USA > New York > New York City > History of the city of New York in the seventeenth century Vol. II > Part 46
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Gouverneur, the first to stand his trial, was now arraigned for the murder of Josiah Browne, pleaded not guilty, and was 'informed of his challenges.' An order to summon a panel of forty-eight for the selection of a petit jury had been issued on the previous day. Twelve jurors, whose names the minutes give, being now called and sworn:
The King's Counsel opened the indictment and went on to prove it. The prisoner desires pen, ink, and paper which is allowed him. The
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prisoner having made his defence the charge was given to the jurors and an officer sworn to keep them.
Then the grand jurors presented the indictment for treason against Coerten, Williams, Vermilye, and Brasier, and also a bill 'for a riot' against Joost Stoll, Cornelis Pluvier, William Lawrence, John Coe, Hendrick Jansen Van Vuerden, and four others. The indictment was read to them, they were re- minded 'of the favor done them and that they might have counsel on their trial,' and were told that in the meantime they might give bail. Then :
The jurors charged with the indictments of murder against Abraham Gouverneur returned to the court and say that he is guilty of the murder and felony whereof he stands indicted, but knows not of any goods and chattels &c. The prisoner remanded. The Court adjourned till one afternoon.
As conviction for murder called for the death penalty, Gouver- neur was not tried for treason. Goods and chattels were men- tioned because the conviction also called for the confiscation of estates, as did likewise conviction for treason.
In the afternoon Peter Delanoy stood his trial for murder. The jury, out only long enough to admit of the arraignment of Mindert Coerten for treason and of two persons for a riot,
. .. return and say that the prisoner is not guilty in manner and form &c. nor that he fled.
As brief as these are the minutes of all the trials. On the afternoon when Delanoy was acquitted of murder Williams, Brasier, and Vermilye pleaded not guilty to the indictment for treason and were remanded; and Milborne, brought in again, was again remanded at his own request till the following day, April 2. Then, as the minutes run, he
. .. offers that he conceives the bailment of divers persons com- mitted by the same mittimus for the same fact gives him in the law the same privilege. .
Some of these persons had, indeed, sinned as deeply as he in serving on Leisler's council. But he was told from the bench that the jurors had presented them 'for a riot' and other per-
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sons, of whom he was one, 'for crimes unbailable.' Moreover, said the bench, no one could be admitted to bail after his trial had begun. And the court adjourned to the following Mon- day, the 6th.
Thus far there has been no mention of witnesses. But when Beekman was indicted on the morning of the 6th he asked and was granted a delay 'by reason he alleges he hath witnesses to come to town.' Williams was brought to trial and convicted. In the afternoon, the court entry making no mention of his witnesses, Beekman met the same fate. On the 8th Delanoy, arraigned again, offered that, having been acquitted by his country 'for the murder,' he conceived himself 'dismissed from any other question,' but was told that he was now indicted for treason which was a different crime. Upon this charge he was tried. Again the jury, after being out only a quarter of an hour, found him not guilty,1 'whereupon,' runs the record, 'the prisoner is cleared by proclamation.' On the following day Brasier was tried and convicted. The court did not sit again until the 15th.
While it stood adjourned, on the 13th, the bench asked the governor and council to instruct it whether the letter addressed to Lieutenant-Governor Nicholson, or any other papers 'in that packet from Whitehall,' could be 'understood or interpreted' as conferring power upon Captain Leisler 'to take the government of the province upon himself,' and whether his 'administration thereupon' should 'be holden good in law.' There was a ghastly humor in such questions asked with reference to lives that hung in the balance, for three of the councillors to whom it was put were the three who had from the first declared that King William's orders con- ferred the power in dispute upon themselves. If the queries had any bearing upon the cases yet undecided they had, of course, the same bearing upon those already concluded. If
1 The copy of the minutes here says that the jurors pronounced 'that the prisoner is guilty of the treason and felony whereof he stands indicted,' but the succeeding words, 'whereupon the prisoner is cleared by procla- mation,' prove, as does the corresponding entry in the rolls of court, that 'guilty ' for 'not guilty ' was a copyist's error.
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asked at all, in view of the fact that the indictments were not for having assumed power in the province but for having resisted the king's troops, they should have been asked before any trial was brought to an end. Whether, William Smith wrote, they were asked 'through ignorance or sycophancy, I know not. . . The answer was, as might have been expected, in the negative.'
With the morning of April 15, the minutes of the court begin again. Mindert Coerten was tried for treason and con- victed, the jury being out a quarter of an hour. On the motion of the king's counsel for judgment against Leisler and Milborne, Leisler was brought to the bar and reminded that it was now a fortnight since the first sitting of the court and that he had twice been arraigned for high treason and murder but had continued to stand 'mute'; nevertheless, the court would 'yet condescend' to offer him an arraignment. There- upon he was arraigned on the two indictments separately, again refused to plead, and was again remanded. Vermilye was tried and convicted, the jury once more consulting for a quarter of an hour. Milborne was brought to the bar and 'informed in like manner as Jacob Leisler' with the same result.
When the court convened in the afternoon Samuel Edsall was arraigned for high treason and stood his trial. This time there was no such quick conclusion. The court waited until after ten o'clock in the evening and, the jurors not having yet agreed and two constables having been 'sworn to keep them,' adjourned till ten o'clock on the following day. Then, the jury still disagreeing, two more constables were sworn to keep them and the court adjourned until four when the jurors brought in a verdict : the prisoner was 'not guilty of the trea- son and felony' whereof he stood indicted. The king's counsel moved that he give surety for his good behavior for a year and a day, which the court said it would consider.
On the afternoon of the 17th, say the minutes, Leisler, Mil- borne, Gouverneur, Beekman, Coerten, Williams, Vermilye, and Brasier were brought to the bar:
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Proclamation made for silence. The King's Counsel moves for judgment. The President says something prefatory to judgment.
Jacob Leisler and Jacob Milborne being asked if they had anything to say why judgment of death should not pass upon them, say that they conceive until the King determine the power by which they acted they should not answer.
The others answered that 'what they did was for the welfare of the province.' Sentence of death was passed. The court then dissolved.
More accurately, as is shown by the rolls of court, two dif- fering sentences were pronounced, those customary in England at the time for the offences in question. Gouverneur, con- victed of murder, was to be hanged. The others, convicted of high treason, were to be hanged and beheaded, drawn and quartered; or, in the words of the sentence, it was ordered that they be
. . carried to the place from whence they came and from thence . to the place of execution, that they be severally hanged by the neck and, being alive, their bodies be cut down to the earth, that their bowels be taken out and, they being alive, burnt before their faces, that their heads shall be severed from their bodies and their bodies cut into four parts which shall be disposed of as their Majesties shall assign.
A report rendered to the home authorities by the council just after Sloughter's death in July declared that he had taken care that the persons appointed to conduct the trial of the political prisoners
. . . should be such as were most capable of discovering the truth and the least prejudiced to those people, who indeed executed their commission with all the lenity and patience imaginable.
By Leisler's friends the petit jury was described as com- posed of 'youths and other bitter men.' There were, in fact, three petit juries chosen from the panel of forty-eight, one for the cases tried under each of the three indictments; and from case to case a few individual changes were made. Among the Dutch names on the lists are Ver Planck and Van Horne. The majority are English. Only two have interest - the
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name of John Barbarie, a Frenchman who became a promi- nent citizen in after years, and that of Giles Shelly who within a very few years grew notorious as a pirate. Of all the con- victed except Leisler and Milborne it was said that they had no ascertainable goods or chattels.
In 1692 the six Leislerians who, like their leaders, had been sentenced to death were released from confinement by the order of Queen Mary acting in the stead of King William while he was on the continent. Abraham Gouverneur then joined Jacob Leisler the younger in London where he was working for a reversal of the sentences passed by the court at New York ; and in 1695 they secured this reversal from parliament. During the examinations conducted by a committee of the House of Commons the counsel for the plaintiffs declared that, as Colonel Sloughter had landed at New York on the 19th of March and the indictment had set forth the treason as com- mitted on the 17th, the indictment was void; that is, there had been no treason because Ingoldsby had been intrusted with no powers in government and the Leislerians had of- fered no overt resistance to Colonel Sloughter. Moreover, the plaintiffs' counsel averred, according to the terms of In- goldsby's commission he was obliged to obey Captain Leisler, not Captain Leisler to obey Major Ingoldsby; Ingoldsby him- self should have been arraigned of high treason for laying siege against the fort, Leisler being then, as before, commander- in-chief in the province; and had this been done, 'in strictness of law' it might have gone hard with Major Ingoldsby.
Gouverneur and young Leisler laid stress upon the fact that Leisler and about twenty-seven others were committed to prison eight days 'before a mittimus was made.' Gouver- neur testified that when he was upon his trial he was told he had a way to save his life - if he would say 'that Leisler led him on.' Joseph Dudley and George Farewell, who had both sat on the bench, testified that Leisler and Milborne when arraigned for the second time had appealed to the king, of- fering a paper expressing their wish to be tried in England. Edward Antill of New York and East Jersey said that he had
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acted as counsel for Leisler and Milborne at their own request. This probably meant that he had given them legal advice out of court. No one but Tuder is named in the records as counsel assigned to the prisoners by the court.
The puzzling feature of the trial is the acquittal of Samuel Edsall and Peter Delanoy, the two who had been recognized as Leisler's chief supporters barring only Jacob Milborne. Possibly Edsall was not in the fort when it exchanged shots with Ingoldsby's men or when it surrendered to Sloughter. But Mayor Delanoy was there, was chosen with Milborne to carry Leisler's message to Sloughter, and with Milborne was then arrested. The most plausible reading of the riddle is that more of the accused might have been acquitted if more had had goods and chattels. It is impossible not to suspect bribery, with or without the governor's connivance as the case may have been.
Few witnesses can have been called, no lengthy testimony can have been given, when trials were so swiftly despatched. What is told of them, however, does not suggest that any pris- oner was browbeaten or that any showed other than a quiet bearing. George Dolstone's affidavit says that he had seen Leisler 'bound and pinioned' when he refused to plead, but this seems to have been ordered as a customary part of the pro- cedure; the testimony is interesting chiefly because it is the main proof we have that spectators were present in the court.
But if in these trials things went as decorously as the official records imply, it was not so when one of the citizens charged with a riot was arraigned. The fragmentary document, writ- ten in Dutch in the first person, which paints this incident gives neither the exact date nor the prisoner's name. Being a Dutchman he replied when 'a paper' was read to him, doubtless the indictment, that he could not understand, and asked for an interpreter. Van Cortlandt told him he was accused of a riot and had only to say guilty or not guilty, and every one tried to persuade him thereto. He could not accuse himself, he said, in a case wherein he had probably been acquitted by the king and his council - which may be
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construed as an awkwardly expressed effort to draw a compari- son between what had happened in England and in New York. Then every one reproached him, crying that he should speak English. When he asked to whom he was required to plead and said that they ought to be ashamed to make a mock of their own court, seeming to think it sport to try a man for his life or to kill him, Van Cortlandt translated for him 'in a very mischievous, false, and perverted manner.' He answered that he did not wish to seek mercy because he well knew he could not get it - 'here it was crucify him, crucify him.' Then the clerk violently seized him and threatened to stab him, whereupon he bared his breast saying that the clerk was a coward and dared not.
While the court was in' session the assembly had convencd, on April 9. One of the two members returned by Ulster and Dutchess Counties in common was unable to serve. The two from Queen's - Nathaniel Piersoll, who had declined to serve in Leisler's assembly, and John Bowne - refused as Quakers to make oath and were dismissed. To fill these three places new elections were ordered. Of the fourteen representa- tives immediately seated five were Dutch, nine were English. James Graham, Jacobus Van Cortlandt, and two of the re- cently elected aldermen - William Merritt and Johannes Kip - sat for the city and county of New York, Dirck Wessels and Levinus Van Schaick for the city and county of Albany, Henry Beekman for Ulster and Dutchess, John Pell for West- chester, Elias Dukesberry (who sometimes stands in the rec- ords as Ellis Duxbury or Ducksburry) and John Dally for Richmond, Nicholas Stilwell and John Poland for King's, Henry Pierson and Matthew Howell for Suffolk.
It was said by the Leislerian party that the elections had been illegally controlled by the governor; and one of the affidavits of later years avers that Abraham De Peyster had been elected in the city 'but was cried out for a rebel and rejected, and one Mr. Graham turned in his stead.' At all events all the members were of the party that the governor
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had made his own. As their speaker they chose Mr. Graham. They met in a tavern, and for many years their successors continued so to do. As in Dongan's time the council played a double part in government, sharing the governor's executive powers and also forming the upper house of the legislature.
With this general assembly of 1691 begins the consecutive history of representative government in the province that had once been Dutch. Here, however, we are concerned with its activities and with the administration of Governor Sloughter only in so far as the governor, the council, and the house were concerned with Jacob Leisler while he was alive in the flesh. The episode in which he was the chief actor formed for New York the close of the first colonial period. A second opened, in New York as elsewhere, with the new arrangements made under William III, and endured until the Revolutionary period began. All that happened after Sloughter's arrival, excepting the way in which Leisler met his death but including the very real way in which for many years he posthumously survived, must be passed over here to be given its proper place in the history of the second colonial period.
For nearly a month before it enacted any laws the assembly debated various measures some of which the governor or Dud- ley as the first councillor had recommended. Meanwhile it concerned itself in other ways with the state of public affairs. On the 17th, the day when the trial ended, having considered a petition from 'several freeholders' setting forth the 'op- pression and hardships' with which Jacob Leisler, Samuel Edsall, and others had afflicted their Majesties' subjects, it passed a series of resolutions condemning the aforesaid per- sons for conduct variously described as arbitrary, illegal, tumultuous, destructive, and against the dignity and the interests of the crown, they having dissolved the convention established in the city for the securing of the province to their Majesties at the time of the revolution, imprisoned some of their Protestant subjects, forced others to 'flee their habita- tions,' seized merchandise, levied money, raised forces, kept
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their Majesties' fort against their commissioned officers, and refused to surrender it after the governor's arrival, and having also by their usurpation of power been the cause of the mas- sacre at Schenectady - all of which acts were voted acts of rebellion. Then the house having, as William Smith wrote, 'by these agreeable resolves prepared the way of their access to the governor,' drew up an address heartily congratulating him, affirming that none had the right to rule in the province save by their Majesties' will, declaring the abhorrence felt by the members of the house for all the proceedings of the 'late usurpers of their Majesties' authority,' and solemnly promis- ing to support his Excellency's government against all enemies. The governor and council, concurring in the resolutions and the address, ordered them to be made public forthwith.
On the 20th the speaker informed the house that his Excel- lency desired its opinion concerning a reprieve, until their Majesties' pleasure should be known, for the prisoners Leisler and Milborne who had petitioned him to that effect. The house resolved :
That their Majesties have only intrusted that matter of reprieving with his Excellency alone; and they dare not assume to give their opinion thereupon.
On the 24th the house desired the speaker to draw up all bills to be laid before it, as hitherto they had not been satis- factorily drawn and the services of the attorney-general could not be obtained. The governor, it seems, had sent Newton to Boston to bring back the public papers of New York, carried away three years before by Governor-General Andros. Some believed that Newton had left the province because he disapproved of the harsh proceedings of the court.
On the 24th also the house, being informed by some of its members that the laws formerly made by the general assembly of the province and 'his late Royal Highness James Duke of York,' and likewise 'the several ordinances or reputed laws' framed by preceding governors and councils, were 'reported amongst the people to be still in force,' therefore resolved that all such
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. .. and the liberties and privileges therein contained, granted to the people, and declared to be their rights, not being observed, and not ratified and approved by his Royal Highness, nor the late King, are null, void, and of none effect.
Furthermore it explained that the ordinances had been 'con- trary to the constitution of England and the practice of the government of their Majesties' other plantations in America.' Neither the council nor the governor consented or, so far as appears, was asked to consent to this resolution. Of course it had not the force of law. Yet it had the effect of law, for the statutes and ordinances to which it referred were thence- forward considered null and void. They were 'disregarded,' says William Smith, 'both by the legislature and the courts of law'; and until recent years no collection of the acts of the colonial assemblies of New York or of the laws of the province included those passed under Governor Dongan by the assem- blies elected in 1683 and 1685.
By this time two members had been seated for Queen's County whose Quaker representatives had been dismissed, and a second for Ulster and Dutchess. On May 1 a new con- stituency was recognized, Kiliaen Van Rensselaer being seated as representing the Manor of Rensselaerswyck.
On May 6 Governor Sloughter, adding a postscript to the despatch which he had compiled for Nottingham at the end of March but had not yet had a chance to send, reported that the trial and condemnation of Captain Leisler and eight of his accomplices had taken place. This number tallied with the account in the rolls of court which he was then transmitting and which made no mention of Samuel Edsall. 'Certainly never greater villains lived,' Sloughter explained, but :
I have thought best to reprieve them, unless any insurrection of the people necessitate their execution, until his Majesty's pleasure be known. . . . The loyal and best part of the country is very earnest for their execution, and truly their exorbitance is such that, if some of them do not suffer, the people here will be greatly hardened in offering at the government at any time. If his Majesty shall please to grant his pardon for all except Jacob Leisler and Jacob Milborne it will be a
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favor, and all care shall be taken of their estates to be at his Majesty's disposal, though some of them are scarce worth anything. I humbly pray that I may have his Majesty's commands referring to them.
Writing twice to the Lords of Trade on May 7 Sloughter said :
I am much solicited to execute the condemned but am resolved first to know their Majesties' pleasure if by any other means I can keep the people quiet.
The men, he explained, who had been accused in the papers Captain Blagge had carried to England for the Leislerians were the principal and most loyal men of New York, for which reason Leisler and Milborne had feared and oppressed them:
Many that followed Leisler are well enough affected to their Majesties' government but through ignorance were put upon to do what they did, and I believe if the chief ringleaders be made an example the whole country will be quieted, which otherwise it will be hard to do.
With these letters Sloughter despatched the address of the assembly, the proceedings at the trial (the rolls of court), a copy of the Memorial presented in England by Blagge, and an answer thereto of the truth of which he was 'very well satisfied.' Having also examined into the allegations con- tained in the address from the anti-Leislerians of New York (the one that had been framed in the preceding May), he had found that they were 'severally true' and the writers 'very modest in their relation.' What kind of examinations he conducted may be judged from the fact that he had directed Bayard and Nicolls to answer the Memorial. The tenor of their product, a long account of the long troubles, need not be set forth. The latter part of it is in Bayard's handwriting, and the concluding passage reads :
Many here of considerable fortunes and known integrity to the crown of England, whose lives and fortunes have been almost ship- wrecked, are uneasy, thinking it will never afterwards be safe for them to live in this province; nor can their lives or fortunes ever be secure if such men do survive to head an ignorant mobile here, upon occasion. And if some example be not made of such criminals to future genera- tions, especially they having committed bare-faced and open rebellion against their Majesties' authority here published and declared and
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his officers and soldiers sent immediately from their Majesties, their government can never be safe in these colonies.
The Dutch letter of 1698 declares that after the first meeting of Sloughter and his prisoners (when upon their arrest they were brought before him in the council room) he never saw them again except once when they were confined in the case- mate of the fort and had already been condemned, that then 'he came to them in the night, being drunk,' and even then promised them 'not a hair of their head would be hurt.' The governor may have paid such a visit but, unless he was very drunk indeed, can hardly have made such a promise. His sober intent was to avoid the responsibility of a final decision while insuring the death of Leisler and Milborne. But he had good reason to fear that he might be driven to order the execution which, he mistakenly thought, was the one measure that could and would quiet the people. The people were not quiet, and they were agitating in ways that indicate a persisting majority of Leislerians. On Staten Island several persons were arrested and imprisoned or fined by virtue of an order in council, dated April 28, directing the sheriff of Richmond County to secure the ringleaders in 'sev- eral riots and tumults' occasioned by the 'subscribing of pa- pers' - that is, of papers urging a reprieve for the condemned. George Dolstone's affidavit says that 'great numbers' were petitioning the governor to this effect and, as he had heard, several were 'molested for so doing.' The Jeffers affidavit declares that the deponent was in a house where a minister . who was getting subscriptions to a petition was seized and made prisoner by some of Governor Sloughter's officers. This minister was the Huguenot Daillé who, although he had long opposed Leisler, was now trying, as did no other clergyman, to save his life. Summoned on May 1 before the assembly and asked whether he had a certain paper or petition which he was said to have received from some of the inhabitants of Westchester and Harlem, 'he answered,' says the Journal of the house, 'both in English and through an interpreter that he would not give answer to anybody,' and was com-
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