by Jill Lepore
In place of Alexander and Smith, DeLancey appointed John Chambers, a young Cosbyite, to serve as Zenger’s attorney. So that Chambers might prepare a defense, the case was postponed until the next regularly scheduled court session, in August. Meanwhile, the lull did little to extinguish “Party flames.” In June, Abigail Franks wrote to her son that “party rage has bin Carryed on with Such Violence that for my part I hate to hear it mentioned.” (Franks took an equivocal view: “if the Governor has had his fault the other Side have not bin without theire failings.”) That July, at the celebration of the building of the new battery, Sheriff John Symes was killed in a freak accident when a cannon exploded at George Augustus’ Royal Battery during a dedication ceremony hosted by Cosby, which involved “several Barrels of Punch and Beer.”24
IN 1735, John Chambers was only twenty-five years old, and “more distinguished for a knack at haranguing a jury than his erudition in the law.” Alexander, despairing of the defense Chambers would offer, believed Zenger was better off with no lawyer at all. Supposing Zenger had best defend himself, Alexander drafted an opening and closing argument for the defendant to deliver to the jury. That he held out little hope for Zenger’s acquittal under these circumstances is evident in the title he gave to the speeches: “Prologue and Epilogue to the Farce.” 25 But Zenger never delivered the speeches Alexander had written for him. During the adjournment, Alexander secretly recruited the fifty-nine-year-old Philadelphia attorney Andrew Hamilton to come to Zenger’s aid.
When the trial reconvened, in August, Bradley began by reading excerpts from the Weekly Journal that he said were intended “to traduce, scandalize and vilify” Cosby. Chambers delivered an opening statement in which he offered the standard defense against libel by questioning Bradley’s ability to prove that the passages in question specifically referred to Cosby or to anyone else in his administration.
Just as young Chambers took his seat, Hamilton, with dazzling dramatic flourish, rose to his feet from the back of the courtroom, revealed himself as Zenger’s chosen attorney, and proceeded, quite entirely, to take control of the trial. Hamilton, Smith, Jr., said, “had art, eloquence, vivacity, and humour, was ambitious of fame, negligent of nothing to ensure success, and possessed a confidence which no terrors could awe.” Rather than denying Zenger’s responsibility for the newspaper, or his intent in attacking Cosby in its editorials, Hamilton stipulated both and then argued two points before the jury (all but ignoring the stupefied justices on the bench): first, that Zenger was innocent because what he printed was true, and second, that freedom of the press was especially necessary in the colonies, where governors asserted more authority than did rulers in England (after all, Hamilton winked, they controlled this very court) and where other checks against their power were weakened by distance.
Before the day was over, the jury found Zenger not guilty, “upon which there were three Huzzas in the Hall” and “a mixture of amazement, terror, and wrath appeared in the bench.” One of the judges threatened to arrest whoever had started the cheer, but Captain Matthew Norris, Lewis Morris’s son-in-law, rose from his seat and “pertly declared that huzzas were common in Westminster Hall,” whereupon the shouts were once again raised. Andrew Hamilton was carried from City Hall, one block east on Wall Street, and then south on Smith Street, to be fêted at the Black Horse Tavern across from Zenger’s printshop. Zenger himself spent the night in jail—he was released the next day—after having spent eight months in the dungeon (during which time Francis Harison had visited him and threatened to beat him with a cane) because Alexander and Morris had decided that paying his bail would have dampened public sympathy for him.26
Zenger’s acquittal was a tremendous victory for Cosby’s political opponents. But, ironically, the battle had weakened Cosby’s opposition. Alexander and Smith had been disbarred. Lewis Morris had left New York for London, to argue there for the removal from office of Cosby, Harison, and Horsmanden, and for his own restoration to the Supreme Court. But the Court Party sustained losses, too. Harison fled the province in disrepute in 1735, after which Cosby appointed Horsmanden to the office of Recorder. In November 1735, Cosby became “dangerously ill of a violent Pleurisie.” At a meeting of his Council held in his bedroom, he suspended Van Dam. When the governor died of pneumonia in March 1736, Clarke was elected president of the Council assumed the governorship—a position Van Dam, as senior member of the Council, would have had if he had not been removed.
Alexander and his allies arranged for the Country Party’s choice for governor, Rip Van Dam, to set up a rival government, in which William Smith, not Daniel Horsmanden, was to be Recorder. “We had all the appearance of a civil War,” Cadwallader Colden wrote. Warned of a plot “to seize his person or kill him in the Attempt,” Clarke retreated to Fort George “& put the place in a posture of Defence.”
But the actual assault came by pen, not by sword, as Alexander continued to attack Clarke in the Weekly Journal. In September, Clarke wrote to England that he was “terrified by Zengers Journal.” Only after confirmation of Clarke’s role arrived from England on October 13, 1736, just a day before the rival governments were to be sworn, was Van Dam’s government dismantled. (Clarke was named lieutenant governor, but the newly appointed royal governor, Baron Delawarr, never bothered to travel to New York, leaving Clarke in charge.) Finally, the opposition yielded. “Happy are we that we escaped the Ruin that M—r-s, an A—x——r and a S—th were hurrying the Province into,” wrote Horsmanden in Bradford’s Gazette. “Let us with Horror and Detestation look back upon them, who, under the pretence of Friendship, liberty, sought our Destruction, to gratifie their own Passions.”27
Although party strife continued through 1739, the colony quieted. Lewis Morris failed to regain his position as Chief Justice but was handed a considerable concession prize: he accepted the governorship of New Jersey in 1738 and more or less disappeared from New York politics. James Alexander and William Smith were reinstated to the bar in 1737 and resumed their lucrative practice. Meanwhile, Clarke proceeded to reward party loyalists: in 1737, he appointed Daniel Horsmanden to the third place on the Supreme Court, which had been vacant since Morris’s dismissal.
Whatever else the crisis of the 1730s resolved, or failed to resolve, it did not answer the problem of “the being of this Supreme Court.” 28 The court’s authority, vulnerable to partisan machinations from the beginning, was badly bruised in the legal and political battles of the 1730s. By 1741, the authority of its judges, and its independence from the governor, remained open questions.
ON TUESDAY, April 21, 1741, on the second floor of City Hall on the first day of the Supreme Court’s spring session, Second Justice Frederick Philipse delivered his charge to the grand jury, and then he adjourned the court. The next morning, Clarke reported to the Lords of Trade in London that “many Negroes are imprisoned on suspicion, but as yet no proof appears against them.”29 At City Hall, the grand jury set to work, seeking that proof.
In its first act, the grand jury summoned John Hughson’s sixteen-year-old servant, Mary Burton. She refused to come. The constable set out again to fetch her, this time with a warrant. Brought to the second-floor jury room, Burton refused to be sworn. Asked if she knew anything about the fires, she sat in silence. According to Horsmanden, “as it was thought a Matter of the utmost Concern, the Grand Jury was very importunate, and used many Arguments with her, in publick, and private, to persuade her to speak the Truth, and tell all she knew about it.” The governor’s proclamation was read to her, with its promise of her freedom and a £100 reward. “She seemed to despise it.” All morning they pressed her. Finally, as “all was in vain,” Burton was ordered arrested. On her way down the stairs to the dungeon, “she considered better of it,” and headed back up.
After she was sworn, Mary Burton told the grand jury “she would acquaint them with what she knew relating to the Goods stolen from Mr. Hogg’s, but would say nothing about the Fires.” The slip must have been deliberate; as Ho
rsmanden observed, “it did by Construction amount to an Affirmative” that she knew who had set the fires. The grand jury proceeded to question her almost entirely on that subject. At the end of the day, Burton signed a detailed deposition, describing a vast plot. She named Prince, Caesar, Peggy Kerry, and the Hughsons as authors of the robbery at Hogg’s. Of far greater interest to the grand jury, she described meetings at Hughson’s in which they talked “of burning the Fort; and that they would go down to the Fly and burn the whole Town” and “when as the white People came to extinguish it, they would kill and destroy them.” Most shocking of all, “when all this was done, Caesar should be Governor, and Hughson her Master should be King.” The wheel would turn, the empire would revolve.
Mary Burton’s statement changed everything. On Thursday, April 23, quick on the heels of Burton’s astonishing deposition (which “could not but be very amazing to every one that heard it”), Philipse and Horsmanden “summoned all the Gentlemen of the Law in Town, to meet them in the Afternoon, in order to consult with them, and determine upon such Measures as on the Result of their Deliberations should be judged most proper to be taken upon this Emergency.” The aging Attorney General Richard Bradley was too ill to attend, but after lunch Philipse and Horsmanden held an extraordinary meeting with all of the city lawyers qualified to practice before the Supreme Court: Joseph Murray, James Alexander, William Smith, John Chambers, Richard Nichols, Abraham Lodge, and William Jamison.
New York’s bar was one of the best educated in the colonies. Bradley was a Cambridge graduate, Smith a Yale alumnus. Alexander, Chambers, Murray, and Smith were, like Horsmanden and DeLancey, members of the London Inns of Court. Together, the members of the New York bar had hammered New York jurisprudence into considerable conformity with the law of England. 30 Inspired to promote their own professional interests, they had also managed, on more than one occasion, to rise above partisan loyalties. In 1725, Smith, Murray, Alexander and Chambers, Nichols and Lodge had signed an anti-competitive agreement.31 Five years later, when Joseph Murray drafted a new charter for New York City, he granted a monopoly to himself and his closest legal colleagues—Alexander, Chambers, Smith, Nichols, Lodge, Jamison, and George Lurting—deeding them exclusive right to practice in the Mayor’s Court.
In 1734, after the New Jersey Assembly passed a law regulating lawyers’ fees, Alexander, Smith, Chambers, Murray, and Lodge (all of whom also practiced in New Jersey) successfully petitioned the Lords of Trade for the law’s repeal. And when DeLancey appointed Chambers to serve as Zenger’s attorney in 1735, Chambers, rather than toadying to Cosby’s wishes, as Alexander and Smith expected he would, instead prepared notes for an able defense before being replaced by Andrew Hamilton. In 1737, Smith and Alexander were reinstated to the bar on a motion made by Joseph Murray on their behalf.32 Long before they gathered together in City Hall on April 23, 1741, New York’s attorneys had joined forces to serve their clients and protect their practices and, in the process, had helped protect the courts from the machinations of governors, assemblymen, and partisan rancor.
Most if not all of these attorneys also owned slaves, several of whom would eventually be named in the conspiracy, along with Justice De-Lancey’s Othello and Justice Philipse’s Frank. By April 23, two of Chambers’s slaves, Robin and Cuba, had already been arrested. Another Cuffee, owned by William Jamison, would soon be implicated, as would two of Murray’s slaves, Jack and Adam. Jamison, Smith, Murray, and Chambers had also frequently handled civil litigation involving slaves; so common were such cases that Murray, in his book of forms, kept several detailing the proper language to use in filing a complaint against a slave seller on behalf of a buyer who purchased slaves advertised as healthy but who fell ill or died soon after sale. 33
Gathered at City Hall with the Supreme Court judges on April 23, the gentlemen of the law had a crucial decision to make: how to prosecute slaves accused of the plot Burton described, and in what court. After some discussion, they agreed that although by law slaves accused of conspiracy could be summarily tried without a jury, or in the municipal sessions court, in these circumstances the conspiracy ought to be “taken under the Care of the Supreme Court.”
It was a very odd decision. Slaves accused of crimes in New York were rarely brought before any court, and almost never before the Supreme Court. Typically, slaveowners administered justice themselves. Under the terms of the 1730 “Act for the more effectual preventing and punishing the Conspiracy of Negro and other slaves,” it was legal “for any Master or Mistress to Punish his her or their Slave or Slaves for their Crimes and offences at discretion not Extending to Life or Limb.” Even those slaveowners whose discretion extended beyond life and limb were rarely charged. In 1736, a slave owned by the Dutch blockmaker John Van Zant ran away. When he was found and returned, Van Zant “corrected him with a Horse-Whip.” The slave subsequently died, which “occasion’d a Report, that he was whipt to Death”; but a coroner’s inquest convinced a jury that “the Correction given by the Master was not the Cause of his Death, but that it was by the Visitations of God.” Van Zant went unpunished.34
Nor did owners too squeamish to do the whipping themselves suffer insolence. For the modest sum of 3 shillings and 6 pence per whipping, New Yorkers could send to the Poorhouse “all unruly and ungovernable Servants and Slaves there to be kept at hard labour, and punished according to the Directions of any one Justice with the Consent of the Master or Mistress.”35
Horsewhip in hand, the Poorhouse just blocks away, slaveowners had little need to bring errant slaves to City Hall. Criminal charges were filed against slaves at a rate much lower than their percentage in the population (slaves constituted less than 7 percent of those charged with crimes), undoubtedly because owners administered their own justice without recourse to the courts. On the rare occasions when city slaves were indicted, they were usually tried summarily by justices of the peace. “Slaves are the Property of Christians or Jews and cannot without great Loss or detriment to their Masters or Mistresses be Subjected in all Cases Criminal to the Strict Rules of the Laws of England,” the 1730 code declared. In other words, since punishing slaves by fines, imprisonment, or execution deprived their owners of their property, other remedies were to be sought. In a summary criminal trial, the owner paid for any damages caused by a slave’s trespass and the justices ordered the slave whipped, after which the slave could immediately return to service. Tried before justices of the peace or lower courts, slaves were, not surprisingly, very likely to be found guilty: nearly 70 percent of indicted slaves were convicted, compared to a slightly less than 50 percent conviction rate for English and Dutch.36
The 1730 slave code stipulated similar summary proceedings for slaves suspected of conspiracy, arson, or murder. Such suspects were to be brought “before three or more of his Majesties Justices of the Peace . . . in Conjunction with five of the Principle freeholders . . . without A Grand Jury seven of whome agreeing shall put their Judgement in Execution.” Only if he was willing to pay the costs could an accused slave’s owner insist on a jury trial.
In 1741, Caesar and Prince, charged only with burglary, and the other prisoners, suspected of conspiracy, might easily have been brought before a juryless panel of three magistrates. It would have been far quicker and much cheaper, and the desired outcome, conviction and execution, almost assured. In his Journal, Horsmanden insisted that the April 23 decision to bring these cases before the Supreme Court was made because Burton’s grand jury testimony hinted that “there was reason to apprehend there was a Conspiracy of deeper Design and more dangerous Contrivance than the Slaves themselves were capable of.” That is to say, whites were involved, too, and they could best be brought to justice in a jury trial following a grand jury inquiry.
Horsmanden’s explanation was, at best, disingenuous. Conducting the trials in the Supreme Court, even if whites were involved, was by no means required by law. And Horsmanden and his colleagues must have understood the risk of staking their own and the
court’s reputations on the prosecution of rebellious slaves. In 1712, eighteen of the twenty-five slaves sentenced to death had been swiftly convicted in the city’s Court of Quarter Sessions in trials held between April 12 and May 30, after which the remaining cases were transferred to the Supreme Court for its scheduled summer session, which began on June 3. And that was only because Attorney General May Bickley wanted to retry a slave named Mars, owned by attorney Jacob Regnier, a rival of Bickley’s (Regnier had opposed Bickley’s appointment to Attorney General. Mars had been acquitted, twice, in the Court of Quarter Sessions). Bickley called Regnier to testify against Mars in both trials, and Regnier twice refused to aid the prosecution; each time, he actually testified on Mars’ behalf. Governor Robert Hunter wrote that Bickley had then determined to prosecute Mars to the death, and “had him by some fetch of law try’d again at the supream court, where he found a jury tractable to his purpose.” But Bickley’s machinations had not gone unpunished. Hunter pardoned Mars, complained that Bickley had turned the trials into a “party quarrel,” and forced Bickley to resign from his lucrative post as City Recorder.37
In 1741, Daniel Horsmanden expected no such censure from George Clarke, who, in 1712, had been Secretary of the Province and a supporter of Bickley.38 And in 1741, Clarke had watched his own house burn to the ground, at a personal loss of some £2,000–£3,000. He had given Horsmanden considerable latitude in pursuing the investigation.
But, in case there was any room for doubt, Horsmanden, with great dispatch, assembled the city’s attorneys on Thursday, April 23, in order to further consolidate his, and the court’s, authority and to establish its jurisdiction. At the judges’ urging, Murray, Alexander, Smith, Chambers, Nichols, Lodge, and Jamison “generously and unanimously offered to give their Assistance on every Tryal in their Turns.” “All the Gentlemen of the Law in Town” agreed to aid the prosecution. Horsmanden would not allow this investigation to turn into a “party quarrel.” To the contrary. To Horsmanden it was an opportunity to assert not only the authority of the Supreme Court but also its transcendence over party loyalties, and to help restore the court’s reputation after the debacle of Zenger’s trial. Moreover, with DeLancey out of town, a high-profile prosecution rescuing white New Yorkers from nefarious black villains presented Daniel Horsmanden with the pleasing prospect of advancing his own career, and of making a point about political opposition itself—by exposing the perfidy of the slave plot to replace the governor.
