USA > New York > New York City > History of the city of New York in the seventeenth century Vol. II > Part 45
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Returning, they brought with them Joost Stoll who bore a letter from Captain Leisler. Sloughter said that he was glad Stoll had seen him both in London and in New York, meaning that his identity was thus established. Again he ordered Ingoldsby to demand the fort, promising that all soldiers laying down their arms might go 'every man to his own house' but requiring Leisler, Milborne, and those who were called Leisler's council immediately to appear before him and to release Colonel Bayard and Mr. Nicolls who had been ap- pointed of the king's council. Returning for the second time and bringing with him Milborne and Delanoy, Ingoldsby reported that Leisler would not come and would not release his prisoners. Milborne and Delanoy were put under arrest. A third time the major was sent with the same demands; they were 'peremptorily refused'; and then the governor adjourned the sitting of the council until the next morning.
So runs the account in the minutes of the council for the 19th. In other documents it is told that it was already late in the day when Leisler received the governor's first summons. He sent Stoll to see whether it were really Sloughter, fearing a 'trick' because many false reports of his arrival had been put forth. If it were Sloughter, Leisler begged that he would show him the king's orders. No answer was vouchsafed to this request. At the second summons Sloughter gave Ingoldsby a warrant for the arrest of Leisler and the persons called his council should they not surrender. Leisler then sent Milborne and Delanoy to 'capitulate' - that is, to find out upon what terms Sloughter would take over the fort from him. When these messengers were arrested and the third summons came, the Leislerians still refused to open the gates of the fort believ- -
ing that it could not lawfully be done after nightfall. It was midnight when Sloughter adjourned the council.
Early on the morning of the 20th Leisler wrote to the gov-
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ernor that he had not been able to assure himself at once of his Excellency's identity as Major Ingoldsby had besieged the fort so closely that no one could pass out by land or water without peril to life. He rejoiced when he heard Stoll's report but was troubled by the detention of Milborne and Delanoy :
I see well the stroke of my enemies who are wishing to cause me some mistakes at the end of the loyalty I owe to my gracious King and Queen, and by such ways to blot out all my faithful service till now, but I hope had care to commit such an error, having by my duty and faithfulness being vigorous to them. Please only to signify and order the Major in releasing me from his Majesty's fort, delivering him only his Majesty's arms with all the stores, and that he may act as he ought with a person who shall give your Excellency an exact account of all his actions and conduct, who is with all the requests [respect]
Your Excellency's most humble servant.
Ignoring this letter also, Sloughter once more bade Ingoldsby demand the fort, promising pardon to all except Leisler and the members of his council. Then the fort surrendered; and then Nicholas Bayard and William Nicolls were set free.
The minutes of the council, saying nothing of the manner of the surrender, record that on the 20th the governor delivered to the secretary of the province 'twenty-nine papers sent by their Majesties relating to Leisler' and five that had come from Albany. Colonel Bayard and Mr. Nicolls were sworn of the council and took their places at the board. Leisler was brought in a prisoner, the king's letter directed to Francis Nicholson was taken from him, and he was 'committed to the guards.' There were also 'brought prisoners' Gerardus Beek- man and William Lawrence - an uncle of each of whom was sitting at the council board - Abraham Gouverneur, William Churcher, Cornelius Pluvier, Hendrick Jansen Van Vuerden, Thomas Williams, John Coe, Robert Lecock, and Johannes Vermilye. All of these were also committed to the guards. On Sunday, the 22d, Domine Selyns preached before the gov- ernor a joyful sermon from the text: 'I had fainted unless I had believed to see the goodness of the Lord in the land of the living.'
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It was afterwards said by some of Leisler's adversaries that almost all his soldiers had deserted during the night and that those who remained seized him and delivered him to Sloughter. Sloughter did not so report; and the bulk of the evidence, friendly and inimical, says that three hundred soldiers stood about him when he threw open the gates, and that by his command they laid down their arms and quitted the fort. According to the Dutch letter of 1698:
The men thus coming out in their side-arms were at once attacked by the out-standing crowd, scolded as being villains and traitors, and robbed of everything, and that with such fury as if they wanted to kill them, the officers meanwhile shouting and screaming - Rob them ! Rob them ! and take their guns away from these rascals, they will otherwise murder our wives and children! . . . Commander Leisler was immediately afterwards brought before the governor who allowed (having spoken but a very few words to him) that he was spit in the face, and that he was robbed of his wig, sword, and sash, and of a por- tion of his clothes which were torn from him, and that they abused him like raging Furies, putting irons on his legs and throwing him into a dark hole underground full of stench and filth. His council and officers of the militia whom they found in the fort or caught among the burghers were treated in the same way. . ..
This is the most detailed account of Leisler's arrest. As it was written seven years after the event, and as these years had done little to calm the passions of 1691, it may well be too highly colored. Yet it is more than probable that Leisler's men were roughly handled in the street and he in Sloughter's council room. Eight days later Samuel Sewall at Boston wrote in his diary that a messenger bringing a letter from Governor Sloughter reported that Bayard had been released and that Leisler had been 'put in his room and Bayard's chain on's leg.' Leisler was now at Bayard's mercy as for thirteen months Bayard had been at his. With the reversal of their parts a bitter melodrama passed into tragedy.
Not all of those put under arrest with Leisler had, so far as any writing shows, served at any time on his council. Nor did Sloughter otherwise respect his promises, for some twenty- VOL. II. - 2 M
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seven persons were at once arrested. Kiliaen Van Rensselaer's affidavit says that many other burghers
. .. seeing the wicked proceedings of the said Sloughter and the misfortune of their imprisoned fellow-citizens, through fear and men- aces fled thence and left the province, retiring elsewhere for their own security, so that a company before, under the government of the said Leisler, of about one hundred and twenty men strong could not then muster fifty.
Another affidavit declares that the burghers were promised that they might keep their arms but were afterwards deprived of them; and another that several of the inhabitants fled by reason of threats and the fear that they would be ill-used by Sloughter's men as their friends had been, some of whom were imprisoned while others 'had money extracted from them.'
On March 21 Sloughter named April 9 as the day for the as- sembly to convene and, appointing sheriffs for all the counties, issued writs for the holding of elections. As promptly he reorganized the city government according to the terms of the Dongan Charter. On the day he put Leisler under arrest he gave a commission as mayor of New York to John Lawrence who more than once before had held the place. As recorder he appointed William Pinhorne at the request of Pinhorne himself and the other councillors, James Graham whom the Lords of Trade had indorsed for the post not being on the spot. And, not knowing that Graham desired to recover also the office of attorney-general, for this the governor selected Thomas Newton, previously of Boston and reputed the best lawyer in the colonies.
The mayor ordered an immediate election for aldermen, assistants, and constables. On March 24 the new magistrates were sworn. Among the aldermen were old William Beek- man, Balthazar Bayard, and Brandt Schuyler, among the assistants Nicholas Stuyvesant, still called in the records Stevenson, and Stephen Delancey. As a rule the entries in the minutes of the common council stand in unbroken se-
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quence, giving no sign by their arrangement or by any ex- planatory headlines of the coming and going of governors. But the entry that records the installation of Mayor Lawrence and his colleagues follows a blank page and is prefaced by the heading : 'From Hence Begins What is Acted in Governor Sloughter's Time.' Too distinctly the new officials of 1691 could not set themselves apart from the predecessors elected by order of Leisler and his friends.
Rapidly, too, were pushed the proceedings against the pris- oners some of whom, it appears to have been decided before any of them were examined, were to be tried by civil process for high treason and murder. As a committee to examine them 'in order to their mittimus to the common prison of this city' the governor in council appointed on March 23 Dudley, Brooke, and Van Cortlandt who were to have the aid of Secre- tary Clarkson and Attorney-General Newton. On the 24th he ordered a special court of oyer and terminer, to be composed of two judges, whom he would immediately name, and eight others; and on the 26th he issued a commission to the ten - to Joseph Dudley and Thomas Johnson whom he had mean- while appointed judges, and to Major Ingoldsby, Captain Hicks of the Archangel, Sir Robert Robinson late the gov- ernor of Bermuda, Smith and Pinhorne of the council, Mayor Lawrence, Isaac Arnold of Suffolk County, and John Young the old leader from the same county who, like Lawrence, had begun his political activity while Stuyvesant governed New Netherland and who had sat on the council with Dongan and Andros. These ten, or any six of them one of the judges always being one, were to 'proceed in the said court.'
On the same day, some of the prisoners having now been examined, Lawrence and Pinhorne as justices of the peace issued a warrant for committing to the common jail Jacob Leisler 'late of the City of New York, merchant,' charged with levying war against their Majesties in their province of New York, with counterfeiting their great seal of their said province, with murdering one John or Josiah Browne, and with per- petrating 'other high misdemeanors.' It was also ordered
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that at the discretion of the committee such prisoners as had not yet been examined might be released upon giving bonds for their good behavior and their attendance at the next term of the court of quarter sessions. Ten of those who were held were immediately brought to trial: Leisler, Milborne, Delanoy, and Edsall, Abraham Gouverneur, Dr. Gerardus Beekman, Thomas Williams of Westchester, Mindert Coerten of New Utrecht, Johannes Vermilye of New Harlem, and Abra- ham Brasier, or Brasher. Again not all had been members of Leisler's council. Domine Varick of Long Island afterwards said that two were elders of his church - doubtless Beekman and Coerten.
The prisoners asked of the governor that they might have a hearing under the order he had received to examine strictly and impartially into the affairs of the province. This order, they were told, did not apply to recent events - to events which had happened after it was issued; and it was as con- cerned in these that the petitioners were to be judged by the court.
To constitute for this purpose a really impartial tribunal Governor Sloughter would have had to bring from some other colony all its members except Hicks and Robinson. Probably no such idea occurred to him. Of course it would have meant delay; and he was impatient to be done with the affair, for he could not leave Manhattan without settling it and thus, as he hoped, quieting the people, and his presence was greatly needed at Albany. Yet he might at least have found persons somewhat more impartial than Ingoldsby and Dudley; and he need not have written to England that the court was com- posed of 'ten gentlemen of approved integrity and loyalty' who had been 'personally unconcerned in the late troubles.'
To the Earl of Nottingham, now the secretary of state in charge of colonial affairs, Sloughter rendered at this time a long report upon the state in which he had found New York, upon all that had happened (as the tale was told him) before and after Ingoldsby's coming, and upon the preparations for the trial. The 'loyal people,' he said, were persuaded that
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if the train-bands had not come in to Ingoldsby's aid Leisler would certainly have maintained his rebellion to the last; and the rebel had even declared that New York was a province which neither Ingoldsby himself nor those under his command ought to tread upon. This is an illuminating example of the scores of wilful or unwitting perversions of fact that were passing current. Leisler, it may be remembered, had used the word 'province' merely to denote the immediate vicinity of Fort William when Ingoldsby's men were trespassing there.
On the 30th the governor in council appointed Pinhorne, who was a member of the court, and Bayard and Van Cort- landt to prepare the evidence against the prisoners, and as- signed as king's counsel William Nicolls, James Emott, one of the anti-Leislerians who had taken refuge in East Jersey, and George Farewell, the same who, while he lay in prison with Andros at Boston, had been urged to endeavor when he should reach England to secure Leisler's overthrow and punishment. He had appeared at New York a few days before Sloughter arrived.
The main facts and results of the trial have always been known with a few details, some correctly, others incorrectly, transmitted. If any official record of the proceedings survives in this country it lies hidden amid the masses of papers relating to the colonial courts which have not yet been made available for students' use even in their manuscript form. Nor was it generally known that such records survive in England until the papers concerning the colonies at this period which there exist were calendared in print in 1901. The calendar gives no abstracts of the documents but merely lists them as a 'Copy of the Rolls of Court in the Trial of Jacob Leisler and his accomplices' which was transmitted to Nottingham by Governor Sloughter, and a 'Copy of the Trial of Jacob Leisler and his accomplices' which was sent to the Lords of Trade from Virginia by Governor Nicholson. The documents them- selves, however, are accessible; and they greatly enlarge our knowledge of how the trial was conducted although they do
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not give full details of the proceedings or explain the most puzzling of their results.
The most important new fact that they reveal is that the prisoners were allowed counsel. This was not in accordance with the practice of the time in England where a person ac- cused of a political offence was allowed no counsel, was not permitted by law to see the indictment against him, and could not, as could the crown, compel the attendance of witnesses or even cause them to be sworn if they voluntarily appeared on his behalf. In 1696 an act of parliament to regulate procedure in cases of high treason mitigated these conditions. But until then a political prisoner might come into court wholly ignorant of the nature of the charge against him, and while in court could expect no help in making his defence. These facts, to our eyes painfully evident in the account of any state trial of the time, do not mean that the authorities then loved cruelty or were consciously content with injustice. There were then no professional policemen or detectives, only spies and in- formers. The analysis of testimony and the cross-examining of witnesses were arts as yet unborn. Moreover, governments were not then secure as they are in English-speaking lands to-day, and in consequence the whole administration of justice in cases of a political kind was swayed by the feeling that to acquit a traitor might mean imminent danger to the throne, quick-coming civil war.
In a country where a state trial was a novelty the trial of Leisler and his adherents was thought by their partisans a travesty on the forms of justice in regard both to the com- position of the court and to the manner in which the proceed- ings were managed. It was 'cruel and arbitrary,' said the New York house of representatives addressing Governor Bello- mont in 1699 when the Leislerians were in the majority and Abraham Gouverneur was speaker; it had been 'ordered by the governor and managed by the bench contrary to all the laws of justice and humanity.' So it may appear to the reader of to-day whether he himself finds the condemned condemn- able or not. But it was not contrary to the laws or customs
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of the mother-country. It was exceptional only in that the accused were allowed counsel, by no means exceptional in that they were, as Macaulay says of political prisoners in England, at the mercy of a 'small junto' named by the very authority that prosecuted them.
In a petition to the governor in council which bears no date one of the accused, Dr. Beekman, declared that he had served on the committee of safety of 1689 and had raised forces to strengthen Fort William with no other intent than to hold it for their Majesties until their 'full and absolute power' to demand it should come, and not, 'as hath through the malice of a choleric man happened, to use hostility against their Majesties' good subjects.' Moreover, his sole intent in coming the last time to the fort had been to persuade this choleric Leisler from 'such base and inhuman actions.' Therefore he begged to be released on bail and to have liberty to visit several patients on Long Island who were dangerously ill. On behalf of another prisoner arrested when the fort surren- dered, Abraham Brasier, one Peter De Milt petitioned, likewise with a fling at Leisler. He himself, he explained, being in com- mand of the block-house had sent Brasier to the fort simply to inform Leisler that he meant to surrender and to have 'nothing further to do with him.' Neither of these appeals had any effect.
The trial began on March 31 and ended on April 17, but the court did not sit continuously. The ten cases, each pris- oner being separately tried, were disposed of in thirteen morn- ing or afternoon sessions which consumed in whole or in part eight days. There is no note of where the court sat but un- doubtedly it sat in the City Hall. Dudley presided but not, as is sometimes said, as chief-justice of the province. This appointment he did not receive until April 15 when the trials were almost over.
Called on the morning of March 31 the grand jurors were sworn. The witnesses to two bills - one against Leisler, Milborne, Delanoy, Gouverneur, and Beekman, the other
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against the same with the exception of Beekman - were sworn and the bills were sent to the jury. Their text is not given. Without delay the jury presented all five of the ac- cused in two indictments. One charged them with treason and felony, saying that as 'false traitors, rebels, and enemies' of their Majesties of England, 'being seduced by the instiga- tion of the devil,' not regarding the duty of their allegiance, and intending to extinguish the obedience which good subjects should bear to their sovereigns, they and other false traitors and rebels unknown 'on the seventeenth day of March and divers days before and after,' intending to depose and cast down their Majesties' 'title, power, and government' in their province of New York, had with force of arms traitorously and feloniously assaulted their Majesties' 'guards and forces' expressly sent for the defence of the province, and thus had levied war against their Majesties 'to the great terror, ruin, and destruction' of divers of their faithful subjects. The second indictment charged murder and felony, saying that with force of arms and premeditated malice the accused had as- saulted one Josiah Browne, Abraham Gouverneur discharg- ing against him 'one hand gun of the value of ten shillings, being then loaded with powder and bullets,' and inflicting a mortal wound 'in the right side of his body amongst his ribs of the breadth of one inch and the depth of ten inches,' of which wound, after languishing until the eighteenth day of the month, the said Browne had died. In this felonious murder the others of the accused had aided and abetted Gouverneur. Later in the day an indictment for treason was brought against Mindert Coerten, Thomas Williams, Johannes Vermilye, and Abraham Brasier, but no indictment for murder. Leisler and Milborne were described in the indictments as merchants, Delanoy, Gouverneur, Vermilye, and Coerten as yeomen, Beekman as a 'chirurgeon,' Williams as a mariner, Brasier as a laborer.
Nothing that had happened before Ingoldsby's arrival was referred to in the indictments. They did not even renew the charge of counterfeiting the seal of the province which had
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stood in the warrant for Leisler's commitment to jail. The rolls of court, giving the indictments in full and the results of the several trials succinctly, make no mention of Samuel Edsall; but the minutes of the proceedings transmitted to England by Nicholson show that he stood his trial like all the others except Leisler and Milborne. These refused to plead, appealing to the king, and were dealt with as 'mutes.'
As soon as the first indictments were presented Leisler was brought to the bar. Asking to be heard and refusing 'to hold up his hand' - that is, to make oath - he 'read a small paper' submitting that as he had been in power in the province he ought not to plead until such time as that power had been 'determined.' This small paper was evidently one still in existence in the original or a copy and entitled 'A memoran- dum how Jacob Leisler is to Plead,' which says :
I humbly conceive I am not holden to make my plea on the indict- ment until the power be determined whereby such things have been acted.
It explains that by virtue of the king's instructions sent out in 1689 Leisler's own power was valid until Sloughter arrived, and that Sloughter had 'only proclaimed his power to govern and not to determine concerning the power exercised by us'; and it ends with the words :
The king would accuse me for giving away my right, and I cannot complain of an act of my own, for by pleading I empower the jury to make them judges of fact; and how can twelve men of one county judge the government of the whole province ?
The minutes then say that Leisler
. . . being told that if on his trial he would offer to justify the indict- ment by such power it would properly come before the court and be determined, he says he is a subject of the king and honors the commis- sion, whereupon the opinion of the bench was asked which was unani- mous that whatsoever had been said was heard of grace and did in itself the most favorably accepted amount to no plea in law or fact.
The king's counsel moved for judgment, but the court, 'willing to give him all and more than of right privilege could in his circumstances be allowed,' offered him counsel,
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. .. which he accepted and proposed Mr. Tuder who was assigned accordingly to attend the prisoner for some time, and he was remanded.
Milborne was then arraigned for treason, challenged the jurisdiction of the court, was 'overruled,' challenged again when at once arraigned for murder, was again overruled, and, duly informed of 'the danger of his refusal,' was remanded. Abraham Gouverneur, arraigned on the indictment for treason, said that he had acted by command of Jacob Leisler who by virtue of the king's letter exercised the government in New York, and refused to plead until it should be determined , whether Leisler's authority were good or not. Although the counsel assigned, 'to wit, Mr. Tuder,' showed him in court 'the law book touching this case,' he desired some time to consult, was then. arraigned 'on the other indictment' for murder, and repeating his request for delay was remanded. Peter Delanoy, arraigned first for treason, then immediately for murder, pleaded not guilty, put himself 'on the country,' and was remanded. So it happened with Gerardus Beekman, and the court adjourned until eight o'clock of the following morning.
Then Leisler, again brought to the bar, was arraigned for treason. President Dudley reminded him of the favor done him and advised him to plead. Continuing his 'general talk' he refused, asking that he might further advise with his coun- sel; but, the king's counsel again praying judgment unless the prisoner would plead, he was 'ordered to be tied up and put in irons in order to his suffering the judgment of the law to be given by this court.' The same steps followed when he was at once arraigned for murder.
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