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FACTS  AND  DOCUMENTS  ^'ys\
                          3
BEARING UPON
|  THE  LEGAL AND  MORAL QUESTIONS
CONNECTED with
THE RECENT DESTRUCTION
QUARANTINE BUILDINGS,
   STATEN  ISLAND.




       jL_____

BY THE EXECUTIVE COMMITTEE OF STATEN ISLAND.
             NEW YORK:

WM. C. BRYANT & CO., PRINTERS, 41 NASSAU ST., COR. LIBERTY.



               1858. 
 
FACTS  AND  DOCUMENTS

       BEARING UPON
THE  LEGAL AND MORAL QUESTIONS
CONNECTED WITH
THE  RECENT DESTRUCTION
QUARANTINE  BUILDINGS,
STATEN  ISLAND.
BY THE EXECUTIVE COMMITTEE OF STATEN ISLAND.
             NEW YORK:
WM. 0. BRYANT & CO., PRINTERS, 41 NASSAU ST., COR. LIBERTY. 
6 797-f 
CONTENTS.
Meeting of the Citizens of Staten Island,
Report of Committee,    .....
Report of the Quarantine Committee of 1849, to the Legislature,
Testimony of Dr. Alex. B. Whiting, Health Officer,   .    .
       "    Dr. Marinus H. Van Dyke, Assistant Physician,
       "    Dr. Samuel R. Smith, Physician,
       "    Dr. John T. Harrison, ex Health Officer,
       "    Dr. John S. AYestervelt,       "
       "    Richard Delafield, Major U. S. Engineers.
       "    John B. Simonson, ....
       "    David C. Colden,    .    »
       "    John C. Thompson,     .    .     .
       "    Robert M. Hazard,  .
       "    Minthorne Tompkins,   .
       "    Isaac  Simonson,
       "    Benjamin  F. Dawson,
       "    Robert S. Buchanan,
       "    George Griswold, ....
       "    Joseph H.  Chapman, .
       "    Thomas B. Vermilye,
       "    George B. Rollins, .
       "    Thomas W. Wilson,
       "    Robert L. Taylor,
       "    Francis S. Jones,  ....
       "    James Hart,    ....
Arrest and examination of Ray Tompkins and John C
Opinion of Hon. H. B. Metcalfe, ....
Article on the Legal Question, by W. Farley Gray, Esq.,
PAGK
  3
Thompson 
 
TO  THE  PUBLIC.
  In view of the general interest which the recent disturbances
connected with the Quarantine establishment on Staten Island
have awakened, and of the numerous distorted  and conflicting
reports which  have found their way into the public papers, it
has been deemed advisable that a few authentic documents and
facts bearing upon the moral and legal aspects of the question
should be collected  and laid before the public.  In many in-
stances  it has been found that those who were the loudest  in
their condemnation of the citizens of Richmond  County,  at
the outset of  these disturbances, have greatly modified, if not
wholly changed, their opinions when they became  acquainted
with the true facts of the case.   Certain it is that the annals of
this country furnish no instance of  a whole community having
so long  and patiently borne  such oppressive grievances at the
hands of its government, as the people of Staten Island have
been subjected to in connection with this Quarantine nuisance.
If no other benefit is likely to flow from these  disturbances,
at least it is to be hoped  they will lead to a judicial deter-
mination  of the extent to which Government may go in  its
encroachments  upon  the natural right of the citizen to  the
enjoyment of  life, health and property, if they do not arouse
the Legislature  to the performance of a tardy act of justice to
\ 
2
an oppressed community.  A candid perusal of the accompany-
ing documents is respectfully solicited, with a view to a correct
understanding of the whole matter.
  Staten Island, Dec. 7, 1858.
  By order of  the Executive Committee of Staten Island,
                                       K  BARRETT,
                                               Chairman. 
MEETING OP CITIZENS OF  STATEN ISLAND.
  After the destruction of the Quarantine Hospitals on Staten
Island, a public meeting of the inhabitants of the county was
called for the 20th of September, " to interchange views in re-
" lation to the then recent events connected  with the Quaran-
" tine, to lay before the public a correct and reliable statement
" of the facts of the case, and to take such steps as their duty in
" the emergency might require."  The call  was numerously
signed by the  most respectable citizens of  the Island, and was
responded to by the largest concourse of people ever assembled
in the county.
  Dr. John T. Harrison  was called to preside, and Nathan
Barrett, George W. Jewett, James  Gtjyon, Daniel B. Allen,
Dr. E. AY. Hubbard, and Garrett P. Wright acted as Vice-
Presidents.
  The following Report was then presented to the meeting by a
committee chosen for that purpose, and unanimously approved :

                 COMMITTEE'S REPORT.
  The Committee appointed to prepare for  this meeting a state-
ment of facts connected with  the  burning of the Quarantine
Hospitals in Richmond County, and  to recommend the action
proper to be taken thereupon, do respectfully report :
  That, in the opinion of  your Committee, the recent destruc-
tion  of the Quarantine buildings  on this Island, the studied 
4
efforts of interested parties to pervert the facts and  bias  the
public mind  in relation to  such destruction, and, above all, the
strange proclamation of His Excellency the Governor  of  the
State,  indiscriminately censuring this entire county,  and  de-
claring it to be in a state of insurrection,  require that a calm
and reliable statement of facts should be presented by the citi-
zens of this Island to their fellow-citizens of the State, by which
their conduct may be understood  and approved or condemned.
It was deemed advisable that such statement should be  with-
held until the passions and prejudices, excited by the  exagger-
ated reports in circulation, had subsided,  and a  dispassionate
hearing could be obtained.  That time, it is believed,  has now
arrived.
  While your Committee do not feel themselves called upon to
enter into an examination of the question, whether the destruc-
tion  of the Quarantine buildings was legally justifiable, they
believe that a simple narration of the history of the location of
that  institution on this Island, and of the various evils and
abuses connected with it, as well  as the  repeated efforts made
by this and the adjacent counties for its removal, and the means
by which those efforts, and the action of the Legislature  there-
upon, have been baffled, will go far to remove the load of cen-
sure and reproach which has been visited upon this community.
They, therefore,  solicit a candid and dispassionate consideration
for the following statement:

  The first Quarantine establishment  in this  State was located
at Bedloe's Island in 1758,  by act of  the Colonial Legislature.
In 1796,  it was removed to Governor's Island,  (then Kutten
Island,) where it remained until the yellow  fever, which appear-
ed in New York in 1799, called for its removal.   In that  year,
the Legislature passed an act appointing Commissioners to select
a new  site on Staten  Island, to have the damages appraised  for
the lands taken,  and  to erect hospitals thereon.  The inhabitants
of the  Island strenuously opposed its location among them, re-
fusing  to sell their lands for that  purpose, and Mr. Micheau,
their representative at Albany, used every  means in his power
to defeat the bill.  The Commissioners, notwithstanding, select-
ed the thirty  acres constituting the present site, and assessed  the 
5
damages and took a title in fee from the Church of St. Andrew,
in the name of the People, by the right of eminent domain.  At
that time the population of the Island was very sparse, and its
only communication with New York was by means of row  or
sail boats, occupying from two to five hours in the passage. The
very first year after the erection of the hospitals,  about twenty-
five cases of yellow fever  occurred outside the  Quarantine
grounds, all but one of which terminated  fatally.  Erorn that
day to the present, the feeling of insecurity has steadily increased
with the increase of population.  Almost  every year more or
less cases of yellow fever, or  other contagious or infectious dis-
eases, have spread beyond the hospital grounds; and in 1848 the
number reached as  high  as one hundred and eighty, of which
many terminated fatally.
   This  led to repeated applications by our  inhabitants for legis-
lative  relief, in several of which the disinterested citizens of
 New York and  Brooklyn joined.  The Legislature of 1848, at
 length yielded to the justice of these applications, and appoint-
 ed an  able  committee,  with the Hon. Wessel S. Smith at its
 head, to give the subject of the fitness of the present Quaran-
 tine station for  the protection of New York,  Brooklyn and Sta-
 ten Island, a thorough and impartial investigation, and to report
 at the next  session.  During the recess  of  the Legislature, that
 committee entered upon  a  most thorough examination of the
 whole question. They  examined the Health Officer and numer-
 ous physicians,  shipping  merchants, sea captains, and other citi-
 zens of New York, Kings and Richmond, who were conversant
 with the subject, and nearly all of whom bore testimony to the
 entire unfitness of the present grounds for  Quarantine purposes.
 The result was  a unanimous and elaborate report, in 1849, to the
 effect that  the   Quarantine  could  no longer be continued on
 Staten Island with safety ; that it afforded no protection to New
 York or Brooklyn ;  that it had long been a grievous and unjus-
 tifiable burden  upon Richmond county ; and the Committee, in
 conclusion,   "unhesitatingly recommend its  immediate  re-
 moval."*   Intermediate the appointment  and  report of tnis
* See Report and Testimony. Note A, post p. 21. 
6
 Committee the yellow fever broke  out on  Staten Island, and
 raged with unprecedented  violence.   Sporadic cases  occurred
 in the neighboring cities.  In consequence, the Legislature, not-
 withstanding the determined opposition of certain  shipping in-
 terests in the city of New York, passed,  on the 10th  of  April
 1849,  an  " Act for the  establishment of hospitals at  Sandy
 Hook," and appointed officers and appropriated money to carry
 it into effect. Unfortunately, the measure continued to encounter
 the steady hostility of these interests after, as well as before, its
 enactment. The officers charged with the duty of removal never
 took definite action, and thus the expressed will of the Legisla-
 ture was defeated.  From that time to the present, the law has
 remained a dead letter on the statute book.
  Discouraged by this  fruitless result, no further steps of im-
 portance were taken by our citizens towards the removal of the
 Quarantine until the fearful visitation of yellow fever  on Long
 Island, Governor's Island, and Staten Island, in  the summer of
 1S56.  The ravages of that frightful pestilence  are too fresh in
 the recollection of all to require particular mention here.  The
 rapid and unchecked spread of the disease, the remains of its
 victims lying in almost every house on the Narrows from Coney
 Island into the city of  Brooklyn, and the impending danger to
 New York itself, aroused the people to a  renewed application
 for  legislative  relief.*   On  the  6th day of  March,  1857,
 an  act was  passed  almost unanimously,  " for  the  removal
 of the Quarantine  station"  from  Staten Island, and  commis-
sioners were named  and funds appropriated to  carry out its
provisions. A general feeling of relief and satisfaction pervaded
  * In the very able and interesting report of Dr. Elisba Harris, physician-in-chief
of the Marine Hospital, Feby. 4, 1857, it appears there were 5 ;8 cases of yellow
fever in the vicinity of the Port of New York, in the summer and autumn of 1856.
Of these persons,  189 resided  on Long Island; 64 on Governor's  Island; 46 in
the city of New York ; 93 on Staten Island, and 29 in Brooklyn.  More than one-
third died of black vomit. Fifty cases came to the Hospital from New York city.
Among the victims on Long Island were Judge  Rockwell, Gen. Stanton, U.  S.  A.,
Dr.  J. H.  Bailey,  Chandler  White,  Esq., and  other  distinguished  citizens!
During the last summer (1858), 31  cases of yellow fever occurred in the heart
of the city of Brooklyn.  Nearly au entire  block  became infected,  and it only
required a  favorable state of  the atmosphere for  the disease to become epidemic. 
7
the counties which were  to be especially benefitted by this act.
The citizens  of Richmond congratulated themselves  that they
had at length got rid  of a  deadly  nuisance.  But they  were
doomed to a speedy disappointment.  No sooner  had the com-
missioners for removal  proceeded to the State of ZSTew Jersey
for the purpose, and,  as  they alleged, with  a fair prospect of
securing Sandy Hook for a Quarantine station, than  they were
openly met by the remonstrances, and secretly by the influen-
ces, of the same  parties who had once before been so successful
in baffling the action of our Legislature and in fastening the
pestilence upon  us.   They likewise  encountered the  remon-
strances of the Health Officer,  Board of Underwriters of New
York, and the  Commissioners  of Emigration.*  The  result
is known.  It is a part of the history of  the past.   The
Commissioners were foiled in their  application,  our opponents
once more triumphed, and the Quarantine remained at our very
doors, the same intolerable and hopeless nuisance,  notwithstand-
ing the twice-expressed  will of the law-making  power of the
country.
   In the meantime,  the institution had,  either by corrupt or
reckless mismanagement, "become  a more alarming  evil than
ever before.   Soon after it was placed  under the management
of the present Health Officer, a series of legislative enactments
were procured, designed to  centre  in  that person more power
than had ever been delegated to any one  individual  in this
State.  The  vast commerce of  this port was subjected to his
almost unlimited and irresponsible control. He was vested with
authority to stop  all vessels entering  the harbor—to say  how
long they should remain at Quarantine—to require cargoes to be
  * The Committee of the Legislature of New Jersey, appointed to confer with
the New York Commissioners for Quarantine removal, in their report, say: " But
"this application for the occupancy of Sandy  Hook as a Quarantine ground
" is pressed forward in direct opposition to the protestations of the Health Officer
" of the Quarantine itself, the New York Chamber of Commerce, the Board  cf
" Underwriters,  the Commissioners of Emigration, and thousands of New York
'•merchants, interested in marine affairs, all of whom have remonstrated in the
« most decided manner against the removal."  (See N. Y.  Assembly Document No.
69, page 89 Session of 1858.) 
c,
lightered in boats, and by persons selected by himself, and he
assumed to fix a tariff of charges without limit or control.   The
consequences are well known.   The Institution  was managed
quite as much with a view to the increase of the princely reve-
nue of the Health Officer as to the preservation of the public
health.  Coasting  vessels  coming from south of  Cape  Hen-
lopen, as well as all vessels from foreign ports, sometimes num-
bering between one  and two  hundred  a  day,  were  sub-
jected to visitation at enormous  expense.  The exclusive privi-
lege of lightering was  given to a monopoly.  Ship loads of
passengers from foreign and  domestic ports were  unnecessarily
quarantined for days, and compelled to pay large sums for board
and  the most trifling accommodations.  In  many instances, it
is alleged, persons and vessels so quarantined were, for a pecu-
niary consideration, permitted  to leave their anchorage, and
proceed to the  city of New York.  The Quarantine grounds
were frequently overcrowded, the sick and well were placed in
dangerous proximity to each other, and promiscuous intercourse
was permitted between those inside and outside the walls. Ste-
vedores and other employees were suffered to mingle indiscri-
minately with our citizens, and to pass at pleasure on the ferries
to and from their families in the cities of New York and Brook-
lyn.   All this time there were published in the  daily papers,
and in the reports of the Health Officer to the  Board of Health
of New York, the most exaggerated  statements of the   rigid
enforcement of  the Quarantine regulations.  It was repeatedly
proclaimed that all stevedores were required to  remain within
the  Quarantine grounds five days after visiting infected vessels;
yet it was  proved, and the Health Officer has admitted, that on
the 7th day of August last, when the yellow fever  was exten-
sively raging, a large body  of them were passed out of the
grounds to mingle in and control crowded political meetings of
the citizens of Oastleton and  other towns, and a few evenings
later many others were suffered to be present at a political con-
vention at Richmond.   Shortly  after this, two cases of yellow
fever  occurred at New Brighton, where one of these  meetings
had been held.
  When the yellow fever was  committing frightful havoc on
Staten Island in the summer  of 1856, the Board of Health of 
9
Castleton, in order to protect the lives of their fellow-citizens,
made regulations and erected structures to prevent intercourse
between those inside  and  outside the Quarantine  inclosure.
The Health Officer, instead  of aiding their laudable efforts, and
notwithstanding a similar regulation of his  own, permitted a
band  of men from the inside  to  break down the barriers by
mob violence, thus setting an example which has been  but too
fearfully imitated.  When the rioters were arrested for an in-
fraction of the law,  he procured counsel to sue  out writs of
habeas corpus, and  take the offenders before a neighboring
judge, by whom they were  discharged. From that time to the
present, the action of the Board of Health of Castleton, in the
faithful and conscientious discharge  of their  duties, has been
systematically resisted, and the members held up to ridicule in
reports furnished the press from within the Quarantine grounds.
Every effort  of  these authorities for  the preservation of the
health of the town was  thwarted, and they found  themselves
unable to enforce their regulations or  to restrain the  officials
and their employees within the Quarantine walls.  Infected
clothing, notwithstanding their remonstrances, was almost daily
tyurned in an iron scow, whence the stench and vapours were
wafted into the surrounding villages and on board the crowded
ferry boats.  The " Rattler," an infected vessel which had been
suffered to proceed to New York, where several cases of yellow
fever occurred on board, and which vessel the  Mayor had
threatened to scuttle and sink at her dock  unless removed, was
brought down to the Island  and moored at a wharf in the midst
of a  densely-populated neighborhood, and  close to the ferry
landing.  The Board traced numerous  cases  of yellow fever to
the mismanagement of  the Quarantine institution.  Already
had about twenty-six cases and ten deaths occurred, although it
was yet early in  the  season.  Day after day they  saw their
fellow-citizens sickening  and dying  around  them,  but  they
were  powerless for relief  or protection, notwithstanding the
ample provisions of the law.  At length these grievances be-
came so intolerable that the Board of Health were compelled,
after  taking legal advice, to pass a resolution declaring the in-
stitution,  under  its  gross  mismanagement, an  insufferable 
10
 nuisance, and calling upon " the citizens of the county to abate
 it without delay."  This, it is believed by your committee, was
 the spark which, falling upon an already excited and outraged
 community,  brought about the events of the nights of the 1st
 and 2d of September.
   Such are some of the facts connected with the recent disturb-
 ances in this county, which we have felt it our duty to submit
 to the candid consideration of the public.  We might multiply
 instances of the criminal misconduct of the Quarantine authori-
 ties—such as carelessness in disposing  of the dead, discharging
 infected  vessels near the densely-populated shores and ferry
 landings, and other acts, evincing an utter  disregard of the
 health of the Island, all of which contributed to work up the
 minds of our citizens to a high pitch of excitement.  While
 your  Committee feel the  great  importance of preserving the
 peace, and profess the  most profound  respect for the laws of
 the country, they respectfully submit that, in the mind of every
 reflecting citizen, these circumstances must go  far to palliate,
 if not to justify, the occurrences of the  1st and 2d of Septem-
 ber.   When  it is remembered that the Quarantine buildings
 were located on our Island in spite of the  remonstrances of its
 inhabitants ;  that the lands were taken by force  of law;  that
 contagious and infectious diseases have time  and again swept
 off numbers  of our citizens ;  that the gross mismanagement of
 the Quarantine of late years has not only brought that institu-
 tion into disrepute, but has almost  constantly endangered  the
 lives  of  our  families and friends; that it  has twice been pre-
 sented as a  nuisance by the Grand Jury of the county ;  that
 two legislatures have  authoritatively decided it should be re-
 moved ; that the entire institution, perverted  from its  original
 object, no longer affords  protection to our  Island or to  the
 neighboring cities—when all this, we  say, is  considered,  we
 submit that the hasty and ill-tempered censure which has been
 visited upon our whole population  is  unjust  and undeserved..
We submit that none but those who  have lived  under the  im-
 mediate influence of and experienced the enormous  evils flow-
ing from the Quarantine institution, and have been  cognizant
of the repeated peaceable efforts to remove it, are qualified to 
11
pass an intelligent judgment upon the participators in the late
disturbances.
  We are aware that the  advocates of the present Quarantine
station have urged  that  those of our  inhabitants who have
moved to the Island since the erection of the hospitals, came here
with their eyes open, and  have no right to complain.  Were the
facts assumed true,  the fallacy and injustice of  such  a mon-
strous proposition must be apparent on a moment's reflection.
We have shown that the  institution was forced  upon  us con-
trary to our wishes.  Not to mention  the natural increase of
the population which resided here when the  institution was
brought  down, thousands  of  innocent persons, many  of them
mechanics and laborers, have settled around  it, unconscious of
danger, at a time when the commerce of the  port was so small
as to excite no apprehensions,  and when it was the universally
received opinion of the medical profession that yellow fever was
indigenous to  the country, and could not be  imported from
abroad.  Since then the commerce of the port has doubled every
ten years, and the Spanish ports, whence yellow fever is import-
ed, have been thrown open to our shipping.  Thus the clan-
ger has been  increased an hundred fold. But, were the pro-
position  contended for correct, it would be  a  permanent bar-
rier to all improvement, and forever  devote  this  whole Island
and the opposite shores of Long Island to the uses of a pest-house.
The argument that  nuisance  once established  should  be per-
petual, would have kept all the slaughter-houses, soap-boiling es-
tablishments, and other nuisances located in New York, includ-
ing the  Quarantine  at Governor's Island, remaining there to
this day.  Fortunately this proposition is not less repugnant to
law than it is abhorrent to reason and justice.  The highest tri-
bunals of this and all civilized States have held that nuisances
must give way to the advance of population  and  the wants of
trade.
  It is not proposed here  to discuss the question  of the power
of the Board of Health of Castleton to abate the hospital as a
nuisance, as that may, ere  long, come before the  Courts for adju-
dication.  We will simply state that  the statutes under which
they acted (Laws 1850, p.  690,) authorize them to pass "such
regulations as they shall think necessary and proper for  the pre- 
12
 servation of the public health" as well as to " suppress and re-
 move nuisances"  and the act upon which the present Quaran-
 tine system is founded  (Session Laws, 1798, page 405,) express-
 ly provides  that  " nothing in that act contained shall  be con-
 strued to interfere with  the  remedies against nuisances pre-
 scribed by the common law."  If the Board of Health of Castle-
 ton have not the power to preserve the lives and health of their
 fellow-citizens, then that town is the only town in the State de-
 prived of the protection of sanitary laws, and delivered over to
 pestilence.
   The attention of your Committee  has been particularly direct-
 ed to thergrave  charges of cruel and  inhuman treatment prac-
 tised towards the  patients confined in the Quarantine hospitals
 at the time those buildings were destroyed.  They felt that they
 owed it  to themselves  and the public to  give these charges
 a  thorough investigation, and if found true,  to denounce the
 guilty  parties.  They have examined persons who were on the
 grounds  as spectators during those  eventful nights,  as well as
 physicians of the  highest respectability and standing, who ten-
 dered their services to the sick, and have Avatched the statements
 elicited from the witnesses in the investigation being conducted
 by the Attorney-General, and  they are happy  to say these  all
 bear uniform testimony to the  kind and considerate treatment
 extended to the inmates of the hospitals.  They were carefully
 borne from the buildings on beds, and deposited out of the reach
 of danger, where they were sheltered  alike from the heat of
 the flames and the inclemency of the weather.  Suitable  build-
 ings were tendered by the citizens for their reception, but de-
 clined by the Quarantine  authorities.  Skilful physicians gave
 them unremitted attention, and the ladies of the village vied in
their  efforts  to render their  condition comfortable.  Indeed
these medical gentlemen, as well as the Quarantine physicians'
concur in saying that they were quite as well cared for, and con-
valesced  more rapidly than when in  the hospitals.   Dr. Walser
the Deputy Marine Hospital physician,  testifies that no act of
inhumanity was perpetrated  by the  parties, but the sick were
treated with the greatest kindness.  It is untrue that any lives
were lost, or that the patients were incommoded by the rain  or
exposed to falling cinders.   The individual who was killed  on 
13
the occasion was accidentally shot by one Brady, an employee
of the institution.
   The truth  is  the  more  gratifying  in  this case, because
there seems to have been a studied effort to poison the pub-
lic mind through the press,  and  the  Governor has, perhaps
inadvertently, given prominence to  these misstatements in  his
recent proclamation.   Indeed it is a matter of profound surprise
and regret that His Excellency had not instituted an investiga-
tion into these charges before he assumed their truth, and upon
that assumption censured this entire county.   Had he done so,
it is believed  he would have found no occasion for pronouncing
us in a state of insurrection, or for quartering the military upon
us.  We venture to say that in no county in the State have the
laws been more promptly or uniformly enforced than in Rich-
mond ; and the readiness with which the civil authorities have
aided the Attorney-General in the official investigation  now
pending, must satisfy every dispassionate mind that the emer-
gency contemplated  by the statute for  calling out the military
had not  arisen.*
   So, too, we believe that by a careful investigation of the facts
certain city officials,f who have acted with more haste than wis-
dom, would have been spared the false position they have as-
sumed in deciding to erect permanent buildings at the Quaran-
tine, as a retribution upon our entire population, as well as upon
the cities of  New York and Brooklyn.  Independent of the
folly of  making one wrong justify  another, and  of punishing
whole communities for the hasty and  indiscreet acts of a few
individuals, these gentlemen should bear in mind that  if they
attempt to continue the Quarantine where it is, they are virtu-
ally setting at defiance, not  only the wishes of all the disinter-
ested citizens of New York and Brooklyn, but two acts of the
Legislature for its removal, passed after the fullest deliberation
and for the most cogent reasons.  Those acts were solicited and
enacted as much for the  protection of New York  and Kings
 Counties as  for Staten  Island.   They should remember  that
nearly all the increase of population  in this county, since the
establishment of  the  Quarantine, has  come from  New York;

           * See 2 Rev. Statutes, 685, sec. 102-3. (4th Edition.)
           f The Mayor and Board of Health of New York. 
14
 that in fact, though not in name, avc are a part  of the suburbs
 of New York—the  greater portion of our population doing
 business there, and going up daily.   Nay, more, they should re-
 flect that the annual injury to the trade and commerce of New
 York from yellow fever panics is immense, and increasing every
 year.  Thousands of merchants and business men, not to men-
 tion  travellers  and those who  would otherwise locate  in that
 city, are kept away or driven to other  cities in  consequence of
 the proximity of the Quarantine and its attendant evils.
  But suppose these gentlemen succeed in fastening this institution
 (twice authoritatively pronounced a  nuisance) upon  the  inhabi-
 tants of this Island and of the neighboring counties for ten,
 twenty or thirty years to come.  When, year after year, they
 see  the pestilence sweeping its hundreds  of  victims  to  the
 grave, when they see the terror-stricken inhabitants flying from
 their dwellings, and whole districts  depopulated, will the con-
 templation of  this scene, and the consciousness that they were
 instrumental in bringing it about, contribute to their happiness?
 Xo!  Such achievements may be a source of satisfaction to a
 few mercenary individuals  who  value  their money more than
 the lives of their fellow-citizens, but are unworthy the consider-
 ation for a moment of such men  as fill the public offices in our
 neighboring city.  When the excitement of the hour shall have
 passed  away, they will  be heartily ashamed of their conduct
 and reasoning.   Far better  that they should, as  good citizens,
 cheerfully co-operate with us in carrying out  the law for the
 Quarantine removal.
  If these gentlemen will calmly examine the following statis-
 tics showing the relative amount of population around the Har-
 bor of New York in 1800, when  the Quarantine was located on
 Staten Island, and at the present time, they will see that this
 institution cannot much longer remain where it is:
                                         In 1800.     In 1855.
 New York County had...................60,489    629,810
 Kings County had.......................  5,74.0    216,315
 Richmond County had...................  4,568      21 389

            Total......................70,7 J2     867,554
  The population of the adjacent shores of New Jersey is about
220,000. 
15
  If thirty acres of land were required to isolate the hospitals
in 1800, when there were only seventy-one thousand inhabi-
tants in and around New York, when the commerce of the port
was very small, and when there was comparatively little inter-
course with the city, can it be said the same area will protect
nearly one million of inhabitants at the present time, when the
crowded ferries are daily carrying  thousands from under the
walls of Quarantine to the neighboring counties, and the ship-
ping has increased  more  than  sixty fold ?   The Quarantine at
Governor's Island was a  better protection  to the city in 1800
than it is at Staten  Island in 1858.  According  to  the laws of
increase, the population in and around  New York in 1870 will
amount to  2,000,000, and the commerce of the port be more
than doubled.
   Were there  any question  as  to the  expediency  of re-erect-
ing permanent hospitals on the present site, that is forever put
at rest by the Commissioners of Emigration in their report to
the Legislature on  the  10th of February, 1858.  In assigning
reasons for not having erected additional buildings to meet the
wants of the institution, they say: " In this the  Commissioners
 " were governed by their conviction that  the public good, as
 " well as the public sentiment, now  required  a  change  of the
" Quarantine location, and that  their occupation of the present
" site  of the Marine Hospital could not be of long continuance.
 " The great and  rapid increase  of population  along the  shores
 " of the harbor  and throughout  the  whole of Staten  Island,
 " with the constant and easy communication with the cities,
 " render the Quarantine laws less and  less  efficacious, and their
 " strict observance more difficult, whilst the danger of diffusing
 " contagion or pestilence grows daily more threatening.  The
 " Commissioners do not believe that any point on Staten Island
 " would meet the  requirements and convenience of a proper
 " permanent  marine hospital for Quarantine purposes."  Gov.
 Kino-, in his special message March  10,1858, says, " The health
 « and safety of the cities of New York and Brooklyn demand
 " the  removal of Quarantine from its present location."
    In conclusion, your Committee beg. to state that they do not
 intend, by anything herein set forth, to be deemed to pass upon 
16
the question whether the recent burning of the Quarantine hos-
pitals was justified in law, but they leave that  to  the judicial
tribunals now  engaged  in  its investigation.*   If they have
succeeded in bringing to the attention of those who have con-
demned our citizens unheard, and upon a one-sided statement
of the case, the mitigating or justifying  facts on  the other side,
they have accomplished all they proposed.   They feel that this
community has been unjustly censured.  They believe that, had
those who are the loudest in their denunciations lived, as  our
people have lived, for fifty-eight years under the pestilential
influence of this Quarantine  establishment ;  had they, year
after year, labored as we have labored to secure its  peaceful and
legal removal; had they seen Legislature after Legislature pass
enactments for its removal, only to be thwarted by  the action of
interested individuals; above  all, had  they seen,  as  we have
seen, one after another of their relatives, neighbors and  friends
swept away by the pestilence, and found the laws insufficient
to afford them  protection or redress—then we  say, we believe
they would feel as profoundly as we have felt upon  this subject.
Human nature is the same, whether in New York  or on Staten
Island, and life and health are quite as dear to  their possessors
in the one place as in the other.   All history shows that when
governments have become powerless, through weakness or cor-
ruption, to protect the lives and property of their citizens, those
citizens, when the grievances are no longer tolerable, will seek
to redress themselves.  Such efforts may assume the form of a
vigilance committee, a mob, or a resolute union of citizens to
abate nuisances; but they invariably indicate deep-seated griev-
ances calling for redress.  Such  grievances we  feel the  people
of this Island  have long and patiently borne, and we believe
that similar grievances would have produced similar, but more
speedy, results in any other community.
   Finally, your Committee unhesitatingly recommend that  the
citizens of Richmond County steadily insist upon  the enforce-
ment of the law of 1857, passed for the Quarantine removal,
* See Opinion of Judge Metcalfe, page 47. 
17
and present a firm, united and determined resistance to the per-
manent re-establishment of the burnt hospitals.

   Dated September 20, 1858.

                      Lot C.  Clark,            1
                      William Emerson,
                      Geo. Wotiierspod.v,
                      Nathan Barrett,         \- Committee.
                      Francis G. Shaw,
                      Daniel Low,
                      N. Dane Ellingwood,


   After the reading of this Report, the  following resolutions
were presented by Judge Emerson, and unanimously adopted :

   Resolved,  That the  people of Richmond County do not yield  to their
fellow-citizens in any other part of  the State in their respect for just and
equal laws, and for the most peaceful mode of asserting their rights.  The
charges of inhumanity have been too thoroughly disproved  to need any
notice from us.

   Resolved, That we deeply regret that any outbreak should have occur-
red in our county tending to disturb  the public peace, and to create alarm
among the friends of order by substituting the hasty action of individuals
for the more quiet and regular movements of official bodies.

   Resolved, That the original establishment of the Quarantine upon Staten
Island in spite of the earnest remonstrances of the inhabitants, and its con-
tinued existence among us to the present day, have powerfully operated to
weaken  the tenure of life, as well as to diminish the value of property, and
that such an establishment in so populous  a neighborhood must always
be, as it has hitherto been, an intolerable nuisance.

   Resolved  That, omitting all consideration of its legality, the proclama-
tion of His  Excellency the Governor, declaring Richmond County in a
state of insurrection,  is incorrect in statement and  unjust in its operation
and effect.
   Resolved, That the  magistrates and  other civil officers of this county
have uniformly been found on  the side of law and order; ana it they
needed  any assistance in the performance of their duties, it would have
been readily afforded them by the military of Staten Island, who have ever
promptly responded to the call of the civil magistrates.

   Resolved, That the sending of troops among us from other parts of  the
State was not only an unnecessary step, but that it was  also a groundless
imputation on the patriotism and courage of the Staten Island militia.

   Resolved,  That the occupation  of this Island by an armed body of men,
2 
IS
 in a time of profound peace, violates the whole spirit of our Jaws and  in-
 stitutions, and  that  military intervention  can only be justified  under cir-
 cumstances  where the civil power has been appealed  to in vain  in support
 of the laws.

   Resolved, That the spectacle of  a Criminal Court now quietly sitting in
 our midst, and calmly inquiring into the guilt of parties charged with the
 offences  alluded  to  in the Governor's proclamation, furnishes  conclusive
 evidence that no  such circumstances exist at this time in the county of
 Richmond.

   Resolved, That the Board of Health of the town of Castleton are entitled
 to our respect and gratitude, for their honest  and  zealous performance of
 duty  in endeavoring to protect the lives and health  of their constituents.

   Resolved, That all action toward the construction of permanent hospitals
 on the site of those recently destroyed, with the intention to perpetuate the
 existence of Quarantine on this Island, is, in view of recent legislative acts,
 an illegal and unauthorized assumption of power.

   Resolved, That, whereas much  diversity of opinion exists in the com-
 munity, and even  in the  legal  profession, as to the limits  of our natural
 rights when these conflict with a nuisance  existing under color of law, we
 will take measures to  have the questions growing out  of  the  recent dis-
 turbances at Tompkinsville and Seguine's Point brought to the cognizance
 of our courts, in order that it may be authoritatively settled whether the in-
 habitants of Richmond County, equally with the rest of their fellow-citizens,
 are to be permitted  to enjoy  the common privileges of life and  health, or
 whether  our people must be driven from  their homes, and a large part of
 this beautiful island devoted to  pestilence and death.

   Resolved,^ In order  that justice may be done to the character  of the
 people of this county, that a petition be presented to the Legislature at its
 next session, asking the appointment of a committee to inquire into the
 causes of the recent disturbances, and also  praying for such  further legisla- ,
 tion, as may be necessary to rid us entirely and at once of an establishment
 every way fatal to those interests which are naturally dear to every man—
 health, and life, and  happy home.


   The  following  communication  from  the citizens  of  Kings
 County was then read :
                                  New Utrecht, Kings County, )
 „  .   *       ^                    Wednesday,  Sept. 15,  1858.   i
 Col. Jdarrett, Chairman,  and others :
  Gentlemen,—In consequence of not being  able  to be present and ex-
press  our sentiments by delegation at your meeting on the 20th inst., we
take the liberty of presenting our views upon the Quarantine matter in'this
letter, which, if you think proper, may be communicated to the meeting.
  The universal opinion  of the residents of  our vicinity is, that the time
has arrived when  the public safety requires  that the Quarantine should be 
19
removed from its present site ;  that the health not only of the residents of
Richmond County and the opposite ones of Long Island, but also those of
the cities  of New York and Brooklyn, requires its removal, for it is getting
to be more and more evident that yellow fever at Castleton or  Southfield,
in Richmond County, or Bay Ridge or Fort Hamilton, in Kings, is yellow
fever in New York and Brooklyn.
   The original location of Quarantine  on Staten Island was probably a
proper one, for at that time there were few or no dwellings in its  vicinity;
the  population  on  Long  Island then was sparse,  and the trade of the
port comparatively insignificant.  The fifty or sixty years which have rolled
by since its location  have made vast  changes;  the uninhabited  tract  on
which it was located has become densely populated ;  the shores of the bay,
instead of being dotted  with  solitary farm-houses, have  become filled with
villas and villages, and  the solitary arrivals from southern  infected ports
have been succeeded  by fleets.  New York,  as  late as 1810, had only a
population of  96,000; the present limits of the city of Brooklyn, of 5,0 00
or6,000; the former, in   1855, numbered  more than  600,000,  and the
latter, 200,000.  Brooklyn, which in 1810 had less than a mile  of street
located in the vicinity of the Fulton and Catharine Ferries, on  which the
houses were contiguous, now shows a contiguity  of buildings to  Red Hook
Point  and to Twenty-seventh street, so as to cover the shores of nearly the
whole of Gowauus Bay, without taking into consideration her extension in
the opposite direction.
   During this same period Jersey City has  grown from  an insignificant
hamlet to a city, and the surrounding country, nearly to  Bergen  Point, is
whitened with  dwellings.   These vast changes have  taken place within
the last thirty years.  The causes which produced them  are at work and
operating, and will continue  to operate, unless some  mighty convulsion of
Nature, intestine commotion, pestilence, or foreign invasion and destruction
should intervene to arrest them.  Individuals are born and living  who will
probably  see the whole  bay of  New  York, on  the  east side,  from  Fort
r-lamiltou to  Brooklvn, and  on the  west side, from  the  fortifications  on
Staten Island to Jersey City (including the shores of Bergen) closely packed
with buildings and teeming with population.
   If the population of thes^cities should continue to double every fifteen
years, as  they about have done for the past forty-five years, it will give
them in 1885 (twenty-eight  years hence) the enormous one of 3,200,000,
and  in 1900 (forty-three years  hence) 6,400,000.  Reduce these figures
one-half,  and  there will yet be sufficient to cover the  shores of the Bay, so
as to make one continuous city.  Viewing the matter in this  light  and
taking the past  as our guide, with the probab e continued increase of our
Southern commerce, it appears to us to be folly  and madness to attempt
to rebuild and maintain the Quarantine at its present location, unless  it be
for some European vessels.  It would be almost as  proper to locate it  on

G°i:om-^rlu"'Say or Sandy Hook is the proper location.
If 0  her measures fail, we suppose the General Government, under  its power
to reo-ulate commerce, may  establish Quarantines,  and get possession  of
Sandy HookTTuch purposes  ; or, at the worst, the State may dock and 
20
  fill in land on one of the shoals in the Lower Bay  for yellow fever pur-
  poses, the most dreaded of the evils, and compel all vessels from points in-
  fected with this disease to ride out their probation at the  Southwest Spit,
  instead of filling the inner  harbor with them.   Coney Island, which has
  been recommended by some  in consequence of its  direct  and short land
  communication, would be  more  dangerous to New York and Brooklyn
  than the present location, which, together with its moving sands, changing
  position, and shoal waters, forbids  it being thought of.  The population on
  the shore of Staten Island have had several severe visitations of yellow fever,
  and they have been sorely tried.   We, too,  on the Long  Island shore, in
  1856, in consequence of the imprudent and reckless management of the
  Health Officer, and not from intercourse of the inhabitants with the vessels,
  as has been charged, (which every resident knows did not take  place and
  never had existence except in the imagination of the aforesaid  functionary
 and his abettors,) have also suffered severely  and been driven from our
 homes, the disease striking down many of our  best and most useful and
 esteemed citizens.
   Although thus smarting under the evils of the present arrangement, yet,
  as law-abiding citizens, we cannot approve of violent measures, and continue
 to hope and believe that the good  sense of the  community,  and their own
 interests, will ere long open  their eyes to the  true policy to be  pursued  in
 the premises.

     Joseph Crocker,             J. Remsen Bennett,
     Charles W. Church,        Jaques Van Brunt,
     Geo. J. Gelston,            J. Holmes Van Brunt,
     Isaac E. Bergen,            Francis E. Berien,
     Chas. J. Gilbert,            Richard R. Bennett,
     Jacob J. Bergen,            Jno. B. Kitching,
     Elizabeth D. Child,         James A. Robinson,
     J. A. Perry,                 J. Howard Kitching,
     Edward Kent,               Daniel Richards,
     John J. Bennett,            Martin Bennett,
     John Clifton,               Jacob Wardell,
     Winant E.  Bennett,         Simon a AVarden,
     Hoyt Palmer,               Wm. H. Bogle,
     Jacques B.  Wardell,        W. C. Langley,
     Jacob Wardell, Jr.          John King,
     John W. Muspratt,          John Bullock,
                  Tunis G. Bergen, and others.
  The meeting was then ably and  eloquently addressed  by  Alvin C.
Bradley, N. Dane Ellingwood and Geo. Wm. Curtis, Esqrs., and Di\
Wm. C.  Anderson ; and, after appointing an Executive Comm'ittee, the
meeting adjourned. 
21
                    Note A.

ASSEMBLY DOCUMENT  No. 60.—YEAR 1849.
                           REPORT

Of the Select Committee appointed by the House of Assembly on the 11th
     April, 1848, to examine and  report as to whether the Quarantine
     establishment, in the county of Richmond, should be removed from its
     present location, and to what locality said  Quarantine establishment
     should be removed.
   The select committee appointed  pursuant to the resolution adopted by
the  House of  Assembly on-the 11th  day of  April, 1848, and which is
hereto annexed, respectfully report—
   That your committee, shortly after the adjournment of the Legislature,
entered upon the duties imposed upon them by the resolutions.  The sub-
ject is one of great  importance, involving as it does not  only the interests
of the great body of our citizens connected with the commercial concerns
of the State, but also, what is of far  greater importance, the protection of
the community against the spread of those  diseases which are  pestilential
or infectious in their character ; and also considering that these interests
necessarily conflict, it is one of peculiar delicacy and  difficulty;  and  in
order to come to a  correct conclusion, your committee  felt justified  in de-
voting a large portion of their time  to the matter.   They have endeavored
to consider it without regard to the wishes of those whose  feelings or whose
interest would  bias  them either one way or the other.
   The  resolution, it will  be perceived, contains two branches of inquiry :
First, Shall the Quarantine establishment  be removed  from its present
location?  and, second, If so,  to  what locality should it be  removed?
Your  committee, in  answering these questions, have used  their  utmost
endeavors  to  procure all the information  practicable, not only from per-
sonal inspection and examination, but they  invited  information by  notices
through the public prints, for all those who felt an interest in the  subject
matter to appear before them, and  also by  direct request to  such  as were
supposed to possess either peculiar knowledge, skill or  experience,  to give
your committee the benefit of that  knowledge, skill and  experience. _ The
result has been, they have collected a mass  of facts and  opinions which is
appended hereto; and thev will now endeavor to set forth, as succinctly as
may be, the conclusion of*'their own  minds  from such  personal inspection
and examination and the evidence produced before them.
   As to the first branch of the inquiry : Should the Quarantine establish-
ment be removed  from its  present location ?   To this we unhesitatingly
answer, Yes; and for the  following reasons :
   The ffreat object of a Quarantine establishment, to use the language ot
the  statute, is « to  prevent the spread of pestilential or infectious diseases,
to protect  the community, and to guard the public as well against those
diseases which  are not indigenous here,  but  which, coming from other
countries, if once permitted to get  a foothold  in  our crowded  cities  and
villages, and there finding the necessary aliment to sustain, carry  dismay 
00
 and death with them, (the yellow fever and  cholera are instances of this
 class of pestilence,)  but also diseases of  another character, which, though
 they may and do  frequently originate here,  also come from abroad, yet,
 by  prudent measures,  are  arrested  and confined within  circumscribed
 limits, and  are thus  prevented from  becoming  epidemic.   The  ship or
 typhus fevers and  smallpox are well known examples of this class of  pes-
 tilence.   In short, the great end of a quarantine,  as has been well said, is
 precautionary.      *     *     *
   The  present  Quarantine establishment is  located on the northeastern
 shore of Staten Island, and comprises about thirty acres of land, including
 about five  acres belonging  to the  United States, and used by them for
 revenue purposes, connected with the establishment.   *   *   *    *
   When the institution was  placed on Staten Island,  the population  was
 sparse ; there were but few inhabitants in  the  neighborhood,  and none but
 those whose business, either directly or indirectly, was connected with  the
 Quarantine, and these had to give bonds with  heavy penalties not to enter
 the city of  New York during  the  Quarantine season.   Since then, large
 and prosperous villages have sprung up in the immediate vicinity.  Where
 formerly there was nothing but farms  and a few  farm  buildings, now the
 villages of Tompkinsville, New Brighton, Stapleton, and Factoryville  are
 teeming with busy  life.  Where the population was then counted by tens,
 it can now be estimated  by hundreds. The  rapid increase of the neigh-
 boring city and the increasing demands of her  commerce have driven hun-
 dreds of her citizens to Staten Island and  to the  suburbs.  All the lower
 wards of the city, where  formerly dwelt her merchant princes, have been
 in a great measure abandoned  as  residences   and devoted to stores  and
 warehouses, and their residents have been compelled  to seek habitations
 elsewhere.  The growth  of the upper part of  the city  has been the con-
 sequence, and  the  numerous  beautiful villages which now clot the shores
 of the East and North rivers and of Staten Island, have sprung up as if by
 magic, where  our  merchants, mechanics and  others whose business  is in
 the city, seek  rest and refreshment  after the toils of the day are over, in
 the more salubrious air of the country. At that  time, a few  row-boats or
 periaguas were the only means of conveyance, and  afforded ample facilities ;
 and  from two to  five hours was  the  ordinary time of passage from the
 upper end of Staten Island to Whitehall.  Indeed, within a very few years,
 a single steamboat,  making but two trips a day, furnished all  the required
 means of intercourse, while now the ferry-boat  makes its hourly trip and is
 crowded with passengers.  Then the enforcement of the Quarantine laws
 was comparatively easy ;  but now, from the great  facility of intercourse, it
is impossible.   The means of communication  are so easy that  instances
 are given where whole ships' crews have been stealthily carried off in  the
 night; and the passengers by the ship  which recently brought the Asiatic
cholera into the harbor, and which  created so much  alarm  through  the
State, becoming tired of the restraints of the Quarantine, eloped en masse ;
nor was  there  any power to prevent it.   There is no means, from the
nearness of the city, of keeping  up a sufficient  police force, unless, in  the
language  of one  of the  witnesses,  " a coast-guard  was employed  to row
around the shipping, and a regiment of soldiers were stationed at the laza-
retto."  Another fruitful source of danger, if received opinions be correct,
is the constant visiting the establishment by friends of the patients. * * * 
1
23
  Now, if there is any truth in the theory, and any reliance to be placed
upon the commonly received opinion, that these diseases are highly infec-
tious, and that the infection may be carried in the clothing of those exposed
to it, and  thus spread, it would seem to follow  that these persons coming
directly from the infected atmosphere of the hospital, and the bedside of
the  sick,  must  present  a fruitful source of contagion;  and, indeed, the
alarming  extent to which ship fever prevailed  during  the years of 1846
and 1847, may no doubt in a great measure be traced to this source ;  and
that it did not become epidemic, and that the city was not  devastated by
the  pestilence, was certainly not owing  to  any protection afforded  by the
Quarantine.  Nor is  there  any means  of  remedying  this  difficulty; the
law has taken all  the power to do  so from the Health  Officer;  and the
Commissioners of Emigration say that the  dense population surrounding
the  establishment, the great facility of intercourse, and the want of practi-
cal means of maintaining a proper police with the present arrangements at
the Quarantine, beside the  great inhumanity of preventing the  visits of
friends to the patients, renders  it impracticable, if not impossible, to en-
force a rigid quarantine.   *****
   It is to be  remarked, too,  that this intercourse, frequent as it is, and
 unrestrained as it is, is  directly through the contagion,  the  track of the
 ferry-boat as she  makes her frequent trips to and fro from the city of  New
 York, being necessarily through the midst  of the fleet of vessels  detained
 at the Quarantine, and it requires but a breath of wind, as  experience  has
 shown, at any time, with a congenial atmosphere, to  waft  the poisonous
 miasma  from the infected ships, and blow  the spark of pestilence into a
 flame.   Nor is there or can there be any power to prevent the  intercourse,
 however  great the necessity might be.   This the experience of the  past
 summer  has fully demonstrated ; for when the Board of Health,  with all the
 powers with which the law has clothed them, ample though they be, un-
 dertook  to prevent this intercourse, and to prescribe the  limits  of commu-
 nication  between the city and portions of Staten Island,  its only effect was
 to  prevent the ferry-boat  from  landing within the infected district, while
 those  who desired to visit the city had  but to go a short distance to
 Stapleton, on the one side, or New Brighton, on the other, to find  there
 every facility of communication, and the evidence shows instances where
 persons spent the night in tending upon those sick with yellow feyer, and
 vet came to the city daily.  Those persons were, it is  true, put to  some
 inconvenience, and a trifling  additional expense, by the attempted estab-
 lishment of a cordon; yet the city was  in no way protected from  the  intro-
 duction  of pestilence.  An examination of the  evidence will  show  othei
 facts equally strong, which prove that the  present Quarantine wholly fails
 to effect the objecf for which it  was instituted ; and it is from these  facts
  as  well as personal inspection, your committee unhesitatingly came to the
 conclusion  that the Quarantine in its present location is no quarantine, but,
  to  u e the ancruage of one of the witnesses, " It is a perfect farce and a
  burksque!" that while it is attended with  all  the  evils, and  open  o all
  the oblect ons of the most rigid quarantine, the great end of its e.tabhsh-
  ment iffustrated, and that, s°o fa? as its efficiency is concej-ned, in aflording
 protection against the spread of pestilential or infectious diseases, it might 
24
 as well be placed upon the Battery, or in the Park, as in its present loca-
 tion upon Staten Island ; and for this reason the establishment should be
 removed.
    There are other reasons which go  strongly to show the absolute  neces-
 sity of its removal.   We have before adverted to the fact of the  great in-
 crease of emigration.   This increase requires a  much larger space than is
 afforded in its present site.  There is not  sufficient  room for the increased
 wants of  the establishment.  Until recently, the persons there were com-
 paratively limited in number, not to exceed  four hundred in  a year, and
 eighty patients in the  hospitals at one time was considered a large  num-
 ber. One of the late health officers says that during the years 1840,  1841,
 and 1842, the number of patients  varied from eight hundred to one
 thousand.   For such  a number  the  accommodations were ample.   The
 hospitals were only used for the specific purpose for  which each was  built,
 and the yellow fever hospital was never used  except for that disease, and
 was often closed entirely.   Then the number of patients was few, and  the
 hospitals were closed from November to  April.   Now, they are kept per-
 manently open and crowded with sick, many laboring under the most ma-
 lignant form  of disease, and many not  the legitimate subjects of quaran-
 tine, but perhaps emigrants from the city of New York.   At the  present
 time the numbers have increased to nearly seven thousand  in about nine
 months, with from seven  hundred to  a thousand constantly there,  and
 "the cry is, still they come."  To meet this increasing demand, new hos-
 pitals have been erected, first the north hospital as it is called, then the
 shanty hospitals as they are termed ; but still there is a want of room, and
 so crowded have  they become, that,  as one  of the  physicians tells us, al-
 though the hospital  of which he has charge  is calculated  only for about
 one hundred and  twenty, he has  been compelled to crowd in over two
 hundred.   It is true that a portion of them were  convalescing and well
 enough to be out during the day, yet all were compelled to sleep within
 the hospital, and  the natural result was many suffered from relapse, and
 some died.   Another and serious evil of this want  of room  is, there  is no
 means of separating the sick from the well and convalescent,  but all whom
 the laws require to be detained at quarantine, or whose payment of the
 tax gave them a right of admission, are compelled  to  be mixed up  toge-
 ther, and hence we have seen that those whom ordinary disease has spared,
 have become the  helpless prey of the pestilence, and cholera and yellow
 fever have  found their  ready victims  among the convalescents of other
 diseases.  For a more full statement of this matter,  we refer to the  com-
 munication of the health  officer and  his  associates herewith submitted.
 Nor can this objection be obviated at the present location. All the present
 grounds are fully taken up ; and from the manner in which  the land sur-
 rounding the  establishment is owned  and held, it certainly  would not  be
 expedient, if practicable, to enlarge the boundaries of the lazaretto  of the
 present quarantine.   *********
  We have thus far considered the question  only in relation to the effi-
 ciency of the quarantine in its present location in effectuating  the great ob-
ject of its institution ; in affording protection against the spread of infec-
 tious or pestilential diseases; and have arrived at the conclusion  that  pub-
 lic policy requires its removal.   We now propose to consider it in respect 
25
to its local effect upon Staten Island, and the complaints made by the resi-
dents there in relation to it.  That its present location  exerts a baneful in-
fluence, that  it has been, and is a most  serious drawback upon the pros-
perity of the  place, and that the complaints  made by those  residing there
are not  unfounded, cannot be disputed or denied.
   From the  great concentration of disease  there, it must  necessarily be
dangerous to the health of the population, where that population is dense;
and this is the most serious  ground of complaint.   The inhabitants there
are daily and hourly exposed to infection.  Instances numerous are given
of  the  spread of  that most  loathsome  scourge, the smallpox,  from the
vicinity of the quarantine lazaretto.   One  person received  the  infection
from  being on board the same ferry-boat where a pe  rson sick with the dis-
ease was being conveyed from the city to the Quarantine Hospital.  Other
cases are stated,  where it was conveyed by social or business intercourse
with  persons connected with the establishment.   Others have taken it from
contact, in places of amusement, with persons who have  been  exposed;
and  one  instance is given, where the  contagion was  communicated  in
church.  The deleterious effect of the vicinity of the  establishment upon
the health of the  inhabitants  has been fearfully proved by  the experience
of the  past season.
   In the month of August last a number of vessels arrived infected with
that scourge of the south, yellow fever.   The infected vessels were anchored
within  the prescribed  limits, and the sick were  taken to the hospitals.
The  ferry-boats were forbidden to land, aud all intercourse was prohibited,
and,  as far as possible, prevented ; yet, in a  few days, the disease appeared
among the boatmen  and others employed at the Quarantine Dock ; next,
 those  employed  at the  steamboat wharf adjoining were seized.   But
 surely  the pestilence marched on on its deadly mission for nine days, when
 it reached its extreme southern limit—a distance of  one  and  a quarter
 miles from its starting point—attacking almost all  who came within  the
 infected limits; and, in  the short space of about a month, one hundred
 and fifty (exclusive of those within the Quarantine inclosure) were attacked,
and out of these  over thirty fell victims  to  the disease, and died with  the
dread vomito.  All business was stopped, and  those who  were well  fled,
affrio-hted, from the scourge;  and but for  this, no  doubt, the ravages ot
the pestilence would have been much greater.  Nor can it be said it was
owino- to any fault of theirs, nor to their own imprudence.   They had not
exposed themselves to it, nor did the infection come  from the hospita ; but
the poisonous miasma was blown from the ships to the shore, and all were
seized who came within the polluted atmosphere.  Within  the Quarantine
inclosure, too, its  effects  were  most revolting  to  humanity   At the time
numbers were there convalescent, and almost  ready to be discharged, yet,
 when the disease appeared, the non-intercourse was declared, and an  em-
 bargo was laid.   Those who were there, were  compelled to remain—the
 sick with the well—and numerous were  the victims to  the scourge  from
this cause.   So, too, of the cholera.   The statement of the health officer
gives a list of twenty-seven persons, sent there with other  complaints,  and
 those not infectious, who, caught  there on the  arrival  of the disease were
 tabooed, and compelled to remain.  They now moulder in the Quarantine
 Cemetery—a fearful argument against the unholy alliance of a pauper  es- 
26
tablishment with  a health department.  Nor has the past season alone
furnished cause of complaint on this ground ; for the very first  season the
Quarantine was located there, some twenty-five of the inhabitants sickened
with yellow fever, and it proved fatal in every case with but one exception.
And every season, from  that time  to  the  present, when yellow fever has
been there, it has prevailed, to a greater or  less  extent, without the Qua-
rantine walls.
  Not only is the health of the inhabitants endangered, but the prosperity
of the place is injured, the value of their property depreciated, and their
business in a great measure ruined.  There are other sources of complaint
detailed by the witnesses, and which will be found in their evidence, here-
with submitted, which occasion continual annoyance and  discomfort to the
residents, and  render the enjoyment of life and property uncomfortable.
In the language of one  of the witnesses, " it produces an interference with
the full enjoyment of their natural rights,  which no other portion of the
people of the  State are subjected  to,  and which cries aloud to  the proper
authorities for redress."   In short, it is an undoubted nuisance where it is,
and of such a character that it has frequently caused the interference of the
grand inquest  of the county.
  But, it is said, the persons who now make these complaints have settled
there since the Quarantine was located there ; that they  went voluntarily,
knowing of the existence of the nuisance, and that now they have no right
to complain.   To this, there are several answers: First, the establishment
was placed there against the wishes of the people, and contrary  to their
earnest remonstrances.  It was stoutly  opposed  at the time  by the repre-
sentative from  that county ; but the State, in selecting this location for their
Quarantine, exercised their right of eminent domain.   They took the land
needed for the public purposes, contrary to the wishes of the owner, only
paying him for it what appraisers, appointed by themselves, adjudged it to
be worth ;  and now, though these people  have mostly passed away, yet
their  descendants and  successors  have succeeded to the rights  of the
original owners, and are now asking here for relief from a nuisance which
has become intolerable.   To this relief, it is believed, they are  legally en-
titled.   The law says, " that which was a nuisance at its commencement,
to occupiers of houses in the neighborhood, will not be less a nuisance to
succeeding occupiers of the same houses, though  they may have come into
the neighborhood after the  nuisance was established there.   Carrying on
an offensive trade is a continual injury to the occupation  of houses adjoin-
ing, and every succeeding occupier  will have all the rights of occupation,
and may complain of their infraction, though those rights may have been
frequently  infringed in the time of his  predecessor, and though he takes
the house knowing of the  existence of the nuisance ; and  to volenti non jit
injuria,  we may answer, he  might have  taken the house knowing the
nuisance to be wrongful,  and relying  on his right to  abate  it;  nor can
it be  presumed he calculated on the continuance of that which is wrong-
ful."
  But there is another answer to this objection.   If the argument is sound,
that because  they have  gone there  knowing  of the  existence  of this
nuisance, and  therefore have no right to complain, and that the State has
a prescriptive  right  to continue it,  then we say these persons may answer 
27
and insist the establishment shall he kept strictly for the purpose for which
it was instituted, and that  the  nuisance  to  which they are compelled to
submit shall not be increased.   They may say, you have selected this place
as your Quarantine location, but you have converted it into a large pauper
establishment, which you have no right to do, and  to which we object;
we must submit to stand between you and  the yellow fever, and we may
be compelled to be the pest-house of the State ; but you have no right to
convert the place into a charnel-house and make it the potter's field for all
Europe.  The law has said,  " That if a person carry on a noxious trade,
though in a place where it  was anciently established, in  a manner more
noxious than before, he is liable for the annoyance he causes his neighbors,
additional to that which he can justify by prescription or pre-occupation."
   In the opinion of your committee, this common-sense  rule, as well as
rule of law, applies with great force to the present case ; that the Quaran-
tine establishment has become not only more dangerous to the health of
the  neighborhood, but the offensive effluvia  and  disgusting  exhibitions
complained of, the greater amount of  disease concentrated there, has not
only rendered  the establishment  more  noxious than heretofore, but  has
rendered it in a much greater  degree a continual source of annoyance and
discomfort, and has rendered the enjoyment of life and property much
more uncomfortable;  and that for  these reasons the  residents there
have good cause of  complaint, and have good right to ask to  be relieved
from this annoyance and discomfort.
   It may well be doubted, however, how far the State is  justified  in  set-
 ting up this technical and hard rule of right, if right there is,  against the
 equitable demand of a portion of her citizens. It has been often said, and
 well said, that the State never pleads the Statute of  Limitations  against a
 just claim, nor does she ever enforce a strict  legal right  against natural
 justice and equity ;  and we  trust it will equally be held she will never in-
 sist  on the continuance of a  nuisance  where her only claim  to do  so is
 founded on the mere right of pre-occupation or prescription.   If this  had
 been held a valid  reason,  the City  Aims-House would  still have been
 located in the Park, gunpowder magazines would still be found in  the
 heart of your city, and the lazaretto would have continued on Governors
 Island.  But laws require a moral force, without which there is no author
 ity, and when  the advancing tide of population  rendered their location
 improper, however judicious was the original selection, they were compel-
 led to give way; popular opinion or  popular prejudice  demanded  they
 should fetire, and in accordance therewith we have seen the  location of
 such establishments changed  from time to time.   Apply the same rule to
 Staten Island,  and the Quarantine will  be  removed.

                        For the reasons therefore :

   First— That  the Quarantine  establishment,  in  its present location,
 wholly fails to effect its object, and cannot  be made  efficient for the pur-
 pose for which  it was instituted ;
    Second.-Because it  is injurious to the health and fatal to  the pros-
 perity  of  Staten  Island, and  the  complaints urged against its continuance
 there are well founded; 
28
  Your committee are of the opinion the location should be changed, and
respectfully recommend its removal.     *      *      *             *
  Dated January 29. 1849.
                              Wessell  S.  Smith,    1
                              Alexander Stewart,  >  Committee.
                              Gurdon  Nowlen,      )
   DOCUMENTS APPENDED TO THE FOREGOING REPORT.


       Statement of Dr. Alexander B. Whiting, Health Officer.

                                             (Dated January 19, 1S49.)

     *ft          *f*           *ft           ffi          ?f*          T*
   The yellow fever has prevailed at Quarantine  and in the adjoining vil-
lages of Tompkinsville and Stapleton to a greater extent  than ever before
since the existence of Quarantine.  The number of cases  in  the hospital
was thirty-seven, of which twelve died. Dr. Samuel R. Smith reports 110
outside of Quarantine.   There were  probably more than 150, of which
number twenty-nine  died.  It commenced on the nineteenth of August
and  continued until  the 21st of October. * *  * *   All the usual pre-
cautions were taken to isolate the ships.  The sickly vessels were anchored
in positions  where they always have been located—in or near the middle
of the stream, and every measure taken  to prevent communication with
them other than that necessary through the agents and  boats of quaran-
tine.   As soon as the character of the disease became evident, strict mea-
sures were adopted to intercept  the  intercourse between the  city of New
York and Staten Island, and between the Quarantine and adjoining vil-
lages ;  but this was superfluous, as the disease prevailed to a greater extent
outside than within the Quarantine inclosure. *  * *  *   The disease first
prevailed outside the  Quarantine  walls among the boatmen of the revenue
department and  health officer's barge, and almost  simultaneously several
persons, whose business exposed  them at the Quarantine landings, were
affected.   In a few days, numbers residing along  the shore were attacked,
without the possibility of any communication with  Quarantine or each
other—workmen in  their shops,  and females who  were  confined to their
own houses.  Some of the  persons who were first  attacked, undoubtedly
contracted it from immediate exposure to the  ship, but  the subsequent
cases can only be accounted for on the supposition that it  was conveyed by
easterly winds to the  shore.  It is well known that  during the prevalence
of yellow  fever the boundaries of the disease are  extended to a consider-
able distance by the force of a strong  wind  existing for even  a short
time.
   That it does  not  effect the objects of a Quarantine, I  adduce the same
facts, that its proximity to flourishing villages, who claim the protection of
these same laws, and who have  an  equal  right to  their provisions  has 
29
sacrificed  many valuable lives,  and, moreover, this  contiguity to a large
population in constant intercourse with  the parts  to be protected, exposes
these, under favorable circumstances,  to the  danger  of  receiving  the
disease.  New Orleans can be shut out, but Staten Island cannot; and the
yellow fever cannot be hindered from infecting Staten Island (until  man
acquires control  of the elements) so  long as it continues a foul-ship  sta-
tion.  *****                                                r
   More recently, the  cholera has tried more strongly our present means of
quarantine.  The attempt has been made to detain persons infected with the
disease ; but with the facilities of intercourse with the city of New York, the
Chinese wall would be no protection.   And  with every practicable effort
to keep the infected persons from the  city,  they have reached it, and a
number have been there attacked, thus effectually frustrating the intentions
of the Quarantine laws.   That this has  been  owing to the geographical re-
lations of  the locality of  Quarantine, and not to a lax administration of its
laws,  I invite the most rigid investigation.   Had the  Quarantine been in
 an isolated place, with the accommodations that have existed always,  until
 it was converted into an Emigrant Hospital,  the sick could  have been im-
• mediately and thoroughly separated  from the well, and their release  been
effected in a far  shorter period than is practicable under the present condi-
tion of things.
   With regard  to changing the Quarantine  station, I shall say but little.
 The present  locality for  anchorage  ground  and  hospital cannot be  sur-
 passed.   But the paramount requisite,  isolation, is frustrated by its conti-
 guity to populous villages, separated merely  by a wall.
   *        **'**        *       *       *       *


                 Affidavit of  Marinus H.  Van Dyke.

   I am Assistant-Physician at  the Marine Hospital; have held that  posi-
 tion for six years.   *****   In my opinion, the Quarantine, as
 at present located  and managed, does not effectuate the object of a Quaran-
 tine, for the reason that villages are  contiguous to it, whose inhabitants are
 in constant intercourse with New York,  and the passage of  the ferry-boat
 through the fleet of vessels quarantined, and  its nearness to New York, and
 then the vessels thus quarantined, are liable to be  visited by  small boats at
 any time, and  the  Health Officer,  from the number of small boats,  and
 their similarity, cannot identify the offenders.  *****  Under
 all circumstances,  I do not consider the present location of the Quarantine
 a proper one, and  I  consider it  highly  necessary for the protection of the
 city of New York, that it should be removed.   I own no  real estate on
 Staten Island, and have no property interest there.

   Samuel R. Smith, M.  D., being duly sworn, deposeth and saith: He is
 a practitioner of medicine, and has resided in the village of  Tompkiusville,
 in the practice of his profession, more than twenty years; that he has oc-
 casionally, during  that period, seen  cases of yellow fever, among lighter-
 men,  pilots, and others employed on board of, or having intercourse  with,
 infected vessels. 
80
    In September,  1830,  I saw  two  cases  of  yellow fever;   both pa-
  tients  were  advanced  in  years, a  male  and female,  residing on the
  river bank; one about 250 the other about 300  yards south of the Qua-
  rantine; no intercourse, directly or indirectly, with any source of infection
  could be traced  in these cases, and the belief was, that  the infection was
  blown  ashore  from the vessels at the anchorage; both terminated fatally
  with black vomit.
    In August, 1833, under still different circumstances,  three of our citi-
  zens residing at the  Nerrows, two and a-half  miles from the Quarantine,
  lost their lives  by the yellow fever, communicated,  it was believed,  by  a
  bed which drifted  ashore opposite their residence ; when these cases oc-
  curred  the population was sparse; now the whole shore  is densely popu-
  lated.
    The  present year (1848), our  citizens have suffered still more severely
  from yellow fever.  In  a recent communication to the Health Officer, Dr.
  Whiting, I gave the names, dates  of attack, occupation and place of resi-
  dence of one hundred and ten patients attacked  with yellow fever, who
  were under my care, and of whom eighteen died.  From the best estimate
  I can make, the total number of cases which occurred this season was be-
  tween 150 and 180, and the number of deaths about thirty.   The disease
 eommenced simultaneously among the  boatmen and others employed at
 the Health Officer's dock, and persons employed at the steamboat dock ad-
 joining the Quarantine, and in  three  or  four days extended South along
 the shore to Stapleton,  attacking only those residing  immediately on the
 shore, or whose employment was there ; and in nine days reached its ex-
 treme southern limit at  Vanderbilt's landing, where but two cases occurred.
 Its northern terminus was at Major Frazer's, within the Quarantine ground.
   The  source of infection was  undoubtedly vessels from New  Orleans,
 (where  yellow fever prevailed,)  riding at their ordinary anchorage opposite
 the Quarantine ; said  vessels having been employed in transporting troops,
 among whom  cases of fever prevailed.  The means by which the infection
 was communicated was threefold.  Most of the cases  occurring from its
 commencement  on the  10th  of August up to the middle of September,
 were  probably communicated through the medium of the air.     *    *
     *     *     *   A second  mode of propagation  was  probably in a
 very  few cases,  among  lightermen  and boatmen, by  direct  intercourse
 with the infected vessels.     *****  ^yyhen the in-
 fected vessels were removed, we hoped, after the lapse of a few days, that
 the disease would  disappear ;  and so it did from the greater part of the
 infected district, but continued to linger in some small locality, extending
 along the shore south from the Quarantine ground about 300 yards. Here
 the poison, animalcular, miasmal, or whatever its nature, had evidently ob-
 tained a foothold, and cases  continued to  occur until after severe frost,  the
 last case being on the 21st  of October.  The  cases were not many, pro-
 bably for want of subjects, for most of the inhabitants had fled, and the few
 remaining had either  passed through the disease or were unsusceptible to
 its influence.     *****  Numerous instances could
 be cited since the Quarantine has been established here, of the inhabitants
of this village suffering  from yellow fever, communicated from the vessels
at anchorage, and it is an occurrence which  human foresight can hardly 
31
guard against, inasmuch as the shore is now occupied by a dense popula-
tion, and wherever these occur, the two  circumstances, a  continued^ preva-
lence of easterly winds and the presence of infected vessels  at the anchor-
age, those residing on the shore, even for a long distance from the Quaran-
tine, as we have seen, are exposed to imminent danger.
   Twenty years since, when I first located myself at Tompkinsville, it was
comparatively as far from New York as Sandy Hook now is.   The steam-
boat Nautilus made but two trips a day, and occupied from an hour and a
half to two hours in crossing, each way.   There were, if  I recollect  right,
but two gentlemen doing business in New York who  crossed  daily in the
boat;  now there are hundreds.  Then all, or nearly all, vessels from sickly
ports discharged their cargoes at Quarantine ;  now very few do so.   Most
of the inhabitants were engaged ia lightering,  or the occupations connect-
 ed with the Quarantine, and all such had to give bonds, with a heavy pen-
 alty, not  to enter the city of New York  during the  Quarantine season.
 The number of patients in the hospital were  few, and it was closed  from
 November until April.  Now,  the  hospitals  are  kept permanently open,
 and crowded with patients, many of whom are laboring  under  infectious
 diseases, and the intercourse between the hospitals and the village and the
 city unrestricted.   *    *     *     *     *  A new source  of danger
 to the city from  yellow fever has lately arisen.  Several instances of  yellow
 fever  have occurred from the bedding and clothing of those who have had
 the disease being  thrown  overboard from  the vessels and drifting ashore,
 the infection  not being destroyed by immersion in water.  Now,  the shores
 of  Staten Island and Long Island receive these infected articles,  and these
 shores are daily resorted to by German rag pickers, who collect whatever
 comes to hand, and send it to the city, and there is  nothing improbable in
 the supposition that sooner or  later yellow fever may be introduced into
 the heart of  the city by this means.
    As regards ship or typhus fever, our  Quarantine  regulations  are  all di-
 rected to the comfort and welfare of the sick,  and  no means are taken  to
 protect our own citizens.   There is  hardly a considerable town or village in
 the United States  which has  not suffered more or less  from this scourge ;
 and could the number be accurately ascertained, the community would be
 shocked and appalled at its magnitnde.

     Dr John  T. Harrison, being duly sworn, says : I was formerly health
  officer  at  the Quarantine establishment at Staten Island ; it  was from the
 year  1823 to 1829 ; was an assistant there previously ;  was there in 1811
  and  1812, also from 1815 to 1823 ; was in   the establishment altogether
  about ten years previous to my appointment  as health officer ;  I am souie-
  wha  conversant with similar' establishments ; am a physician by educa-
   tio  ; am intimately acquainted with the Quarantme at Staten  Island, and
   have been for more than thirty years ;  the population  has  increased very
   wnsiderably during that period; I was  not  much acquainted with  he es-
   ab ishmenLhen first located there, which was in 179Bywas firs a ached
  to it in 1811; the population in the vicinity  was then (in  1811) Nery
   oae  there were comparatively but a  few persons in the vicinity;  the
  p^SitiSw-Tfmited; on the north  side  of the Quarantine  ground,  at 
32
 that time, too, there was but one boarding-house and one dwelling-house ;
 the boarding-house was for the  accommodation of passengers in vessels
 quarantined ; with the exception of those two, there was  not  a dwelling-
 house within nearly half a mile in that direction ; on the west  side there
 was but one dwelling-house within  a considerable distance ; but  two dwel-
 ling-houses within a mile in the direction of the turnpike ;  on the southerly
 side there were several houses ; one a boarding-house, for the accommoda-
 tion of passengers in vessels quarantined, and some  three  or four other
 dwellings between that and  Van  Duzer's  Ferry;  there were no other
 dwellings except  these,  that  I recollect, within a quarter  of a mile, or
 nearly that; these were the only  houses in that  direction ; of the  present
 population I can  only say,  that  an entire village has  sprung  up  in  the
 vicinity of the Quarantine ; it has sprung up since 1818 ; the  population
 of that shore of the island to  the Narrows has  greatly increased ;  at that
 time it was sparse, consisting of farms  and  farm dwellings only ; the pre-
 sent population is comparatively a very dense  population, and their occu-
 pation is  entirely changed ;  and a large proportion of the present residents
 are business men in the city of New York.
    Question. What is the  comparative  practicability of carrying out  the
 present laws in relation to the  Quarantine ?
   Ansioer.  It is certainly more difficult to carry out the law in the present
 state of things than formerly, so far as  respects  its efficiency in  protecting
 the population of the shores of Staten Island and  the city of New York
 from infection.  A very rigid enforcement of the law at present will carrv
 out the purposes of it, so far as to prevent communication with  vessels  at
 Quarantine ; but that, from the increase of the population on the  shores
 of Staten  Island in the vicinity of  the Quarantine, as  well as from the  in-
 creased facilities for intercourse with the city of New  York, the liability of
 communicating the infection to the city is greatly increased ; and that  no
 laws, however rigidly enforced, can always prevent the  clandestine intro-
 duction of infected articles into- the  city.  In some instances, the  disease
 (yellow fever) may be communicated to the population along the shore
 from the shipping,  as the experience of  the past season has shown.
   There are two sources of danger :

   First—That arising from direct communication  of persons with vessels
 lying at Quarantine.

   Second.—That  which  arises from the infection which  may be carried
 ashore in  currents of foul air from infected vessels, which may have been
 incautiously anchored too  near shore;  the  population having become so
 dense now that the danger has greatly increased.   I have known instances
 of the spread of infectious diseases from the cause last mentioned before •
 I have observed  instances  of  the yellow fever, while connected with the
 Quarantine, which occurred along  shore,  which could  not be traced to any
 other source than the one above named,  several  different  seasons.   These
cases occur occasionally along the  shore and  in the immediate vicinity of
the Quarantine.       *        *       *        *        I was invited to
see three cases  at  the Quarantine, at what time I cannot say  precisely  as
I have not my notes with me ;  visited with the health officer and resident 
33
physician  three cases  located  in  the village of Tompkinsville, and they
were cases of yellow fever, characterized by all the symptoms usually at-
tendant on the disease.  These cases could not be traced, as I understood,
to any direct communication the persons had with the vessels.   The infer-
ence I drew was, that the air was infected.     *       *       *       *
The present location  of the Quarantine, at the time it was located, was
very proper.   The inhabitants  at  that  time strongly protested against it,
as I have been informed, from fears of contagion, and those fears, as my
experience teaches, have been verified.
   In  addition to the isolated cases along the shore in  1821, we had many
cases in the Quarantine. On the 3d of September of that year, a violent gale
occurred and stranded every vessel at Quarantine, except one or two.   Two
vessels were  stranded  very near to the U. S. wharf, in the inclosure.  In
a few days after many persons in the  neighborhood were taken sick, and a
number of deaths occurred—I believe in the neighborhood of  twenty-four
or twenty-six—and  there were some forty-five  cases in all;  and many
persons in the  vicinity of the hospital left  their houses in consequence.   I
mention this fact, not to show the evils which the inhabitants suffered, but
to show the danger of contagion.


   Dr. John S. Westervelt, being duly sworn, says: I have been familiar
with   the operation of the Quarantine laws since  1823, when I was ap-
pointed assistant health  officer, and held that office until 182^.  In 1829,
I was appointed  health  officer, and  held  that office until 1836;  I have
since  resided  in the  immediate  vicinity of the Quarantine ground, and
have been in the habit of constant intercourse with  that establishment.
   The Quarantine ground ought to be removed, because its present loca-
tion defeats the efficient execution of the Quarantine  laws.  This location
is in  the  midst of a populous village, between which and  the Quarantine
there is  necessarily and  unavoidably much intercourse.  The  families  of
 many of those employed in the Quarantine, such as Custom-House officers,
boatmen, &o,  reside in the village.  The intercourse between their families
and others employed in  the Quarantine,  and  between these families aud
the village population, is constant; thus forming a complete and uninter-
 rupted communication.   The intercourse  between the village and infected
 vessels anchored at Quarantine, through lightermen, boatmen and laborers
 employed in discharging their cargoes, whose families reside in the cities,
 is very great.   I have known one hundred persons  thus employed at one
 time.  The  intercourse  between the Quarantine village  and  the  city of
 New York is  by  a regular  ferry, a perfect thoroughfare, the principal
 landing of which adjoins the Quarantine ground—thus establishing a con-
 tinuous and perfect, though indirect, communication between the Quaran-
 tine  and the city of New York.                     #
    There is also a direct communication between the city of Aew lork and
 the Quarantine, which, although the law would be  ample to prevent in a
 proper location, in the present is unavoidable.  I allude  to  the  fact of
 healthy persons from  sickly vessels  detained at Quarantine eloping; and
 of persons coming  from  the city at night in small boats, and not only com-
 municating with their friends in the  hospitals,  but carrying their friends

         3 
34
back with them, bag and baggage.  Incredible as all  this may appear, it
is, notwithstanding,"true ; and when the facilities offered  by an adjoining
thoroughfare, a dense population, and the want of sufficient force on the
part of the authorities is considered, is not to be wondered at.   The inter-
course between the city of New York and infected vessels at Quarantine,
direct, by means of small  boats,  is  considerable,  and for reasons  before
stated to a great extent  unavoidable.  It  is  usual for vessels  arriving at
Quarantine to throw  overboard all the filth and  offal which has accumu-
lated during the voyage, affording employment to  numbers of scavengers,
who, in their boats, are constantly on the lookout to pick up whatever may
be valuable, and carry it to the city or village, or wherever  else  they please.
This is supposed to be a very dangerous link of communication between
the Quarantine and the city ;  and one which  cannot be prevented by the
present power of the  Health Officer.  These various avenues of communi-
cation between the Quarantine and the city of New York positively exist,
and necessarily defeat the effectual operation  of the Quarantine laws.  It
is my firm conviction that no law compatible  witji  our  institutions can be
made, which will protect the  city of New York against the introduction of
pestilential and infectious diseases, while the  Quarantine ground is in its
present location.
  The yellow fever prevailed  at the Quarantine in  the hospitals and in
the surrounding village  during the past season, caused, doubtless, by the
communication between the  infected vessels (of  which there were an un-
usual number) and the population, and  by the force of the wind wafting
ashore the poisonous material  as it issued from the open hatches of dis-
charging vessels, and infecting all who were exposed to it  near the shore a
sufficient length of time, and unde'r circumstances  predisposing to disease.
Between  one and two hundred persons were attacked, and  many died. Al-
though the ferry-boats were  prevented from  landing at their usual places
near the  Quarantine, and the communication  between the Quarantine and
the village was stopped, as far as practicable, still the intercourse continued,
and that between the village  and the city was only abated in proportion
as the population of the village was diminished ; the intercourse between
the bed-side of the  sick and the city was daily,  and  indeed I may say
hourly, from my own knowledge.
  In  this connection, this question will naturally arise : If the intercourse
between the quarantine village  where the yellow fever  prevailed and the
city of New York was so constant and great/what saved the city ?  Vvhy
did not the fever show itself there ?  There is no  doubt that in  all those
who took the fever at the Quarantine and  in  the village, it was produced
by  actual contact with the poison from  the ships.  Now, when the yellow
fever is epidemic, in  a  large  population, the  case  is very different.  The
poison from infected  vessels coming in contact with the atmosphere, is in
a suitable condition  to assimilate it  to itself, imparting to  it its own
poisonous character, and thus indefinitely extending itself.   The condition
of atmosphere alluded to appears, from  observation and experience, to be
produced  by great and continued  heat, calms, and much moisture; as
these circumstances did not exist the past season,  and as  it was generally
cool, and remarkably dry at the time, is  it not  reasonable to attribute the
escape of the  city to that cause ?  I will  here state a remarkable  occur- 
35
rence, which will confirm in a striking manner the necessity of a peculiar
condition of atmosphere to promote the spreading of the poison of the yel-
low fever in  large cities, and that such  condition does  not  every season
exist.
   On the 3d day of September, 1821, the fleet of vessels lying at Quaran-
tine  were nearly  all driven ashore by a gale of wind ; the wharves were
washed away, the walls  blown down, and thus all the  means to prevent
communication with the Quarantine ground  and with the ships being de-
stroyed, the  intercourse with the city was uninterrupted. • Merchants and
others came down to their  ship-,  and ships and their cargoes, before  the
period of their quarantine had expired, uncleansed, impure, went up to the
city. A few sporadic cases of fever occurred ; but the disease was, in every
instance, confined to persons who  had directly  communicated with  the in-
fected vessels.   In the  summer of 1822, the brig Florida  arrived at Qua-
 rantine, having had yellow fever on board.  She was discharged, subjected
 to all the process of purification which the laws then required, rode out her
quarantine, and was permitted to  proceed to the city, where she made  fast
at the foot of Rector street,  and there hove  out  her ballast on the whaif.
In a short time a case of yellow fever occurred in  the house nearest  the
ballast, and  thence  extended itself in all directions, until the lower half of
 the  city was filled with the pestilential atmosphere  and all the awful and
 destructive effects of an epidemic yellow fever in a large city  were fully
 experienced.  Thus showing  that  in 1821,  under circumstances of the
 greatest exposure, the operation of the Quarantine laws being actually sus-
 pended by uncontrollable causes, the city remained  healthy, no epidemic
 disease showing itself; and  in 1834, from the ballast of a single vessel, not
 withstanding she had passed the  whole  ordeal of quarantine, a spark arose
 which, mingling with the atmosphere, (then congenial,) produced a blaze
 of pestilence which spread  disease and  death over a great portion of the
 city.                                                                .
   There are reasons why the Quarantine should be  removed, which,  al-
 though they may  be deemed secondary in importance,  still they are of
 sufficient weight to demand the  attention of the Legislature.   I refer to
 the effect which the ocation of the Quarantine has upon the health, com-
 forts and property of the surrounding population.  Their  lives are jeopar-
 dized,  their comforts and many of their dearest  privileges frequently de-
 stroyed, and their property  much depreciated, producing an interference
 with the full enjoyment of their natural  rights, which no other portion of
 the people of the State are subjected to, airi which  cries aloud to the pro-
 per authorities for redress. 
SG
          (Letter of Richard Delafield, Major of Engineers.

                                         New York, Dec. 26, 1848.
Messrs. Wessel S. Smith, Alexander Stewart, G.  Nowlan,
                   Committee of the Legislature of New York :
   Gentlemen,—In compliance with your request, I now communicate in
writing the views  entertained by me and expressed to you at the office of
the Commissioners of Emigration on the 12th instant.   The quarantine es-
tablishment should be removed from its present location on the  eastern
shore of Staten Isiand for the following reasons :
   Both the eastern and northern sides of the island must how be consider-
ed suburbs of the city  of  New York.  The  residences  of merchants and
persons of other occupations, together with the workshops and factories of
the  mechanics, doing  business  for and daily in New York, surround the
hospitals, are only separated by  the width of a street bounded  by  a brick
wall, and from which they extend west and south several miles,  over which
there is now a dense and rapidly increasing population.
   The population  is now subjected to  all the influence and  diseases that
Quarantine  laws are made to  guard against, and  in its daily  intercourse
with the city endangers its inhabitants  with  the introduction of any infec-
tious or contagious  disease than can be communicated  by free  intercourse
with an infected atmosphere.
   The inhabitants of the city are no better  protected under the existing
state of things than would be secured by the location of a  Quarantine in
one  of the upper wards of the city, to which strangers should be excluded
and  cut off only by a wall enclosing it.
   The truth of this position I  consider  as demonstrated by our experience
of the past summer.  A pestilential disease  (said to be yellow fever) was
introduced  at the Quarantine establishment by a vessel or vessels from a
southern port.   The limits of  the Quarantine and its enclosing walls  did
not  suffice   to protect  the inhabitants  of the eastern  shore of  the island.
The disease extended among them,  and the  safety of the city rendered it
necessary to enforce sanitary laws prohibiting intercourse with this  part of
the island by the steam ferry-boats.   Thus  a portion  of the inhabitants,
whose daily industry and talents constituted  a  part of  that exercised for
and  in the  city, was cut off from and  prohibited free  and  uninterrupted
access to their business, and from the fact that their residences  and work-
shops covered a space of some miles square about the  Quarantine.  This
locality has, then, I conceive, ceased in a great degree  to be  calculated for
the purpose of a Quarantine, and should be removed as a measure  of jus-
tice to the inhabitants of Staten Island, as well as for the better  and more
perfect security of the inhabitants of the city.
   When first established, the isolated position peculiarly adapted it for a
lazaretto.   It is now, however, no longer isolated; it is in the midst  of a
thickly-settled and rapidly increasing suburb of this growing city.   At the
time of its establishment, no one could  foresee the necessity of its contigu-
ous grounds being used for the residences of the merchants, mechanics and
others of the city. 
37
  So great has the commerce of this port become, that all the lower wards
are, in a  manner, abandoned as  residences  and  devoted  to stores,  ware-
houses and business places.   The  residences have thus been forced to more
distant places.
  At first, the facility of  the steam ferry rendered Brooklyn the most ad-
vantageous  and  economical resort.   As its  water fronts and adjacent lots
became occupied, other ferries  were established, bringing other  localities
within an economical distance as to time, and  adapting them to the  resi-
dences of the man of business.  The omnibus  and railroad cars increased
these limits on this island;  notwithstanding  all which,  the shores  of  New
Jersey and Staten Island and the whole surrounding  country within the
limit that the man of business can travel by steam,  is  held in requisition
as the residences of persons doing business in this  city.   Brooklyn,  Wil-
iiamsburgh,  Astoria, Jersey City,  Hoboken, Harlem, as well as the eastern
and northern shores of  Staten Island, have,  in  consequence, been  thus
occupied, and from the necessity of the ease.   Their  near  proximity, with
the facility of steam, has, in a great degree,  given them the advantage of
the upper wards of the city, and  they number more inhabitants at  this
time than New York  did  when  the  Quarantine was established;  and,
surely, such  population is entitled to the same sanitary protection, and, as
a consequence, should  be freed from the injurious influence of a lazaretto
in its midst.
   The old alms-house on Chambers street, the poor-houses on Kip's Bay,
and the houses of refuge at Ravenswood, were all established under similar
circumstances of isolated locality as the present Quarantine.  When estab-
lished, it  was not foreseen that some of  these expensive buildings, calcu-
lated to last for centuries, would be out of place within about a quarter of
a century.   Yet  so  rapid  has  been the growth of  the city, that they in
time became separated from the inhabitants  by walls only, as in the case
of  the  Quarantine.   The  health of the* city,  in  like manner, became
jeopardized ; first one,  and  then another, had to give place to other  uses.
And for the  same reasons the suburb of Staten Island should be freed from
an  establishment which in like manner endangers the health of its inhabit-
ants, and by their daily intercourse, as  a consequence, that of the city.
   Being  a part and parcel  of the  same population and of that industry and
enterprise which render  this harbor and city unrivalled on this continent
in prosperity and everything that man aims  to possess,  it should, in justice,
receive  that  protection  and  security which has, by the  removal of^ similar
evils, been extended to the  city proper.


   John B. Simonson, being sworn, says : I reside at Staten Island;  have
lived there all my life, and nearly twenty years in Tompkinsvil e; the vil-
lage of Tompkinsville is immediately on the southwest  side of the Quaran-
tine; has grown up within  the last twenty-five years ; it was bu.lt up by
persons connected with business necessarily connected with the Quarantine ;
the part thus built up is confined  to three or four  hundred yards below the
Quarantine; the population within the space of a mile in each direction
contiguous to this has nothing to  do with the  Quarantine, and has  been 
38
built up within the last ten or twelve years, and is generally  occupied by
people doing business in New York, and mechanics and laborers  necessar-
ily employed in the improvements this class of people has  brought there ;
there are "some manufacturing  establishments in  Stapleton ;  I could  not
state with accuracy  the  number of  houses  in  the three villages, New
Brighton, Tompkinsville and Stapleton, but should think they would num-
from eight hundred to one thousand houses.  In this I embrace the whole.
The houses built by those connected with the  Quarantine  are  not over out-
hundred, and they are of a small class.   The existence of the pestilence the
last season was very injurious to the  business of  the place; so  much  so,
that the factories stopped, and  nearly all business  was suspended.  The in-
habitants of some portion of the vfllage left their houses and fled for their
lives.  A large proportion of the inhabitants of Tompkinsville left.   I  re-
moved myself and family for six weeks, until the disease subsided, and un-
til after a slight frost.   Most all in  my neighborhood left their residences
except those who had sickness  in their families and could  not leave.   My
residence was about one-third of a mile from the Quarantine establishment.
The  schools were all closed, and only one place of public worship remained
open.  The  usual communications between  these  villages and New York
is hourly from about seven A.  M. to  about seven P.  M. in  the summer.
  After the  disease, called  the yellow  fever,  showed itself in the village,
the communication between the landings  at Tompkinsville,  Stapleton  and
Vanderbilt's  landing and New York was  interdicted by the  Board of
Health of New York.  The  effect of this to those who resided there  was
to oblige them to go to New York by the way of Clifton or New Brighton ;
so that in reality it was no interdict,  but  only subjected the residents to
great inconvenience and increased expense,  There were a number of very
flourishing boarding-houses there filled with persons  from New York, who,
on the appearance of the  disease in the village, fled  at once.  There were
a great many deaths, and some among my own immediate neighbors.  The
disease was  called yellow fever.  I understood there  was over thirty deaths
from this disorder.  The  extent of  the  island  is in length  about eighteen
miles, with an average width of about five miles;  soil generally fertile. The
population of the  island is eighteen thousand  or thereabouts (1848.) That
part of the  island  extending from Clifton  to Port  Richmond  comprises
about one-fifth of the island, and contains nearly three-fourths of the popu-
lation.  The remaining portion of the island is generally occupied for farm
purposes.
   There has real  inconvenience been occasioned  to the inhabitants  from
the existence of the Quarantine and from the  ship fever being -prevalent.
Some of the inhabitants  who have  no connection with  the Quarantine
have sickened and died, supposed from coming  in contact with diseased
persons going on board the terry-boats; and  I  believe it impossible  en-
tirely to  prevent such contact.   The continuance of  the Quarantine there
will be more injurious, in my opinion, in future than  it has been yet; some
inhabitants  say they will not remain  if the  Quarantine is not removed.
   There is said to be a  very  offensive effluvia  that  proceeds  from   the
grounds.  It is complained of  by the whole neighborhood.  Another cause
of complaint is, that the ship fever patients  in the shanties during  warn;
weather are  frequently insane,  and annoy those near by  with their cries. 
39
Another objection is, that the convalescing patients  are  frequently annoy-
ing to the neighborhood from their indecency and filthiness.  The effluvia
is notoriously a subject of complaint in the neighborhood of the Quaran-
tine.  Under existing  laws, officers and employees of the establishment are
in general habit of coming in contact with the inhabitants of the surround-
ing villages ; they attend church and  places of amusement in common with
the inhabitants.  In one instance, at a  concert in the village, one  of  the
attending physicians was present and sat  near to  an  individual, who, after
the usual time had elapsed for infectious  diseases to show themselves, was
attacked by  the smallpox.

   David C. Colden, being sworn, says: lam one of the Commissioners of
Emigration.   I have  held that position since May 27, 1847—since  the
organization of the Board.  My duties frequently call me to Staten Island
and the Quarantine.   I am quite  familiar with  the laws relative  to  the
Quarantine and the general organization  of the establishment.   From  my
observation and  the opinions of physicians I have conversed with, both at
the Quarantine  and  elsewhere, I  should say the  present  Quarantine es-
 tablishment does not  afford that protection to the city of New York from
infectious diseases it should.     *       *       *       *     I think
 the Quarantine insecure, or, rather, I do not think it  affords proper security
 to New York and  the surrounding country, from  the  difficulty of  main-
 taining a strict Quarantine, which  is necessary to accomplish the object;
 that  difficulty arises from the want of means of maintaining a proper police,
 and  the dense population by which the Quarantine grounds are surrounded,
 and  by the  present arrangement,  which necessarily admits the  ingress  and
 egress  of a large number of people.  I do not believe you could maintain
 a°sufficient police there to enforce a rigid Quarantine, as it would be such
 a violation of  public opinion as would  render  it impracticable.   If  it  was
 possible to isolate the Quarantine hospital,  (I have reference  more  par-
 ticularly to  the  contagious cases,) from the surrounding population,  then I
 think a strict and rigid Quarantine could be maintained.  I think with the
 present Quarantine this is entirely the  reverse.   The walls of the establish-
 ment are\iot of sufficient height to keep  persons  from going m or out,  and
 although we have a night-watch,  ingress  and_ egress over the walls cannot
 be wholly stopped.                       *
    John C. Thompson, being sworn, says : I  am a  resident  of  Staten
 Island, and have lived in sight of the present Quarantine establishment a 1
 my life   I  am engaged in trade  there, and am extensively acquainted  with
 the inhabitants  in the village of Tompkinsville  and with the officers and
 employees of the Quarantine  establishment.   There is  general  intercouse
 between the inhabitants of the village and the officers and employees o the
 Quarantine establishment, more  particularly in  the village of Tompkins-
 ville   Some of the  nurses or orderlies  reside in the village of  Stapleton;
 and'pass my door  every day in going to  and from their work  in the
 Quarantine establishment.  The  officers  of the institution come out  to visit
 their friends, to trade and attend church  and  th<, different societies :  in
 short,  a general social intercourse between them  and the inhabitants.  Ihe
 physicians of  the Quarantine attend patients in the village, and  are fre- 
40
 quently called on in an emergency.   The nurses of the establishment, both
 male and female, come out to trade, and judging from the action of  the
 male nurses, I should say they frequently came out clandestinely at night,
 for when they come into  my store, they apparently wish to avoid observa-
 tion.   Both male and   female  nurses frequently  come out to  procure
 spirituous liquors.  Convalescing patients frequently come into the village
 by permission, to make purchases and look about: that is, I think they
 are out by permission, as they do not appear to be under restraint.  Some
 members of the  family go out, while others remain in the hospital.   They
 return  to the Quarantine  at night and are therefore passing and repassing
 between the Quarantine and the village.  I cannot call to mind any cases
 of that kind the  past  summer during the prevalence  of the yellow fever.
 The friends of the patients frequently come  to the island, but cannot say
 whether they visit their friends in the Quarantine or not, but presume they
 do.  I think the smallpox was  introduced into my father's  family by a
 physician from  the  Quarantine establishment visiting them, and  thence
 spread over  the village, and a good many deaths occurred ;  one case in
 my father's family terminated  fatally.  This was in 1842.  Cannot account
 for its  introduction in any other way.  Another case  occurred  last year
 when a person who had  the smallpox supposed  he  took it from  sitting
 near a  physician  from  the Quarantine in an Odd Fellows' Lodge.


   Robert M. Hazard, being sworn, says :  I reside at Nautilus Hall, in
 the village of Tompkinsville, and have resided there about twenty-five years.
 I have resided within  a hundred yards of the Quarantine most of the time.
 ******
   All  the health officers and custom-house boatmen,  and  custom-house
 officers, reside outside  the Quarantine walls at Staten Island;  they resided
 outside during the prevalence of the  yellow fever the past summer.  They
 would go aboard a yellow fever vessel, and then come  into the village, and
 mix generally with the people the  same  as  usual—all this  during the
 prevalence of the yellow fever.   They also visited New York the same as
 usual, and some of the officers of the Quarantine came up to New York
 during that  period.   Some fifty or sixty persons get a living by discharg-
 ing and lightering vessels with sickness on board, and  they went outside
the walls and mixed with the people the same as usual.  Some of these
persons died from yellow fever the past season, taken from vessels.
   The health officer has the power to keep persons inside the walls of the
 Quarantine, but to do so he would require fifty or more  houses and a regi-
ment of soldiers.   I have seen all of a hundred persons  at the  Quarantine
gate at one time during the past season ; in fact, it is a complete thorough-
fare.  A  sign is up on the gate, saying at what time visitors can be admit-
ted to see their friends.   The gate-keeper never interferes to prevent per-
sons on Staten Island from going in  and out whenever  they  please.   Any
one can go in by saying  they have  business with the  health officer or at
the barge office.  Another objection  is its nearness to  New York, and the
vast number of  persons  who come  to  the  Quarantine from  New York.
 Sailors are stolen by whole crews from vessels quarantined, by persons who
come down from New York for this purpose.   I have seen persons come 
41
on the steamboat wharf just as the steamer was  about starting for New
York, and when the bell was tolling jump on board the ferry-boat, when
it was too late to prevent them.  Boats came ashore from vessels that  are
quarantined in many places outside the walls of.the Quarantine.   This is
sometimes done through a mistake, no doubt, but in many cases is inten-
tional.  I deem it impossible to keep a strict Quarantine there, from  the
fact that vessels are continually passing up and down the  bay, and at cer-
tain times of tide must necessarily pass through the fleet anchored at  the
Quarantine.  The ferry-boat always passes through the  fleet, as she is com-
pelled to do, to get to the island, and also from  the  constant intercourse of
the inhabitants with the city of New York.   I have known the  stench from
the Quarantine establishment so great at Nautilus Hall  piazza, as to oblige
me to go inside the house and close windows and doors.  This was when
Mr. James kept the house.   Frequently the stench comes so strong when
the wind is from the Quarantine, that I have been obliged to change  my
position on the piazza on account of it, and go  to the other side of  the
house.   This stench comes from the Quarantine.  I have smelt the stench
from the  drains some three or four days after the privies were let out.   I
think the Quarantine as it at present exists is a nuisance.   The sort of peo-
ple employed in and about the Quarantine is such that they cannot be pre-
vented from coming to  New York when they please.  It cannot be any-
thing but a nuisance on Staten Island.   *   *  *   *

   Catharine  Tompkins,  being sworn, says:  I have resided on  Staten
Island, and in  the neighborhood of the Quarantine since 1816, with  the
exception of a few years, and reside there now ;  I have heard the testimony
of Mr. Thompson  and Mr. Hazard, and believe their statements to be  cor-
rect; I think I myself, the past spring, (March last,) caught the smallpox,
from my familiar intercourse with a person residing within the Quarantine
walls; I  presume the recent  yellow  fever that  prevailed on the  Island
arose from easterly winds blowing the infected atmosphere to the Island ;
I  frequently felt  the stench  myself from  vessels; it  had a  bilge-water
smell, and I am confident it came from vessels at anchor under the Qua-
rantine, as I smelt it while on the end of the dock in front of my house ;
the carpenters  at work in the ferry-house, at the end of the dock, said they
smelt it some days previous, and  they left their work and the island in
consequence; there were four deaths on this very dock from yellow fever;
of the nine houses in front of my own and nearest the shore, there were
seven in which there were cases of yellow fever, and  deaths  in six;  the
residents in the building called " Slamm's Buildings," which were pro-
tected from the wind from vessels by unoccupied buildings in front, escaped
sickness, although each house was occupied by several families; the wind
was generally northeasterly and easterly, say during a period of eight or
ten days. I  was in the habit almost daily, after being up with  persons  sick
of  yellow fever, of visiting the city of New York, and being there within
two hours after leaving the  bedside  of  the sick ; out of the twenty houses
nearest my own, twelve were deserted by the  families who had occupied

 '  During the prevalence of yellow fever, I was in  the habit of going  into
the Quarantine grounds without being questioned by  the gate-keeper or 
                                 -1-2

any one else;  the establishment, as it exists, does not answer the purposes
of a Quarantine ; any person residing in the village can go in or out of the
Quarantine ground when they please; I doubt whether the Quarantine es-
tablishment can be so controlled in its  present situation  as  to be effective
as a Quarantine station.     *     *     *   I should say decidedly that it
is a nuisance to the inhabitants of Staten Island, from the fact that the ves-
sels lying at the anchorage connected with the Quarantine had endangered
the health of the inhabitants, and from the fact of the constant intercourse
of the officers and employees of the institution with the inhabitants of  the
village; it  is a nuisance, in subjecting the inhabitants  to great inconve-
nience  in their intercourse with  New York, and so derogating from their
natural rights, and also from the disagreeable effluvia emanating from the
grounds of the establishment, <    *      *     *     *     I  consider it
affords New York  no protection  at all,  nor do I think it can be any pro-
tection, in that location, against contagious  and infectious diseases. * * *

  Isaac  Simonson, of the county of Richmond, farmer, being duly sworn,
doth depose and say : That he was the  lessee of the grounds now occupied
as a Quarantine establishment,  in said county, then forming  part of the
glebe lands of St. Andrew's Church, at  the  time  they were taken by the
State for Quarantine purposes in or about the year 1798 ; that as far as he
was then informed, the people of said  county were decidedly opposed to
the location of said  establishment in said county, and said all  they could
against it; that  they were not aware of  the intention to remove the said
Quarantine to said county, until  a  short period previous to the passage of
the law by the Legislature to locate said establishment in said county;  and
that said lands were taken by and under the  authority of  said  laws,  and
the value assessed by a jury in the city of New York, convened in pursu-
ance of said law;  that during the first year  said Quarantine was located iu
said county, twenty-three or twenty-five inhabitants of said county sickened
with yellow fever, himself among the number, and he was the only one of
them who survived ******


   Benjamin F. Dawson, being  duly sworn, doth depose  and say :  I
reside in Bleecker street, New York, in the winter, and at New Brighton,
Staten Island, in the summer time.  I have  resided at  New  Brighton
three summers, but  only one season  at my present residence near the
Quarantine.  My house is about five or six hundred feet northwest of the
north wall of the  Quarantine.  I  deem the present Quarantine establish-
ment decidedly a nuisance to myself and my neighbors, judging from my
own experiences and their complaints.  I consider  it so  from the abomin-
able smells from the burning ground, and from the lately erected buildings
being too near the wall, so near that we can look into the windows and observe
the patients on the piazzas.   The smell seems to proceed from the putrid
flesh.  I cannot describe this smell—it is  horrid.   My family have been
quite sick from the effects of the stench  on  several occasions, as they be-
lieve.  The stench was smelt every day in the hot  months, about the time
the burial trench was opened, and  caused great nausea and sickness at the
stomach.  When the wind was from that direction, the smell was stronger 
43
and we were obliged to keep our windows close! when the wind was from
that direction.  I have frequently noticed this smell when passing from my
house to the Tompkinsville ferry.  I have heard of others being made sick
by these smells.  The nuisance of the shanties was that patients were oc-
casionally on the piazza, and in sight;  you could always see the patients .
in then' beds ;  the chamber vessels were  continually in sight.  I think I
have heard the cries from patients in this hospital, and one case in particu-
lar, when the cries were so distressing that I closed my windows.    *

   Robert S. Buchanan, being duly sworn, doth depose and say :  I am
 agent for a life  insurance company.   I reside in New York in the winter,
 and for the last five summers at Staten Island ;  and summer before last I
 built a house a little  to the northwest of the Quarantine hospital, and  re-
 sided there the past season.   My  house is about three  hundred feet from
 the hospital wall.  I heard the affidavit of Mr.  Dawson read, and concur
 with Mr.  Dawson  in his testimony.  I  removed  there the past  season,
 about the eighth of  June, and almost every day the burials were offensive
 to my family, from the stench arising from the opening of the trench, and
 my family were often made sick by the stench arising therefrom. ^ The hos-
 pital nearest me was not built when I purchased there, nor was it thought
 of, so far as I know, nor were the ship fever shanties erected.
 The inmates of my house were made sick, I have no  doubt, by the pesti-
 lential effluvia arising from the  Quarantine  establishment,  supposed to  be
 from the  burial ground.     *     *     *   The smell was very disagree-
 able to those  who passed the wall in going to the Tompkinsville ferry.  My
 opinion is that the present location of the Quarantine establishment is not
 a suitable one, nor does it afford sufficient protection to the city  of ^New-
  York from the constant intercourse between Staten Island and New i ork.

    George Griswold, being  duly sworn, doth depose and say :   I am a
  merchant in the city of New York, and have been  engaged thirty-five
  years in foreign commerce—owning vessels.  I do not  think the present a
  suitable location for a Quarantine establishment.  So far as the interests ot
  New York are concerned, I deem it no protection to the city,  lhe inter-
  course is so  frequent, the  health of  the city is not protected.  I do not
  think  it possible for a  Quarantine, in that place, to protect the health of the
  city from infectious  diseases.   From all the information I  have been able
  to f?et  I  think  Sandy Hook is  the most suitable location.  So  tar as a
    u! antine can protect the city,  I think that location the best„.the United
  States   I do not think the intercourse between Staten Island and the city
  o New York can be stopped.   I do not think it possible to enfe^the
  Quarantine where it is at present located.  I have been down in the Staten
  Wan^-U and seen' the sick on board, and  seen ^ dead brought
  up in the same boat used to convey  passengers to and ^^^^
  two cases thev told me, had died of the smallpox.  It had that effect on 
44
was said to have had a permit from the Commissioners of Emigration.  He
was to go  to New Brighton, and from thence round to the hospital, and it
created a  great excitement among  the  passengers.  This was the three
o'clock boat, when it was crowded with passengers returning to their resi-
dences on  Staten Island.    *    *    *     *

  Joseph W. Chapman, being duly sworn, doth depose and say :  I am
a pilot, and have been engaged  as  a pilot eleven years next spring.   My
occupation previous  was coasting and  fishing.  I  have been familiar with
the bay and waters  of New York thirty years.  *   *  *   If it is neces-
sary !to have a  Quarantine, I do not think it ought to  be in its  present
location, as I deem it, with the great intercourse between it and New York,
but very little protection to the city           *

   Thomas B. Vermilyea, being duly sworn, doth depose and say :   My
profession was that of a sailor.  I sailed out of the port of New York thirty-
five years.  I have been for the last five years superintendent of the Sea-
man's Retreat.   Previous to that, I  was  nine years in the employ of the
United States, and passed seven years of that time within the walls of the
Quarantine.  I am somewhat familiar with the  waters of the bay of New
York.   *   *   *   *   I do not think the present location of Quarantine a
good one on account of the general intercourse between Staten Island and
New York.  I have known cases of ship  fever brought down to  the Sea-
man's Retreat from  tf ew York ; I think  they must have taken it from the
ship and  gone  to  New York, where it might  have been  disseminated
among the people, and then brought down to the Retreat.  I do not think
the present Quarantine affords much  protection to the city of New York,
from the too great facility of  intercourse.  The  citizens  of Staten Island
come in contact  every day with the  people belonging to the hospitals, and
also with passengers from the  ships quarantined, and then go to New
York, where their business generally is.

   George B. Rollins, being duly sworn, doth depose and say:   I am an
auctioneer in the city of New  York.   I have owned and navigated a yacht
several  years.  I have been  in  the habit of navigating New York bay,
and also between Massachusetts bay and Cape May, and am familiar with
the waters of the bay.   *   *  *  I do  not think the present situation a
suitable'one.   It might as well be located in the Park for all the protection
it affords  to the city, on account  of  the great intercourse existing between
Staten Island and New York.*    *     *    *     *

   Thomas W; Wilson, being duly sworn, doth depose and say: I am a
ship-master, and  have followed the sea for  twenty years.  I have sailed
out of the port of New York, and am well acquainted with the waters in
the vicinity of New York.  *  * * *   The farther you  get a Quarantine
from  the  city the better it is  for the purposes of  a Quarantine.  I do  not
think the  present Quarantine  answers the purposes of a Quarantine at all;
for this very morning (Dec. 4) the ferry-boat passed within thirty feet of a 
45
vessel reported as having the smallpox on board, and the wind was blow-
ing directly from the vessel to the ferry-boat.   I do not see how the regu-
lation of the  present Quarantine can prevent infectious  diseases from get-
ting to New York.  There is now lying at the Quarantine the packet-ship
New York, one of the Havre line, which is reported as having the cholera
on  board.  The captain and some of his crew came up on board the ferry-
boat by which I came to New  York this morning,  and  brought some of
his things on board.  *****


   Robert L. Taylor,  being duly  sworn,  doth  depose and say : I am of
the firm of Taylor & Merrill, of this city, shipping merchants   We have
been established as merchants for twelve years, and  I have been a ship-
master and merchant for the last thirty years.  ....   I should  judge,
from what I  see, that it is almost  impossible  to prevent communication
between the  people of New York and the people in  and around  the Qua-
rantine  establishment.  I deem an insulated place  a  more proper place
for a Quarantine than a thickly settled one. *    *

   Francis S. Jones, being duly sworn, doth depose and say: I reside in
Tompkinsville,  Staten Island,  and  am  a  hotel-keeper.   I keep Nautilus
Hall.   The principal part of my business is entertaining transient persons,
I take a few boarders.  I  have been  in business  there nine years.  The
Quarantine operates very injuriously  to my  business, particularly  for the
last two or three years.  1 judge so by my receipts. They have fallen off
 fifty per cent, the past summer.  Indeed, I had almost come to the con-
 clusion to  close up last August, when  I  was taken sick  with the  yellow
 fever, as  it  was  pronounced  by the  physicians who attended  me.  The
 physicians who called were Doctors Smith, Whiting, Van Dyke and Har-
 court.   Dr. Smith was my family physician.  My daughter was also sick
 with the same disease, but worse than myself.   At the time, I had four or
 five regular  boarders, who, upon my being taken sick, immediately  left,
 and did not  again return.  I entirely  secluded myself from  the Quaran-
 tine.  I did not at any time  enter  the Quarantine walls ;  but there  were
 other cases in my neighborhood.   I did not visit those persons who were
 sick while they were sick, although they  were tenants  of mine.   I con-
 sider the Quarantine a  nuisance, from the stench that proceeds from there.
 Indeed, so great is the stench  that  I often  have been obliged to leave the
 part of the piazza next the Quarantine, and go to another place.  This oc-
 curs only in  the summer, and  I consider  it to proceed from the  privies,
 This  nuisance  I have heard  mentioned  by  many persons.  Should  the
 Quarantine be removed, my opinion is that it would  benefit all persons
 who keep public houses and  boarding-houses.  We depend for our sup-
 port on transient persons from the city of New York, and also those who
 board there  during the summer season.   I have noticed the rag-pickers,
 frequently, in their scows, approach beds that  were thrown  overboard from
 vessels, before they came ashore rip them open, empty their contents, and
 put the ticks in their boats.   These beds are  thrown overboard from the
 ships before the vessels are fumigated.   They wash them out  and bring
 them up in the passenger boat to New York, and sell  them.  This morn- 
                                 4(1

ing (December 20) there was a cartload came up  on the same ferry-boat
that I was in to ISew York.   I know the ship New York very well.  She
did lay, during the time she was detained at  the Quarantine, about half a
mile from the shore and about abreast of the lower part of my yard—say
about abreast  of the centre  of Tompkinsville and south of the steamboat
landing.   She was  nigher the village  by nearly a quarter  of a grille, I
should judge, than the public stores.   In 1847, my business was  injured,
as well as in 1848.   The falling off in 1847 I attributed to the ship fever
being prevalent.   Some few  had the ship fever in the village in 1847, but
not so many as had the yellow fever the last  season.  The principal busi-
ness, many years ago, of boarding-houses was  for the  entertainment  of
passengers quarantined, but  this has  not been  the case lately.  I have
never known  the  rag-pickers to contract any disease from their rags.   I
suppose Mr. Exer, one of the first victims to the  yellow fever, took the
disease from rags purchased  from  these persons, but do not  know.  I  do
not know that any one contracted the disease from these rags on board the
ferry-boat, or elsewhere.   I  know some of the hands of the ferry-boat had
the yellow fever, and also the  toll-collector at the ferry, who died.  All
tavern-keepers and  boarding-housekeepers suffered  by  the  prevalence of
the yellow fever last season.   I was informed  that Mr. Blanchard lost one
hundred boarders in one day.  Mr. Denyse, who kept the Pavillion on the
hill, near Tompkinsville, was  obliged to close his house in consequence, and
did not re-open it again during the season.  *****

   James  Hart, being duly sworn, doth depose and say : I am superin-
tendent of the Seamen's Retreat.  My occupation is that  of a mariner   I
have been master of a vessel for thirty-six years.   I always  sailed out  of
the port of New York with the exception of about eighteen months.  *
From the manner in which the Quarantine has been conducted for the last
twenty-five years, I think it  has not been so  protective  to the city as it
ought to be, and has been growing less and  less  protective for ten jears
past.   I have several  times been  detained at the Quarantine while my
vessel was being purified  and my clothes washed, and while thus detained
have had my family there and' then came up to the city.  In thus speaking
of the Quarantine, I have no design of  reflecting on any officers of the es-
tablishment, for I have no doubt they acted according to  the law.  I think
from the locality of the place, and the constant  intercourse  between the
inhabitants of Staten Island and New York, which  I do  not think can  be
stopped, that the present  Quarantine affords little or no protection to the
city of New York.  The only effect in prohibiting  the intercourse between
any portion of Staten Island  and the city of New  York will be to drive the
inhabitants to  go by  way  of other places  on  the Island where the inter-
course  was not prohibited, and thus subject them to  more inconvenience
and expense. 
47
       The People,
            vs.
Pay Tompkins and John  ('.
 Thompson.
  On the 14th day of September, I8o!*.;, the Attorney-General, at
the request of the Governor, came to Staten Island, and co-operat-
ing with the District-Attorney of the county, instituted criminal
proceedings against the above  par tie-, before Hon. Henry B.
Metcalfe, County Judge, for  arson, in the destruction of the
Quarantine buildings on the nights of the 1st and 2d of Septem-
ber.   The complaint was made by Doctor Bissell, physician of
the Marine Hospital, and the parties were arrested on warrants.
A protracted and thorough examination  of the whole matter
was gone into, the people  being represented by  Hon.  Lyman
Teem uvi\, Attorney-General, Hon. P. W. Peckiiam, associate,
and   Alfred De Groot,  Esq.,  District-Attorney;  and the
prisoners  defended by Hon. Gilbert Dean and  William. IT.
Antiiox, Esq.  The officials of the county  rendered  the prose-
cution all the aid in their  power.  The investigation  was con-
tinued, with  occasional adjournments, until the 7th of October,
when the testimony was summed up and  the cause submitted.
After due deliberation, the following decision was  delivered :

             Opinion of Judge Metcalfe.

   On the nights of the first and second  September last, the
Quarantine buildings of the port of New York,  situate at Tomp-
kinsville, were consumed by fire, which human  agency inten-
tionally communicated.
   The prison era are charged with the act, and are  arraigned for
arson. Without actually confessing, but, certainly, without very
strenuously denying any agency, they allege, that the  Quaran-
tine, as it was, and had for a long time been conducted, was a
public nuisance, dangerous to the health, and,  in many cases,
fatal to the lives of the community  where it stood; and  that,
therefore, the acts complained of were done  in  obedience to
1
 I 
48
 a great public necessity, by which  the  actors are exonerated
 from all blame.
   The statute under which this examination is conducted, makes
 it the duty of the  magistrate, if he shall be  of opinion that a
 crime had been perpetrated, and that there is probable cause to
 believe the prisoners guilty of it, to commit them.
   On the testimony, there can be no difficulty in believing that
 theprisoners"wereprobably either principals or accessories; and
 the only question remaining is, whether those transactions con-
 stitute a crime.
  The arson is charged to have been  committed on  buildings.
 But it could not be arson in the first  degree, because, though
 some of them were inhabited dwelling-houses, and although
 they were burned in the night-time, yet the proof fails to show
 that there was in them at the time, any human being.  .Nor  do
 I see any reason for supposing the property to be that which is
 made the  subject of arson in the  second degree.   The  statute
 which seems to cover the present case,  is that which enacts
 " that every person who shall wilfully set fire to or burn in the
 night-time the house of another  not the subject of arson in the
 first or second degree ;  *  *  *  any public buildings belong-
 ing  to the people of this State, or to any  county, city, town or
 village,   *  *  *   shall, upon conviction, be adjudged guilty
 of arson in the third degree." (2 K. S. 667, § 4.)
  The  property in  question seems to have belonged to the Com-
 missioners of Emigration, but whether in  their own right, or in
 trust for the State or the city of New  York, is not quite  clear,
 nor is it material to  enquire, for the people have  extended the
 same protection over the property of individuals  and corpora-
 tions as over their own.   Nor is their any mention of hospitals
 as such.   They are  protected  only,  as  they fall within the
 general words of the statute, and it is  arson to burn them only
 when it would be arson to burn any other building  which the
same words embrace.
  And this is whenever the act is wilfully done.  I  have  al-
ways said it  was  done intentionally • but wilfulness implies
malice, and malice is inferred from the intention,  unless it  be
disproved. 
49
  Has this disproof been furnished ?  I think it has.
  The grounds of the Marine Hospital lie at Tompkinsville, and
are  bounded  on the west and south by public highways, the
opposite sides of which are closely occupied  by dwellings, and
that on  the south terminates at the  wharf used by the New
York  ferry, and is  often, particularly on  the  arrival and de-
parture of the boats, thickly crowded with passengers.  To the
north, and immediately adjacent to  the grounds, lies New
Brighton.   On  the  south of Tompkinsville  is Stapleton,  with
Clifton beyond. These four villages (or rather one large village,
with four names) are a long, narrow, thickly-peopled belt, ex-
tending  along the whole eastern shore of Staten Island, and
folding around the corners to the north and south, and contain-
ing, probably, not far from three or four thousand inhabitants,
but unincorporated.   Tompkinsville and New Brighton are  in
the town of Castleton.
  The Marine Hospital, and, of course, its  grounds and the
port—although  the  former lies wholly in the county of Rich-
mond, and the latter partly in that and partly in the county of
Kings—are subject, for quarantine purposes, to "The act relative
to public health in the city of New York" (S. L. 1850, 597-615),
and to the subsequent acts by which it may have been amend-
ed ; and all infractions of these laws are triable exclusively (so
the statute says) in the Courts of  General and Special Sessions
of that  city.   They  are. therefore, under the jurisdiction  of
the  health  officers of the port, the physician of the Marine
Hospital, and the Board of Health of the city.  The residue  of
this county—that is, so much of it as is not within these grounds,
and forms no part of the port—are under a totally different code:
" The  Act for the Preservation of the Public  Health," (S.  L.
J 850,  690-693,) which,  however, was  passed and  went into
operation on  the  same day as the act  relative to the public
health in the city  of New York.   It is unnecessary to add that
these statutes  are of equal validity, and confer on all who act
under them equal  authority.   The grounds of the Marine Hos-
pital front  on the upper bay, communicate by water with the
whole port and the city,  and by land with the town of  Castle-
ton and the villages which occupy its eastern margin.
  It is the evident intention of the health laws of the city—an
       4 
50
intention which has been carried into effect with considerable
fidelity—that on these grounds  should  be concentrated every-
thing, whether  living or dead, which  is taken  from infected
vessels, and neither destroyed nor fit to be conveyed into healthy
communities.  Here infected baggage is landed and opened to
the air ; here infected vessels discharge and frequently deposit
their infected cargoes—sometimes  as many as three being at
the same time and same wharf unloading; here  infected cloth-
ing is washed; here the passengers, and, T suppose, also the
crews of the infected vessels, serve out the  probation which is
to determine whether the seeds of disease  shall germinate in
sickness or death, or fail to  germinate ; here are gathered or
huddled all who have sickened of pestilential diseases, whether
in the city or on shipboard, to be cured or to die  ; here, finally,
all who perished on shipboard of the plague or  of diseases in
the nature of the plague, and not thrown over at sea, are brought
for burial.
   The extent of these accumulations on  these grounds is not
shown by direct proof; but in 1856 there were one hundred
and fifty vessels at one time in Quarantine for infectious diseases.
The aggregate is not stated.  From this may be formed some
idea, however inadequate, of the quantity of infected clothing,
of infected cargoes, the number of infected sailors and passen-
gers, of  the sick and the dead,  the  present  year, when, as Dr.
Thompson, the health officer of the port, testifies the influx of
yellow fever vessels was thirty-three per cent, greater.
   The number of persons whose services this  immense estab-
lishment rendered necessary, is also not directly shown ; but it
must have been large.  The health officer and  his family, the
boarding officer of the port and his family,  the deputy health
officer, the physicians having charge of the various  hospitals,
resided on the grounds, which  do not exceed  in extent some
twenty-five or twenty-eight acres.  Then, there were the per-
sons connected with the wash-house ; there were  nurses; there
were persons of unexplained  duties,  called orderlies.  Then,
there were the boatmen or bargemen, whose duty was to row
among the vessels at Quarantine, to bring off baggage, crews,
passengers, the sick and dead—to fumigate infected vessels—to
ugo into the worst parts of  the ships, the houses on  deck, the 
51
forecastles, and take out the pump-boxes."  Then, there were
the persons who gathered up the infected matter, too dangerous
to be thrown overboard, unfit to be taken even to the Quaran-
tine grounds—beds, bedding, old clothes, straw, rags, and what-
ever else infection could nestle in best.   This was accumulated
on the iron scow and burnt.  The quantity can be judged of
from the fact that the smoke was wafted from the distance of
several hundred yards  upon the  shores, drove people of the
neighborhood from their piazzas, and entered the houses.  Of
any of these several classes the numbers are not given ; but of
stevedores, Yan Buskirk (one of them)  says there were  130.
The business of these was to discharge infected cargoes.  In all.
I think it safe to say, there^ must have been, at least,  from 250
to 300 persons employed at Quarantine, in the  most infectious
 of all places and of all employments, spending their days  and
nights, whether on land or water, in barges  or  in  ships, in an
 atmosphere reeking with infection.
   That these persons were engaged in  occupations most dan-
 gerous, was their concern, and not that of the prisoners or of
 the public.  That their  duties were necessary, and that some
 of them sickened or died in the performance of them, is to be
 lamented.  But there were circumstances connected with their
 performance of those duties, in which  the prisoners  and the
 public had a  deep interest.  Their occupations were not only
 dangerous to themselves, but might  be to others also.  It  was
 asserted by several medical witnesses and questioned by none,
 that the  clothes of exposed persons may, though they escape
 themselves, communicate the disease to others.  It was, there-
 fore, of the highest public concern, that so many persons within
 the Quarantine grounds, whose garments might carry infection,
 should be  kept  there.  {The King v. Vantandillo, 4 M. & S.,
 73 )  All experience, as well as all the evidence, shows  that
 nothing is so fatal as articles from infected shipping.  These, of
 every species,  were heaped up in those grounds ; and it was of
 the highest  public concern that there they should remain.  Dr.
 Bissell accounts for some of the fatality outside of the walls by
 the sale there of the garments of  persons who had died of yel-
 low fever within.  Can the public have any  greater concern
 than that such fatality by such means should be prevented ? 
52
   They whose occupations, without extraordinary care, are dan-
 gerous to the community, owe that community extraordinary
 care.  Nothing short of it will excuse.  It  is obvious that  in
 an establishment like  the Marine Hospital nothing short  of
 absolute isolation  from the surrounding population can give
 any adequate security.  Nor was  there any practical impossi-
 bility.  All the infected matter and infected men  might enter
 those grounds without leaving the jurisdiction of  the  health
 laws of the city, which, as has been shown, extend for all quaran-
 tine purposes over the whole  port.  The  evidence  shows that
 there was in the employ of that establishment, not only barges
 and bargemen, but also a steamboat, sometime used for towing
 vessels, sometimes for carrying up passengers, and sometimes
 to take the health officers  on excursions of pleasure.  And the
 imports of the establishment, as well as its exports, were thus
 under its own control.  As the passengers and sailors had en-
 tered the  grounds by water, so they might depart by water5
 both in conveyances furnished for the purpose.  No doubt it
 would be more expensive  or inconvenient.   But no man will,
 in terms, assert a right to endanger human life to save expense
 or to prevent inconvenience.  So, too, in regard to the inmates.
 If their garments could carry infection—if any dishonest man
 among them might purloin and bear away any article, the touch
 of which might be death—then obviously public duty—private
 duty, the commonest  humanity, forbid that those persons should
 be allowed to go aboard.  No dbubt such restraints would make
 those employments  more  irksome, and render necessary  an
 advance of  wages or of salary.  But are wages to be weighed
 against a pestilence ?  Then in regard to  persons from  without.
 There will be found in  every village  those  whom interest or
 curiosity, or  mere foolhardiness, will lead into such places of
 exposure.   The admission of these to Quarantine grounds  must
 endanger not only their lives, but also those of many others, by
the infection that might be borne away.  For the admittance of
such, there is not even the miserable excuse of expense saved
or inconvenience avoided.  These principles  are so obvious as
to be almost truisms.
  The health laws of New York  contain the most abundant
enactments to sustain them.  Thus every person who shall elope 
53
from Quarantine,  or who shall enter the  Quarantine ground*,
without permission, or who shall neglect or refuse  to comply
with the directions  and  regulations wJrich any of the officers
of health may prescribe, are guilty of misdemeanors.   Thus the
mere direction  of the  officers of health  are laws,  and their
violation  crimes.   The written command of such officers to
" any citizen" to arrest any such offenders, is obligatory, and
disobedience to  that is  a  misdemeanor  also.  Every power
which the most unexpected exigency of duty may require is
thus conferred; and no person may pass the Quarantine grounds
outward or inward, without permission, and complete isolation
from the surrounding population would be  established.  And
it is an obvious principle that  powers conferred for the protec-
tion of the public health become duties.   (The People vs. The
Corporation of Albany, 11 Wend., 539.)
   But besides the general duties to  exercise  such powers for
the isolation of the Quarantine, there was on the very day on
which the  statute by which they were conferred was passed,
enacted another statute, under which it became the " duty " of
the Castleton Board of Health, " to regulate and prohibit or
prevent all communication or intercourse by and with all houses,
tenements and places, and the persons occupying the same, in
which there shall be any person exposed to any infectious or
contagious  disease, (S.  L. 1850, 693, § 3,  subdv. 4.)   Thus
within those walls one code, and on the outside of them another
code, were in operation—both in the most explicit terms, and by
the most necessary implications, imposing the duty of complete
isolation.   The omission of these  duties was a misdemeanor.
(The People vs. The Corporation of Albany, above cited.)  To
violate the regulations thus commanded to  be adopted by the
Castleton Board was made a crime,  also punishable by fine, not
exceeding  one  thousand dollars, or by imprisonment not  ex-
ceeding two years, or both. (S. L. 1850, p. 692, § 4.)
  The influx of yellow fever vessels had commenced as early as
in April last, and had continued, so far as the case shows, with-
out interruption.  Infected vessels were accumulating in the
port—infected persons  and  property at the Marine Hospital.
The casus contemplated by the act  certainly existed.  All the
physicians, orderlies, nurses, persons connected with the watch- 
54
house,  boarding officers of the revenue, bargemen and steve-
dores, had been  " exposed " to yellow fever, among the most,
if not the most, contagious of diseases.   All the  yellow fever
patients in the  "houses and tenements" had contracted the
malady, and all these were in the Hospital grounds.  The Cas-
tleton  Board of Health had,  therefore,  no  alternative  but  to
violate the statute or act under it.  They chose the latter, and
on the 13th of July last, at a full meeting composed of the Su-
pervisors and the four Justices of the town, adopted a series of
regulations of which the 5th and 6th, together  with the decla-
ratory clause, were as follows : "The Board  of Health of Cas-
tleton adopted the following rules for preserving  the health  of
the town:"  Sec. 5th.  No person shall pass  from  within the
Quarantine enclosure into  any other part of said town, nor upon
the said ferry-boats, nor shall any baggage, luggage, freight  or
other articles be brought from  within said enclosure to  any
other part of said town, or carried upon said  ferry-boats  within
said town.   Sec. 6th. Neither the  Health  Officer, Deputy, or
acting Deputy Health  Officer, Physician of the Marine Hospi-
tals, nor any person in their or either of their  employment
within the Quarantine  enclosure, or  in  visiting  infectious  or
quarantined vessels, nor  the United States  Boarding  Officer,
shall come into any part of said town, outside of said enclosure;
and no  person  going into such  enclosure shall be allowed  to
come out until the further action of this board; nor shall there
be any communication or  intercourse with such enclosure with-
out the written  permission of the Health Officer of  the  said
town, stating that in  his opinion it will not endanger the public
health so to do.  Nothing contained  in  any of the foregoing
rules  and regulations   shall be so construed  as to prevent
the Health Officer  of the Port, his deputies, or any  of the
State or Federal  officials  or  employees  of the Quarantine
from  having  free   and  uninterrupted  ingress  to or  egress
from  the Quarantine  enclosure over  the waters of  the Bay,
within the limits of the  town  of  Castleton."  Copies  were
served on  Dr. Thompson, the Health Officer of  the port, and
on Dr. Bissell, the Physician of the Marine Hospital. No objec-
tion to the legal validity of these regulations has been suggested,
nor have I been able to discover any.  No discretion was left
to any persons having knowledge of their existence but to at - 
55
stain from their infraction.  Yet Dr. Munday, the  Health Of-
ficer of Castleton, testified that no attention was paid to them.
Dr. Thompson swears : " I disregarded them."  It is difficult
to account for the absence of precaution to prevent the spread
of the  infection  by means  of the intercourse between  the in-
mates and the public around, except on the proverbial indiffer-
ence to human life, exhibited  by those whose own lives are in
constant danger.
   There is no evidence  showing that admittance was  ever in
one single instance, before the fire, refused to persons from with-
out.  There is, however, proof that verbal or  written • passes
were given  to  the  inmates to go out, but no  proof how fre-
quently, or  for what causes,  or under what precautions these
passes were granted or withheld, nor that  such  a pass was any
safeguard against infection.  It  is certain, however, that the
bargemen who visited and fumigated infected vessels, gathered
up and*burned, on the iron  scow, infected  materials,  and
brought away the sick and dead, had general passes to go when-
ever and wherever they pleased. In fact, although most of them
lived within the Hospital enclosure, their  dwellings were so
constructed that  they " had to pass " into and along the public
highway many rods to enter them.  And it  is  equally certain
that  as  to the  stevedores, whose  business  it  was to  unload
infected  cargoes, whether passes were granted to  them or re-
fused, it was all the same.   For one of them,  sworn for the pro-
secution, says: "We can steal a boat whenever we want it;
sometimes our boss stevedore leaves a boat unlocked  ; some-
times we would get a pass from Dr. Thompson, Dr. Waller, or
Dr. Walser ; sometimes we could not, and then we would get
out by a boat, if we wanted to go badly."  He got out once a
week, sometimes oftener, but never more than three  times a
 week, and then he generally went to his  family at Port Rich-
 mond,  a  village  three  or four miles distant.  All the persons
 living on the ground received visits from their friends except
 the patients, and returned their visits. David McLyman, super-
 intendent of the  iron scow, another  witness for  the prosecution,
 testified : "  Generally, I spent my evenings, when  I  wished,
 about the village or at home ; was at the  convention at the
 New  Brighton  Assembly  Rooms ;  about fifteen  or  twenty
 stevedores went with one."   Dr. Westervelt, a resident of the 
56
  neighborhood, and sworn  for the prisoners, says : " I have fre-
  quently seen them (the  employees) outside of the walls, in the
  street, or the ferry-boats, and in the streets."
    Dr. Thompson himself testifies : " That several of  the barge-
  men went to a convention at Richmond six or seven miles off,
  with his permission, in August, and when yellow fever was in
  the hospital. Sometime before that, he attended a large as-
  semblage at New Brighton, when there were about thirty steve-
  dores and  others—employees at Quarantine—some of whom
  went with his permission ; yellow fever being then  in the hos-
 pitals, and infected vessels being discharged in their turn at the
 dock."  He says: " It was a misdemeanor for parties putting
 themselves in Quarantine  to  go out.  So understood it at the
 time of the political meetings.  Letting the stevedores and others
 go there was in opposition  of the hwwn wishes of the Board of
 Health of Castleton."  The walls, he  says, were so  low,  that
 they were easily scaled, and even at the gates persons could get
 over who desired it.  There was no police to keep in  the steve-
 dores.  Other witnesses furnish further details, and all coming
 to the same result, that, practically, the intercourse between the
 inside and  the outside of the grounds was unrestrained.  This
 state of things, besides  tending to the spread of infection by
 means of clothing, facilitated a traffic in infected commodities,
 and accounts for the sale in the village of the effects of persons
 dying of yellow fever in the hospitals.
   But the Castleton Board of Health were none too quick in their
 precautions.  On the 15th of July, two days after the adoption of
 their regulations, Kramer, the deputy on the iron scow, who lived
 in the village, only a few rods from the hospital, sickened and died
 at his house where his wife died—then Mrs. Keil died—then  Mr.
 Henderson died;  thirteen others sickened and three of them
 died, all of yellow fever in  the same locality.   It is impossible,
 I think, to doubt that at  least this mortality is attributable to
 the intercourse with the hospital grounds.  For if Kramer had
 been strictly quarantined, as he should have been, this mortality
 would have  been avoided.   Meanwhile, the disease appeared
 in New Brighton, where occurred four cases and two deaths—
 a case or two elsewhere.  The season of the year was at hand
when the terrible malady is known to be most malignant.   Be-
sides, in 1848, there had been nearly two hundred cases along 
57
the eastern shore of the island ; in 1856, about forty cases, and
on the other side of the Narrows one hundred and eighty cases
in a population hardly exceeding five or six times that number,
proportionable to nearly a hundred thousand cases in the city
of New York.   And now it had broken forth again ; and with
the increased influx of yellow fever vessels, what was to prevent
an equal or a greater mortality ?  If this was not  a case of great
danger, it is, I think, difficult  to say what danger is great; for
it threatened  a whole community, no member  of which could
say that his life was safe.  If this was not a case of imminent
danger, I think it difficult  to say what danger is imminent, for
no member of that community could  say that he might not be
the next victim the next hour.  From the place  to which all
the malaria of our commerce had converged as to a focus, it was
in violation of duty and of law allowed to radiate again as from
a centre through gates, over walls, and stealthily in the dark-
ness  of night  along  the waters.   This is  the very idea of a
nuisance, and of all nuisances the most terrible—not because
contagious and infectious diseases were  there concentrated, but
because not only were no adequate  precautions taken to keep
them' there, but many of the likeliest means for their diffusion
were employed, and many more were not prevented. Had these
buildings been  private property, like the tenement houses in
 Albany,  (Yan Wormer vs. The  Mayor of Albany, 15 Wend.,
262 ; Meeker vs. Yan Rensselaer, 15 Wend., 397,)  there can be
no doubt I think,  it would  have been lawful not only, but
meritorious to destroy them as those were destroyed.  But this
 was public property, or property in the nature  of public.  In
the first place, if the act were not malicious, the statute of arson
 does not apply, whether the  property were public or private.
 In the next place, no law makes public property more sacred
 than private.   On the contrary, all the constitutional guarantees
 are thrown around private and  not  public property, not only
 because the individual being the weaker party is less  able to
 protect himself, but because the  loss of property to the indivi-
 dual may be irreparable, while to the State a similar loss would
 hardly be felt.  When, therefore, the courts adopt the principle
 that in obedience  to the maxim, that  the public  safety is the
 supreme  law-Salus populi  suprema  fee-private  buildings 
58
 may be torn down,  as  in  the  cholera  season  at  Albany, or
 blown  up,  as at  the  great  fire  in New York—they lay
 the foundation for an a fortiori argument that public buildings
 may be torn down  or blown up for the safety  of the public.
 Strange, indeed,  would be the doctrine that  the destruction of
 private property, when done under the  remorseless goad of a
 great public necessity, like staying a plague or a conflagration,
 would be notblameable but rather praiseworthy.  Yet the des-
 truction of public property under  the  same circumstances, be-
 comes a crime.  Indeed, the reasoning of the courts show that
 the principle which permits the destruction of private property
 would, a fortiori, permit the  destruction  of public property.
 Thus, in the case  of Russell vs.  The Mayor and  Corporation of
 New York, 2 Denio, 461, Porter, senator, says, " The preserva-
 tion of the life of a citizen is a matter of public interest, and the
 taking away of another's life, under some circumstances, and
 the  destruction of  private property, probably under  any cir-
 cumstances, would be justifiable when  the saving of life is  in
 question, in a case of absolute necessity.   The taking, in such
 case, may be said to be for  the public.   So the public have a
 great interest in arresting the devastation of a  fire or plague,
 or any other great calamity; and although the immediate suffer-
 ers are, in the first instance, a few individuals, yet the means to
 be employed for  arresting the evil are for the public use."  Is
 that the kind of reasoning which would carry the person who
 destroyed public property, under the same circumstances, to the
 gallows, rather than to applause for having done well ?  In the
 same case, Senator Sherman says, truly, " The best elementary
 writers lay down the principle, and adjudications upon adjudi-
 cations have for centnries sustained, sanctioned,  and upheld it,
 that in a case of actual necessity, to prevent the spreading of a
 fire^ the ravages  of a pestilence, or any other great public ca-
 lamity, the private  property of any individual may be lawfully
 destroyed for the relief, protection,  or safety of the many, with-
 out  subjecting the  actors to personal responsibility  for the
 damages which the owner may have  sustained."  Would any
man be likely to infer from such language,  that if the people
had been suing for  the destruction of their  property  for the 
59
protection or safety of the many, they  would have succeeded
better than Mr. Russell ?
  In the case of Stone vs. The Mayor of New York, 25 Wend.,
157, the same questions arose, and in the discussion, the same
principle of necessity is stated, though founded on  slightly dif-
ferent grounds.  Senator Yerplanck, (and it will increase the
interest, though it will not certainly detract from the authority
of his opinions, when it is remembered  that he is the venerable
President  of  the  Commissioners  of  Emigration, in whom
the  title of the  property now in question is  vested,)  says,
" There is also another  case where the rights  of individuals
may be justly sacrificed to the rights of others.   *
This may be  seen   in  cases  of  imminent peril, when the
right of self-defence, of the protection of life, or  of property,
 authorizes  the sacrifice of  other  and less  valuable  proper-
ty.   This is  a natural  right, arising from inevitable and
pressing necessity, when  of two  immediate evils, one  must
be chosen, and the less is generally inflicted in order to avoid
 the greater.   Under such circumstances, the general and natur
 ral laws of civilized nations, recognised and ratified by the ex-
press decisions of our common law, authorizes the destruction of
property by  any citizen, without his being subject  to any right
 of recovery  against him by the  owners.  The agent in such des-
 truction, whether in protection of his own rights or of those  of
 others  which may be accidently under his safeguard, acts from
 good motives and for a justifiable end  ; so that from him the
 sufferer has no rightful claim.  * *  *  Thus, those who,
 whether magistrates or private citizens, wafer  the pressure  of
 inevitable danger,  and to prevent a greater calamity, find them-
 selves  compelled  to  destroy the efects of others, are  not and
 ou-ht  not to be adjudged trespassers.   *  *  *  The necessity
 of the  case compels the  destruction of some property  to  save
 more ; those who commit this act of salutary and well-intention-
 ed violence are exempt from responsibility upon every ground
 of justice and of positive law."
   From such reasoning, can human ingenuity draw the doctrine,
 that he who, from the same good motive  and  justifiable end,
 does the same salutary and well-intentioned vwlence upon the
 property of the State, instead of that of individuals, is hdd to hv 
60
responsibility by every  principle of justice and  positive law?
But it is unnecessary to pursue the discussion further, although
the same doctrines as those just cited will be found in the other
fire cases in 17th, 18th and 20th of Wendell.   The doctrine of
guilt for destroying the property of the public,  when, if the
property were private, the act would be blameless, has no color
in the statute, in the common law, the constitution, or in sound
reason, but is refuted by them all.
   The emergency then authorized  the  destruction of the pro-
perty in question, even if it belonged to the State.   Was it done
in such a manner as will justify the inference of malice, although
done for good motives and for a justifiable end ?  The inmates
were all suffered to escape, except the patients, who were  un-
able to do so.   These were carried to a place of safety, treated
with care ; and although all recovered except one, who, as  Dr.
Bissell testified, would in his opinion have  died the  same day
without the burning, there is no complaint from them.  There
is no proof of any disguise used or violence threatened by any
of the assailants.   To  have employed the  same  means of de-
struction as was employed in Albany,  would  have been  not
only a waste of time,  but  would have exposed the  parties to
all the infection which it was their purpose  to avoid.   To have
employed gunpowder, as was done at the  great  fire in  New
York, would have occasioned more danger, and could in no re-
spect have been as effectual as fire in expelling at once and for-
ever the contagion.  As to its being in the  night-time, it  need
only be remarked that the law imposes no obligation of doing
such an act of" salutary and well-intentioned violence" in  the
day-time, when it is remembered that the Board of Health
of New York are its Mayor and Commonalty, who, even if they
disapproved of  the conduct and recklessness, which left no al-
ternative, might yet with all the force of a large armed police
have resisted the just consequence.
  For these reasons, I  am  of opinion that no  crime  has  been
committed; that the act, the necessity of which all must deplore
was yet a necessity not caused by any act or omission of those
upon whom it was imposed ;  and that this summary deed  of
self-protection justified by that necessity, and therefore by law, 
61
was resorted to only after every other proper resource was ex-
hausted.
  II.  There is also another ground of justification.  On the first
day of September,  the Board of Health of Castleton adjudged
the Quarantine buildings to be a  nuisance, and called on  the
people  of Castleton and the  county to abate that  nuisance
without delay.  The  power to render such a judgment is con-
tained in  the powers and duty of making " regulations in their
discretion concerning the suppression and removal of nuisances,
and such  other regulations as they shall think proper and neces-
sary for the public health." (S. L. 1850, 693, § 3.) This was in its
nature a judicial act; the Board had jurisdiction of the subject
matters by the terms of the statute, and their judgment was con-
clusive.  The acts  complained of were done in obedience to this
judgment.  On the common principle, therefore, that a person
acting  under a judgment of a tribunal having jurisdiction over
the subject matter will be protected, the prisoners must be held
not guilty. In Yan Wormer vs. The Mayor, &c, of Albany, 15
 Wend., 262, it was held in an action of trespass for carrying into
 effect a similar decree, founded on exactly the same language of
 the act that it could not be shown in opposition either that the al-
 leged nuisance did not exist, or that the owner of the property
 had no opportunity to be heard before the Board, but that the
judgment was conclusive  as against the collateral review, and
 was a protection to the defendants.  (See also 2 Denio, 476.)
   III. There is yet another ground on which the prisoners should
 be discharged.   On  the testimony, there is, I think, no doubt
 that  the  Quarantine  establishment situated where it was, must
 always be a nuisance of the most  aggravated character.
   That the establishment, including hospital, and  anchorage
 grounds, was dangerous to the public health—that it has caused
 in several years the most deplorable loss of life on the adjacent
 shores of Long and  Staten Islands, was not  disputed.   A few
 extracts  from the testimony of the medical witnesses will show
 that  it was beyound  dispute.  Thus Dr. Thompson, the present
 health officer, says : " I do not consider the Quarantine a proper
 quarantine, as at present constituted ; have always been in
 favor of  removal; objections are, that it  is  too near the two
 islands and the city; the great danger is with vessels and cargo ; 
62
so many vessels as laid there in 1856, and at present, cannot lie
there with safety to New York, and in particular to this  and
Long Island.    *     *     *     *     The grounds for the
Marine Hospital  are  none too large, but, with buildings pro-
perly arranged, might be large enough; the anchorage is quite
too small.     *     *     *     *     As Quarantine is now
constituted, the increase of commerce increases the danger; in
1856, received  a  greater influx  of yellow fever  patients and
vessels by 75per cent, than before.     *          *    In 1858,
the influx  of yellow fever vessels has  been  33|- per  cent, over
that of the year 1856.    *    *     *    *    I should anchor
the vessels outside of the Narrows ;  I should think it would be
well to have all go below—sick, vessels, and cargoes."
  Dr. Waller, the assistant physician  of the Marine Hospital,
after stating that in 1856 there were sixteen or eighteen cases
of yellow fever among the employees of the hospital, and some
twenty-seven cases outside, says:  " Were as many as 150 ves-
sels at that time anchored off the shore ; yellow fever was first
on Long Island that summer ; extended from Fort Hamilton to
Yellow Hook; was in every  house along- the shore ; some
cases in Brooklyn ; were some 180 cases and about 80 deaths ;
I visited almost every house and  patient;  Quarantine, situated
as it is and as the vessels are, if they are kept  here any length
of time, it is probable that  either Long Island or Staten Island
shore will suffer from yellow fever."
  In answer to a question put by the counsel for the prosecution,
he says : " The immediate grounds have not been sufficient for
purposes of Quarantine ;  the defect is want of large storehouses
for reception of goods from infected vessels, to prevent danger
to those who live in the  immediate  neighborhood  of store-
houses ; there is less danger to New York than to the inhabit-
ants of Long and Staten Islands■"   To another question from
the same quarter, he says : " I answer,  though reluctantly, that
the grounds are not sufficient to form a proper quarantine."
  Dr. Harris, who was the physician of the Marine Hospital in
1855 and 1856, says : " I consider that the Quarantine anchorage
ground is most favorably located for the ready diffusion  of the
infection of yellow fever  to the populous regions adjacent to the
waters of the port and vicinity of New York.   To accomplish 
63
a successful isolation of the Quarantine landings, hospitals, wash-
houses, offices, &c,  so  as  not to endanger the surrounding
villages  and country, would be very difficult, if not  impracti-
cable ; but principally is such an establisment objectionable in
a populous community like this, from  the fact that the yellow
fever, when once it infests a locality, however limited in extent,
is liable  to be reproduced and spread indefinitely."
  Dr. Anderson, who was  resident physician  of the Seaman's
Retreat in 1848, says : " Yellow fever prevailed that summer
to the extent of 180 cases.  It extended from north of Quaran-
tine walls to Yanderbilt's landing.  All classes of persons took
the yellow fever that year—male and female, old and young—
no class was exempt. In 1856 there were about 53 reported
 cases.  This year there were  about 30  cases before the  3d of
 September.  It is impossible for human sagacity so to isolate the
present Quarantine establishment as to make the  shores of Rich-
 mond, New  York, and Kings safe from infection?
   Dr. Westervelt, who was assistant health officer from 1823 to
 4828, and health officer from 1829 to 1836, says : " It is impos-
 sible, in my opinion, to isolate the Quarantine in its present
 location, so as to insure the safety of Richmond county, Kings
 county  and New York.  If isolation is the distance between
 the infected point and the population necessary to prevent in-
 fection, then the isolation cannot be accomplished."
    Dr. Mundy, the present health officer of the town of Castle-
 ton, after detailing the cases of yellow fever of the present year,
 says: "lam familiar with  the  Quarantine location.  In my
 opinion, it is impossible so to isolate  that Quarantine establish-
 ment as to  insure  the safety of Richmond, Kings and New
 York counties."
    Dr Harrison,  who was deputy health officer from lbll to
 1813 'and from 1815 to 1823, and health officer from that pe-
 riod to  1^29 says : " I think the present Quarantine establish-
 ment by no means affords the security  now that it once did to
 the  health  of Richmond and Kings counties  and iSew York
 The first reason is, that the population has  greatly increased
 since 1829.  Another reason is, that the communications with
  he  city are much more free and open now than at that time ;
  and another reason is, that the commerce of the port and ves- 
64
sels arriving from tropical latitudes have greatly increased, and
that the clanger of communicating the fever  to  the shores  of
Staten Island, as well as Long Island and New York, has greatly
increased."
  Dr. Harcourt, who  was at one  time deputy health officer,
and has held  many positions at Quarantine during the last thirty
years, says : The present Quarantine, as now located, cannot be
so isolated as to insure Richmond and Kings counties and New
York against pestilential diseases."
  The same opinion was  expressed by Dr. Lea, a physician  of
eighteen years' practice, and the health officer of Castleton in
1856.
  Dr. Horwitz, who was  temporary deputy health officer dur-
ing the yellow fever here  in 1856, and had visited other Qua-
rantines, says : " So far as the health of New Y'ork,  Kings and
Richmond counties was  concerned, the Quarantine establish-
ment was decidedly a farce  at that time, because  it was not
isolated enough."
  These are the only physicians examined on the subject, ex-
cept Dr. Bissel, the present physician of  the Marine Hospital,
whose  practical acquaintance with  yellow fever began about
one  year  ago.  He, however, says :  " The Quarantine, in my
opinion, is sufficiently isolated to render it safe for the county
of Richmond and city of  New York, as regards infectious and
contagious diseases, provided  the laws of Quarantine are en-
forced."  But as Dr. Bissel denies neither the yellow fever of
1S4>>, 1856, nor the  present year, they must be  attributable,
in his  opinion, to  some known or  unknown violations of the
law  of Quarantine, which human  ingenuity cannot prevent;
" Because,"' he adds, in concluding his first examination, " I do
think that if the  Quarantine  was located on  the Battery,  it
would be safe for  the city of New  York, if they would allow
me to make the regulations and to rigidly enforce them."
  Thus eleven physicians were examined on the question, whe-
ther  that establishment could  be so conducted as  to  be safe to
the people on the  adjoining shores of Staten Island  and  Long
Island ;  they  had all been  either connected with it or  lived in
the neighborhood, and had seen  there the nature and  operations
of yellow fever.   Ten of them, including two former and the 
65
present health officer of the port, were emphatic that it could
not be safe to those people, and one only thought it could if the
laws of Quarantine were strictly enforced.  This testimony was
strongly corroberated by the fact that it had always appeared
on the outside of the Quarantine walls whenever it existed  to
any extent within ; that in the years 1848 and 1856 there were
upwards  of  four hundred cases and about one hundred and
seventy-five  deaths; and that on the first of September, and
for some time previous, the infection was on the anchorage
ground and in  the hospitals in great quantities, and had broken
out with violence among the people, and that the danger to pub-
lic health was great and imminent;  and that this danger and all
the cases that had occurred were, and all  that might occur must
be, the certain and inevitable effect of the statute placing the
establishment in that locality.  Those statutes  did, therefore,
" deprive "  many men, and  threatened and  would inevitably
" deprive " many more men of their lives without due course of
law, and were wholly inoperative to take away from the people
of Castleton, and, among them, from the prisoners, the common
right to destroy property which endangers life in a pestilence.
   Nothing is more carefully guarded by our institutions  than
 the personal equality of all men in  the right of life, liberty and
property.  This  is the office of government;  and where it is
well discharged, its duties  are all done.  Outside of the domes-
tic relations, and after the  period of infancy, no one  man can
be compelled, without his consent, to serve another, or part with
 his property, or liberty, or life, for  his benefit.
   Not only are men thus equal  as to these rights towards  each
 other, but they are ail equal as between themselves and the
 o-over'nment. 'The State cannot take the  property of one class
 without compensation,  while it is held to compensate another.
 The property of no man can be taken without compensation—
 no man shall be deprived of his liberty-no man of life, un-
 less it be adjudged against him by  the courts on laws previous-
 ly made ;  in other words, by due process of law   Now, these
 rights of life, liberty and property,  though named as three, are
 income sense actually only one-the right of life.  To this the
others are simply incidental.  It is  only for five m*n  hat laws
are made, courts established, justice administered, and govern-
        5 
66
ment maintained ;  even a prosecution for libel on the dead can
be maintained only by averring and proving malice  to the liv-
ing.  The State itself is nothing but the live men that compose
it.  In truth, civil  society is nothing but the union of all for the
protection of the lives of  all and the subsiduary rights that be-
long to life.
  As, therefore, each man has for himself an equal right to life,
he has an equal claim on  the State for the protection of that
right. It is true that when the life of a man becomes dangerous,
the State may by due process of law cut him  off, as  one may
cut off a gangrened limb.  But every man who is not danger-
ous, every man who has violated no law which denounces death
as the penalty of its infraction, has not  only the right to live,
but a right to the help  of all to be let live.   The life of such a
man cannot  be taken to save the life of any other man, of any
two men, or of any number of other men.   It  cannot be taken
at all.  Not  only  has each  such man the right to live, but
since  the State  is a union of  the  whole  for the  benefit of
the whole, every  man has  an  interest and right in the  life
of  every  other  man  that  he  shall  continue  to live.   And
though  the  self-murderer  may escape human punishment,
yet those who assist him in  violation of  the rights  which
the State had in  him are guilty of  a  high felony.   (2 R.
S., 750,  § 7.)  And even on a  trial for a capital offence, the
prisoner cannot, by his own  voluntary act, in the most solemn
form, waive the right of the State that he shall not be deprived
of life without due  course  of law, which in  this case means,
among other things, a trial by twelve instead of a less number
of jurors.  (Cancemi v. The People, Court of Appeals, October,
1858.)   Thus, by the highest adjudication, it is established that
the constitutional inhibition against taking life without due pro-
cess of law is not only a bulwark for the individual against all
other men, against  the  Legislature and  against  the  State, but
also a bulwark of the State, not merely  against the Legislature
and all other men,  but  against the individual himself.
  Nor does  the Constitution, when it forbids  life to be  taken
without due process of laws, add " except incidentally."  For
that would make void  the prohibition, because life cannot be
destroyed except as the incident of some other act, to which 
67
death is an incident.  Hanging,  shooting, immersion in water,
or carbonic acid, are not death, but death is an incident to such
acts, separable or inseparable as they shall be conducted.  Death
is but incidental to the  stoppage of food, or drink, or air.   If
continued long enough, death ensues.  Death is incidental to a
thousand other things.  And the constitution prohibits none of
these things, but it prohibits the doing them in such a manner
that, according to  the known nature of each, death will ensue.
It prohibits the end, and every means to that end except one—
due process of law.  The prohibition covers everything else.
   Nor does the constitution say,  " except in cases of necessity,"
for who is to judge of  the  existence  or measure of the neces-
sity 1 If the Legislature, if individuals, if the State itself may
kill whenever it is thought necessary,  then killing is a matter of
mere discretion.   But, on the contrary, while that man who has
wilfully done an act which the  law has said the  man who did
should die, may, after indictment in the county, trial by twelve of
his peers, after being confronted  with the  witnesses against him,
defended by counsel, a verdict of guilty, and a sentence of the
Court, be killed in the way which the law shall  have previously
ordered, and in no other  way, every other man  has a right to
live.  Every other man bears that within him which all men,
the Legislature, even the State  itself,  is  bound to stand back
before and respect.  Nay, when life is in danger he has a right
to protection ; and if the State will not, or the danger be so im-
minent that  it cannot give it,  then he may protect himself by
whatever weapon he can.  In  such  an  emergency all words
bearing the form of laws  are  to him void, property may  be
destroyed, and even other life,  as dear to the  possessor and as
sacred to the State as his own,  may be shed..   (2 Kent. Com.,
13 16;  2 R. S., 660, § 3, sub. 2 ; Const., Art. 1.; Wynchamer
vs. The People, 3 Ker., 378 ;  Russell vs.  The Mayor, Arc,  of
New York, 2Denio, 461; Mayor, &c, vs. Lord, 17 Wend.,  2Su ;
The Same vs. Stone, 20  Wend.,  139; 25 Wend., 157, S. C.;
The People  vs. Corporation of  Albany,  11  Wend., f-3U ;  \ an
Wormer vs.  The Mayor of Albany, 15 Wend., 262; Meeker vs
Yan Rensselaer, id., 397; Brower vs. Mayor  of  ^sew lork, 3
Barb R., 254.)  Such, under the constitution, is every man m
the State, and among the  rest those who reside  along the shores 
68
of the  Narrows.  And this great and imminent danger was at
the time of these transactions over them.  The pestilence, which
under all the cases is a just occasion for destroying the property
that endangers  life, was  among them.  There  was no uncer-
tainty as to its origin.  It came from  the Quarantine establish-
ment, for the yellow fever infection was both in the vessels and
in the hospitals.  Some had died, some were sick.  In  the two
last years of its presence, as  has already been stated, over four
hundred of the inhabitants had sickened and nearly two hundred
had died of the same  disease,  communicated  from  the  same
source.
  Now, conceding the  whole action of the Castleton Board of
Health to have been void, and that all  necessary precautions
had been taken  by the  Quarantine authorities to isolate  the
disease, and that in spite of such precautions the disease had
broken out and was impending, the question still remains, were
the people of Castleton without all means of self-protection ? If
it be  said that they might abandon  their homes,  the  answer
is that so might  the people of Albany have abandoned  their
homes before destroying the tenement houses.  (15 Yfend., 397.)
  T^ut  as  that  was not  held necessary to them, neither can
it be deemed  necessary to  the  people of Castleton.  They
had the right  of self-protection—a right  under the constitu-
tion.  For when that  forbids the taking of life  without due
due process of law, it authorizes, by an irresistible implication,
the right to resist such taking, and  to carry the resistance to
any extent necessary to the end.  This right,  then, they might
use ; for what the constitution  protects, the Legislature cannot
destroy.  Now, all the  cases recognise  the right of those whose
lives are endangered by infectious diseases to destroy the  place
from which there was danger that  the infection might spread.
There was in fact no proof, and there could be none, that  cholera
had hsv.ed from the buildings  destroyed in the Albany case.
The proof was, that they were dangerous and might kill; and in
such cases it is unnecessary  to await until somebody has died
before acting.   The object of acting is to prevent the dying.
Now, the proof has shown that infection was  actually within,
and might at any moment issue, and  so far as such a thing can
be known had, in fact,  in at least one  terrible instance, issued
from the grounds. 
69
  At all events, the disease had always before, and had now,
issued from the grounds, or the vessels, and  nobody could say
that it had not issued from the grounds.  It certainly was from
one or the other, probably was from both.
  These hospitals were no more under the  protection  of law
than those buildings in Albany, or than any other, for the law
protects all  buildings  alike.  Neither the  hospitals nor the
buildings in Albany were destroyed because they contained
things illegal, for the uncleanness of the  one was as lawfully
there as the malaria in  the other, but because the contents
are dangerous to the surrounding people.  Both were destroyed,
not for what they contained, but for what they might suffer  to
escape; and  for that alone, both  in the exercise of the same
constitutional right  of self protection under equally impending
danger.
   The only possible difference in principle between the cases
in this respect is, that the infection is  accumulated on the an-
chorage and in  the hospital, not by permission of the common
law, but under the commands of some statute, and that but for
those commands it would  not be there ; the sickness and death
in that vicinity would not have occurred; life and health there
would not be endangered.  It is, therefore, on this hypothesis,
the statute, if there be any such statute,  which causes  it all;
and without the statute  nothing  of  the  kind would happen.
These deaths were not accidental, as men may be run over by
cars on a railroad,  or fall from shipboard in a  storm.  They
were inevitable :  they  could be prevented  by no safeguards.
The malaria poisons the air, and all who  breath it must be  in
danger ;  and although all may not die, no man can be  said to
be safe.  If the vessels were to discharge broadsides of grape
shot on the adjacent shores, life would not be more  certainly
taken than it is by their shiploads of  infected matter ; and the
statute which should command the one would not more certain-
ly, more  directly, or more inevitably take life,  than  the one
which commands the other.   In fact, not so much so ; for ram-
parts  might be a safeguard against  the  cannon, but no  ram-
parts  can be raised against a tainted atmosphere.  The life
 taken  in  either case would not  be take*. " by  due process of
 law " and in either case the statute would be  void.  At  all 
70
events, it cannot deprive those whose lives are  endangered of
the constitutional  right  of self-defence  by whatever weapon
might, in the emergency, come to hand.  If it  be said that in-
fected vessels must be somewhere, and may as well be  on the
present anchorage  ground as elsewhere, and the hospitals as
well be in their present location as anywhere, then, though the
necessity  were to  be  conceded,  it  does not follow that what
the Constitution forbids should be done, and what the Consti-
tution authorizes should  be omitted.  The State, by its powers
of eminent domain, cau take, on due compensation, land enough
to remove all  population beyond  the reach of infection.   This
is the only way.  For  the right of self-protection against dan-
ger impending over life,  can be taken away only by removing
all occasion for its  use—and for this  the power  of the State ia
limited only by its wealth, which  happily is, for the  purpose,
ample.  If need be, it may take all Staten Island, on  due com-
pensation, and remove all the inhabitants.  But, it cannot, by
taking a few acres  only and by condensing  there the plagues
of half a world, deprive the surrounding populations of pure
air and make it their duty to lie down and die without resist-
ance.
   But the nature of  the  statutes relative to Quarantine will be
better understood when it is considered that they are the  sta-
tutes relative " to public  health in the city of New York,"  and
it is to save the people of the county of New York that those
of the county  of  Richmond are exposed  to  die.  A statute
transferring to one the  property of another is void.  (Taylor vs.
Ford, 4 Hill, 140 j 1 Blk. Com., 139; Embury vs. Connor, 3 Com.,
511 ;  Powers vs. Bergen, 2 Seld., 358 ;  Westervelt vs. Gregg,
2 Ker., 202.)  " If," says  Bronson, J., in the first case,  " the Le-
gislature  can take the property of A and  transfer it to B, they
can take A himself, and either  shut  him up in  prison, or put
him to death;"  and because the  latter could not be done, the
former was denied.
  Undoubtedly the city of New York is entitled to all the pro-
tection in the matter that the State can give consistently with
the health of others ; she has no right to more.   Her great ad-
vantages  are attended by correspondent inconveniences;  her
great  public works by great expenditures;  her great foreign 
71
commerce by the infection it brings.  But  the Legislature can
no more apportion upon the surrounding communities her dan-
gers than her expenses ; no more compel them to do her dying
than to pay her taxes; neither can be done.
  Nothing  in  Harris vs. Thompson,  9 Barb.j  350, militates
against these views.  The subject of the constitutional inhibition
against taking life but by due process of law, does not  seem to
have been alluded to ;  and surely a case, whatever  it may de-
cide, can be no authority on a question not mentioned by coun-
sel or considered  by the Court.  It is undoubtedly true that
" nothing which  the law sanctions can be a nuisance."  But
where the Legislature authorizes or commands that  which  the
Constitution forbids,  its statutes are not law,  and sanction
 nothing.
   For all these reasons, I  think the prisoners should be dis-
 charged. 
72
  The following articles upon  the  subject of the burning of
the Quarantine buildings, written by W. Farley Gray, Esq.,
which appeared at the time in the Evening Post, cannot fail
to interest the members of the legal profession.
                 the  Legal  question.

   WAS NOT THE QUARANTINE  A NUISANCE, AND HAD NOT THE
                PEOPLE A RIGHT TO ABATE IT'(
        *
 To the Editors of the Evening Post:
   I have had occasion to look into the legal rights and  liabili-
 ties of the people of Richmond county, arising out of the late
 Quarantine invasion, and I am satisfied that the public entirely
 misapprehends both the legal and the moral issues involved by
 the summary destruction of the public buildings at Tompkins-
 ville.  Much as I deplore a resort to violence at any  time, and
 especially against the constituted authorities, I am forced to the
 conviction that the  public  press  and the municipal authorities
 of New York have  alike failed to appreciate  the strength of
 the legal authority under which the " incendiaries" acted when
 they marched  upon the  Quarantine establishment.
  A careful examination of the books of Common Law, and of
 the reported  decisions of our highest State tribunal, leave no
 doubt whatever as to the principle  that  any individual has a
 right, of his own volition, to abate a nuisance,  it being  always
 understood, however, as  Chief Justice Nelson says in  Wetmore
 agt. Tracy (14 Wendell,  p. 254), that he does it under the pen-
 alty of being considered a trespasser, if it should turn out that
 it was not a nuisance.   This principle has been affirmed again
 and again in various decisions by the highest courts known to
 the laws of our State, but in no one more remarkable than the
 the fifteenth volume of  Wendell's Reports, 397.  This was a
 celebrated case of  Meeker agt.  Yan Rensselaer, reported in
 case where the defendant caused five tenement  houses  in the
 city of Albany to  be pulled down, which were inhabited by a
large number of Irish emigrants during the prevalence of Asiatic 
73
cholera in 1832, and which, in consequence of their crowded
state and filthy condition, had become offensive and  dangerous
to the lives and safety of the neighborhood.  The owner of the
property brought an action to recover damages of the party
who caused the houses  to be torn down.'  The party thus sued
contended, in his defence, that the buildings had  become a
public nuisance ; that the Boai'd of  Health had declared them
to be such, and that he had a right to remove them. The Court,
in its decision, declared that no more offensive nuisance could
be imagined than the buildings constituted ; that the defendant
did not require the authority of a Board of Health to pull them
down, but that simply as a citizen of the ward in which they
were situated, desirous of preserving the public health, he was
fully justified in every act which he had committed.  This
principle,  or, in other  words,  this right of  a private citizen
to abate a public nuisance, thus broadly  and without qualifica-
tion laid down by the Supreme Court  of this State, is but the
confirmation of the old  common law doctrine  on this head, and
has been again and again affirmed before in the cases of Wet-
more agt. Tracy (14 Wendell, 250); Hart agt. The Mayor  of
Albany  (9 Wendell, 610); Yan Wormer agt. The Mayor of
Albany  (15 Wendell,  262);  The People agt.  Corporation  of
Albany (11 Wendell, 539); The People agt. Lamb (t John. Rep.,
783);  and since, in the cases of Renwick agt. Morris (3 Hill,
624,) and Tanner agt. The Trustees of the Yillage of Albion  (5
Hill, 121.)
   The principle thus rendered  unquestionable, it is  only neces-
sary, it would seem, as before  remarked, to establish the fact
that the Quarantine hospitals, as actually managed, had been
conducted in such a way as to  become dangerous to the lives
and property  of the inhabitants around them ; or, in other words,
to have become a nuisance within the acknowledged common
law definition of a public nuisance, recognised and incorporated
into the jurisprudence of this State, to constitute a complete and
perfect justification for their destruction on the night of the
first of September.  Next  comes up for consideration the re-
maning question, how far the resolution of the Board of Health
before alluded to, passed on the morning of the 1st of Septem-
 ber, declaring the hospitals  a nuisance, and  calling upon the 
74
people to abate them, constituted a justification of the act which
followed.  Startling as such a conclusion would be, in view of
the universal denunciation  of the proceedings,  as the  grossest
outrage upon law and public order, there would seem to be but
little room for doubt  upon the subject, if we are to recognise
the decisions of our State courts as authority upon the subject.
The Board of Health, not only of our large cities  but of our
small towns and country villages, has, it  would seem, (Rev.
Stat,  vol. 1, p. 581),  the most extraordinary powers  in the sup-
pression and removal of nuisances—powers altogether supreme
and plenary, from the exercise of which no appeal lies.  They
constitute, it would seem, a judicial tribunal, whose decisions,
within the scope of their jurisdiction, are absolutely final and
irrepealable.  It would appear that they have the right, in the
exercise of their powers, as conservators and guardians of the
public health, to declare a  thing to be  a public nuisance, and
to require it to be abated, and that no appeal can be taken from
their  decision.  And further,- they have the power  to  call the
whole civil  power  of  the county in  requisition  to enforce
their ordinances.   (1 vol. R. S. sec. 27, title YL, p.  444.)  The
most remarkable case, perhaps, in which powers thus  absolute
were  adjudged to belong to the Board of Health, is  the case of
Van Wormer agt. The Mayor,  Aldermen  and  Commonalty of
the City of Albany, 15 Wendell, 262.  This  was an action
brought by  the plaintiff against the  Corporation of Albany to
recover damages for the pulling down of a barn and sheds, ad-
judged by the Board of Health of that city to  be a nuisance,
and torn down by an agent of the Corporation  by virtue of  an
ordinance of the Common Council, passed in conformity with
the instructions of the Board of Health. The important ques-
tion, says Chief Justice Savage, in the judgment of the court, is
whether the Board of Health has power to authorize  the acts
of which the plaintiff complains.  " The  Board of Health,"
said he, " by the Revised Statutes (1 R. S., 440) is invested with
large powers for cleaning and purifying the city, and it is made
their duty to exercise certain  powers specified, and also such
other powers, whenever a contagious  disease shall appear, as in
their judgment the  circumstances of the  case  and  the public
health shall require."  By the act of  1832, p. 581-2, the Board 
75
of 1 lealth have  power, and it is made their duty, among other
things,  " to establish regulations, in their discretion, concerning
the suppression and removal of nuisances, and all such other re-
gulations as they shall think necessary and proper  for the pre-
servation of public health."  " When the acts complained of
were done, these several acts of  the Legislature  (the Judge
goes on to say) were all in force; and it must be conceded that
they confer upon the Board of Health very large discretionary
powers, among other things, concerning the suppression and re-
moval of nuisances."  "It  is  right," he  continues, "that such
power  shall exist  somewhere, to  be exercised upon a proper
emergency.   If the civil authorities were obliged to await the
slow progress of a public prosecution, the evil arising from the
nuisances would seldom be avoided.  It cannot be doubted, I
think, that the statute  gives  a  summary remedy to remove  or
abate nuisance.   The evidence offered to show that  there was
in fact no nuisance was properly rejected.  That point had been
adjudicated by the  proper  tribunal (the Board of Health,) and
was not in issue at  the  Circuit."  From  this decision it would
seem that the decision of a Board of Health upon a matter of a
public nuisance is conclusive, and cannot in any way be appeal-
ed from, controverted, or contested.  It is absolutely final, and
for its execution the whole civil force of the country can be called
into requisition.   (Yol.  1, R. S., p. 445, sec.  27, title 6.)   The
existence of such a tribunal, quasi judicial (vide language of the
Court in the case of Meeker against Yan Rensselaer, 15 Wen.,
399, before quoted) invested with its responsible, supreme, dis-
cretionary authority in all matterspertainingtothe public health,
would seem to be an anomaly in the  otherwise carefully check-
ed and balanced powers of our State.  But whether it be  so  or
not, there it is; and a very striking and momentous question now
presents itself, whether, with such powers possessed by the Board
of Health of Castleton, in common with the other  towns and
villages of the state, (vid. sec. 27, title 6, R. S.,) their resolution
passed on the 1st day of  September, declaring the hospitals at
Quarantine a public nuisance, and calling upon the citizens of
the county to suppress it, does not render the proceedings of the
parties who burned the hospitals altogether legal and regular,
and furnish, consequently, a complete legal justification of the 
76
act.   The expression of the writer's opinion ,either  way would
be entitled to, and very justly receive, but little weight.  He is,
therefore, quite content to leave  every person  uninfluenced, to
form his own opinion from the facts and the law.
  To revert once more, in conclusion, to the main  point upon
which, in the event of the resolution of the Board of Health not
being deemed sufficient authority for the act,  the whole ques-
tion will turn, viz.: whether the hospitals at the time of their
destruction  constituted a public  nuisance, dangerous and de-
structive of the lives and safety of the neighboring inhabitants.
The writer is not desirous of entering at all into the discussion
of the facts connected with this  part of the controversy,  only
remarking,.before passing to the  consideration  of the principles
of law applicable to the subject,  that it seems to be conceded
that constant communication took place between persons out-
side of Quarantine and others residing in the village,  and  that
the case  of Kramer  and others  originated in consequence of
infected clothing, bedding and other articles of furniture being
permitted to be brought  ashore and held by persons outside of
the walls.  A public nuisance is defined  by Blackstone and
Hawkins " to be any offence against the public, either  by doing
a thing which tends to the annoyance of the king's subjects, or
by neglecting to do a thing which the common good requires."
(1 Haw.,  360 ; 4 B. C,  166.) Another  author  (Jacobs' Law
Die.) remarks that a nuisance is  an annoyance ;  anything that
worketh hurt, inconvenience or damage.   It is a common  nui-
sance,  indictable at common  law, to divide a house in a town
for poor people to inhabit in, by reason whereof it will be more
dangerous in the time of sickness and infection of the plague.
(Rolles' Abr., 139.)  So manufactures,  lawful in  themselves,
may become nuisances if erected in parts of towns where they
cannot but greatly  incommode   the  inhabitants and destroy
their health.  In the case of  The People agt.  The Corporation
of Albany (11 Wendell,  539), the Supreme Court of this State
decided that a  corporation  could be indicted for  neglecting
to excavate,  deepen and cleanse a basin in the  North  River,
at the termination of the Erie Canal, which had become foul,
filled and choked up with mud, rubbish and dead  carcasses of
animals, whereby the water became offensive and noxious, and 
77
infected the  air,  to the damage  and nuisance of the citizens
residing in the vicinity.  Keeping gunpowder in such  a way
as to be dangerous to the  inhabitants or passengers, has been
decided by the Supreme Court of this State as a nuisance, and
indictable as  such.  (The People  agt. Sands, 1 John. JR.)
  Thus broad and comprehensive is the language of the com-
mon law and our courts upon the subject of public nuisances;
and, however much we way doubt the wisdom of carrying the
doctrine so far, fraught as it is in its application with extreme
danger of abuse,  and consequent violation  of the rights of the
citizen, still, until repealed, it must be the standard by which
we are to shape our own actions, and decide upon and deter-
mine the character of those of others.
       *******
                                                    Lex.
   New York, September 16, 1858.
            THE QUARANTINE  CONTROVERSY.

        WAS THE HOSPITAL NUISANCE REALLY ABATED?

To the Editors of the Evening Post:
  In the communication which I addressed to you  some time
since, upon the subject of the principles of law involved in the
destruction of the Quarantine Hospitals at Staten Island, I en-
deavored  to show that the judgment of a Board of Health in
this State, upon the subject of a public nuisance, was final and
conclusive; not liable in  any way to be reviewed, contested or
resisted, and that it constituted a complete legal justification for
all who acted under its authority, or by virtue of its instruc-
tions.  No attempt has been made, that I am aware of, to con-
trovert this doctrine,  but it is insisted that it has no application
to nuisances  created or maintained under the  authority of the
State, or, in other words, that State hospitals cannot be abated
by any action on the part of a local Board of Health or of the
people themselves, although through  the bad management of
commissioners, to whom their entire control has been entrusted,
they should become  public  nuisances,  destructive  of private 
78
property and public  safety, and therefore subversive of the
very purpose for which they were instituted ;  that the respect
due to the sovereign power of the legislature, and the immunity
enjoyed by its acts, require  that they should remain inviolate
and unrestrained  in  their work  of evil, although  continually
violating the law of their creation, and outraging the two prin-
ciples  for which all government is instituted-—the protection of
life and property, until it shall please the power to which they
owe their origin, to pass a law for their removal elsewhere.  It
is not, perhaps, necessary to discuss the propriety of such a prin-
ciple of law in relation to the public hospitals at Staten Island,
inasmuch  as  in the  original  act  creating  them   and  estab-
lishing the Quarantine, and in  many of the  subsequent acts
upon the same subject, there  is found  a provision " that nothing
contained in  the respective acts shall be  construed to interfere
with the remedies against nuisances  provided by the common
law."  (See Session Laws of 1799, and 1st vol. Revised Statutes,
chap. XIY.,  title Y., sec. 6.)  The express waiver of any sup-
posed exemption of the hospitals from responsibility to the com-
mon law principles of nuisances, by  virtue of their public cha-
racter, is, of course, conclusive as to the matter; but if it were not,
it would not be difficult, we think, to  show that  there is no such
principle of law  as  the one contended for.   If  there is, so en-
tirely rejmgnant is it to every principle of right and justice, so
opposed to all our notions of a just constitutional government,
so entirely at war with  the whole genius,  spirit and theory of
our institutions,  that  it can  never be admitted unless impera-
tively required by some express declaration of the Constitution,
or unless it results as the necessary consequence  of some power
involved  in and essential to the exercise of that portion of the
sovereign power of the state delegated to the Legislature by the
people.
  It is hardly necessary to say that there is no provision of the
Constitution upon  the subject.  Is such  immunity',  then, the
necessary result  of the exercise of any attribute  of sovereignty,
or of any power given to  the Legislature by the Constitution ?
We think not.   No one will contend that the power to estab-
lish hospitals  for the preservation of the public health, brings
with it necessarily the power  to protect such hospitals,  although 
79
by bad management, or otherwise, they become destructive of
the very purpose for which they  were established, and have
become  nuisances,  radiating disease  and death among those
whom they were designed to protect from such calamities. The
State, on this subject, has no greater power than the individual.
They both have the right, under the law, to construct hospitals
for the reception of the sick, but they are bound through regard
to  the " public safety, which is   the  paramount  law of the
land,"* one quite as much as the other, to manage them in such
a way as that they shall answer the end  for which they are in-
stituted, and not become  public nuisances, destructive of the
lives and property of the citizens.   As long as they are so man-
aged they are entitled to and will receive the protection of the
law ; but when, through'bad management, corrupt practices, or
any other  cause whatever, they become violators of the law, by
becoming that which the law abhors, and which is incompatible
with public safety, viz., a public nuisance, they put themselves
without the pale of law,  and consequently its protection,  and
become liable, like all other nuisances, to its penalties.   The
truth is, the obligation which the law imposes  upon all propri-
etors of real estate, "so to use their property as  not to injure
that of others," applies with the same force to State authorities,
 when they become the owners of  such real estate,  as they do to
 individuals and corporations.  It was declared by the Supreme
 Court, in the case of Brewer agt.  The Mayor of New York,f
 that a corporation, although deriving its power from an act of
 the Legislature, and irresponsible  as a law-giver, cannot legally
 erect or maintain a nuisance any more than a private citizen.
   This is  a  very important  case  ; and  the  reasoning  of the
 Court, if  not the  decision,  would seem  to  cover  the whole
 ground  involved in the discussion of the question we  are  now
 considering.  It was a case where the  Commissioners of Emi-
 gration, by virtue of an act of the Legislature, passed on the
 7th April, 1848, had leased, or  were  about to lease, from the
 corporation of New York, certain docks, at  a place called the
* C. J. Hand, page
f 3 Hill Rep., 256, 
                            80

North Battery, on the North river,  for the purpose of making
an emigrant depot.  The  citizens in the neighborhood, appre-
hensive that the occupation of the  land  for such  a  purpose
would lead to the introduction of disease among the inhabitants
of the neighborhood, and  the abandonment and depreciation of
property, applied to the Court to restrain the corporation from
leasing, and the Commissioners from occupying, the  ground for
any such purpose.   An injunction was issued accordingly, and
afterwards sustained upon the various grounds  that a corpora-
tion, although created by legislative  authority, enjoys no privi-
leges in the ownership of real estate which the private citizen
does not ; and although irresponsible when it declares a duty,
prohibits an act, or enforces an obligation,  because acting in a
governmental capacity, it enjoys no peculiar privilege as an
owner of real estate, and  therefore cannot erect or maintain a
nuisance upon it;  and that the Commissioners  of Emigration,
although authorized by the Legislature  in  their  discretion  to
select any dock or  docks in New York which  they  may think
suitable for emigrant purposes, cannot rocate it where it will he
a nuisance.  That  in respect to the possession of docks and the
landing ,of emigrant passengers, they were  exercising a purely
private function ; that the keeping of accommodation for  emi-
grant  passengers,  although a public matter,  was no more a
governmental act than their transportation across the Atlantic;
and that if the hand of government is to be seen  in the occupa-
tion and employment of a dock by  Commissioners of Emigra-
tion for such a purpose, it is that  of a government engaged in
the  ordinary transactions  of the citizen, owning land and de-
voting it to the common purpose of business, and its agents are
to be held responsible according to the grade of the function
which they execute, rather than irresponsible on account of the
supremacy of their principle. In accordance with the principles
here laid down, is  the  language  of the Supreme Court of the
United States in Planters' Bank of Georgia, 9 Wheaton's Rep.,
904.
  " If a State embark in the business of a trading company, it
divests itself, so far as  concerns the transactions of that com-
pany, of its  sovereign  character  and takes that of a private
citizen."  The just and necessary inference from this case is, 
81
when the State is engaged in the exercise of a purely govern-
mental function, as when it is  either declaring  the law in a
legislative capacity or in a ministerial one, executing it through
the executive, it is wholly irresponsible ; but when through its
agents, whether Coirimissioners  of Emigration or not, it is  oc-
cupying lands and buildings either for  accommodation of emi-
grant passengers  or  quarantine passengers, it is exercising a
purely private function, and is bound so to use them as not to
injure the rights of others.
   This is unquestionably  the true distinction.  There is a limit
to the power  of State Legislatures,  as  there is to the  power of
our National  Legislature, founded both in natural  equity and
natural  justice, as in the constitutions out of which they re-
spectively sprung into existence.  Even in Great Britain, where
the legislative power is supreme, the doctrine has been boldly
held  for years, that a law  opposed to natural equity is void.
(Day &  Savage, Hob. 8, Bonham's case, 8 Cow., 234, 1 vol. 41,
note 3.   Meoler, Bishop of Winchester, Hob. 224.)  This is but
a recognition by human tribunals of that sublime truth that the
law of God is paramount to  all human law, for the law of na-
tural equity and natural  justice is the law of God.  If this ab-
stract principle can operate as a practical check upon the other-
wise omnipotent  power  of the  British Parliament, how much
more potently must it control the action of our legislative bodies.
In Great Britain they have no written constitution, creating and
controlling the power of  Parliament, and, consequently, the law
of Parliament becomes the suprema lex, or the supreme law of
the kingdom, as it is itself the supreme power.
   Hence the acknowledged power of Parliament to declare
what does not constitute a  nuisance.  (1  Bla., 162.)  The case
is entirely different with  the Municipal Legislatures of the dif-
ferent States, as well as the great National  Legislature of the
United States.  In New York,  as elsewhere, we have a written
and exact constitution,  whose creation the Legislature is, deriv-
ing all its power from it, getting none  from any other source,
and possessing none which it does not  clearly, or by necessary
implication, delegate.   It  is emphatically  a corporate body,
with well-defined  and limited authority, and all the power which
goes to constitute  sovereignty, if not expressly given  to the
       6 
82
Legislature by the Constitution, remains with  the  people, with
whom here rests the jurat summi imperii.
  These principles are expressly declared by the Supreme Court
in the case of Harris agt. Thompson, reported  in 9 Barbour Re-
ports.  If they are admitted, it follows necessarily that no power
can be exercised by the Legislature which is not  clearly given,
or necessarily implied in  some other power that is clearly given.
In many instances the legislative  power is expressly controlled
by certain provisions of the Constitution, providing among other
things, that no person shall be  deprived of  life, liberty or pro-
perty without due process of law, and that private property shall
not be taken for public purposes without compensation.  These
various limitations and principles, it will be readily perceived,
are manifestly wholly irreconcileable with the existence of the
alleged right on the part of the  Legislature legally to erect or
maintain a nuisance destructive  of life and  property.  First,
because the exercise of such a power would  be  subversive of
the end and object of all government, which in the impressive
language of the Supreme Court of the United States, in the
case  of The  Charles River Bridge  agt. The Warren  Bridge, 11
Peter Rep.,  " is to promote the prosperity and happiness of the
people by whom it is established."  Secondly,  because it would
be opposed to natural equity and justice ;  and, thirdly, because
the exercise of such a power is not necessary to accomplish any
proper end or object of government.   Such a power, it is con-
fidently asserted, has never been claimed for the government in
any decision of the courts of this State.  Even the Court in the
case  of Harris agt. Thompson, before alluded  to, and so much
relied  upon  for this  principle, although  disposed to carry the
doctrine of State rights as far as its most ardent advocates and
admirers could desire, shrunk from the enunciation of any such
monstrous principle as this.  " As an  abstract question," says
Justice Hand in this case, " it would be painful to suppose that
the State, except in cases of immediate and painful necessity,
could lawfully erect and maintain nuisances known to be de-
structive of  the health and lives of its  citizens."
  Notwithstanding this  express disclaimer  on the part of the
Court of any intention to decide that the Legislature bad any
such power, and its explicit statement that  the decision of the 
83
Court below did not involve this principle, and therefore could
be affirmed without affirming such a one, yet this case is relied
upon and  quoted as establishing  the  doctrine.   If upon this
point we can take the evidence of  the Court's own language, it
is clear that it  did  not decide the point at all, and if so, then
the question is still open, as far as this decision goes, to  be dis-
posed of upon the principles of law applicable to it.  We can-
not help remarking, however, before passing from the consider-
ation of this case, that the conclusions of the  Court, such as
they are, in some parts of its opinion, are inconsistent with its
reasonings and admissions in other places, and cannot be main-
tained except upon the denial of two principles, one of  which
it does not even controvert, and that is, that a law opposed to
natural equity is void;  and the other of which it expressly  ad-
mits and declares, and that is,  " that the Constitution has fixed
limits to the exercise of legislative  authority.  But within these
limits, unless, perhaps,  when it violates  natural equity, legisla-
tion is without control.*
  These reservations we respectfully but firmly suggest, are
wholly  irreconcileable with  the  conclusion reached by the
Court in its  opinion, and are therefore inconsistent with its
judgment,  even as circumscribed by its own language.
  The Court in this case  assumes, if it does not expressly de-
clare, that our Legislature possesses the same absolute and  su-
preme power  to declare what  shall and what shall not be a
nuisance, which belongs confessedly to  the British parliament,
and which is a power clearly regal  and belonging to the British
parliament by virtue of its peculiar power and jurisdiction,
which, says Sir Edward Coke,  is so  transcendent and absolute
that it cannot be confined either for causes or persons  within
any bound,* and yet in the next paragraph the Court, as  before
remarked,  says that the power of the Legislature is limited by
the Constitution.
  It is  difficult  to appreciate the force of the reasoning and
concl usions of the Court in this case.  It is unquestionable, says
the Judge,  that the dam could  not become a nuisance as long
* Coke's Institute, p. 36. 
84
as it was maintained by public authority ; and in another place
he remarks, that it is a legal solecism to " suppose that that is a
public nuisance which is held by public authority."   If by this
the Court mean to state as a fact, that a dam, or a hospital,  or
a building for keeping gunpowder, owned by the State, cannot
become a nuisance, we-of  course know, as  in the case of the
Hospital on Staten Island, that it is not true.  But if it  means
that they cannot  become  so, in such a way as  technically  to
warrant the finding of an indictment in the  name of the people
against them, we may very safely admit it without acknowledg-
ing that it is not in fact a nuisance, and without taking  away
the right of the people to abate it.  But if he  means that being
by public authority, there  is no remedy except an appeal to the
Legislature, either in our laws or constitution, then we must be
prepared to admit that our legislature  has supreme power like
that of the parliament of Great Britain, and  that the life and
property and vested rights and privileges of  the citizen are com-
pletely at its mercy. If Courts cannot indict or enjoin,  if in-
dividuals cannot sue, if Boards of Health cannot reach and pro-
secute, and individuals cannot abate, because  upheld by public
authority, what remedy is  there 1   Does it  not follow that the
power must be wholly irresponsible, without limit or qualifica-
tion,  either by constitution or otherwise, where  acts are thus
beyond the reach of law or redress in any possible shape.  And
yet, the Judge,  as before remarked, in another part of his opi-
nion, tells us that this is siot so,  that the Constitution has fixed
limits to the power of the legislature ;  that  even  the State and
General Government together do not possess  all the  power
which goes to constitute power ; that there are various dormant
rights  and powers which  remain with the  people, with  whom
here rest the jurat summi  imperii, or, in other words, the su-
preme sovereignty ?  Why, where it may be  asked, would the
doctrine lead us to if it were sound ?  Suppose the legislature,
as in an act passed in 1848 or 1849, should  authorize  the Com-
missioners of Emigration to establish a smallpox or yellow
fever hospital at the junction  of Broadway and  Chambers
street, or suppose it should pass an act giving certain persons
the right of warehousing gunpowder anywhere  in New York,
in buildings which were not fire-proof, and  the  same corrupt 
85
influences which induced the legislature to pass such acts should
be sufficient to prevent their repeal, will any one contend  that
there is no remedy by injunction  to prevent their  erection, or
by abatement to destroy them after they were up.  Yet such
would be the legitimate and necessary result of the reasonings
and principles of  the  Court in same  parts of its opinion in
Harris agt. Thompson.
  In the only other case that I can find  in which this doctrine
lias been directly considered, that of The People agt.  Corpora-
tion of Albany, 11 Wendell, a contrary doctrine is very clearly
intimated; but as we shall have occasion in another connection
to allude more fully to this case, we will not dwell further upon
it at present.   Enough has  been said, we think, to justify the
 conclusion that the legislature  has  not, and cannot have, in a
 form of government like ours, the power lawfully  to erect and
 maintain  a public nuisance, destructive of public health and
 private property.  This admitted, the next question that  pre-
 sents itself is, What is the remedy where such a nuisance exists
 under public authority ?
   In the consideration of this branch of  the case, we will begin
 by remarking that the acts of our Legislature within  the scope
 of their power are, of course,  supreme  and binding upon the
 citizen ; but  that  out of  these limits  they have no obligatory
 force whatever, and are entitled to no greater respect than the
 unauthorized acts of any other corporate body, and can be, and
 are, every clay,  disregarded with impunity.  This is  the only
 means frequently  left the citizen to test  the constitutionality of
 a law of the Legislature ; for, having no  power to  sue the State,
 the matter can in  no way  get before the courts unless He violates
 the law, and the State appears as the prosecutor for its mfrac
 tion.  This is just the position in which no doubt the people of
 Staten  Hand found themselves in relation to the public hospi-
 tals at  Quarantine,   lliey could not  sue the State for the dam-
  vres which had resulted  for years from iheir existence among
  them  nor could thev indict the State for keeping up a nuisance,
  .K-cordino- to the doctrine in  Harris agt. Thompson, it  being,
  said the  Court in that case, "an absurdity for a  prosecution to
  be [instituted by the people for doing what the people has  en-
  acted "  The remedy of petition, tg which it is said they  should 
86
 have had recourse, had been exhausted, with no practical result,
 after years of patient acquiescence in all the evils of the nui-
 sance, than the passage of two legislative acts for their removal,
 to be defeated and rendered nugatory by  a combination among
 parties interested in their preservation.   What,  then, remained
 save the painful alternative of exercising the great right of self-
 preservation, and abating the  nuisance  in the  only  way  that
 law and immemorial usage have sanctioned, or a continued  sub-
 mission for an  indefinite  length  of time—perhaps forever—to
 the disastrous results realized every year by its continuation in
-the destruction of life  and property.  Now that time has been
 had for deliberation, will any contend that there is anything in
 the respect due the supreme power of the State, in the  obliga-
 tions of the citizens to their government, in the  principles of
 law,  or in national justice or  equity, which  made the latter
 course  obligatory upon the inhabitants   of Staten Island? It
 was, in fact and truth, the only means left to relieve themselves
 of the intolerable oppression ;  and to say that  they  were  not
 legally justified, is, in view of the facts, to say what no lawyer
 or even citizen will be willing to admit  that there can exist a
 wrong, and a most grievous wrong, striking at the dearest rights
 and the most cherished principles of the citizen for which there
 is no remedy under our laws or constitution.  The remedy, it
 will be readily admitted, is an extreme one ; but apart from the
 circumstances attending its exercise in the present case, and the
 magnitude and value of the property destroyed, and the fact of
 their being hospitals, is there anything to distinguish it from the
 ordinary exercise of the right to abate a nuisance,  that " extra
 judicial or eccentrical remedy," to use the language  of  Black-
 stone, " which the law allows for the redress of  injuries which
 require a more speedy remedy than can be had in the ordinary
 forms of justice."   (Blackstone, vol. 3, p. 2.)  The extra judicial
 remedies, of which there  are five enumerated  by this writer,
 prominent among which  are the right of self-defence and  the
 right of abating of nuisances, are nothing more than the recog-
 nition by law of  certain natural and  inalienable  rights of man
 to the enjoyment  of life and property, which come not from
 society, and " cannot be taken away by society."  (Blackstone,
 vol. 3,  p. 3.)   One of these rights or remedies,  thus  acknow- 
87
ledged to be independent of courts, and given as a remedy sup-
plemental to the ordinary judicial remedies of the State, for the
redress of injuries which cannot wait the slow progress of the
forms of justice, is the one which  the  people of Staten  Island
claim to have exercised on the night of the first of September.
In doing so, have they been guilty of the violation of any law ?
We think not.  We are free to confess that the power to burn
down a  public  hospital, upon the ground  that the Board  of
Health of the neighborhood have adjudged it to be a nuisance,
is a very dangerous power,  which, in practice,  may lead to the
most deplorable results; but we must add that this does not
furnish any argument against the existence of the power, nor
can any  such possible  abuse militate partly  against its expe-
diency.   That no argument can be drawn from such considera-
tions against its existence, is rendered clear by the case of Yan
Wormer agt.  The City of Albany, (14 Wendell,) where a power
equally dangerous and equally liable to abuse—that of pulling
down private property, by  an individual of his own mere voli-
tion, upon the ground that they constituted a public nuisance-
 was  clearly and equivocally admitted  by the court, and  de-
 fended upon  the ground of public expediency, and the neces-
 sity of having such a power lodged somewhere, to be exer-
 cised upon a public emergency.   Nor  can any argument  be
 fairly drawn  from its-possible abuse against it expediency.
   There is no great power, such as that given to  Boards of
 Health  by the law, or that of the corporation  of a city,  to pull
 down private houses which stand in the path  of an advancing
 conflagration, or the power of a captain of a ship  during a
 storm,  to throw overborad private property to save his ship, or
 the right to isolate the leper, or even the right of self-defence,
 which is not  liable to great abuse ; but no one ever yet con-
 tended that it was expedient to take away such powers because
 of their possible abuse.                           .    .
    These various rights or powers, like the one exercised m the
 destruction of the Quarantine Hospitals, all have their origin m
 the  "great  law of  necessity, which,"  in the language of the
 Court in the  case of The People agt. Corporation of Albany, 11
 Wend  544,  before alluded to, " supersedes all law, and is to be 
88
sustained by  the overruling principle  of self-preservation."
" We are not  aware," remarks the Court in this  case, that it
(meaning the  law or rule of necessity) is ever enforced by the
authority of law through  the medium  of judicial  tribunals or
any other legally appointed body of men.  The law of the land
does not  contemplate such  an emergency, and  therefore does
not provide for it; if it had, it would no longer be the undefined
law of necessity."  Examining the facts of this case in  connec-
tion with the action  and language of the Court, it would seem
that though they did not decide that a public work becoming a
nuisance could be abated by a corporation  or a citizen, it was
rather because it was  not necessary they should do so than be-
cause they doubted the existence of such a power.  The facts of
the case  were briefly these: The corporation of. the  city of
Albany were  indicted for not removing a nuisance which ex-
isted in  the basin in the Hudson  river at the termination of
the Erie canal.  The defence, among other matters, was, that
the nuisance was occasioned by a bulkhead at the foot of the
basin, which had been erected by  a joint stock company, under
the authority of an act of the Legislature.  The Court below
decided that the safety and preservation of the public health
was a paramount  law, and that the corporation  Mas bound to
remove the bulkhead  though constructed under the power of
the Legislature,  if it was necessary so to do  to  destroy  the
nuisance.
  The Supreme Court, without denying the power and  right of
the corporation to cut down the  bulkhead  if they deemed it
necessary to do so, in order to remove the nuisance, which they
would clearly and necessarily have  done if they had been of the
opinion that it had no such power, went on virtually, and as we
think  necessarily, assuming  the existence  of such a power, to
declare that they were not bound to exercise it from a supposed
law of necessity for the  preservation of the public health any
farther than a private  citizen was—that they were,  in fact
bound to exercise no power which was not clearly delegated to
them by their  charter.  Any other power belonging to them
by reason of their duties as conservators of the  public health
and not expressly given  by their charter, such as cutting down
the bulkhead erected by the authority of the State, for the pur- 
89
pose of destroying a nuisance, although an undoubted one, was
yet one of such a character that they were at liberty to exercise
or not, at their discretion.  We  take  this to be the fair and
necessary construction of the meaning and law of this case, and
if so, it  clearly and indisputably establishes the doctrine, that
the people or the Board of Health  have the right to abolish a
nuisance, althoug existing, so  to speak, under State authority.
   To resume: in the particular case  now before us, it would not
be difficult to show that a  comparison of evils, as between the
destruction of State hospitals and their consequent removal else-
where, and the loss of lives and the destruction  of property by
their remaining, would result in strongly fortifying the  expe-
diency of exercising such a power.   Our Supreme Court, whose
authority, to say the least  of  itf upon  a question of this sort, is
entitled  to great consideration, base their decisions in the cele-
brated case in 14 AVendell, expressly upon the ground that the
public safety requires  that such a power should  exist  some-
where, to be exercised  upon a  proper  emergency.  But it is
urged, that if such a power is conceded to belong to the Board
of Health,  there  is not  a  State  institution,   including the
State prisons at Sing Sing and Auburn, which may not be de-
clared nuisances, and be abated by order of a Board of Health.
But gentlemen forget that the Board of Health, and those who
act  under  its authority,  when  they exercise  the  right  here
claimed to belong to them, of abating a public hospital  as a
nuisance, do it as the individual does who abates a nuisance of
his own authority, under the responsibility, in the  language of
Chief Justice Nelson, in the case just cited, of being considered
a trespasser if it turns  out not to  be a nuisance.   Should the
Board of Health of Westchester so far violate all the probabili-
ties of the case, and so  far outrage the public  sense of justice
and right and truth, as to  declare the  prison at Sing Sing a nui-
sance, and have it burnt down, they would be held guilty of the
crime of arson, and suffer  the penalty of such a  crime.  But all
truth and all experience repudiate the probability of such a re-
sult, and there is certainly nothing in the history of the Quaran-
tine difficulty to justify  any  such  anticipation.   Experience
teaches  us that  it  requires some very great exciting cause to
rouse the minds of the  great masses of people in this country to
       7 
90
any acts in open violation of law and public order; and when
such have taken place, however much we may have deplored
the precedent, as tending to anarchy and subversion of govern-
ment, we have been forced to confess that they were  not with-
out the excuse and extenuation which a desire to do justice and
administer right must necessarily furnish.  The truth is, that as
the great conservative power upon which we are to depend for
the perpetuity of our institutions  comes from  the  sound sense
and patriotism of the laboring classes of our country, we may
safely leave them  even greater discretionary authority than is
implied in the power of boards of health or  private individuals
upon the  subject of public nuisances, with  the perfect  confi-
dence  that  if ever exercised  in great emergencies like  the
recent one, that  it will be exercised for the  public benefit, and
under a due sense of their  responsibility to the State and their
families.
                                                    Lex. 
 
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