USA > New York > Courts and lawyers of New York; a history, 1609-1925, Volume I > Part 43
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CHAPTER XXIV. THE LEISLER CASE .*
With the passing of governing authority from Nicholson to his Council-Bayard, Phillipse and Van Cortlandt-Leis- ler became to all intents the military dictator. Soon, he ig- nored altogether the Council, and ultimately assumed the Lieutenant-Governorship. Long before the latter elevation, however, he was recognized as the Governor, or at least the Acting Governor, of the province. While Nicholson was still in the city, Connecticut ignored both the late Governor and his Council, and tacitly recognized Leisler as the govern- mental head, in sending direct to him a printed copy of the Proclamation of King William, for publication in New York. They probably looked upon Leisler as in the same category as Bradstreet. Leisler, perhaps, so classified himself, for he did not confer with the Council in the matter of the proclama- tion. For obvious reasons he would not discuss it with Nich- olson. So he read it himself in public. Those parts of it which did not harmonize with his own plans he did not bother to observe. For instance, he did not for a moment think of recalling Nicholson as Lieutenant-Governor, in accordance with the King's proclaimed wish, which was that all officials of the Andros government who were Protestants should be continued in office. Bradstreet was likewise unobservant.
Certainly, Leisler looked upon himself as the leader of the Protestant movement in New York-as the Defender of the
*AUTHORITIES-Werner's "Civil List and Constitutional History of the Colony and State of New York"; "Documents Relative to the Colonial History of the State of New York," by O'Callaghan; "Colonial Minutes"; Bryant's "History of the United States"; Duruy's "Short History of France"; Chester's "Legal and Judicial History of New York"; "Encyclo- pedia Britannica"; Hawthorne's "History of the United States"; "Admin- istration of Leisler," New York Historical Soc. Collections, 1868; Park- man's "Life of Frontenac."
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Faith as it were; and he deemed the Council to be of the enemy if not of the enemy church. He read the proclamation on June 22; and because Governor Dongan was a Catholic, he called upon all justices, sheriffs, military and other officers who had been appointed by that Governor, to surrender their commissions. Imitating Bradstreet, Leisler invited the coun- ties and towns to send delegates to New York to organize emergency government. The convention was held on June 26 and ten of the twelve delegates-the other two withdrew after the first session-signed a paper appointing Leisler to be captain of the Fort, while they themselves were to constitute a Committee of Safety. The names recorded as of this Com- mittee of Safety are : Richard Panton, Theunis Roelofsen, Jan Demarest, Daniel de Klercke, Johannis Vermilye, Samuel Edsall, Peter de la Noy. Leisler evidently dominated this committee, for in the following December they appointed him Lieutenant-Governor, and designated the following as his Council: Geraldus Beeckman, of Kings County ; Peter de la Noy, Samuel Staats, Johannis Vermilye, and Hendrick Jan- sen (van Feurden), of New York; Samuel Edsall, of Queens County ; William Lawrence, of Orange County ; Thomas Wil- liams, of Westchester; and Jacob Milborne, Leisler's son-in- law. The last named was the chief aid of Leisler, being pro- vincial secretary, attorney-general and advocate-general. It was an unfortunate association, for it cost him his head.
The former Council tried to function for a little while after Nicholson had vested them with his authority. They ap- pointed three commissioners of taxes. These, however, Leis- ler summarily dismissed, and appointed Peter de la Noye collector, in place of Plowman, who was a Catholic. This and other aggressive acts by Leisler alarmed the councillors, and Bayard fled to Albany on June 28, fearful that he would pay with his life if he remained in New York. Cortlandt and Phillipse soon joined him, and from that place of security they tried to exercise their offices. Their presence, perhaps, influ-
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enced the Albany inhabitants and municipal officials to refuse to recognize Leisler, and to decide to await the will of William and Anne. This state of divided government continued until the spring of 1790, when imperative need of unity of front against the attack of the French caused Schuyler to bend to Leisler.
The task of Leisler, the erstwhile soldier-merchant, was by no means easy. His foes within the province were suffi- cient to seriously hamper his administration, but the foe with- out caused him far greater concern. When he, or his party, spread the rumor that the French fleet was in sight, he was probably not aware of the vindictive plans of the French King, though he could well surmise that in case of victory by the Catholics, the lot of the Protestants would be hard. As a matter of fact, the French King, on June 7, 1689, in the very week in which Leisler took command in New York, gave in- structions to Frontenac to conquer New York, make Eng- lish agriculturists slaves, and return all Huguenots found in the province to France-to be tortured unto death, presum- ably, and so give the merciless King and more merciless prel- ates the satisfaction they had been denied by their escape after the revocation of the Edict of Nantes.1 Leisler did not know of this, but he knew the Jesuits were already among the Indians beyond Albany, insidiously preparing the way for the French triumph. The Albany commander was also aware of it, although he felt that he could handle the situation without aid from Leisler. Sharp, who was in control at Albany, was
I. Part of the direct orders to Frontenac from the French king for the invasion of New York reads : "If among the inhabitants of New York there are any Catholics whose fidelity can be assured they may be left in their homes after they have sworn fidelity to King Louis. From the other in- habitants, artisans and people necessary for agriculture may be kept at work as prisoners. All officers, and all principal inhabitants, will be kept in prison till they are redeemed by ransom. With regard to all others who are not French, they will be transported to New England, France, or other places. But all Frenchmen, especially those of the pretended reformed religion, will be sent to France."
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a Catholic, which, perhaps, explains why Albany authorities spurned Leisler's authority. From the outset, Leisler was left in no doubt as to the attitude of the frontier village. The communities of the Albany region refused to send delegates to Leisler's convention; in fact, they held a convention of their own, which convention promptly confirmed the Albany government in its quasi-independence. But after news reached Albany of the massacres at Pemaquid and Dover, New Hampshire, and it was realized that the French had greater influence with the Indians than Albany leaders had thought likely, the weak state of Albany, which could soon be isolated, was uncomfortably emphasized. The Albany gov- ernment promptly appealed to Leisler. They, in turn, were spurned, though Leisler did decide to send up a military force to defend what he looked upon as a part of his own govern- ment. Aid under such conditions, Albany would not accept. They wrote to Connecticut and Massachusetts, and, to remove a possible cause for refusal of aid, they appointed Peter Schuyler to the chief command, in place of the Catholic, Sharp. Apparently, New England had promised support by the time Leisler's company, under Milborne, reached Albany, for Schuyler positively refused to admit Milborne and his soldiers to the fort. Soon afterwards the fort and outposts at Schenectady were manned by Connecticut men.
Leisler thus had at least the satisfaction of realizing that the frontier was under English guard, even though not his own. So he applied himself more to guarding the sea front, before which the enemy might at any time appear. Inci- dentally, he made his own position in the government more secure, by applying to himself the commission sent by King William to Nicholson, whereby the latter was appointed Lieu- tenant-Governor. The King's commission, bearing date of July 30, was addressed to Nicholson, or, in his absence, "to such as for the time being take care for preserving the peace and administering the laws." These deputies of Nicholson would be Phillipse. Cortlandt, and Bayard, had it not been for
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Leisler's interference. The commission did not reach New York until December 9, coming by way of Boston; and long before that time, the Council had ceased to function. So the bearer delivered the commission to Leisler, who obviously was in governmental control. But Cortlandt and Phillipse, who had returned to the capital, and had heard of the arrival of the King's messenger, claimed the despatches. Possibly, this was considered as opportune opposition by Leisler and the Committee of Safety, for they forthwith agreed with Leisler that he might be considered as legally appointed Lieu- tenant-Governor by the King, inasmuch as he was "the person who administered the laws and preserved the peace." To make the appoinment regular the committee named a Council. In the next month, Leisler issued several commissions of Oyer and Terminer, naming Peter de la Noye as judge.
Cortlandt and Philippse protested to King William, and this was answered by the appointment, in January, 1690, of Colonel Henry Sloughter, as Governor, succeeding Nicholson ; but fortunes of war2 delayed his departure for a year. It was
2. The war by the French, in support of James II, did not go in the favor of the Prince of Orange in the early months. A squadron of thir- teen large vessels carried James to Ireland, where Tyrconnel had a Cath- olic army of 50,000. Convoys of troops, arms, and munitions left Le Havre, Brest and Rochefort, protected by Renaud, d'Estrees and Tourville. The English and Dutch attempted to intercept their passage; but Chateau- Renaud beat one of their squadrons in Bantry Bay; Tourville, with seventy- eight ships, attacking their main fleet on the Sussex coast off Beachy Head, sank or burned sixteen of their vessels, while the rest took refuge in the mouth of the Thames or among the Dutch banks (July 10, 1690). This victory gave Louis XIV the mastery of the sea for some time, and mat- ters would have been grave for Protestant England and the Prince of Orange had not James found that the Catholic Irish were not disposed to shed their blood to win England for him, though they were willing that he, and his French army, should help them to sweep the Protestants out of Ireland. James had lost valuable time and munitions in the Siege of Londonderry, and his cause went down to defeat in the Battle of the Boyne. Therefore, he returned to France (July 1I, 1690). Still, until the Battle of La Hogue (May 29, 1692) brought such naval disaster to France as to be often described as "that navy's tomb" (though wrongly described), the French made the seas dangerous for British and Dutch ships. This perhaps explains why Governor Sloughter took more than a year to reach New York after receiving his commission.
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an eventful year for Leisler, and not by any means a discredit- able one.
Frontenac, the Canadian Governor, had planned an ag- gressive campaign for the year 1690. He began it by a sud- den attack, at sunset of February 8, upon the unsuspecting village of Schenectady. In a couple of hours, the French and their savage allies had massacred sixty persons-men, women and children. Eighty or ninety were carried into captivity. Only a few escaped through the snowstorm to Albany. By noon of the next day Schenectady was in ashes.
Schuyler, at Albany, expected attack and prepared to meet it as best he could. Meanwhile, he despatched messengers to Massachusetts, Connecticut, Maryland, and even to Virginia, seeking aid. Connecticut offered sound advice, suggesting to Schuyler that the present "was no time to quarrel with New York." Schuyler was of the same mind, and did not hesitate to ask Leisler for support. And Leisler showed that he could put personal affronts behind him, and that his first thought was of the safety of the province. He at once made arrange- ments to meet the common danger ; moreover, he supported the Albany government in the latter's appeal to New England for reinforcements.
Leisler apparently did not enter half-heartedly into any action upon which he had set his mind. He saw that con- certed plan of operations against the French was vital to the existence of New England as well as to New York; and he lost no time in acting upon the conviction. He forthwith in- vited the other colonies to send delegates to New York to con- sider united action, in this way coming somewhat distinctively into American history as the promoter of the first English Colonial Congress. Those who took part in this historic convention were Stoughton, Sewell, Gold, Pitkin, Walley, Leisler and De la Noye. These seven delegates went into session at New York City on May I, and agreed that New York should provide 400 men, Massachusetts 160, Connecticut
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135, Plymouth 60, Maryland 100. Transportation rather than population decided the quota of New York, which ought by any other standard have been much less than either the Massa- chusetts or Connecticut quota. The delegates unanimously agreed that Leisler should appoint the commander.
Leisler promptly rebuilt the fortifications at New York, the fort now taking the name of Fort William. When news came that French cruisers were not far away, Leisler sent out privateers to engage them. An occasional prize was brought into New York, and in other ways throughout the year it was evident that Leisler was handling military and naval affairs satisfactorily. His ways of handling domestic matters were, however, not so satisfactory. He was said to have been at times somewhat arbitrary, which attitude increased the num- ber of his enemies, and intensified their bitterness. Still, des- perate situations call for vigorous handling; and these vig- orous measures might well veer to arbitrary actions, or to be so construed by unfriendly critics. To an impartial mind it does not seem that the province was harmed during the interregnum by being in Leisler's keeping instead of Nichol- son's. Unfortunately, the so-called usurper spoiled a credit- able record by a few weeks of somewhat stupid opposition of a regular British force early in 1691. On January 29, Major Richard Ingoldsby arrived in New York at the head of a com- pany of regular soldiers, which, according to his representa- tion, was the advance guard of the new Governor, Sloughter, who had left England at the same time, but had been de- layed in Bermuda. Ingoldsby could show no authority, civil or military, but he demanded that Leisler deliver the fort to him. Leisler refused, until the new Governor, or some one commissioned by him, should arrived. But he offered In- goldsby every possible courtesy, and quarters for his troops. Ingoldsby stood upon his dignity and shots were exchanged between the two forces, a collision of subsequent testimony making it hard to determine which force began the combat.
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Some lives were lost, but Leisler held the fort until March 19, when Colonel Sloughter arrived. To him he surrendered the fort.3
Leisler was arrested, and, with his Council, promptly tried. For this purpose a special commission for a Court of Oyer and Terminer was issued on March 24, those named in the commission to constitute the court being Joseph Dudley and Thomas Johnson, who had just been appointed judges in Admiralty; Sir Robert Robinson, Colonel William Smith, Recorder William Pinhorne, Mayor John Lawrence, of New York ; Jasper Hicks, captain of the frigate "Archangel"; Major Ingoldsby-an infamous choice-Colonel John Young and Captain Isaac Arnold. The indictment was for murder and treason. Six of the prisoners pleaded in form, but Leisler and his son-in-law, Milborne, refused to plead until the court would decide whether the King's letter and the papers with it gave no power to Leisler. The trial took eight days, at the end of which all the prisoners were under sentence of death, Joseph Dudley, who had been Chief Justice of Massachusetts during the Andros administration, pronouncing sentence. All prisoners were, however, reprieved by the Governor, by the advice of the judges, pending word as to the King's pleasure.
3. In this state of half war, Leisler maintained the fort for some weeks, until on the 19th of March, Sloughter, the long looked-for Governor, ar- rived, for whom he said he had been waiting. Here, on the after trials, testimony differed again. Leisler's son said that his father, as soon as he had notice of Sloughter's arrival, although late at night, sent two gentlemen to congratulate him on his arrival, and offer the fort and government to him as their Majesty's Governor, but that they, without being heard, were committed to the common jail; that the next morning Captain Leisler sent a letter to the Governor, desiring him to send some persons to receive the fort, which he did, but immediately caused said Leisler and others to be committed to prison. Colonel Sloughter, in his official report to the King, says he sent Major Ingoldsby to demand the fort, to whom Leisler replied that he would own no Governor without orders from the King directed to him. Sloughter also says that Leisler sent a man out that night to identify him and make sure that he was Colonel Sloughter; that he then demanded the fort from Leisler a second time, and that he refused it; that only when preparations were made to storm it did Leisler send out the two persons spoken of to surrender it .- Bryant's "History of the United States."
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The subsequent schemes of Leisler's enemies to make sure that his downfall should be permanent were marked by such feverish vehemence that a besotted Governor was soon impli- cated in a worse disgrace than that which was deservedly his by appointing Leisler's enemies to be his judges. The in- trigues of Nicholas Bayard and others by which Governor Sloughter, when "in his cups," was prevailed upon to sign the death warrant of Leisler and Milborne, and the execution of the warrant "before the Governor had recovered his senses,"4 have been briefly referred to in Chapter XIV. The two unfortu- nate misguided patriots were hanged and afterwards decapitat- ed, "in the presence of an indignant people."5 Sloughter himself died a couple of months later, his sudden demise giving ground for suspicion that he had been poisoned. This was not, however, proved by autopsy, although the physicians probably did not look for alcoholic poisoning. Another of the conspicuous characters of this case came near losing his head also some years later. He, Nicholas Bayard, the most
4. It is said that Sloughter did not intend to carry the sentence into effect; but the local enemies of Leisler made the governor drunk that night and secured his signature to the decree. This was on May 14, 1691 ; on the 15th, the house disapproved the sentence, but on the 16th it was carried out, the victims meeting their fate with dignity and courage .- Hawthorne's "History of the United States."
5. The hanging of Leisler and Milborne, who had been convicted and sentenced, though refusing to plead and standing dumb through the trial, caused, under the circumstances, a great revulsion of public feeling against the new court and its judges. Whatever we may think of the regularity of the trial and the justness of the verdict, probably no public event in our colonial history exerted a deeper or more enduring influence on the social and political life of the province throughout its subsequent history than this "barbarous murder" and "revengeful sacrifice," as it has been variously characterized. For many years the public men of New York were known as Leislerians or Anti-Leislerians. It was not long after Leisler's execution that his sympathizers had their revenge upon his persecutors, the chief of whom was Nicholas Bayard. At the time of Attwood's appointment as Chief Justice, Leisler's attainder had been reversed by Act of Parliament, in effecting which the Earl of Bellomont, before he came out as governor, had taken an active part. On his arrival here, in 1700, he as well as Lieutenant-Governor Nanfan, were friendly to the so-called Leislerian fac- tion. On the death of Bellomont, Nanfan, Thomas Weaver, Collector of the Port, and Chief Justice Attwood were in full control. They caused
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vindictive of Leisler's enemies, got so near to just punishment as to be sentenced to be "hanged, drawn and quartered" for another offence, but really because of his part in the crime against Leisler, which a later Governor of New York char- acterized as judicial murder.
Leisler's influence did not end with his death. For a gen- eration or more the political parties were Leislerian or Anti- Leislerian ; and the party strife was as bitter and vindictive as in the days when the horror of the then recent judicial murder stirred the feelings of Leisler's friends, and roused his enemies to bitter defiance. The bitterness was intensified a few years after Leisler's death, after action by the British Parliament. The Leisler case was taken to England by his son, and argued before the House of Lords, the Anti-Leislerians having as their spokesman former Chief Justice Dudley, the presiding judge who had sentenced Leisler. The Leislerians had good support from the Earl of Bellomont; and after a full discus- sion the attainder pronounced on Leisler was reversed by
a warrant to be issued by the Council for the arrest of Nicholas Bayard, Rip Van Dam, Philip French and Thomas Wendam on a charge of High treason, in that they (all Anti-Leislerians) had signed addresses to the King, the House of Commons, and to Lord Cornbury, news of whose ap- pointment as Governor had reached the city, charging their opponents then in power with all manner of malfeasance in office, with the connivance and support of Lieutenant-Governor Nanfan. Alderman Hutchins, in whose tavern the addresses were signed, had been committed by Nanfan for refusing to disclose the signers' names. Attorney-General Broughton had given an opinion on the Lieutenant-Governor's application, to the effect that there was nothing criminal in the addresses, and that Hutchins' refusal to give up the names was not a criminal contempt justifying his indictment. But the Grand Jury having been induced to bring in an indictment, At- torney-General Broughton was suspended (being commissioned by the Crown he could not be removed) and Weaver was appointed to conduct the prosecution before a specially commissioned Oyer and Terminer, com- posed of the chief justice, Attwood, and De Peyster and Walters, second and third judges respectively. De Peyster had been one of Leisler's cap- tains, and the resentment of both of the puisne judges toward Bayard for his activity in instigating prosecution of Leisler and subsequent execution was well known. Bayard was tried and convicted of treason under an act of 1691, of which he himself and the Anti-Leislerians were the authors, which made it treason for a person to endeavor by force of arms or other- wise to disturb the peace, good, and quiet of the King's government; and
STATUE OF JACOB LEISLER, NEW ROCHELLE
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Parliament. Moreover, the Earl of Bellomont, when he be- came Governor, made it one of his early duties to see that the bodies of the two men "so barbarously murdered" were ex- humed and reinterred in consecrated ground. "With public solemnities, in the Dutch Church," the bodies of Leisler and Milborne were reburied, "and their hatchments hung upon its walls."6
Bayard's promotion of the addresses to the House of Commons, which then had nothing to do with the government of New York, more than with the government of France or Canada, was held to come within the terms of this act. A full and presumably fair contemporary report of the trial, with the arguments of William Nicoll and James Emott, both able and fearless lawyers, who appeared for the accused, have come down to us. A general verdict of Guilty having been returned by the jury, and a motion in arrest of judgment having been denied, the horrible sentence of the English law for the crime of treason was pronounced, which as those familiar with our history will remember, was subsequently annulled by Queen Anne. This celebrated trial is noticeable as showing that at this early day, a century or more before the privilege was accorded in England, a prisoner, on a trial for felony (sic) was allowed the assistance of counsel. It ought to be added that the Court's conduct of the trial there was not such a scandalous departure from the models then furnished at Westminster Hall as has been alleged. No sympathy need be spent on Nicholas Bayard, the leader of a bloodthirsty faction, who was only rescued from the pit he himself had dug by the timidity or charity of his prosecutors. His conviction was had, no doubt, through a strained construction of the latter of an obsolete law, but the report of the proceedings on the trial does not disclose on the part of the court any such gross violation of the ordinary rules of criminal procedure or perversion of criminal justice, as then understood, as to call for the severe judgment which some of our historians have ventured to pronounce .- Redfield's "English Colonial Polity and Judicial Administra- tion, 1664-1776," "History of the Bench and Bar of New York" (1897).
6. Jacob Leisler, born in Frankfort-on-the-Main, Germany, about 1640, came to New York when about twenty years old, as a soldier of the Dutch West India Company's service. He soon became a trader, however, and for some time lived in Albany, where, it seems he held magisterial office. In 1678, while on a voyage to Europe, he was captured by Moors, these pirates holding him for heavy ransom. His New York home was "in the first brick house built in that city." He was successful as a merchant, and was much respected in the capital. In 1683 he was appointed a commis- sioner of the Court of Admiralty, but does not come further into the public records until 1689, when the events began with which this chapter deals. In 1698 the Earl of Bellomont, as Governor, caused an indemnity to be voted to the heirs of Leisler for the loss of his estates.
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