, are the trustees responsible for the 
 care and for the control of this property : they are responsible to the 
 public, and responsible to you as a portion of that public. That, the Gene- 
 ral Superintendent knew ; and he knew, moreover, that in every instance 
 where they had desired protection for it, they got it from him and through 
 his order. They sought it repeatedly during the last spring and summer. 
 And he knew, moreover, that if they thought it was endangered by anything 
 that happened that day or that night, it was their duty to call upon this 
 Board or upon himself for a proper force to protect the property thus 
 entrusted to them. In truth, he had no right to go there and violate the 
 Quarantine laws at all ; because his going there would have been a viola- 
 tion of the Quarantine rules and regulations. The whole theory of Quar- 
 
9 
 
 antine is isolation — everybody is prevented from going there. And he 
 knew, besides, that it was dangerous to go there, lie knew, as I know, 
 that several years ago, a near connection of his stood near the gates of the 
 Quarantine for an hour or two in the evening, and in two days fell sick of 
 yellow fever, and continued ill for a fortnight. Although he was not 
 deterred by that, yet he knew that the law which isolated this property, 
 which made everybody who went there without the authority of the 
 Health Officer, trespassers, was to be observed ; and that his duty did not 
 require him to go there. 
 
 Again, neither any member of this Board nor the General Superinten- 
 dent could go there, even on that day, without assuming that the Com- 
 missioners of Emigration were neglecting their duties, and without an 
 impeachment of their fidelity. They had an office there : they had a 
 steamboat in daily communication with the Quarantine : they were meet- 
 ing every day at the City Hall. To go down there, under these circum- 
 stances, and thereby assume that they were neglecting their duties, was a 
 reflection on them which he was not authorized to make. 
 
 Mayor Tiemann. You make one remark there, Mr. Xoyes, in which I 
 would like to correct you. The Commissioners of Emigration do not 
 meet every day at the Hall. They meet at their office. 
 
 Mr. Noyes. I correct it then, and beg the Reporter to record the fact 
 as you state it to be. I intended to say, simply, that they met every day, 
 and that the presumption was that they would attend to their duty, and 
 had attended to it. Then, this Board and the General Superintendent had 
 a right to presume, from the fact that no notice was given to him, that 
 there was no danger, and that he was not required to be present. I put 
 this upon the ground, which I consider perfectly defensible and unassail- 
 able, that as long as they did not receive a notice or an intimation from 
 the Commissioners of Emigration, the trustees of these buildings, that 
 they were in danger that night, they had a perfect right to stay here to 
 attend to their ordinary duties, and not interfere with the duties of the 
 Commissioners of Emigration. Now, the latter took no action whatever in 
 any form until after two o'clock. None whatever. It was half past two, I 
 think, before Capt. Crabtree left this office. It was a quarter past two, I 
 think, when he had the conversation with Gen. Xye ; and up to that time, 
 ten or twelve hours having elapsed from the dispersion of the rioters, no 
 communication was made to this Board, devolving any duty upon it or 
 upon the General Superintendent to protect this property. There is no 
 more obligation to protect Quarantine than there is to protect the Sailor's 
 Snug Harbor ; and is it possible that this Board could be considered as 
 derelict in its duty, if, having heard that the buildings had been destroyed 
 at the Sailor's Snug Harbor by a mob, and having received no notice from 
 
10 
 
 the persons in charge of it, they did not go down and look at it, or send a 
 force for its protection ? I submit, with a confidence that knows no doubt 
 at all, that no such duty is cast upon this Board. This Board, then, did, 
 up to that time, everything that was required of them ; and I shall show 
 that the General Superintendent, in like manner, did every thing that was 
 required of him. The matter was talked about here among the members 
 of the Board ; and, the affair being one of great importance, two or three 
 detectives were sent down. What more could they do? I ask the 
 fault-finding man on this occasion, what arguments can be advanced against 
 the Board and the General Superintendent ? What more could have been 
 done ? What difficulty or disaster could they have prevented, during the 
 day-time of the second of September ? None whatever, because none was 
 impending. Now, the act under which this Board is organized, never con- 
 templated that portions of the police force should be sent to Quarantine, 
 ad libitum. The 19th section of the law provides that the Health Officer 
 shall only be entitled to call for ten men at a time for twenty-four hours ; 
 showing that it never was designed as a general rule that this Board should 
 concentrate any considerable portion of its force there, even in an emergen* } : 
 and this contemplates an emergency. It was supposed that it might be 
 necessary to have men there occasionally, but it never was designed by the 
 act itself — it is not within the appropriate sphere of duty of the Police Board 
 — that any considerable portion of its force should be sent there at any time, 
 or without a request from the recognized sources of authority, at all events. 
 The Health Officer, then, and the Commissioners of Emigration, were the 
 persons in charge of this establishment by law. The Health Officer did 
 nothing. He never communicated with the Board personally or by his 
 assistants. The Commissioners of Emigration, as a Board, never communi- 
 cated with this Board or with its members, until the time of which I 
 have spoken. 
 
 I ought not to omit noticing in this connection, in reference to the 
 alleged duty of the General Superintendent to go down there, that he had 
 an understanding (though I don't know how it was with the members of 
 this Board) that all had been done by the rioters which they intended to 
 do: that the Quarantine buildings, so far as they belonged to the State, had 
 all been destroyed. He was, doubtless, under a misapprehension on that 
 subject ; but the fact that he believed otherwise is one of very great im- 
 portance, when we come to judge of his motives, and consider the question 
 whether lie performed his duty. I not only ask, then, the vindication of the 
 General Superintendent in consequence of the omission of the Health Officer 
 and of the Commissioners of Emigration to call upon him, but I ask it also as a 
 matter of justice from this Board, because they failed to call upon him. They 
 knew just as much about it as he did, with the single exception of the interview 
 with ( 'apt. Weed, in which the latter informed him of what had been done, as 
 
11 
 
 reported by the Harbor Policemen who came up from Staten Island. They 
 knew just as much about it as he did ; because the newspapers contained it 
 all, and it was a common subject of conversation. The tact, then, that not 
 a single member of this Board deemed it his duty to communicate with 
 the General Superintendent, or to talk with him on the subject, to ask him 
 to go down, or to send down, or to suggest to any one about the General 
 Superintendent, that any one should be sent down but the detectives, I 
 place before the Board, as prominent reasons why this charge should not 
 be sustained ; because it shows that the Board themselves did not consider 
 that they thought it necessary that any thing should be done. 
 
 And now, in reference to his time of going down. It was near four 
 o'clock when Capt. Weed and the Harbor Policemen left his house. It 
 was agreed on between them — not arranged, but agreed — that there were 
 no means of getting down earlier than by the six-o'clock boat. It was 
 obvious that a force could not be sent down there before that hour. And 
 besides, such a proceeding would have been entirely inexpedient and unne- 
 cessary ; because the rioters had all dispersed on the break of day, and there 
 were no threatened injuries impending which could then be prevented. 
 What did he do, then ? He ordered a force to be kept in readiness ; and 
 the telegraphic minutes which have been given in evidence, show that 
 that force was in readiness at twenty minutes past four o'clock. 
 
 Capt. Carpenter swears that it was kept in readiness by means of reliefs 
 during the whole day. From six to eight wards were telegraphed to for an 
 additional force, and in order that the relief might be kept in a condition 
 to go down to Quarantine the moment it should be called on. And they 
 were so kept ; for Capt. Carpenter says he could have sent a force down any 
 time during the morning, after half past four o'clock, if the Commissioners 
 had ordered it. After ten o'clock, he and the General Superintendent dis- 
 missed the first force detailed to go down, putting in its place the relief force, 
 because nothing transpired which required immediate action, and this relief 
 force was ample to afford the requisite protection. I call attention to the 
 remark of Capt. Carpenter, when asked whether he would have gone down 
 without a requisition from the Commissioners of Emigration. The answer 
 is important. He said he might have been rash enough to go without an 
 order ; show ing a concurrence, so far as the expediency of going down was 
 concerned, between him and the General Superintendent, and that in regard 
 to going without an order from the Commissioners, he deemed that to be 
 an act of rashness. 
 
 In speaking of the first specification, I have insensibly adverted, as all 
 the charges are necessarily connected, to the second. I proceed now to 
 consider that more fully. It charges that the General Superintendent did 
 not, on the morning of September the second, direct patrolmen to be sta- 
 
12 
 
 tioned at Quarantine to protect the public property which had not been 
 fired. I beg attention to the specification : that he " did not, on the morning 
 of the second of September, direct patrolmen to be stationed at Quaran- 
 tine." It does not charge him with neglecting to send men in the afternoon, 
 or in the evening, because the Board knew that he had given the order in 
 the evening, and that it would have been carried out but for the information 
 which he received from the Mayor, warranting a countermanding of the 
 order. Now, I deny that it was necessary he should do it in the morning. 
 No injur} 7 has resulted from its not being done then. He was wise in not 
 doing it, because there was nothing to be done. It shows that he acted with 
 wisdom in reference to sending down men in the morning ; because there 
 was no mob there — no rioters to be dispersed, no property to be protected. 
 He had them ready to go all day, and would have sent them down ; and I 
 say that he had a right, in the exercise of the judgment which is confided 
 to every executive officer, to be cautious. He was bound to be cautious. 
 And why was he bound to be cautious \ Only a few days before, a police 
 force had been sent down, at the requisition of the Health Officer, and they 
 were treated with positive neglect, if not inhumanity — men for whom he 
 has a tender regard, whose personal and pecuniary interests he was bound 
 to protect, and provide for, as far as he could by the proper exercise of his 
 duties. When the officer in charge of them applied to the Health Officer, who 
 had sent for them, to provide them with food, he said, with a selfishness that 
 does him no credit, 11 You must grub for yourselves." These men are receiv- 
 ing a small daily compensation to support themselves and their families ; 
 and he was not bound to rush fifty or a hundred of them down there, to sus- 
 tain themselves at an expense larger than their pay. I say he was not. He 
 was right, therefore, in exercising caution in relation to sending them there 
 — not, indeed, refraining from sending them there at once, if the emergency 
 required it, and they were demanded by the Commissioners of Emigration, — 
 but sending them there when he knew they would be provided for, and that 
 there would be something for them to do. He was not bound to send them 
 to the county of Richmond, which had been recusant in the whole matter 
 of the Metropolitan Police Bill ; which had never contributed a dollar to 
 pay its quota of the expenses of the act, — the wisest act of police legisla- 
 tion ever enacted in America, or anywhere else, — without some assurance 
 that the men would be provided for, and supported while there. The pre- 
 valence of yellow fever was another reason why he should exercise caution 
 in sending them down. Some people treat this matter as if yellow fever 
 was a thing of no concern. But the laws have not so treated it. Public 
 sentiment has not so treated it. Public apprehension has not so treated it. 
 Those very benevolent rioters at Staten Island have not so treated it ; and 
 they regard even the presence of the Quarantine as a calamity — a nuisance 
 
13 
 
 which they are authorized to remove without law and against law — beeau>< 
 it brings the yellow fever there. 
 
 And was the General Superintendent rashly to send down a body of 
 men to communicate with this Quarantine, inside the walls, — beyond which,, 
 even, yellow fever prevailed, — without considering the risk, and, above all. 
 without hearing from the Commissioners of Emigration, or the Health 
 Officer, that it was prudent and necessary to send them down ? I say he 
 was not. In the merciful dispensations of Providence, mitigating the effect* 
 of this great crime, and tempering what might otherwise have been a great 
 calamity, the fever has not spread. But it has not been owing to these 
 rioters that it has not. And I say that the General Superintendent wisely 
 refrained from adding to the number of persons who should, by their con- 
 tact with the people outside of the Quarantine, when they returned to the 
 city, contribute to spread the pestilence throughout the community. 1 say 
 that the care which he exercised is creditable to his wisdom, to his pru- 
 dence, and showed that he has acted with discretion. I shall dismiss the 
 suggestion which has been made in some quarters, and which some wit- 
 nesses here, with overheated eagerness have attempted to enforce, that he 
 was influenced by fear. Fear! An emotion which he never knew. No- 
 fear of mobs, no fear of yellow fever, ever disturbed his heart. The man. 
 who faced the Astor Place rioters when the State Executive, the Mayor, and 
 other city officials, displayed the tallest white feathers, — the man who retired! 
 covered with bruises from missiles hurled at him as thick as hail, from the 
 mob, after announcing that they would be fired upon unless they dispersed, 
 and who was unable to walk for nearly a week afterwards, — the man in 
 whose veins flows the blood of a gallant officer of the Revolution, and of a 
 signer of the Declaration of Independence, — never knew what fear was on 
 such an occasion as this. I dismiss that topic as unworthy of being intro- 
 duced here, and as having no sort of foundation in troth. The police 
 were not sent down there ; because it w r as not necessary to send them. 
 There was nothing for them to do. He had not been asked to send them 
 down. He had not been asked by the constituted authorities in charge of 
 the property. He showed, on the next day, that he was not influenced by 
 any other motive than the pure discharge of his duty, because with several 
 of the Police Commissioners, and with a large body of policemen, he went 
 there, remained there during the night as much exposed as any one, and 
 showed a determination to discharge his duty faithfully, as soon as the 
 guardians of this property, its lawful custodians, demanded additional pro- 
 tection. There is nothing against him, then, but this standing order, the 
 45th, which requires him to go to a riot or to a fire, in certain contingen- 
 cies ; and these had not arisen, or were passed. To sum up all that I have 
 to say on this point : He received no direction or suggestion from this 
 
Board that he should go, or that it was necessary he should go : he 
 received none from the Commissioners of Emigration : he received none 
 from the Health Officer : and I say that the silence of his superiors, as 
 well as the silence of those who had a right to call upon him, justifies him 
 in what he did, — remaining'here and awaiting the action of those upon 
 whom the law expressly devolved the duty of protecting the property. 
 But I go farther than this. The order of Gen. Nye, which he received 
 about half past three, absolutely forbade his sending men down unless he 
 was ordered to do so. I say it forbade him — because its true construction 
 is, that men were not to go down unless the number of men wanted was 
 indicated to him by the Commissioners of Emigration. " You will send 
 what men the Commissioners of Emigration want to Quarantine to-night, 
 to guard the remainder of the buildings." That implied that the Com- 
 missioners of Emigration had said they would probably want some men, 
 and that the number of men was to be indicated. He had a right to 
 regard that as an intimation from his superior (treating it now as ema- 
 nating from a lawful authority, though issued by an individual commis- 
 sioner, who, in truth, has no right to issue it — and I treat it so for the 
 purposes of this argument) — as an intimation from his superior, that he 
 must wait, and send men down when informed of the number that were 
 wanted by the Commissioners of Emigration, and only then, so that if he 
 had determined before, upon his own judgment, in reference to the proba- 
 bilities of the want of a force, to send them down, he would not have been 
 justified in sending them down without knowing that they were wanted, 
 and, if they were, how many were wanted. I speak now, of course, upon 
 the construction of that order, from its language, and irrespective of what 
 may have passed between Gen. Nye and Capt, Crabtree, because Mr. Tall- 
 madge knew nothing whatever of their conversation. He could only 
 speak from the order. He could only judge from the order. And I sub- 
 mit that he judged properly. And his judgment was concurred in by 
 Capt, Carpenter ; the one waiting till four o'clock, when he went into the 
 country to see a sick wife ; and the other till some time after five, when he 
 went to his residence to dress for the municipal dinner. But more than 
 all this: this order of Gen, Nye is an approval of his course up to that 
 time. I don't know whether it was so intended ; 1 only speak of its Legit- 
 imate construction and effect. The General knew no men had been sent 
 down. There was no suggestion made to the General Superintendent, that 
 men ought to have been sent down ; he is simply told by the President of 
 the Board to send down what men the Commissioners of Emigration want. 
 That, I say, is an approval of what he had done, up to that period. It 
 certainly was its meaning, and it conveyed only that meaning to him ; and 
 I submit, that sending them down afterwards into this pestilential locality 
 
15 
 
 without any provision for their sustenance, and with the probability that 
 they would be treated just as the former force had been treated, would 
 have been a substantial violation of that order ; because it was to send what 
 men the Commissioners of Emigration wanted, not to send what men 
 " You " want, or what men " You " think ought to go there. It was with- 
 drawing the whole matter from his own judgment in reference to the expe- 
 diencv and necessity of doing this, and placing it where it might properly 
 be placed, and where it was properly placed, and where, indeed, it already 
 belonged, — with the Commissioners of Emigration j throwing upon them 
 the necessity of taking the initial step — of asking for the men, and desig- 
 nating the number. It is not to be overlooked in this connection, that no 
 men had ever been sent there before without a requisition. I understand 
 that the Board have been opposed to men's being sent there without a 
 requisition, and the 78th rule has an intimation upon that subject stringent in 
 its character, and very suggestive of consequences, if it should be violated. 
 u Patrolmen and Doormen shall not be detailed for special duty out of the 
 precincts to which they are assigned, for a longer period than twenty-four 
 hours, except by resolution of the Board of Police. 1 ' He can only send 
 them for twenty-four hours, except by resolution of the Board of Police ; 
 ** nor shall any Patrolmen or Doormen be detailed for any special duty with- 
 out his precinct, except by resolution of the Board of Police thus show- 
 ing — and I make no complaint of it — that the executive discretion of the 
 Superintendent has been greatly abridged by the Board. It was proper 
 that the Commissioners of Emigration, having a large fund in their hands, 
 the proceeds of the payments made by emigrants, should make this re- 
 quest, in order that they might be responsible for the sustenance of the 
 men ; because the Quarantine is chiefly required on account of the emi- 
 grants, and it was eminently proper that this already over-taxed city should 
 not be subjected to these expenses. If I am right, then, in assuming, and 
 if, as I believe, I have successfully proved, that the burthen of this matter, 
 so far as the protection of the Quarantine grounds from further outrage 
 was concerned, rested primarily with the Commissioners of Emigration, I 
 have, in vindicating the General Superintendent from the charge of inten- 
 tional neglect of duty, succeeded also in vindicating the Board of Police 
 Commissioners. 
 
 Of course it is no part of my peculiar duty in this case, as counsel for 
 the defendant, to vindicate the Board ; but I take great pleasure in doing 
 so, so far as any effort of mine will tend to that end. This subject neces- 
 sarily lay in the way of the consideration of the defence of the accused, 
 and the one could not be well considered without including the other. I 
 place myself, then, upon the firm foundation that this Board was not 
 authorized to interfere : that the General Superintendent was not author- 
 
16 
 
 ized or bound to interfere with this property in the control of these Trustees, 
 the Commissioners of Emigration, without their request and without notice 
 from them that it was demanded. They made no request as a Board. 
 They took no action as a Board. All that they did was to send one of 
 their number, or rather, he came spontaneously, without being sent, to 
 Gen. Nye to have a conversation upon the subject. Now in reference to 
 the General Superintendent, it is important to observe that Capt. Crabtree 
 never went near him. He avoided the executive power and went to the 
 legislative. He avoided the person occupying substantially the position of 
 Mayor of the city, with executive duties, and went to one of the Commis- 
 sioners, as if a man had gone to the President of either of the Boards 
 constituting the Common Council, w r hich is charged only with legislative 
 duties. He did not even go to the Board, but to an individual member 
 of it. That was the first great omission. If he went there because he 
 supposed the power rested with the Board, or with an individual member 
 of it, that was all well enough. If he went there because he supposed the 
 executive powers of the General Superintendent had been abridged and he 
 was justified in disregarding him, that was well enough, so far as the 
 motives of the Commissioners of Emigration were concerned. But he 
 avoided the executive and went to a member of the legislative department 
 of this Board. And under what circumstances did he go ? Without any 
 written action of his Board, without any formal requisition, with a mere 
 oral request, a mere verbal intimation. And what was his condition ? 
 According to his own statement, he was suffering under an acute attack of 
 rheumatism so that, to use his own language, he was " almost distracted." 
 In a condition unfitting him not only for a correct relation of what he 
 wanted, but unfitting him for remembering with accuracy what he had 
 declared he wanted ; he had a hasty conversation with the President of 
 the Board, and then went away. The inaccuracy of some of his assertions 
 shows a tendency to a want of certainty in statement, and a want of clear- 
 ness in recollection, which render it difficult if not impossible to obtain 
 from him a true account of what occurred. I speak this without designing 
 to reflect upon Capt. Crabtree in the slightest degree. A long time ago 
 I had the pleasure of knowing him very well ; I have not seen him, it is 
 true, for many years, but I know him to be a man of the most perfect 
 integrity, and as honest-hearted and generous a sailor as ever lived. I 
 speak of this circumstance, however, as one which it is my duty to present 
 and examine, for the purpose of seeing where the responsibility rests. 
 Now, according to his statement, the responsibility of giving an absolute 
 order for men would be thrown upon Gen. Nye. He states that Gen. Nye 
 agreed to send sixty men, and to give an order for that purpose to the 
 General Superintendent, without further communication with him. Upon 
 
17 
 
 that point, Gen. Nye's testimony is entirely at variance with that of Capt. 
 Crabtree. Although it is no part of my duty to settle this conflict of 
 evidence, because it does not affect the case of the General Superintendent 
 in the slightest degree, — he has nothing whatever to do with it, — yet, for 
 the purpose of seeing where the responsibility rests, it is proper I should 
 give some views concerning it. Now Gen. Nye says that sixty was men- 
 tioned as the probable number of men that would be wanted, and that 
 Capt. Crabtree said that he would return to his Board, which met at three 
 o'clock, only half an hour distant, and then he would communicate to this 
 Board, or to its executive officer, the General Superintendent, the number 
 of men that he wanted. That is Gen. Nye's statement ; and this Board 
 ought to take it as a true statement. That it is entirely true nobody doubts. 
 That Capt. Crabtree is inaccurate, and that Gen. Nye may fall into occas- 
 ional errors, may also be true, for all men do so. But there is a single 
 fact which controls my own judgment, which convinces me beyond the 
 possibility of a doubt, and I think it ought to convince the Board beyond 
 the possibility of a doubt, that Capt. Crabtree is mistaken. There is first 
 his condition, his want of recollection, and the hasty and excited manner 
 in which he made the communication. But then, over and above all, 
 Gen. Nye made a written order, immediately and on the instant, condi- 
 tional in its character, and precisely in accordance with the communica- 
 tion which he says had been made to him, to send as many men as they 
 wanted, the number to be designated by Capt. Crabtree or by his Board. 
 Mark the language.: "You will send what men the Commissioners of Emi- 
 gration want to Quarantine." That is in entire harmony with Gen. Nye's 
 view of the conversation. It was written at the instant, and his memory 
 was refreshed and preserved by what he wrote. If Capt. Crabtree had 
 said to him that he wished him to send sixty men at any rate, and he had 
 agreed to send that number of men, would he have sjiven such an order as 
 that ? No, assuredly not. I know, and every other lawyer knows, that 
 conversations, although they may be reported with the best possible inten- 
 tions as to honesty and accuracy, are scarcely ever reliable. It is a rule of 
 the Irish Chancery that the declarations of a party never shall be given in 
 evidence unless they are set forth in the bill or answer, and the party against 
 whom they are alleged has an opportunity of examining them, and giving 
 his own relation or explanation concerning them, because accounts of con- 
 versations are so extremely unreliable. It would be a wise rule that should 
 exclude all declarations. They are scarcely ever accurately recollected ; 
 because so much depends upon a phrase, so much depends upon the acci- 
 dental substitution of an equivalent word or phrase, or what the party 
 deems an equivalentffor what has been said. The only reliable testimony 
 in such cases is" what has been written. Here Gen. Nye took down the 
 
18 
 
 substance of Capt. Crabtree's communication, the substance of what he 
 (Gen. Nye), in that conversation agreed to do ; and that was, that there 
 should be sent to Quarantine the number of policemen the Commissioners 
 of Emigration should call for. And that is the whole of it. If I am 
 right in this, then this Board, and the individual members of this Board, 
 are utterly blameless, in that a force was not sent down. The force would 
 have been sent, if the Commissioners of Emigration had made a requisition 
 for it. Gen. Nye returned in haste from the Station House at the 12th 
 Ward, at Harlem, where he had gone after giving the order, and came 
 here at seven o'clock for the purpose of sending a force down, after he got 
 the telegraphic dispatch from the Mayor. The General Superintendent 
 himself ordered a force to go down there when he was commencing his 
 attendance at the Metropolitan dinner. A force would have been there, 
 beyond all question, if the Commissioners of Emigration had performed 
 their duty in positively directing Gen. Nye to send a force down, or in 
 communicating to him the number of men they wanted. And if the 
 Board in this matter is blameless, how much more is the General Super- 
 intendent blameless ; because he knew nothing of this interview till long 
 afterwards. He had no communication with Capt. Crabtree. Wh ether 
 intentional or not, Capt. Crabtree had not gone to him as the executive 
 head of the police, to ask him to act ; and, during the whole day, until the 
 General Superintendent reached the Metropolitan Hotel, it was not commun- 
 icated to him that there was a design to fire the additional buildings that 
 night. Now, did the General Superintendent carefully attempt to obey 
 that order, which undoubtedly was given and communicated to him by 
 Gen. Nye? Why, we have Capt. Carpenter proving it; we have Mr. 
 Brevoort proving it; and we have nothing to gainsay it. Nothing what- 
 ever, except that one of the officers reports snatches of remarks which he 
 savs he heard from the General Superintendent in the hall, and which he 
 wishes to have the Board suppose indicated a determination on the part of 
 the General Superintendent not to send a force down. Well, I have made 
 some observations as to the weight to be given to declarations ; and how 
 much less weight is to be given to detached declarations — a mere fragment 
 — caught up and reported, from good or from bad motives, and separated 
 from the context ? What is it worth ? What is it worth, to affect the 
 character of an honorable man, an officer in high position ? I don't know 
 whether it comes under the denomination of eaves-dropping, which is a 
 criminal offence in England and in this country ; but I am perfectly satisfied 
 that the reports of conversations made in that way and under such cir- 
 cumstances, are utterly unworthy of credit, and reflect only discredit on 
 him who relates them. 
 
 I have, thus far, examined the specifications of the charge, and, I trust, 
 
19 
 
 with this result : that the General Superintendent judge dwisely in not send- 
 ing the men down that morning without a requisition from the Commis- 
 sioners of Emigration, or from the Health Officer ; because there was nothing 
 for them to do ; and because no damage was done, as the burning of the 
 additional buildings was in no sense, imputable to the delay in sending 
 down men that morning or that day. I wish to discriminate, of course, 
 between what was done before the receipt of Gen. Nye's order, and after- 
 wards ; because in respect to the sending of men down after the conversa- 
 tion with the Mayor, a different class of circumstances must be brought 
 into review. 
 
 Now, to show the absence of any unwillingness to send men down 
 there, to show the absence of all this imputed fear on his part, I advert to a 
 grave fact, that when at the Metropolitan dinner, he was informed of the 
 condition of affairs, by the Mayor, as an ex-officio member of the Board of 
 Commissioners of Emigration, and without any order, he expressed his 
 readiness to send men down, actually gave the order, and was about send- 
 ing them down. He had received no requisition ; he had w aited here for 
 the purpose of receiving it, but being there told by one of the Commis- 
 sioners of Emigration, that it was necessary to send them down, he imme- 
 diately put the force in operation, and would have had them there long 
 before the marines arrived, unless Capt. Rich is right in saying that they 
 got there before five o'clock ; and to show his alacrity and zeal, I rely 
 upon the fact that he sent without orders, because he was informed of the 
 emergency which -rendered it proper and necessary*. Now, why was he 
 prevented from doing it ? All the evidence shows that he was desirous 
 and anxious to do it. Gen. Nye himself was at the Metropolitan Hotel, 
 and sent up a note to the Mayor to know what should be done. The Gen- 
 eral Superintendent would have gone down himself; and both would have 
 co-operated ; and why was he prevented ? Why, Mayor Tiemann, a portion 
 of whose testimony I will read, gives the answer : " Subsequently, at the 
 Municipal dinner, witness saw Mr. Stranahan, and was informed by him 
 that no men had been sent down ; he (witness) thereupon said he would 
 have to see the General Superintendent immediately ; he saw Gen. Tall- 
 madge, who was in the room at the time, and was told by him that he 
 had sent down no men because of no requisition having been served upon 
 him ; witness told him he would make a requisition on him immediately 
 for sixty men to be sent down to the Quarantine ; the General Superinten- 
 dent said he would send them as soon as they could be got together, which 
 would occupy some little time. Mr. Schell, the Collector, then came up 
 and said he had sent down a body of marines ; witness thanked him, and 
 said, that relieved his mind very much. Mr. Tallmadge was with Mr. 
 
20 
 
 Schell at that time ; and witness told him there was no use in sending those 
 men down, as Mr. Schell had sent the marines down." 
 
 Mayor Tiemann. That is not reported correctly. Mr. Tallmadge was 
 not w T ith Mr. Schell, when he came up. 
 
 General Nye. The fact, I presume was, that he told the Mayor, and 
 the Mayor communicated to the General Superintendent, that the marines 
 were sent down there to protect the State property as well as the U. S. 
 Government Property. 
 
 Mr. Noyes. There was then abundant time to get the men down, and 
 the marines did not go down till after that. Now, this countermanding of 
 the order was caused by this assurance of the Collector, that he had pro- 
 cured and sent down a guard of marines for the protection of all the prop- 
 erty at Quarantine, including State as well as United States Government 
 Property. Now, I will examine that subject. The question is whether 
 the General Superintendent, whether Gen. Nye, whether the members of 
 this Board, as a Board or individually, were justified in relying upon that 
 statement. That is the question. It involves another, whether blame is 
 imputable to them or to the General Superintendent, for relying on that 
 statement : and that involves the question of the rights and duties of the 
 Collector in reference to the Quarantine property, and the Health Laws of 
 the State. Now, in relation to what occurred there with the Collector, I 
 think I shall be excusable if, preliminarily, I endeavor to show to this 
 Board, what provision*has been made by our laws for the protection of 
 State property under such circumstances. I am sorry to detain the Board 
 so long, but I hope they will be patient with me. I certainly shall get 
 along as fast as I can. Now, in the first place, the militia of Staten Island — 
 a pretty hard militia, I should think, from the conduct exhibited during 
 the riots — composes a separate battalion attached to the first division of 
 the militia of the State of New York ; I suppose those are General Sand- 
 ford's troops. 
 
 Gen. Nye. In time of peace. 
 
 Mr. Noyes. Yes, in time of peace ; and in times of insurrection and 
 riot, the commandant of the battalion is required by law to assemble his 
 men under arms, and dispatch the news to the General with the utmost pos- 
 sible speed (1 R. S. 4th ed. 611, §§ 37, 38, 39). That is one of the recognized 
 means for the protection of individual and State property in cases of riot. 
 And besides that, the Sheriff of the county, under the common law, and 
 by virtue of his office, is charged with the duty of protecting property and 
 suppressing riots. At the common law, sheriffs, in England, were, for a 
 long time elected — I think until the time of the second Edward — among 
 other things to protect property. Hear what Lord Coke says, about it : — 
 " The Sheriff has triplicem custodiam, viz., vita? justitia>, vita? legis, et vitce 
 
21 
 
 reipublicte. Vitce justitice, to serve process and to return indifferent juries 
 for the trial of men's lives, liberties, lands and goods : Vitce legis, to exe- 
 cute process and make execution, which is the life of the law ; and vitce rei- 
 publicce, to keep the peace." That is the duty of the Sheriff; and if there 
 be any rebellion, insurrection, or riot in the county, the sheriff may take 
 the posse comitates for the suppression of it, and every man is bound to 
 aid him. Now, these were the ordinary, constituted means of keeping the 
 peace at Staten Island, and for suppressing precisely such a riot as this ; 
 and I need not tell this Board that all these bodies and all these officers 
 were utterly derelict to their duty, and not only derelict to their duty, but 
 probably connived at the outrage. 
 
 Mayor Tiemann. I am not going to interrupt you, but have you exam- 
 ined the laws of Congress ? 
 
 Mr. Noyes. I was about to advert to that. I say then, primarily, that, 
 for the purposes of custody and preservation, Mr. Schell, after he assumed 
 this responsibility, was the custodian of all the buildings at Quarantine. 
 He was so, because there were government buildings contiguous, one of 
 which, at least, had been used for precisely the same purpose as the State 
 buildings — the reception of yellow-fever patients, or property which had 
 been in immediate contact with yellow-fever patients ; which building was 
 itself offensive to the rioters, and one which they were kept from destroying 
 only because, according to the testimony of Mr. Locke, he had shut it up, 
 and had given notice that it should no longer be used for such a purpose. 
 These buildings were-in such immediate proximity that even Captain Rich 
 had determined that if the firing of the State buildings endangered the 
 safety of the government buildings, he should protect the State buildings 
 as necessary to the preservation of the government buildings. 
 
 Now, the act of Congress, of 1799, to which the Mayor has called my 
 attention, absolutely imposed this duty upon the Collector, and upon every 
 naval and military officer on the station ; not because he is requested to do 
 it, but by virtue of his office, he is bound to do it. He is bound to volun- 
 teer to protect the State as well as the Government property. Now, let me 
 read the sections of the act passed on the 27th of February, 1799. (See 1 
 Story's Laws U. S. 564.) 
 
 § 1. Be it enacted, &c. That the Quarantines and other restraints which 
 shall be required and established by the health laws of any State or pursu- 
 ant thereto respecting any vessels arriving in or bound to any port or dis- 
 trict thereof, whether from a foreign port or place, or from another district 
 of the United States, shall be duly observed by the collectors and all other 
 officers of the revenue of the United States appointed and employed for 
 the several collection districts of such State respectively, and by the masters 
 and crews of the several revenue cutters, and by the military officers who 
 
22 
 
 shall command in any fori or station upon the sea coast : And all such 
 officers of the United States shall be and they are hereby authorized and 
 required faithfully to aid in the execution of such quarantines and 
 health laws, according to their respective powers and precincts, and as 
 they shall be directed from time to time by the Secretary of the Treasury 
 of the United States. 
 
 Well, then, the Health and Quarantine Laws must be observed by the 
 collectors, and carried out and enforced by the masters and crews of the 
 several revenue cutters, and by the military officers who shall command in 
 any fort or station on the sea coast. That is a declaration of their general 
 duty ; and then we have this : " And all such officers of the United States 
 shall be, and they are hereby authorized and required — demanded — faith- 
 fully to aid in the execution of such Quarantine and Health laws," according 
 to their respective powers and precincts. They are required to aid in the 
 execution of the Quarantine laws , and, of course, they are required to fur- 
 nish that aid when those Quarantine laws are broken down, and when the 
 buildings for the uses of the Quarantine are endangered. They are not only 
 bound to do this faithfully, but to do it without requirement. The statute 
 proceeds : " And as they shall be directed from time to time by the Secre- 
 tary of the Treasury of the United States." They are not only required 
 to do this as a part of their official duty, without request, but they are re- 
 quired in addition to obey the Secretary of the Treasury in relation to 
 all the matters connected with this subject which are not otherwise called 
 to their attention. 
 
 General Nye. — The law, likewise, I believe, provides that the marines 
 form a part, under given circumstances, of both the army and the navy. 
 
 Mr. Noyes. — I have a reference to that on my brief. The marine corps 
 is a part of the military establishment of the United States. That will be 
 found in the act passed on the 1 1th July, 1 798 (1 Story's Laws U. p. 542, 
 §§1,2, 4) ; so that the collector, as well as this corps of marines, and every 
 man on board of a national ship in the harbor, was bound by his duty as 
 an officer, to interfere and protect State property, whether he was formally 
 requested to do so or not. But, however that may be, the Collector assumed 
 that he had the right so to interfere ; he stated that he had exercised that 
 right, and that he had sent men down to protect the State property. And 
 what is the result ? The men, being on the ground, failed in their duty. 
 That is the whole of it. They failed in their duty as United States officers 
 and soldiers. They failed in their duty as citizens. Captain Rich says that 
 his orders did not include the protection of this property. I say, they did 
 not exclude it. His orders did include Government property. I would 
 
23 
 
 have construed those orders in a liberal sense. 1 would have understood 
 the term, Government property, as reflating to any Government property, 
 state or national ; and so he ought to have construed it. Moreover, he 
 ought so to have regarded them, even against orders ; and I say that, even if 
 he had received an order from the Commandant of the United States Navy 
 Yard, saying to him that he should not do it, it was his duty as an officer, 
 as a citizen, and as a man with a human heart, to violate his orders. A pro- 
 found writer on this subject has said : " There is no Government ever so 
 absolute in theory which has not sanctioned acts of disobedience even to 
 the command of the prince, because done on account of the still more im- 
 portant interests of the same prince." What interest could better justify a 
 disobedience, what interest could have been of more importance, than the 
 protection of these poor people on that dreadful night ? He proceeds : — 
 " How often have monarchs wished that their orders had been disobeyed ! 
 Napoleon was, according to Bourienne, on some occasions, highly pleased 
 when he learned he had been disobeyed. In short, obedience is always 
 acknowledged in practice as something relative ; and of this, of course, the 
 individual must judge." (Lieber's Political Ethics, Vol. 2, p. 21 6.) And 
 when Captain Rich saw this outrage going on, he was bound to judge that 
 he, as a man and as an officer, representing this great republic, should 
 not permit such atrocities to be committed, if he could prevent them ; es- 
 pecially when having his fifty muskets in the hands of trained men, he could 
 have driven those guilty wretches from their infernal work, or driven them 
 where they deserved to go — into eternity. 
 
 Mayor Tiemann. A hundred muskets. 
 
 Gen. Nye. Fifty-seven, it turns out to be. 
 
 Mr. Noyes. He had fifty men armed, and five musicians. Now, I say, 
 it was his duty, because, as a citizen, he "was bound to interfere — as every 
 citizen is. I refer to Wharton, on Criminal Law 4th Ed., Section 2499. 1 
 will read the whole paragraph. 
 
 " An unlawful assembly may be dispersed by a Magistrate whenever he 
 finds a state of things existing, calling for an interference in order to the 
 preservation of the public peace. He is not required to postpone his action 
 until the unlawful assembly ripens into an actual riot. For it is better to 
 anticipate more dangerous results, by energetic intervention at the inception 
 of a threatened breach of the peace, than by delay to permit the tumult to 
 acquire such strength as to demand for its suppression those urgent meas- 
 ures which should be reserved for great extremities. The magistrate has 
 not only the power to arrest the offenders, and bind them to their good be- 
 havior, or imprison them if they do not offer adequate bail, but he may 
 authorize others to arrest them by a bare verbal command, without any 
 other warrant ; and all citizens present whom he may invoke to his aid, 
 are bound promptly to respond to his requisition, and support him in main- 
 taining the peace. A justice of the peace, either present, or called on such 
 
 3 
 
24: 
 
 an occasion, who neglects or refuses to do his utmost for the suppression o. 
 such unlawful assemblies, subjects himself to indictment and conviction for 
 a criminal misdemeanor. Where, however, as was laid down in the Lord 
 George Gordon riots by Lord Loughborough, and as has been held in this 
 country in cases of late occurrence, an unlawful assembly assumes a more 
 dangerous form, and becomes an actual riot, particularly when life or prop- 
 erty is threatened by the insurgents, measures more decisive should be 
 adopted. Citizens may, of their own authority, lawfully endeavor to sup- 
 press the riot, and for that purpose may even arm themselves ; and what- 
 ever is honestly done by them in the execution of that object, will be sup- 
 ported and justified by the common law. It is the duty of every citizen to 
 make such endeavor, and when the rioters are engaged in treasonable prac- 
 tices, the law protects other persons in repelling them by force." 
 
 It is a species of treason, to endeavor to overthrow the establishments 
 erected under the laws of the land, for the protection of the public health, 
 and the safety of our citizens. 
 
 These people were engaged in the commission of one of the great- 
 est of crimes, arson — a capital offence. Burning inhabited dwellings 
 in the night time, and thrusting their defenceless inhabitants into the street ; 
 and this, irrespective of the sick in the hospitals. They were destroying a 
 humane establishment for the protection of the sick alien and stranger 
 seeking a new home on our shores — confiding in the humanity of our peo- 
 ple, and the protection of our laws. I would to God we had an American 
 party organized to put down all who were engaged in these nefarious pro- 
 ceedings. And yet the United States officers thought it was not their duty 
 to interfere. They thought they should keep within the strict limit of their 
 written orders, and disregard the higher authority of the Congress of the 
 United States, declared by a law more than half a century old, requiring 
 them to do it as they valued their places and their reputations. The 
 most savage barbarians are kind to the unfortunate strangers who come 
 among them. The savages of Madagascar permitted an unprotected 
 woman to go among them, like one of themselves, entirely unharmed. 
 And yet, these civilized people, living in what is called "the Isle of 
 Wight" of America — a crowd of these civilized people — more than one 
 thousand persons, men, women and children, and among them two clergy- 
 men, ministers of Him whose mission was love, and peace, and good-will to 
 men, stand approvingly by and triumph over this deed of midnight atroc- 
 ity ! If the wretch who fired the Ephesian Dome won fame and infamy at 
 the same instant, what a weight of infamy must rest upon those who had 
 no pity on the sick and the dying stranger on that dreadful night. Even 
 Brennusand his hordes of Vandals at the sacking of Rome, committed no 
 greater barbarities. And the whole was unlawful as well as inhuman; the 
 whole of it. The plea of lawfulness has been set up by these people and by 
 those who justify tii cm. It would be available to the accused in this place 
 
25 
 
 if it were sound ; but, as a man and as a lawyer, I repel that defence with 
 scorn and contempt. There is no foundation for ft. The ground taken upon 
 that subject is subversive of all law. It is not only shameless, but revolu- 
 tionary, and destroyes all security for our persons and our property. There 
 is no such thing as a legislative power in the State, if these acts can be jus- 
 tified as having been done under the color of law. There is a plain princi- 
 ple at the bottom of it all which controls it, and that is, that that cannot be 
 unlawful which the supreme legislative power, for the purpose of protect- 
 ing the public health, declares shall be lawful. If it comes in conflict 
 with a constitutional provision, then of course it must give way, and I speak 
 with that exception ; but to say, that what the Legislature within constitu- 
 tional limits, has authorized for the wisest and most benevolent of purposes, 
 can be unlawful, is absurd and wicked ; to say, that while the Legislature 
 has the power to originate and continue a quarantine establishment for 
 the protection of the public health, it may be lawfully demolished, is 
 an outrage upon all law. No work which is erected and maintained by 
 the State in pursuance of law, for public uses, can be a nuisance, so as to 
 authorize its destruction. It must remain until the sovereign legislative 
 power declares — and it alone has the power to declare — that it shall no long- 
 er exist. This is the doctrine of the Supreme Court in the case of Harris 
 v. Tho?n2)son, in 9th Barbour, 350, and the doctrine of the Superior Court 
 of New York ; an extract from which I will read. Judge Duer, con- 
 sidering the right of the Legislature to establish a depot at Castle 
 Garden for the reception of emigrants, with the aid of the luminous 
 mind of Chief Justice Oakley, and the distinguishing sense of Judge 
 Campbell, speaking for the whole Court, said : — " Let it, however, be ad- 
 mitted, as a general rale, that the Legislature has no right to create, or au- 
 thorize the creation of a nuisance ; it seems not possible to deny that there 
 are special cases that must be considered as exceptions from the rule. It 
 cannot be denied that cases may arise in which a just and enlightened re- 
 gard to the interests of the public at large, and even of the inhabitants of a 
 single city, may justify the erection of that, which in its consequences, may 
 prove a nuisance to those who reside in the neighborhood in which it is es- 
 tablished. A power which is possessed, and has frequently been exercised 
 by a municipal corporation, cannot reasonably be denied to the Legislature. 
 This was well illustrated in the instance put by Mr. O'Conor : — During the 
 prevalence of the cholera, or other contagious disease, the corporation of 
 the city has been accustomed to establish hospitals for the reception of the 
 diseased, in different parts of the city ; and the proximity and even neces- 
 sity of such an exercise of its powers has never been called in question. 
 Every such hospital, however, is more or less of a nuisance to those who 
 reside in the vicinity ; but, as the general interests of the community, and 
 
26 
 
 the pleasing dictates of humanity, require them to be established, the incon- 
 venience, discomfort, and dangers resulting to a particular class of persons 
 are overlooked and disregarded. The maxim applies — salus populi supre- 
 ma lex." (12 How. Pr. R. 15). 
 
 And Ch. J. Denio, in the Broadway railroad case (Davis v. Mayor & 
 Cor. of N. Y., 14 JV. Y Hep., p. 515) in his accustomed terse and forcible 
 manner, said : — " If the transaction between the Corporation on the one 
 part and Sharp and his associates on the other, by whatever name it may 
 be called, was a legal act, conferring upon the latter the right and privilege 
 which it proposed to give them, then it is impossible that the railway should 
 have been a public nuisance ; that being an offence which cannot be predicated 
 of the lawful exercise of authority upon a subject to ivhich it is applicable." 
 
 It is clear, therefore, that the demolition of the Quarantine buildings was 
 not only without law, but against law. 
 
 Now, then, I have shown that the Collector was, primarily, bound to 
 protect these buildings, and that he assumed to do so. I have established 
 the fact that the force he sent down was bound to do so, as a matter of 
 official duty ; and I have proved that they were bound to do it as men and 
 as citizens. Upon whom, then, does the responsibility for permitting the 
 burning of these additional buildings rest? It rests upon the officers of the 
 General Government ; it rests upon the General Government itself, because 
 their officer, charged with and assuming this duty, misled the city author- 
 ities — the Mayor, the Board of Police, and the General Superintendent — 
 and misled them, too, under circumstances of the most extraordinary 
 character. I cannot, for my life, account for the strange statement made 
 by Mr. Schell to the Mayor, that he had sent down a force to protect the 
 State property, when we have his own order here showing what he had 
 really done. 
 
 Mayor Tiemann. lie did not so state to me that evening in the Hotel, 
 Mr. Noyes. No, the Mayor knew nothing about his orders. That is 
 the strange part of it. He subsequently told the Mayor, distinctly, that he 
 told him at the Metropolitan Hotel that he had sent down a body of ma- 
 rines to protect the State property as well as the Government property, 
 and meant that he should so understand it. And yet, here is his order; an 
 order which we never saw, never heard of, until it was produced yesterday 
 by Surveyor Halt. I never saw it, and 1 don't know that this Board or 
 an\ member of it ever did. 
 Gen. Nye. I never did. 
 
 Mr. Nb&t* It is dated the 2d of September, and addressed to Com. 
 Kearney : 
 
 ( Ystom 1 1 -i i . N'kw York, 
 Collectors Office, September 2d, 1858. 
 Sir — You will please to send a detachment of one hundred marines 
 immediately, to the Upper Quarantine Station, Staten Island, for the pur- 
 
27 
 
 pose of protecting the warehouses and other buildings belonging to the 
 United States, located at that place, to remain there until further orders. 
 
 I am very respectfully your obd't serv't, 
 
 AUGUSTUS SCHELL, Collector. 
 Com. L. Kearney, ConuVg U. S. Navy Yard. 
 
 Yet, on the evening of that very day, probably within three or four 
 horn's after it was written, and while the ink was yet fresh, he tells the 
 .Mayor he had sent a force down there to protect everything. 
 
 Mayor Tiemann. He did not tell me that evening in so many words 
 that he had. 
 
 Mr. Noyes. But that was your inference from what was said. 
 Mayor Tiemann. Yes, sir. 
 
 Mr. Noyes. He led you to believe that, and next day he said to you 
 that was his intention ; therefore your inference was entirely correct. 
 Mayor Tiemann. That is right. 
 
 Mr. Noyes. And yet it is certain that if he had stated the true pur- 
 port of his order, the Mayor would not have rested content, but would 
 have caused a police force to be sent down. 
 
 Mayor Tiemann. The force would certainly have been sent. 
 
 Mr. Noyes. And further', all this corroborates what I have stated, that 
 we cannot rely with any sort of confidence upon oral declarations ; and it 
 shows, moreover, the importance of having all the orders and all the com- 
 munications which pass between different bodies of men, charged with 
 high public duties, in ^writing, so that there shall be no mistake about them. 
 But however this may be, it is undeniable that the responsibility of all the 
 incendiarism, on the night of the 2d of September, rests upon the Col- 
 lector and upon the marines, and not upon the city government. My 
 proposition is established, my case is secure, when I show that it does not 
 rest upon the General Superintendent. I do not see how the General Gov- 
 ernment can escape responsibility — pecuniary responsibility — for this. 
 The duty was cast upon them. They assumed it. They misled the officers 
 of the City Government, including the Commissioners of Police and the 
 General Superintendent, and the consequence was that no force was on the 
 ground. And more than that : we find their officers in very familiar com- 
 munication with one who is supposed to have been at the head of the 
 rioters. We find one of these officers in communication, then and after- 
 wards, with a man who, by his mere word, kept the crowd back from the 
 Women's Hospital, when they came to apply the torch to it. They obeyed 
 him more implicitly than the marines obeyed their commander. The 
 moment he announced that they might enter it, to ascertain whether there 
 were any sick there, this crowd, which had been before obedient to his 
 command, fired the building, and the flames rushed from every part of it 
 
28 
 
 almost simultaneously. And more than that : we find the boarding officer 
 not only sympathizing with the outrage and those who committed it, but 
 approving of it here, and attempting to force upon this Board the convic- 
 tion that it was lawful. And all this in connection with this great fact that 
 the Surveyor of the Port, this Boarding Officer, and the Private Secretary 
 of the Collector, were on the ground stationing these marines, and placing 
 them where they would not protect the State property ; and, and when 
 the ffames were bursting from the burning buildings, and this Surveyor, in 
 the boat returning towards New York, was within a stone's throw of the 
 shore, he coolly directs her to be turned so that he could ascertain exactly 
 where the fire was, and then proceeds to the city, leaving them to perish. 
 Other officers of the Government were, at the same time looking on with 
 seeming approbation. If the Government is not responsible under such 
 circumstances, when the duty of protection is cast upon its officers by the 
 act of Congress, then there is no public responsibility in cases of this 
 description. 
 
 I have not designed to say any thing here which would needlessly 
 reflect upon any individual. I am always anxious to avoid anything of 
 that character in a forensic discussion. But my duty — my duty, not only 
 as a lawyer, but as a man — required that I should state frankly the views 
 which I entertain of all these circumstances, and I have endeavored to do 
 so, not only for the purpose of placing this defendant right in the matter 
 of this accusation, but for the purpose, as far as lay within my power, of 
 setting the public right about it. 
 
 The rules of this Board require that decisions in these cases shall be 
 pronounced on the day succeeding the trial ; in this case, therefore, a decision 
 should be rendered to-morrow. There are some associations connected 
 with that day which I deem it proper to call to the attention of the Board, 
 as I am about to close this discussion. If I am right in the view which I 
 have taken, there is no good ground of accusation against Mr. Tallmadge. 
 I have alluded somewhat to his antecedents. I had a right to do so. His 
 antecedents compose his character, and excellent public character is a thing 
 which cannot be overvalued. If it be connected — as it is in him with dis- 
 tinguished ancestry — the source of high aspirations and the stimulus to 
 noble deeds — it may be relied on as a defence and protection on occasions 
 like these. 
 
 Seventy-eiejit years ago, to-morrow, a gallant Adjutant General of the 
 British Army was executed at Tappan as a spy. He was discovered and 
 his true character disclosed — after Col. Jamieson, to whom he was first 
 delivered after his arrest — had sent him to Arnold as John Anderson, 
 without any suspicion of his real character — by the vigilance and wisdom 
 of the father of the General Superintendent, — then a Major in the Revo- 
 
29 
 
 lutionary Army. But for this timely discovery Andre would have escaped, 
 and the foulest treason upon record would probably have been consum- 
 mated, and the independence of our country jeoparded, if not lost. A 
 few days passed, he was executed, and our liberties were secured. It will 
 be proper on the anniversary of that day, — a day which showed our deter- 
 mination to be a power upon the earth ; because it was not believed that 
 General Washington dared to execute him, — it will T repeat, be emi- 
 nently fit and proper, on the anniversary of that day, to restore the Gen- 
 eral Superintendent to his office and to his public character; intaminatis 
 fidget honor ib us. 
 
f I 
 
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