by Jill Lepore
A conspiracy uncovered, the Supreme Court’s jurisdiction established, the bench and bar joined in common purpose, the full force of the law marshaled, it remained to fathom the plot’s extent and to bring the conspirators to justice. In cases brought before the Supreme Court, it fell to the grand jury to conduct an inquiry, examine witnesses, and find bills of indictment: to charge specific individuals with specific crimes.39 But in this case, the investigation was led by the judges, and, most of all, by Daniel Horsmanden himself.
THE GRAND JURY, Horsmanden said, “bore the Burthen of this Enquiry,” but the “Business by Degrees multipled so fast” that “the Judges . . . found it expedient to examine the Persons accused, upon their first taking into Custody, whereby it seemed most likely the Truth would bolt out, before they had Time to cool, or Opportunity of discoursing in the Jail with their Confederates.” In the Journal, Horsmanden referred, again and again, to “the Judges” to provide cover for activities that were largely his; DeLancey was out of town, and Philipse was rarely present except when court was in session (and not always then). Horsmanden, alone, interrogated nearly every suspect, before anyone else had a chance to. Only after he had interrogated suspects did he turn them over to the grand jury. “The Examinations thus taken by the Judges,” he explained, “were soon after laid before the Grand Jury, who interrogated the Parties therefrom in such manner, as generally produced from them the Substance of the same Matter, and often something more.”
That one of the judges headed the investigation was not, by the standards of the eighteenth century, wholly unusual. Nor was it strange that, with all the attorneys in town serving the prosecution, the defendants had no lawyers. Early English and colonial criminal courts worked quite differently from modern courts. Before the rise, late in the eighteenth century, of an adversarial system in which attorneys for the king and the prisoner took turns presenting evidence before a supposedly neutral judge, lawyers other than the Attorney General and his assistants were hardly ever present at criminal trials; instead, a “collegial trial bench,” usually consisting of three justices, participated in conducting the investigation, informed by very few rules of evidence other than the unevenly applied exclusion of hearsay. In theory, the defendant did not require counsel because the judges were supposed to protect his interests, making sure that he understood the matters of law pertaining to his case. As to answering the charges against him, it was believed that the accused served his own interests best. According to William Hawkins’s Pleas of the Crown, an influential legal manual, “Every one of Common Understanding may as properly speak to a Matter of Fact, as if he were the best Lawyer.” Defense lawyers were not even allowed in English courts until 1696, and then only in cases of treason. By the 1730s, that prohibition was being slowly lifted— after all, Zenger had a defense attorney—but it remained a rare defendant who had a lawyer, especially because the whole point of a trial was to get the defendant to explain himself to the jury, so that jurors could tell whether or not he was lying. Allowing a defendant an attorney, or allowing him to call more than a few witnesses on his own behalf, thwarted that end. As Hawkins explained, “the very Speech, Gesture and Countenance, and Manner of Defense of those who are Guilty, when they speak for themselves, may often help to disclose the Truth, which probably would not so well be discovered from the artificial Defense of others speaking for them.” 40 Horsmanden believed that, confronted by his accusers, a black man “betrayed his Guilt” with his face: “Those who are used to Negroes may have experienced, that some of them when charged with any Piece of Villany, they have been detected in, have an odd Knack or (it is hard to call or how to describe it) Way of turning their Eyes inwards, as it were, as if shocked at the Consciousness of their own Perfidy; their Looks at the same Time discovering all the Symptoms of the most inveterate Malice and Resentment.”
The trial brought the defendant, alone, to face the jury. In theory, the judges served as the defendant’s counsel, but in practice criminal trial procedure strongly favored prosecution. So did pretrial evidence gathering. Long before there existed anything like an investigative police force, courts relied overwhelmingly on two kinds of evidence: the pretrial interrogation of “crown witnesses,” often members of criminal gangs who were paid for “turning king’s evidence” (testifying against their accomplices); and pretrial, custodial confessions, often obtained by promises of pardon or reduction of charges. Not until the beginning of the trial did the defendant hear the charges and see the evidence against him. This evidence was then paraded before the defendant in a kind of pageant, designed to get him (or her) to speak and, ideally, to confess.41
Such were the procedures of criminal investigation available to magistrates in New York City. With Mary Burton’s deposition on April 22, the grand jury secured its first crown witness, although Burton always insisted that she was merely an innocent bystander to, and not a member of, the crime ring she described. Better still would be to convince a member of Hughson’s gang to turn king’s evidence. Peggy Kerry seemed the best candidate. Kerry was painfully vulnerable: she had been named in Burton’s deposition; she had been arrested (and jailed, probably with her nursing newborn); and her lover, Caesar, seemed doomed.
On Thursday, April 23, while Horsmanden and Philipse were meeting with all of the city’s attorneys, the grand jury interrogated Kerry. Although she had little to lose by cooperating with the prosecution, and her life to gain, Kerry “positively denied knowing any Thing about the Fires.” Philipse and Horsmanden decided to apply more pressure. That evening, after adjourning the meeting with the city’s lawyers, the judges descended to the cellar of City Hall to conduct their own examination. In Kerry’s cell, “they exhorted her to make an ingenuous Confession and Discovery of what she knew of it, and gave her Hopes of their Recommendation to the Governor for a Pardon.” Kerry turned out to be more willful than they had expected: “she withstood it, and positively denied that she knew any Thing of the Matter; and said, That if she should accuse any Body of any such Thing, she must accuse innocent Persons, and WRONG HER OWN SOUL.”
Kerry’s intransigence was a considerable obstacle. The crown’s case against the first five prisoners awaiting trial—Caesar, Prince, Peggy Kerry, John and Sarah Hughson—was uneven. The evidence supporting charges of burglary was unassailable: the stolen goods, after all, had been found in the prisoners’ possession. But the case for conspiracy, the case Daniel Horsmanden cared about, rested almost entirely on the April 22 deposition of Mary Burton, a loose-lipped servant girl accused by one of the suspects of having once birthed a bastard. She was hardly an exemplary witness. On Friday, all five prisoners were indicted on the burglary charges, and pled not guilty. Their trial, originally scheduled for April 25, was postponed several times while Bradley and Murray built a case against them, and waited for someone to talk.
On May 1, Caesar and Prince were tried separately from their white accomplices, to give Kerry more time to ponder the prospect of pardon. In a crowded courtroom, Bradley opened the indictment and Murray examined witnesses, including Rebecca and Robert Hogg, Christopher Wilson (“Yorkshire”), and Mary Burton. Conducting their own defense, Caesar and Prince denied the charges against them and called three witnesses, including Prince’s owner, John Auboyneau, whom they examined themselves. None of this trial testimony survives, although at the sentencing Philipse assured the prisoners: “you have been proceeded against in the same Manner as any white Man, guilty of your Crimes wou’d have been: You had not only the Liberty of sending for your Witnesses; asking them such Questions as you thought proper; but likewise making the best Defence you could.” A twelve-man jury found them guilty.
Peggy Kerry and the Hughsons were scheduled to be tried for receiving stolen goods on the following Wednesday. Over the weekend, a more damning crown witness, one who could aid the conspiracy case, conveniently presented himself: Arthur Price, a white indentured servant in jail for petty theft, told jailkeeper James Mills that he “had had some Discourse
in the Gaol with Peggy.” Mills summoned one of the judges, probably Horsmanden, who examined Price in his cell on the evening of Sunday, May 3.
Price said Kerry had spoken to him through “the Hole of the Prison Door,” which suggests that he, or she, was confined to a walled cell. Zenger had been imprisoned in just such a cell in 1734. He was allowed to speak only to his wife and servants, and only “through the Hole of the Door,” through which food was probably also passed in, and waste, or “Ordure Tubbs,” out.42 Other prisoners may have been at liberty to wander around the open space of the “Great Gaol.”
The sole surviving architectural drawing of City Hall includes no floor plan for the cellar; in his History, William Smith, Jr., described it only as a “dungeon.” In the mid-eighteenth century, no one except debtors was ever sentenced to prison, and they were allowed to stay in the garret. Instead, the jail was a holding pen for those awaiting trial, execution, or corporal punishment. It was not particularly secure. In 1733, a convicted burglar named Martha Cash had escaped after setting the prison door on fire. In 1735, in an effort to better secure its prisoners, the dungeon was equipped with iron shackles which could be hitched to iron staples, fixed to the stone walls of the foundation.43 After that, criminals considered dangerous were literally bolted to stone.
In the spring of 1741, more improvements were hastily made to the dungeon: wooden-framed plaster walls were erected to divide the open space into smaller cells. “All proper Precautions were taken by the Judges, ” Horsmanden wrote, “that the Criminals should be kept separate; and they were so as much as the scanty Room in the Jail would admit of; and new Apartments were accordingly fitted up for their Reception. ” Because of the privacy afforded by those “new Apartments, ” Price’s meeting with the judges was kept secret from the other prisoners.
In the first of three revealing depositions, Price told Horsmanden that Kerry had said, “She was very much afraid of these Fellows (meaning the Negroes, as he understood) telling or discovering something of her; but, said she, if they do, by G-d, I will HANG them every one; but that she would not FORSWEAR herself, unless they brought her in.” By Price’s recollection, the conversation moved quickly from the robbery to the conspiracy:
PRICE: Peggy, How FORSWEAR yourself?
KERRY: There is Fourteen SWORN.
PRICE: What, is it about Mr. Hogg’s Goods?
KERRY: No, by G-d, ABOUT THE FIRE.
PRICE: What, Peggy, were you a going to set the Town on fire?
KERRY: No, but by G-d, since I knew of it, they made me swear.
PRICE: Was John and his Wife in it?
KERRY: Yes, by G-d, they were both sworn as well as the rest.
PRICE: Were you not afraid that the Negroes would discover you?
KERRY: No; for Prince, Cuff and Caesar and Forck’s [Vaarck’s]
Negro [Bastian] were all true-hearted Fellows.
To Price, Kerry damned Mary Burton: “that Bitch . . . has fetched me in, and made me as black as the Rest.” And the last thing Peggy Kerry whispered to Arthur Price, through the hole in the prison door, before he ratted her out to Mills was: “you Son of a B—h, don’t speak a Word of what I have told you.”
Three days after Arthur Price made his deposition, Kerry and the Hughsons were tried on the lesser burglary charges and found guilty. The Hughsons’ daughter Sarah was arrested and sent to the cellar jail. The next day, May 7, Price told Philipse and Horsmanden that young Sarah had confided to him about the conspiracy in great detail, and had named Joe, owned by dancing master Henry Holt, and Dundee, owned by tavernkeeper Robert Todd, as conspirators.
Soon afterward, “Arthur Price having been found by Experience to be very adroit at pumping out the Secrets of the Conspirators,” Philipse and Horsmanden ordered Mills to put Cuffee “into the same Cell with him, and to give them a Tankard of Punch now and then, in order to chear up their Spirits, and make them more sociable.” Cuffee, apparently, drank more than he ought to have. The next night, Price offered a deposition providing all the details of Cuffee’s involvement in the conspiracy and said that Cuffee had told him that Quack, owned by John Roosevelt, had set the fire at Fort George.
From the prosecutors’ point of view, Price was priceless. But no one imagined he was blameless. As Horsmanden admitted in a footnote in his Journal: “Upon the Supposition, that Arthur knew nothing of the Secrets of the Conspiracy before he came to Gaol, the Reader may be apt to judge, that he acted with more than ordinary Acuteness for one of his Station, in pumping so much out of Peggy and Sarah (Hughson’s Daughter) and their Confidence in him, if he were a Stranger to them, was somewhat extraordinary.” More than extraordinary. Horsmanden, and anyone else who was paying attention, knew that Price was a servant of Vincent Pearse, captain of the Flamborough, the same ship on which Christopher Wilson was a sailor. (As Pearse was the subject of an unrelated civil suit heard before the Supreme Court during these same months, it’s hard to imagine that the justices failed to make the connection between Price and Wilson.)44 Wilson, who had committed the robbery at Hogg’s with Caesar, Cuffee, and Prince, and then betrayed them to the constables and later testified against Caesar and Prince at their trial, must have known Arthur Price. And Price just as surely knew Kerry, Cuffee, and the Hughsons long before any of them ever were arrested.
Because there were no police and no detectives to collect evidence, eighteenth-century criminal courts depended on crown witnesses, particularly on men like Arthur Price, members of criminal gangs willing to impeach their colleagues in exchange for pardon or reward. Not surprisingly, the system was rife with abuses. Gang members seeking cash or clemency all too frequently offered false testimony and, in some cases, accused their compatriots of crimes that never even happened. Just such an abuse occurred in 1732, when a petty London criminal named John Waller was convicted of lying to collect a reward. The case became the talk of the town when Waller, on the pillory for perjury, was beaten to death by the brother of one of his victims. This kind of corruption came under increasing scrutiny over the course of the century, as English courts attempted to compensate for the all too obvious flaws of pretrial evidence gathering by weaning prosecutors of their reliance on crown witnesses. Indeed, it was in an effort to reform this system that the first modern detective agency, and the progenitor of the Criminal Investigation Division of Scotland Yard, was created by the novelist and magistrate Henry Fielding, in the late 1740s, at his offices in Bow Street. Fielding, a justice of the peace from 1748 until his death in 1754, provided the courts with his services as an amateur detective, primarily in the investigation of gang crimes, and with his brother John innovated procedures for collecting evidence and conducting interrogations.45
But in New York in 1741, the best pretrial evidence was still a crown witness, however corrupt. Nonetheless, Arthur Price’s usefulness came to an end on the night of May 12 when Quack was arrested. That arrest, combined with Price’s “being often sent for,” made the miserable prisoners in the cellar of City Hall finally wise to his ways. When Quack was arrested after Cuffee had spent the night in Price’s cell sharing a tankard of punch, Cuffee never spoke to Price again. Instead, he “read sometimes, and cried much.”
ARTHUR PRICE’S MAY 3 deposition doomed Peggy Kerry. On May 7, the day after the “Newfoundland Irish Beauty” was found guilty of receiving stolen goods, she began to talk not just to Price but to the magistrates. Her confession was partial; she knew about the plot, she said, but it had been hatched not at John Hughson’s but at the house of a shoemaker named John Romme, who lived by the Battery. (Romme was nowhere to be found; he had skipped town. His wife, Elizabeth, interrogated on May 9, admitted that she and her husband had served liquor to slaves, but denied any knowledge of a plot.) Kerry did name seven slaves who had conspired at Romme’s—Cuffee, Brash, Curacoa Dick, Caesar (Pintard), Patrick, Jack (Breasted), and Cato (Moore)—who proposed “to burn the Fort first, and afterwards the City; and then steal, rob and carry away all the Money and Goods the
y could procure . . . and that they were to murder every one that had Money.”
On May 8, Caesar and Prince, convicted of burglary, were sentenced to death by hanging. The next day, knowing that the father of her child was headed to the gallows, Kerry elaborated on the plot during an intensive examination by Philipse and Horsmanden, naming still more slaves as conspirators but claiming of others that their “Names, or the Names of their Masters, she does not now remember; but believes she should remember their Faces again if she should see them.” That night, the men Kerry named (not including Cuffee, who was already in jail) were “passed in Review before her” and she “distinguished them every one, called them by their Names,” and declared that they had sworn to the plot.
On Monday, May 11, Caesar and Prince were taken from their cells to a cart, waiting on the street. “It was thought proper to execute them for the Robbery, and not wait the Bringing them to a Trial for the Conspiracy,” Horsmanden explained, “though the Proof against them was strong and clear concerning their Guilt.” He hoped that the execution of Caesar, in particular, might break Kerry or, better still, that the two men might themselves confess on the gallows. A crowd, eager to find out, gathered outside City Hall and followed the horse-drawn cart one block west, to Broadway, where it headed straight out of town. Past Broadway Market, past the Common, past the line marking the edge of the city, where the cart rolled noisily down a small hill to a specially erected gallows “in the valley between Windmil-hill and Potbakers-hill,” a natural amphitheater for the public spectacle and just a stone’s throw from the Negroes Burial Ground.46 Even as the hangman approached, Caesar and Prince refused to confess. They “died very stubbornly,” Horsmanden complained, “without confessing any Thing about the Conspiracy; and denied they knew any Thing of it to the last.”
