Duel with the Devil

by Paul Collins

  Alexander Hamilton snatched up a candle from the table and thrust it though the gathering gloom, up close to the face of a startled member of the courtroom crowd.

  Is this the man?

  The grocer peered from the stand, and at the candlelight flickering over the countenance of Richard David Croucher.

  Yes, he said. That’s him.

  LEVI’S FELLOW boarder was now the very picture of wounded innocence.

  “Did you ever publish the handbills about apparitions? Murder?” General Hamilton demanded.

  “No,” Croucher vowed. “I never did.”

  For the prosecutor, it was clear that the attacks by the defense had to be stymied. With the case now stretching past midnight for a second night in a row, Cadwallader Colden looked exhausted, but he asked the judge for leave to call in an additional prosecution witness—his one last chance to implicate Levi Weeks.

  The people call Matthew Musty to the stand.

  The cartman, now up appallingly late in a courthouse instead of asleep in his home by Lispenard’s Meadow, took his oath.

  Tell us what you saw out by the Manhattan Well, Colden urged.

  “I saw a young man, the week before the girl was missing, with a pole in his hand—”

  “Do you know Levi Weeks?” Hamilton interrupted. “Should you know the person you speak of if you saw him?”

  “I don’t know,” the cartman admitted.

  Exasperated, the prosecutor grabbed up a candle. If Hamilton could resort to such tactics, then so could he.

  “Take the candle,” he said, placing the taper into the witness’s hand, “and look round and see if you can pick him out.”

  Given that the prisoner was at the bar, it was not quite a triumph of deductive skill. Musty dutifully held up the candle by Levi Weeks’s face.

  That’s Levi, he said.

  “Will you undertake to swear,” Hamilton interrupted again, “that is the man you saw at the well?”

  “I cannot …” he hesitated.

  “Well, sir,” Colden snapped, “tell what you saw.”

  Musty dutifully recounted his tale of the depth of the well being tested by a man—“he had on a blue coatee, red jacket, blue breeches and white stockings,” the witness helpfully recalled. There was just one problem: Levi didn’t own any clothing like that.

  “If the court please,” the prosecutor slumped back down, “we give up this point.”

  Hamilton, though, was not about to stop.

  We call Ann Ashmore to the stand.

  As the widow whose house Croucher gave as his alibi for the night of Elma’s disappearance, her testimony was crucial. Though no longer in mourning—she had lost her husband to yellow fever back in the outbreak of ’98—she had been left to care for her young son.

  “On the 22nd of December,” she began virtuously, “being my little boy’s birthday, I invited some of my friends to come and sup with me, among the rest Mr. Croucher. Between 4 and 5 in the evening he came, and remained there till 4 or 5 minutes after 11.”

  “Could he have been absent twenty minutes during the time?”

  “No,” Ashmore insisted.

  Several others from the party quickly offered the same recollection. But they were not witnesses of great public reputation—and when Hamilton laid out the simplest of pitfalls yet again for them, they went tumbling in.

  Mrs. Ashmore’s birthday party—what day was that on, exactly?

  On a Sunday, came the response. Yes—a Sunday—which was Christmas Day, said another. No, the party was after Christmas, said a third.

  No further witnesses, said Hamilton.

  AARON BURR sized up the room: It was obvious that the jury was exhausted. The midnight bell had softly chimed from the almshouse more than two hours before, marking the arrival of Wednesday, April 2, 1800. The trial was now about to run into an unheard-of third day—not because of the defense, but because of the prosecutor’s sprawling, almost uncontrollable succession of witnesses. But Cadwallader Colden had been guilty of much more than trying the jury’s patience.

  The prosecutor had misled them.

  In explaining to the jury the importance and acceptability of circumstantial evidence, Colden had used an impressive quote from John Morgan’s Essays: “Circumstantial evidence is all that can be expected, and indeed all that is necessary to substantiate such a charge”—the beginning of a passage that seemed to give legal precedent for using an intricate chain of suppositions in a capital trial.

  But that was not what Morgan’s essay meant at all. Colden had, in fact, left out the rest of the paragraph preceding his quote:

  Positive and direct proof of fraud is not to be expected.… The nature of the thing itself, which is generally carried out in a secret and clandestine manner, does not admit of any but circumstantial evidence; and therefore, if no proof of actual fraud were allowed in such cases, much mischief and villainy would ensue, and pass with impunity. Circumstantial evidence is all that can be expected, and indeed all that is necessary to substantiate such a charge.

  “Such a charge” in the original was not a capital murder charge, but maritime insurance fraud—specifically, a case involving the fraudulent policy on a £110 cargo of oats. It was this standard of evidence, incredibly, that Colden had fobbed off onto the jury as a justification for sending Levi Weeks to the scaffold.

  Catching the prosecutor on this point would have been child’s play for Burr, but whether the jury would understand Colden’s malfeasance was another question altogether. What they surely could understand, however, was the evidence that Hamilton had placed before them—and they also understood that Levi was a man whose moral character bore testimonials by local worthies.

  I now have a passage that I wish to read to you, Burr announced, as he drew out a copy of Matthew Hale’s Pleas of the Crown.

  “In some cases, presumptive evidences go far to prove a person guilty, tho’ there be no express proof of the fact to be committed by him, but then it must be warily pressed,” Burr read to the candlelit chamber, “for it is better that five guilty persons should escape unpunished, than one innocent man should die.”

  To this, the prosecutor scarcely had an answer—in fact, he had little answer to anything at all by this point, because in the process of exhausting the judge and jury, he had also managed to exhaust himself. It was now 2:30 A.M., and after battling the three more experienced defense lawyers, Colden was “sinking under the fatigues he had suffered in the course of this lengthy trial,” as one observer put it.

  From where he stood, even closer to both the prosecutor and the defense team, court clerk William Coleman was even blunter about the state of the prosecutor. “Really,” he mused, “he had not the strength to proceed that night.”

  Your honor, Colden began, I have not slept in forty-four hours. If the defense were allowed the first summation, he complained, then he “was obliged to at five or six in the morning to enter a reply.” He just couldn’t do it: The trial would need to adjourn and then enter a third day. Perhaps the jury could be sequestered in City Hall’s Portrait Room for another night, and everyone return to the courtroom in the morning?

  The sentiments of the crowd did not bode well for this notion. The jurors were among the city’s most prominent and powerful merchants; several were older gentlemen, and at least one was quietly teetering on the edge of insolvency. Another night spent sleeping on a courthouse floor, away from their homes and businesses, was simply an intolerable prospect.

  Two nights passed in this manner might make some of them sick, and prevent a determination, Judge Lansing admonished the prosecutor.

  “The examinations of the paintings must doubtless be very edifying and amusing to the jury on the former night,” one man in the crowd agreed drolly afterward, adding that they’d scarcely appreciate “a repetition of the pleasure.”

  Sensing his opportunity, Hamilton pounced.

  Your honor, he interrupted, if it please you, we relinquish our closing argument.
The merits of our case are such that they require no summation.

  Almost before Colden knew what had happened, his sprawling spectacle of a murder trial was over. The verdict, Judge Lansing brusquely informed him, was now to be decided by the jury—immediately.

  FOR THE state’s chief justice and the mayor of Manhattan, and for the prominent men that stood on either side of this case, there was nothing left but to trust in their fellow citizens. Judge Lansing turned to the exhausted jury: The matter of the prisoner’s guilt or innocence had now arrived.

  The question involves considerations of great moment, he warned them, regardless of the consequences attached to your determination. There could be riots yet again—and if they hadn’t recalled that from the riots last summer at Mrs. Murphy’s brothel on their own, then Aaron Burr’s opening argument had refreshed their memories of that danger. Still, the judge remained unequivocal.

  You must find the prisoner guilty if in your conscience you believe him so from the evidence—and to acquit him if you find him innocent, he added. The obligation incurred when you became jurors limits you to the evidence produced by the trial.

  Some of that evidence, Judge Lansing reminded them, did not exactly flatter the prosecution’s case. If the testimony of the defense witnesses was true, then Levi’s movements that fatal evening were accounted for, save for one gap that left Levi about ten minutes to run one mile from Ezra’s house to the Manhattan Well and back, and to commit the murder—all without becoming the least bit discomposed. If the testimony of the prosecution witnesses was true, none of them had actually sighted Elma or Levi together outside of the boardinghouse. In fact, aside from the allegation by Mrs. Ring about the two being engaged, the only link between the prisoner and that night’s events was what one old and confused widow had seen out of her window.

  Regarding the widow Susannah Broad, the judge reminded them, if the account that the sleigh was taken out of the lumberyard of the prisoner’s brother on or about the time Gulielma Sands disappeared does not satisfy you, then it must be evident that the accounts of the other witnesses respecting a sleigh, or cries of distress heard near the Manhattan Well, have no application to the prisoner.

  It just depended on whose word they believed. To the judge, the matter was simple: While in the previous decade the notion of “beyond a reasonable doubt” had started to gain currency as a legal concept, men of Judge Lansing’s generation had been trained to believe that jurors were in danger of mortal sin if they convicted on insufficient evidence in a capital case. And so, the judge added, as for himself, the mayor, and the recorder—we are unanimously of the opinion that the proof is insufficient to warrant a verdict against the prisoner.

  Whether that unanimity would be shared with other New Yorkers was a different matter. The crowds that might gather outside—as well as the accounts of the pamphlets, the hauntings, and the body in the street—could not be far from the merchants’ minds. With a state primary coming up in a few weeks’ time, half of Manhattan was already convinced that the other half was about to lead the nation to ruin. If they couldn’t trust their government to prosecute a man nearly everyone was certain was guilty of murder, whom could they trust?

  By the time the jurors left the room, it was crawling toward 3 A.M. A chill had settled into the air, and the spectators and legal teams had scarcely sunk back down into their chairs with exhaustion, huddling together for warmth in the dimly lit room, when the door to the courtroom swung open again.

  Some said afterward that it had taken ten minutes; others said it was four or five; another still was quite sure that it was “less than two.” But what everyone remembered, after the longest murder trial in the city’s history, was how little time it had taken the jury to reach their verdict.

  William Coleman stood up and gravely called a final roll of the jury’s members: “Jasper Ward,” the court clerk’s voice rang out. “Garrit Storm. John Rathbone …” It was Simon Schermerhorn, though—the most humbly employed of the group, and bearing one of the oldest names from the city’s Dutch past—that the jurors had chosen as their foreman. He raised his right hand, dutifully following the instruction of the clerk.

  Look upon the prisoner, you gentlemen of the jury, Coleman commanded. How say you? Is he guilty or not guilty?

  The young carpenter stood at the bar, knowing as he gazed back at the jury that it had all come down to this moment. All Hamilton and Burr could do now was watch—and hope.

  “Not guilty,” the foreman said, and the courtroom erupted into shouts and applause as the judge gaveled loudly for order.

  Levi Weeks walked out into the night air of Manhattan unshackled—a free man.

  NOT GUILTY?

  After all the vitriol expended upon Levi Weeks—the darkly insinuating handbills, the scores of witnesses summoned from around Lispenard’s Meadow, the ill-wishers outside the courthouse that one chronicler numbered in the “many hundreds, perhaps thousands”—it seemed inconceivable before the trial that the fellow could be anything but guilty. The city’s Court of Oyer and Terminer did not have a reputation for leniency, after all: In one of the cases after Levi’s an unfortunate miscreant drew four years of hard labor for stealing a black mourning cloth from a local church.

  But for those watching closely, Levi’s verdict was not entirely a surprise. “Although some circumstances point to him as the perpetrator of the horrid deed,” one local judge had written privately after his arrest, “there has not yet been sufficient proof to convict him of the fact.” And as far as the reporters attending the trial were concerned, nothing in Colden’s case for the prosecution changed that damning assessment.

  “Mr. Burr opened the defense with perspicuity and force, as he disentangled every circumstance of perplexity; tore away the suspicions that had obstinately hung upon the public mind.… If the deceased was murdered, this at least was not the man,” the New-York Daily Advertiser weighed in. The fact that Hamilton had forgone closing arguments also impressed the paper: “By the evidence of the facts alone is this young man’s innocence completely established. Not a single doubt remains on the mind of any person who was present at the trial.… Every one had come more or less impressed with the idea that he was GUILTY … [but] were, as soon as the verdict NOT GUILTY was given, just bursting into involuntary and exulting acclamations.”

  Within hours of the acquittal, a new pamphlet was on sale:

  A

  Brief Narrative

  of the

  TRIAL

  for the

  Bloody and Mysterious

  MURDER

  of the

  Unfortunate Young Woman,

  in the

  FAMOUS MANHATTAN WELL.

  It was an admirably theatrical title, and that suited its publisher just fine. David Longworth was known for publishing plays and possessed a impresario’s pragmatism in offering any fare that would sell. He also hawked a city directory, sentimental prints of the late General Washington being lofted heavenward, and now this hastily assembled account “Taken in Short Hand by a Gentleman of the Bar.” In his race to trump the competition, Longworth set the type even as his “Gentleman” wrote it and handed him the sheets.

  The sixteen-page trial summary completely left out Mr. Ring’s affair and Richard Croucher’s machinations. Few witnesses were even identified by name. Still, it was the first, and it found quick sale among crowds eager for an account of the trial. Longworth was unabashed in his motives: “The narrative I published was too hastily written to be anything but a ‘catchpenny,’ ” he cheerfully admitted.

  The “Gentleman of the Bar” he hired confessed as much himself: “The careless and inelegant style in which these are recited, we account for on three principles,” the writer said unapologetically. “First is, the excessive fatigue we have undergone in attending this trial, which has deprived us of two nights rest, and rendered us unfit for any occupation. The second is, the extreme haste.… The third is, our complete indifference to whether our re
aders are pleased with our style or not.”

  One reader was certainly not pleased: William Coleman. The publisher’s ads that John Furman had bought throughout the trial—promising that “he had procured the clerk of the circuit court to take down in short hand the particulars of the evidence”—had instead only stoked demand for this flimsy knockoff by “a Gentleman of the Bar,” released before Coleman could even get his own started. Infuriated, the court clerk marched down to Noah Webster’s office to place an ad in the next morning’s issue of the New-York Commercial Advertiser.

  “The miserable shift of trying to put off this catch-penny contrivance under the insinuation of a falsehood, render it fit and proper to say implicitly that this is not the report promised to citizens by Mr. FURMAN,” he sputtered. Anyone wanting the genuine article, he added, would have to wait at least another four days.

  David Longworth was gleefully unrepentant: Catching wind of Coleman’s ad, he immediately paid for a notice to run underneath it, mocking the very accuracy and dogged stenography that Coleman laid claim to. His pamphlet, Longworth promised, could “gratify the public curiosity … without entering into unnecessary detail of the tedious and unimportant part of the testimony.” The publisher jeered at Coleman’s self-importance: “By what privilege does this man insult me for printing an account of a trial, of which the whole world has a right to publish narratives? By what privilege but that of unending, insolent and vindictive prejudice?”

  Coleman’s temper had gotten the better of his commercial judgment. By revealing the earliest possible publication date of his account, he’d put rival printers on notice that they still had four more days to leap in with their versions of the Levi Weeks trial. And so it was that the next morning, Coleman awoke to find another pamphlet.

  His catchpenny rival was right: The trial did belong to the public, and the latest member to seize this opportunity was James Hardie. As a brilliant young Scottish scholar, Hardie came to New York after the war with the hopes of becoming a professor at Columbia—a dream that slowly dissolved in a sea of drink. For years he’d boozily turned to anything at all to support himself. One year he was a tutor, teaching “Greek, Latin and English languages grammatically, writing, arithmetic, bookkeeping, geography and navigation”; the next he was running a Literary and Intelligence Office that professed to offer everything from drawing up indenture documents to a servant employment board to a real estate service. This particular year, he was a court reporter … of a sort.