New York Burning

by Jill Lepore

  22. NYWJ, April 15, 1734. NYG, May 13, 1734. On the Jamaican maroon wars, see especially Orlando Patterson, “Slavery and Slave Revolts: A Sociohistorical Analysis of the First Maroon War, 1665–1740,” in Richard Price, ed., Maroon Societies: Rebel Slave Communitiesin the Americas (Baltimore: Johns Hopkins University Press, 1996), pp. 246–92.

  23. See, for example, Robert Hunter, Letter of Attorney to JA, November 1, 1721; Robert Hunter to JA, January 1, 1728; Hunter to JA, September 7, 1731; JA to Hunter, November 8, 1733; Alexander Papers, NYHS, Box 1. Lydon, “New York and the Slave Trade, 1700 to 1774,” p. 383.

  24. See Appendix C.

  25. Donnan, Documents, 3:498. For a list of slaves involved in the Antigua investigation, see Gaspar, Bondmen and Rebels, p. 36. New York’s Will was probably Billy, owned by Widow Langford, in Antigua. Sentenced to death, he “came to a full Confession”—ibid., p. 24.

  26. Pennsylvania Gazette, October 19 and 20, 1738.

  27. Jonathan Swift, Gulliver’s Travels, Part 3, chap. VI.

  28. NYWJ, June 12, 1738.

  29. NYG, November 2, 1730. NYG, December 21, 1736, and January 11, 1737. NYWJ, January 10 and 17, 1737.

  30. New York’s major provincial slave codes include laws passed in 1702 (“An Act for Regulateing of slaves,” Col. Laws of NY, 1:519–21), 1712 (“An Act for preventing Suppressing and punishing the Conspiracy and Insurrection of Negroes and other Slaves,” Col. Laws of NY, 1:761–67), and 1730 (“An Act for the more effectual preventing and punishing the Conspiracy of Negro and other slaves, for the better regulating them and for repealing the Acts herein mentioned relating hereto,” Col. Laws of NY, 2:679–88). By 1731, a host of slave codes were in effect in the city of New York, including “A Law Appointing a Place for the More Convenient Hiring of Slaves,” “A Law Restraining Slaves, Negroes, & Indians from Gaming with Moneys or For Moneys,” “A Law Giving a Reward to Any Person or Persons who shall Apprehend any Negro, Mulatto or Indian Slaves Offending Against any of the Acts of General Assembly of this Colony,” “A Law for Punishing Slaves who Shall Ride Disorderly through the Streets,” “A Law for Regulating the Burial of Slaves,” “A Law for Regulating Negro’s & Slaves in the Night Time” (MCC, 4:85–90, 51–52). “A Law to Prohibit Negroes and Other Slaves Vending Indian Corn Peaches or any other Fruit with this City” was passed in 1740 (MCC, 4:497–98). On city slave codes, see also Oscar R. Williams, “The Regimentation of Blacks on the Urban Frontier in Colonial Albany, New York City and Philadelphia,” JNH 63 (October 1978): 329–38. Bernard Bush, comp., Laws of the Royal Colony of New Jersey, (Trenton: New Jersey State Library, Archives and History Bureau, 1977–86), 2:28–30.

  31. Robert Hunter to the Lords of Trade, June 23, 1712, Docs. Col. NY, 5:342. “An Act for preventing Suppressing and punishing the Conspiracy and Insurrection of Negroes and other Slaves,” 1712.

  32. Governor Robert Hunter to the Lords of Trade, March 14, 1713, Docs. Col. NY, 5:356; King’s Instructions to Governor Thomas Donaghan, May 29, 1686, Docs. Col. NY, 3:374; Lords of Trade to Governor Robert Hunter, December 23, 1709, Docs. Col. NY, 5:157.

  33. The Governor’s Council met at Fort George until October 1736, when it shifted to the Council Room at City Hall.

  34. MCC, 5:17, April 11, 1741.

  Chapter Three

  1. This physical description of City Hall, its history, and various improvements is taken from several sources, including Smith, Jr., History, 1:208–9; SCJ, 1:347–56; and the records of the MCC.

  2. Abraham Van Horne, Archibald Kennedy, Philip Livingston, James DeLancey, and Cadwallader Colden constituted the New York delegation to this commission—George Clarke to CC, December 15, 1740, LPCC, 2:205–6. In a letter dated March 23, 1741, Alexander wrote that “the Chief Justice & the other Counsellors are going to New England next week”—JA to Vincent Pearse, James Alexander Papers, NYHS, Box 3, folder 3. Smith, Jr., History, 2:57.

  3. Smith, Jr., History, 1:266–67; Smith, Jr., Memoirs, 2:39. New York’s law courts, courtroom, and especially criminal procedure are abundantly documented in Julius Goebel, Jr., and T. Raymond Naughton, Law Enforcement in Colonial New York: A Study in Criminal Procedure, 1664–1776 (Montclair, NJ: Patterson Smith, 1970); SCJ, Vol. 1; and Douglas Greenberg, Crime and Law Enforcement in the Colony of New York, 1691–1776 (Ithaca: Cornell University Press, 1974). A useful and provocative history of the establishment of the court system is Eben Moglen, “Settling the Law” (Ph.D. diss., Yale University, 1993). On the Supreme Court officers, rules, and procedures, see especially SJC, Vol. 1; 2:385–86.

  4. Hamilton, Gentleman’s Progress, p. 42.

  5. On the form of the judicial writ and frequency of contempt of summons, see Goebel and Naughton, Law Enforcement, p. 344.

  6. Five of Zenger’s jurors served on a grand jury or jury in other trials in 1741: John Bell, Abraham Keteltass, Edward Man, Hermanus Rutgers, and Samuel Weaver.

  7. The Supreme Court, which normally met in week long sessions four times a year, would, through repeated renewals authorized by Lieutenant Governor Clarke, eventually extend its April term to August 31, 1741. The grand jury sworn on April 21 would serve until July 25; a second grand jury would serve from July 28 until the end of the proceedings.

  8. Goebel and Naughton, Law Enforcement, esp. pp. 73–80. The best discussion of the court’s establishment can be found in SCJ, 1:37–77.

  9. As one legal historian has observed, “Tacit acceptance of each side’s position that it alone could found the courts was the ordinary course, but beneath the surface of the proprieties there lay the constitutional abyss. If the contingencies of ordinary politics led one side or the other to declare its position in terms that would force the issue, the legitimacy of the courts would be the first casualty of constitutional conflict”—Eben Moglen, “Considering Zenger: Partisan Politics and the Legal Profession in Provincial New York,” Columbia Law Review 94 (1994): 1495–1524, quoted passage at 1502. See also “Law in Colonial New York: The Legal System of 1691,” Harvard Law Review 80 (1967): 1760–61.

  10. Attorney General Richard Bradley once complained that New York juries “very rarely find for the King tho’ the charge be never so well supported by evidence”—Richard Bradley to the Lords of Trade, November 23, 1734, Docs. Col. NY, 6:18.

  11. Cosby did preside over a chancery court in 1735, to hear a case involving a complicated claim to 50,000 acres known as the Oblong or the Equivalent Lands. The land was claimed by a group of Country Party men—Lewis Morris, Cadwallader Colden, James Alexander, and William Smith—who teamed with Court Party men George Clarke and Francis Harison. Harison, however, abandoned the group and secretly acquired a royal patent for the land in 1731. Clarke took Harison’s side and the English patentees hired Horsmanden as their lawyer. Cosby, as chancellor, ruled in favor of the English company in a suite filed by Harison in 1735. The case only increased tensions between the two parties, and particularly ruined the reputation of Harison, who shortly after left the province. Alexander feared that he had gone to London to assassinate Morris. See Katz, “A New York Mission to England,” pp. 440, 456. In representing the English patentees, Horsmanden was put in the position of opposing Colden, whose favor he had done much to court. “I am paid for thinking,” he wrote Colden in November 1734, explaining that it was his job to argue on behalf of his clients and apologizing that in the courtroom he had argued hotly against the claim of Colden and his company. “But you know they are words of Course in Such Cases, thrown in at the will of the Clyent or in Complyance with the comon forms”—DH to CC, November 11, 1734, LPCC, 2:118–21; DH to CC, November 19, 1734, LPCC, 2:121–22. The best discussion of Horsmanden’s role in this complicated dispute can be found in McManus, “Daniel Horsmanden,” pp. 24–27.

  12. See [James Alexander], The Arguments of the Council for the Defendant, In Support of A Plea to the Jurisdiction . . . At the Suit of the Attorney General, Complainant, against Rip Van Dam (New York, 1733); and Lewis Morris, The Opinion and Argument of th
e Chief Justice of the Province of New-York, concerning the Jurisdiction of the Supream Court (New York, 1733). Alexander sent copies of both to Robert Hunter in Jamaica—JA to Hunter, November 8, 1733, James Alexander Papers, Rutherfurd Family Papers, NYHS, Box 1. These events are also related in Smith, Jr., History, 2:chap. 1. Horsmanden sent a copy of Morris’s Opinion to a mentor in England, who advised him that Morris’s argument was sound. See copy of part of a letter from Sir John Randolph to DH, July 1734, James Alexander Papers, the John Peter Zenger Trial Collection, Manuscripts, NYPL.

  13. Abigail Franks to Naphtali Franks, December 16, 1733, in Hershkowitz and Meyer, eds., The Lee Max Friedman Collection, pp. 17–18. JA to Mr Pope?, December 4, 1733, James Alexander Papers, Rutherfurd Family Papers, NYHS, Box 1. Colden, “History of Cosby and Clarke,” p. 303.

  14. On Bradford’s slave Sam, see Bradford v. Ellsworth, January 26, 1722, Mayor’s Court. In exchange for payment of £16, Bradford hired out Sam for a year to George Ellsworth, Jr. When Sam ran away, Ellsworth sued Bradford for debt. Bradford hired Murray as his defense attorney—James Parker, A Letter to a Gentleman in the City of New-York (New York, 1759), in Beverly McAnear, “James Parker Versus New York Province,” NYH 22 (1941): 321–30. Kammen, Colonial New York, pp. 133–34. In 1735 Morris complained to Alexander, “Bradfords writers are no changlings; they continue their old dirty method, and wil allwaies have as little credit, and I hope in time may meet with as much disgrace as they deserve”—Lewis Morris to JA, February 24, 1735, in Katz, “A New York Mission to England,” p. 457. For an early slave sale ad, see NYG, April 3, 1727. By colonial standards, Bradford’s output was sizable; between 1732 and 1741, he printed about twenty items a year. In the half century of Bradford’s tenure, the illiteracy rate among white New Yorkers dropped by half. In 1698 Bradford had printed a primer, The Secretary’s Guide, which he wrote himself, but like all colonial printers with the notable exception of Franklin, Bradford was more mechanic than author.

  15. William Cosby to the Duke of Newcastle, May 3, 1733, Docs. Col. NY, 5:949.

  16. Jean de La Caille and James Watson, The History of the Art of Printing (Edinburgh, 1713). On Alexander’s role in the press, see Vincent Buranelli, “Peter Zenger’s Editor,” American Quarterly 7 (1955): 174–81. NYWJ, November 19, 1733.

  17. The debate turned on the question of whether the governor or the Assembly held the right to erect equity courts. Popular sentiment worked against Cosby. “People are Very Much Against this Court,” Abigail Franks observed. An equity court acted without a jury, “that Grand Bulwark of our Freedom & Safety,” against “the arbitrary power of the Crown.” In the Assembly, two city attorneys presented opposing arguments. Court Party lawyer Joseph Murray, on behalf of the governor, insisted that the Assembly could not pass legislation establishing the Supreme Court’s right to sit in exchequer since, even though Cosby wanted the court to do just that, he would have had to veto any such law: to sign it would concede the Assembly’s right to establish courts, something Cosby was unwilling to do. For the opposition, Country Party lawyer William Smith argued that neither could the governor erect such a court, at least not without consent of the Assembly, because the English constitution protected New Yorkers against such tyranny: “’Tis the Excellency of our Constitution, and the Glory of our Princes, that they are Sovereign over Free-men, and not Slaves”—Abigail Franks to Naphtali Franks, June 9, 1734, Hershkowitz and Meyer, eds., Lee Max Friedman Collection, pp. 24–26. The remark about the right to jury trial is quoted in Goebel and Naughton, Law Enforcement, p. 607. Joseph Murray, Mr. Murray’s Opinion Relating to the Courts of Justice in the Colony of New-York (New York, 1734). William Smith, Mr. Smith’s Opinion Humbly Offered to the General Assembly of the Colony of New-York (New York, 1734).

  18. Next, in an attempt to fight paper with paper, DeLancey had William Bradford print a copy of his charge to the grand jury in the form of a six-page pamphlet. Not to be outdone, James Alexander had Zenger print a critique of DeLancey’s charge, three times as long as the charge itself, arguing, not without cause, that the Chief Justice sounded more like a prosecutor than a judge. “With my Eyes shut,” Alexander wrote, “I should have thought the Attorney General, with a proper Zeal natural to him, had been entertaining the Audience in the Case of some Libelor, brought to Tryal by Information or Indictment, and not a Judge giving a solemn Charge.” James DeLancey, The charge of the Honourable James DeLancey, Esq. (New York, 1734). [James Alexander], Some Observations on the Charge given by the Honourable James DeLancey, Esq (New York, 1734). This pamphlet was once attributed to Lewis Morris; the NYPL has more reasonably attributed it to William Smith and James Alexander, but it seems most likely that Alexander is the single author.

  19. Reprinted in Katz, Brief Narrative, pp. 109–11.

  20. JLC, 1:637–38, October 17, 1734; 641, November 1, 1734; 642, November 2, 1734.

  21. James Alexander’s brief for Zenger’s trial is reprinted in Katz, Brief Narrative; quoted passage at p. 143. The excerpt from Cato’s Letters was reprinted in the NYWJ, September 15, 1735.

  22. Smith, Jr., History, 2:18.

  23. The order, or a copy of it, can be found in Alexander’s papers at the NYHS: “At a Supream Court of Judicature . . . 16th Day of April 1734,” James Alexander Papers, Rutherfurd Collection, NYHS, Box 2, folder 8. Colden sympathized with Alexander the week after his disbarment: “Lawyers threatning the Law when ever he is put out of Humour is as ridiculous & Scandalous as for a Fencing Master to Challenge every man that gets the better of him in Argument.” CC to JA, April 23, 1735, James Alexander Papers, Rutherfurd Collection, NYHS, Box 2, folder 119. When, months later, Lewis Morris in London received news of the disbarment, he wrote Alexander, “I was surpris’d at Mr. DeLanceys silencing Smith and you. He shews himselfe a great Stranger both to the law and practice in that Case.”—Lewis Morris to JA, August 9, 1735, in Katz, “A New York Mission to England,” p. 467.

  24. Abigail Franks to Naphtali Franks, June 15, 1735, Hershkowitz and Meyer, eds., Lee Max Friedman Collection, pp. 40–41. NYG, July 21, 1735; NYWJ, July 21, 1735.

  25. Alexander planned that Zenger, if conducting his own defense, would not actually answer the charges against him; instead, he would argue that DeLancey was not qualified to sit as a judge in his trial, because he had “prejudged the cause.” Smith, Jr., History, 2:19. DeLancey had in fact prejudged the case, as evidenced in the warrant he issued for Zenger’s arrest; his service on the Council committee to identify the seditious passages in the Weekly Journal; and his earlier warning that jurors who acquitted “would go near being perjured”— Katz, Brief Narrative, pp. 145–48.

  26. Smith, Jr., History, 2:19–20. NYWJ, December 23, 1734. Zenger’s case is widely credited with establishing the right to freedom of speech in the colonies. Its importance must obviously be qualified. The most balanced assessment can be found in Katz, Brief Narrative, Intro. For a more dismissive view, see Leonard W. Levy, “Did the Zenger Case Really Matter? Freedom of the Press in Colonial New York,” WMQ 17 (1960): 35–50.

  27. Abigail Franks to Naphtali Franks, December 12, 1735, Hershkowitz and Meyer, eds., Lee Max Friedman Collection, p. 46. Colden, “History of Cosby and Clarke,” p. 349. George Clarke to the Lords of Trade, September 20, 1736, Docs. Col. NY, 6:75. NYG, October 11, 1736.

  28. Journal of the Assembly, I:707–8. Although when Smith and Alexander appeared before a committee of the Assembly to seek a reversal of their disbarment, they again insisted that their exceptions had denied “only the Legality of the Judges Commissions, and neither affirm or deny any Thing, with respect to the Supream Court.” That DeLancey used their alleged challenge to the existence of the court as grounds for their disbarment, they complained, “carries with it a more heavy Imputation, than we wish we had Occasion to take notice of”—The Complaint of James Alexander and William Smith to the Committeeof the General Assembly of the Colony of New-York (New York, 1736), p. [8].

  29. Clarke to the Lords of Trade
, April 22, 1741, Doc. Hist. NY, 6:185–86.

  30. Although the colonials, unlike Horsmanden, may have been granted their membership in the Inns of Court without ever having attended. Kammen argues, “There is evidence by 1733 that the practice of law in New York did not lag much behind that of England in adeptness at dealing with common-law precedent”—Kammen, Colonial New York, p. 211.

  31. “That when any practitioner who has obtained his License since the last day of June 1725 is employed in any Cause We or either of Us shall not directly or indirectly be concerned on that Side, by advice or otherwise and if any such practitioner or his Client or any other person shall apply to either of us to be concerned [we] shall absolutely refuse to be concern’d . . . & immediately send word thereof to the rest of us.” Agreement dated July 28, 1729, quoted in Moglen, “Considering Zenger, ” p. 14.

  32. Murray’s action in Supreme Court records. But note that in January 1740, Murray sued Alexander and Smith (“Chief Justice James DeLancey’s Docket, 1733–1756,” DeLancey Papers, MCNY).

  33. Joseph Murray Form Book, 1740–1741, Law Library of Columbia University, e.g., pp. 147–49. On Smith and Chambers handling such litigation, see the Mayor’s Court records for cases involving slaves, including Provost v. Lawrence, July 23, 1723 (Murray represented Provost); Ham v. Ten Eyck, November 25, 1721 (Jamison represented Ten Eyck); Riche v. Rout, April 5, 1728 (Smith represented Riche); and Willett v. Tole, July 16, 1744 (Chambers represented Willett). My thanks to Simon Middleton for sharing details of these cases with me from his database of the Mayor’s Court records.