“Tradition, education, physical surroundings, race, class and professional solidarity, and economic, political, and social influences of all sorts and degrees make up a complex environment in which men endeavor to reach certain results by means of legal machinery. No discussion simply in terms of men or of legal and political machinery, or both, ignoring this complex environment, will serve”. [1]

-Dean Pound, nineteenth century legal scholar

In order to understand how the members of the New York City judiciary contributed to the definition of the criminal class, it is important to know how they came to occupy their lofty position in the criminal justice system. Each of these men brought with him a wealth of past experience and a host of prejudices, both conscious and subconscious. In an effort to take these factors into account and deepen the analysis of each judge’s particular biases, brief biographies of Judge Gildersleeve and Recorder Smyth are presented below. The biographies foreground the subsequent discussion of the judges’ role in shaping the city’s perception of the criminal type.

Biography: Judge Henry Gildersleeve

Henry Alger Gildersleeve became a judge in the Court of General Sessions in 1876. [2] Prior to his appointment, he served in the Union Army during the Civil War. He fought in the battle of Gettysburg and accompanied General Sherman on his march through Georgia. Gildersleeve distinguished himself as an exceptional marksman and led the American rifle team to victory in their competition against England and Ireland in 1875. [3] When he returned to the States he was hailed as a hero and outstanding sportsman. One admirer observed that it may have been this accomplishment and the popularity it brought him that led to his appointment as judge. [4]    

He was certainly not chosen based on an extensive professional pedigree. Although he attended Columbia Law School and was admitted to the New York State Bar in 1866, he was not nearly as well-known for his professional capabilities as he was for his superb marksmanship. [5] His promotion seemed to be based largely on natural charisma. In the words of a colleague, Gildersleeve “had a very uncommon common sense, which stood as a valuable offset to the more learned legal qualifications of the bench. His unquestioned integrity and independence of all influences, his patience and courtesy, brought him an unusual popularity at the Bar and inspired every suitor with confidence.” [6]

 

This glowing description of Gildersleeve’s inherent virtues obscures the more controversial aspects of his character. As a judge, he could be very unpredictable. He was particularly lenient in some cases, taking into account a defendant’s age and the needs of the man’s family, while in others he could be unreasonably harsh. One young man, a convicted swindler who pled guilty to charges of forgery, avoided State Prison because Gildersleeve was sympathetic towards the pleas of the youth’s parents. [7] They convinced the judge that their son was under the influence of a rotten group of friends he had met at college, and should be spared the agony of a prison term. Gildersleeve was easily swayed and sentenced the youth to the Elmira Reformatory instead.

For men whose parents could not argue eloquently on their behalf, life was not so simple. Just after sentencing the misguided college student, Gildersleeve was quick to send Arthur Morrell, who also pled guilty to forgery, to seven and a half years at hard labor in the state prison. [8] Gildersleeve’s justifications for each sentence are outlined in the New York Times article below:

 

If the disparity illustrated above is any indication, Gildersleeve did not truly “[inspire] every suitor with confidence”. He certainly had a soft spot for heartfelt pleas and was willing to take extenuating circumstances into account – in some cases. His intolerance manifested itself most forcefully against defendants who came back to court for their second and third offenses, and against those individuals who committed crimes against property. [9] Despite these punitive vacillations, he had a long and successful career as a judge. After finishing his fourteen year term in the Court of General Sessions he went on to become a Supreme Court Justice, serving from 1894-1900. [10] He died at home in New York City at the age of eighty-three.

Biography: Recorder Frederick Smyth

 

Born in Galway, Ireland in 1832, Frederick Smyth immigrated to the United States in 1849. In 1852 Smyth began his tenure in the law office of John McKeon, a native New Yorker and a staunch Democrat. [11] When McKeon was appointed United States District Attorney in 1854 he brought Smyth on as his assistant. [12] In 1855, at the age of twenty-three, Smyth was admitted to the New York bar.  [13] He tried several high profile cases in his time as Assistant D.A., but at the end of his term he declined a second appointment and returned to practicing law with McKeon. [14] The two lawyers maintained a partnership for twenty-one years, despite their differing political allegiances. McKeon was a particularly vocal opponent of Tammany Hall, the Democratic society that had dominated New York politics for much of the nineteenth century. [15] Smyth, on the other hand, befriended Tammany’s leader, John Kelly, and benefitted from the party’s political support.

In the years that followed, Smyth proved himself an ambitious civil servant. He ran for Recorder for the first time in 1875 but was defeated by John Hackett. [16] He ran for District Attorney in 1878 and was again ousted. Unwilling to give up, Smyth tried for an appointment as Judge of the Court of Common Pleas, but to no avail. Finally, upon Judge Hackett’s death in 1879, Smyth was chosen to stand in as Recorder until a new judge could be elected. [17] The Recordership was considered “a political bone, the gnawing of which [tempted] the hungry of both the great parties.” [18] Not only did the Recorder serve as judge in the Court of General Sessions, he was also ex-officio president of the Manhattan Banking Company and chair-person of several public boards. Recorders were elected by the city’s Board of Supervisors and served fourteen year terms. [19]

In 1880 Smyth was officially elected Recorder, thanks to the backing of the Board of Supervisor’s Tammany majority. [20] He completed the full fourteen year term and was lauded by his peers for his impressive work ethic and professional demeanor. [21] One lawyer observed: “[Smyth] always presented a singularly calm and equable appearance on the Bench; I never saw him yield to irritability or exhibit the slightest impatience. Sound law and substantial justice were characteristic of his every ruling.” [22]

 

This uncompromising commitment to justice manifested itself in Smyth’s severe treatment of those he found guilty. He was “a terror to the criminal classes”, passing more death sentences than any of his predecessors. [23] Another lawyer testified that Smyth “[thought] ivery man ought to go to prison at least wance”. [24] His judgements tended to be harsh, especially when it came to repeat offenders, but his sentences were rarely overturned in the appellate courts. [25]

In 1894, after an illustrious career as Recorder, Smyth failed to win re-election. The following year, he became Grand Sachem of the Tammany Society. [26] The Sachems were elected representatives who nominated party members for public office, organized the Society’s gatherings and campaigns, and addressed the day-to-day needs of Tammany’s constituency. [27] Smyth had served as a Sachem for many years before he became Recorder, and Tammany electors had backed him in his various attempts to attain public office. [28]

In his first speech as Grand Sachem Smyth announced: “‘I am a politician…and I believe every man in this country should be who is worthy of being a citizen. It does not necessarily follow that to be a politician is to be a scoundrel.’ ” [29] By his own estimation, Smyth had proven himself worthy of citizenship. He embodied the quintessential self-made man: an Irish immigrant who, through years of hard work and determination, became the leader of one of America’s most powerful political fraternities. Smyth continued his involvement with Tammany and his commitment to civic engagement until his death in 1900.

It is possible that, after working so diligently to ascend the social pyramid by his own honest hard work, he felt called to punish those who tried to cheat their way to success. The criminal class as he saw it may well have consisted of the immigrants and underdogs who, unlike Smyth, had resorted to theft and violence in order to survive. Moreover, his involvement with a political powerhouse made him vulnerable to partisan favoritism. Tammany officials were notorious for issuing pardons and mitigating punishments in cases involving fellow party members. Though it is difficult to prove that Smyth participated in these corrupt schemes, it is important to acknowledge the potential impact his political affiliations may have had on the sentences he delivered.

[1] Haines, Charles Grove. “General Observations on the Effects of Personal, Political, and Economic Decisions of Judges”. (Illinois Law Review vol. 17, no. 2, 1922): 106.

[2] “Gildersleeve Quits Bench,” New York Times (New York, New York), November 12, 1909.

[3] Wellman, Francis. Gentlemen of the Jury. Reminiscences of Thirty Years at the Bar. (New York: The Macmillan Company), 1924. 250

[4] Ibid. 251

[5] “H. A. Gildersleeve, Jurist, Dies At 83,” New York Times (New York, New York), February 28, 1923.

[6] Ibid. 251-252

[7] “A Discriminating Judge,” New York Times (New York, New York), April 11, 1888.

[8] Ibid.

[9] For more on this, see “Defining the Criminal Class: A Case Study of Sentences Delivered by Judge Henry Gildersleeve and Recorder Frederick Smyth”.

[10] “H. A. Gildersleeve, Jurist, Dies At 83,” New York Times (New York, New York), February 28, 1923.

[11] “John McKeon’s Work Done” New York Times (New York, New York) November 23, 1883.

[12] Ibid.

[13] “Justice Smyth is Dead.” New York Times (New York, New York) August 19, 1900.

[14] Ibid.

[15] “John McKeon’s Work Done” New York Times. (New York, New York) November 23, 1883.

[16] “Mr. Smyth the Recorder”, New York Times. January 1 1880.

[17] Ibid.

[18] “The Recordership”, New York Times (New York, New York), January 12, 1866.

[19] Ibid.

[20] Ibid.

[21] Wellman, Francis. Gentlemen of the Jury. Reminiscences of Thirty Years at the Bar. (New York: The Macmillan Company, 1924). 226

[22] Ibid. 228-229

[23] Ibid. 226

[24] Ibid. 227

[25] Ibid.

[26] “Mr. Smyth Grand Sachem,” New York Times (New York, New York), May 14, 1895.

[27] Ibid.

[28] “Mr. Smyth the Recorder,” New York Times (New York, New York), January 1, 1880.

[29] “Grand Sachem of Tammany,” New York Times (New York, New York), May 21, 1895.