THE DEATH OF LEISLER Your petitioners are under apprehension that your Excellency is informed that the fort was detained (after your arrival here) in dis obedience to his Majesty or your Excellency for some ill design, when in truth it was purposely kept until yourself appeared, whose arrival was with pain longed for to discharge them and heal those unhappy troubles which have arisen since Major Ingoldsby came hither . . . whom nothing would suffice but immediate possession of said fort, and consequently the government. Petition of Leisler, Milborne, and Others to Governor Sloughter. March, 1691.
While the other actors in the Leisler drama have always had harsh critics and warm defenders, Governor Sloughter has never had a friend. He is usually dismissed with a mere citation of the judgment passed upon him in William Smith's history, the first in which he figured. He was remembered in New York, it says, as 'utterly destitute of every qualifica tion for government, licentious in his morals, avaricious, and poor.' His administration, ended by his death in little more than three months after he reached Manhattan, was too short to enframe for us a convincing portrait of the man or the official. Yet something more is known about him than Wil liam Smith knew, and it serves in some degree to modify Smith's verdict.
Undoubtedly Sloughter was poor; otherwise he would not have wished for the post he held. Charges of worse than avarice were brought against him soon after his death: Ingoldsby then declared that he had converted to his own use £1,100 sent out to pay his two companies of regulars, and Kiliaen Van Rensselaer made affidavit that he removed from the city walls twenty pieces of the best cannon and sent them out of the country, so that New York 'remained in no state of defence whatever.' More certainly it appears that, setting aside the condemnation in Leisler's court of admiralty of the prize-ships taken from the French, he seized at least one of them and sold it again, without consideration for the owner who had bought it in good faith. It was in regard to this mat ter that Kiliaen Van Rensselaer's affidavit and several others were taken as evidence that the people of the province had considered Leisler's government legal. It is certain also that Sloughter at once acquired a share in a trading vessel. It is probable that he was drunk at a time when he should most carefully have kept himself sober. He did not show, as his superiors had ordered, an impartial spirit in settling the troubles in his province. There is some reason to think that he connived at bribery when the Leislerian leaders were brought to trial. And in reporting upon the trial he was not strictly truthful.
On the other hand, there is no sign that Sloughter was `licentious in his morals' if Smith meant these words to have the significance they now convey. It may be thought that the twenty-one English merchants trading with the colonies who thanked the king for his appointment knew something about him when they praised his 'integrity, courage, and con duct.' And he showed a certain high qualification for his office which many a colonial governor did not show a real interest in the work before him From the moment when his appointment was considered he seems to have tried to learn all he could of the state and the needs of New York, and he urged more vigorous measures for its defence than the Lords of Trade adopted. He had liberal ideas, for he asked that the `establishment of the government' might be the same as it had been in Dongan's time, meaning government by assembly. Moreover, it must be said in his defence that only an excep tionally cool-headed, conscientious, and self-reliant man could have resisted for a moment the powerful stream of partisan influence into which Sloughter was swept before he set foot on the shore of his province. Naturally he had prejudged the situation from the same point of view as the Lords of Trade; as naturally he assumed that his subordinate, Major Ingoldsby, must have done his duty as an English officer should; and therefore he accepted without question the ac counts of past and of current happenings poured at once into his ears by the major and the councillors. Had he not done this, had he really tried to be an impartial investigator, an even-handed dispenser of justice, the officials appointed by the crown to aid him would have been his most bitter critics, and he would have found no support elsewhere. He would have stood quite alone in a place divided against itself by the sharpest possible lines of distrust and hatred, in an atmos phere dense with contradictory accusations and recriminations.
His commission resembled Governor Dongan's commission of 1683 in directing him to summon from time to time, with the consent of the council, 'general assemblies of the inhab itants being freeholders.' This order was the first by which the crown of England confirmed to the people of New York that right of assembly which, as Duke of York, James had briefly recognized. The instructions that supplemented the commission conformed in general to those that Dongan had received in 1686 but differed from them at two or three points, notably in establishing, for the first time in the old Dutch province, a religious test for office. All public officials were now to take 'the Oath appointed by Act of Parliament to be taken instead of the Oaths of Allegiance and Supremacy and the Test.' This meant that they must now declare their adherence to the Protestant faith, as all officials within the kingdom of England had been obliged to do since the passage of the Test Act of 1673.
Neither the commission nor the instructions referred to the abnormally disturbed condition of New York. Except as Sloughter had been charged by the privy council to report upon the state of his province after a strict and impartial ex amination of the papers that had been handed over to him, he was left to his own discretion.
He had reached New York after just such a 'miserable winter voyage' as Dudley had predicted for all the vessels after a 'hard passage,' say his own official reports, of sixteen weeks from Cowes. Making Bermuda on January 11 the Archangel, in a stormy midnight hour, struck on the rocks seven times but then 'beyond all hope got clear,' losing a great piece of its false keel which was fished out of the water and brought on the deck to New York. Before, .however, the ship could sail for New York it was detained three weeks by the ill-conduct of Captain Hicks. This is said in the reports of the council of Bermuda and of its new governor, Isaac Richier, who had been Sloughter's fellow-passenger. Hicks had already subjected Sloughter to 'extravagant ill usage.' Now he treated Richier with scorn and his orders with contempt, espousing the cause of the old governor of the island, Sir Robert Robinson, who was charged with serious offences but was determined to return to England. Hicks sent an armed pinnace to bring Robinson on board the Arch angel. Richier stretched a chain across the harbor but let it down when he reflected upon the need that Sloughter should speedily reach his government. Then Hicks sailed away with Robinson and a number of other persons whom Richier had likewise forbidden him to take. The letters written to Sloughter from New York had not had time to reach him.
Again the voyage was exasperatingly long, some six weeks from Bermuda to New York. On March 18, Sloughter re ported, he arrived at the Narrows. Because of adverse winds the ship could not enter the harbor but, as Colonel Dudley and others who came on board told of the distress they were in at New York, the governor instantly went up to the town in the pinnace. This was on the 19th, a month and twenty-one days since Ingoldsby had come up the bay.
At once the governor published his commission at the City Hall in the presence of the people, took the oaths of office, administered them to all the new councillors except the two who were in Leisler's custody, and then sent Major Ingoldsby with his company of foot to demand entrance into the fort.
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.
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.' 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 1 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 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 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 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 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 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 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 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 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, . . . 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.
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 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- 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,' `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 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.
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. Minded 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 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 : 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 Home.
The majority are English. Only two have interest the 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 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 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 convened, 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 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 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 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 . . . 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 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 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 Dale 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 mitted for contempt to the custody of the sergeant-at-arms. At the afternoon session he explained that he had received the paper but, fearing that the people 'might come to some trouble about it,' had given it to his wife who had burned it. Then he was discharged. Another account of his humane activity is given in a paper called a Memoir and Relation which was sent from Holland to William and Mary in the following October by 'relatives and agents of the good people' of New York. Asking clemency for the prisoners still under sentence of death there, it said that when Sloughter had pros ecuted the ten, accusing them as 'criminals, rebels, and resist ers of his orders' while as a matter of fact at the time of the resistance his orders had not yet been exhibited, when he had appointed their personal enemies to be their judges, and when some of them had been sentenced to death: All these proceedings took place to the great displeasure and grief of their Majesties' good and well affected subjects ; who, well intentioned, made great efforts for the staying of the execution of said Leisler and his son-in-law, and for their removal to England to be judged by their Majesties ; having prepared a petition which was signed by more than eighteen hundred persons, and presented by a minister of the Word of God whom the governor caused also to be imprisoned, accusing him likewise of being a rebel.
On May 6 the first of the bills long in debate in the legisla ture became law by the addition of the governor's signature a bill for quieting and settling the recent disorders and securing his Majesty's government against the like in future. It was thought needful, the council explained to Blathwayt, to correct the mistaken idea of the people, who had been `poisoned' from New England, that the crown 'had nothing to do with the people here.' As, said the bill itself, there could be no power in the province except as derived from the crown, any persons who thereafter might in any way or upon any pretence endeavor by force of arms or otherwise to 'dis turb the peace, good, and quiet of this their Majesties' gov ernment as it is now established' should be deemed rebels and traitors and incur such penalties as the laws of England prescribed. This measure, it was always affirmed, had been framed at the instance of Nicholas Bayard. Other acts pro vided for the confirmation of land grants and municipal and town patents, reestablished the courts, and settled the militia. The tenth in sequence reiterated in almost identical shape the Charter of Liberties of 1683 the charter upon which the Leislerians had based the right to exercise some of the powers that they assumed, and which the assembly itself had recently declared to be, with all the other laws and ordinances of the Stuart period, null and void.
This new bill of rights became law on May 13. On the 11th the governor in council had ordered that their arms should be restored to the people if they would take the oath of allegiance, and on his Excellency's behalf the speaker had informed the assembly, so its Journal records, That he understands there is very great disquiet and dissatisfaction among the people of this province, some being displeased that the prisoners were not executed, and others declaring that he had not the power to execute them ; of which he desires the advice of this house, what may be proper for the quieting and securing of the government.
The house asked for a conference with the council and secured it on the same day. Its results appear in a message to the house prepared by the governor and council on the 14th : Upon the clamor of the people daily coming to his Excellency's ears, relating to the execution of the prisoners condemned of treason, and having had the opinion of the major part of the Representatives now met and assembled, for the execution of the principal offenders, he was pleased to offer to the Council his willingness to do what was most proper for the quiet and peace of the said country, intending speedily to remove for Albany, and demanded of the Council their opinion whether the delay might not prove dangerous at this conjunc ture; whereupon it was unanimously Resolved, That as well for the satisfaction of the Indians as the asserting of the government and authority residing in his Excellency, and preventing insurrections and disorders for the future, it is absolutely necessary that the sentence pronounced against the principal offenders be forthwith put in execu tion.
This reference to the Indians has been held to mean that the Five Nations were demanding Leisler's death. His proceed ings at Albany had, indeed, alienated the Iroquois although the savages nearer Manhattan were friendly to his party. But probably what Sloughter and his advisers implied was that they needed to convince the Five Nations by vigorous measures that the long intestine strife was at an end, the government settled, and the governor ready to deal with frontier affairs.
He had not insisted upon a full meeting of the council when he asked and received its consent to execute Leisler and Mil borne. He had contented himself with a quorum. Only five members were present when they `unanimously' voted Bayard, Nicolls, Van Cortlandt, Philipse, and Minvielle. Who formed the consenting 'major part of the Representatives' is not known; no more may be confidently or even tentatively said than that Kiliaen Van Rensselaer can hardly have been one of them.
On the evening of the same day, Thursday the 14th, Slough ter signed the death-warrant. With no mention of this fact the message from the governor and council was read to the house on Friday and was returned with the indorsement : This house, according to their opinion given, do approve of what his Excellency and Council had done.
The house then adjourned until eight o'clock on the morning of Saturday the 16th. Then the decision indorsed upon the message was entered in the Journal. By that time it had ac quired a double significance. Very early in the morning Jacob Leisler and Jacob Milborne had been hanged and beheaded. They had not been drawn and quartered so far the gov ernor had softened the dreadful sentence.
Speedily the news of their imminent death had been an nounced to them, on the evening of the 14th when the ink on the death-warrant was not yet dry. If the three Dutch domines, says the Dutch letter of 1698, had done their duty as Domine Daille did his, who could doubt that `the murder could have been prevented' ? But . . . Domine Selyns let himself be used to announce to them their death and came whilst they were sitting to take supper together. Yet he had no patience to allow them to do so, although he might well have been aware that such a message would take away all their appetite. He therefore delivered his message in a curious manner, saying that he came to bring them good news, that not all of them should die, but, said he to Commander Leisler and Secretary Milborne, You both shall die on Saturday next, being the 16th May, and you have to prepare yourselves thereto.
On the intervening Friday Leisler, Milborne, and their `distressed relations' again petitioned the governor, asking briefly that the execution might be deferred until the king's pleasure was known, or that such a reprieve might be vouch safed them as his Excellency would in his 'charity and wisdom' be pleased to direct. But the gallows was at once set up on Leisler's own ground, part of the quondam Lockermans estate, and in sight of his country house ; that is, on the ground and within sight of the house that had been his until by reason of his conviction they became crown prop erty. The gallows, says the Dutch letter, was made with pieces of wood which the condemned themselves had placed on the walls of the fort, therewith 'to turn away the storming enemy.' The spot, on the eastern edge of the Common, now the City Hall Park, has been variously identified by modern writers as near the corner of Park Row and Frankfort Street, near the old Hall of Records, and very near the place where the Franklin statue stands. According to a story handed down by word of mouth the sheriff had to send to a clergy man's house some distance out of town for a ladder; no car penter in the city would lend him one.
to be copied to a Swiss gentleman named Du Simetiere who Some years after Abraham Gouverneur aided young Leisler to secure in England the reversal of the sentences of 1691 he married the woman whose husband and father had suf fered death together while Gouverneur himself lay under sen tence of death Mary Leisler, Milborne's widow. Their daughter, a Mrs. Farmer, owned a paper which, according to a note written on a copy of it and dated in 1770, she had lent made a practice of collecting historical documents and who secured others, likewise relating to Leisler, from another member of the Gouverneur family. In his transcript Mrs. Farmer's paper is called: Collection made on the Dying Speeches of Captain Jacob Leisler and Jacob Milborne, his son-in-law, who both suffered in New York City on the 16th of May being Saturday in the year of our Lord 1691.
A brief summary of the speeches given in the Dutch letter of 1698 tallies with those given at length in this paper. It is almost certainly a contemporaneous report which, although verbal accuracy cannot be claimed for it, bears truthful wit ness to the purport and the temper of what Leisler and Mil borne said.
It is elsewhere said, on vaguer authority, that at the place of execution Domine Selyns offered the condemned the con solations of religion, and that before they addressed the people in the gray of a stormy dawn they sang together the 79th Psalm, which reads in part : O God, the heathen are come into thine inheritance. . . .
The dead bodies of thy servants have they given to be meat unto the fowls of the air. . . .
We are become an open shame to our enemies, a very scorn and deri sion unto them that are round about us.
O let the vengeance of thy servants' blood that is shed, be openly showed upon the heathen, in our sight.
0 let the sorrowful sighing of the prisoners come before thee; ac cording to the greatness of thy power preserve thou those that are appointed to die.
Then, as the Farmer paper shows, Leisler declared at much length his religious faith, his forgiveness of his enemies, and his hope that all jealous passions might be buried in his grave. `Scandalous reports,' he said, had been spread about him, especially the charge that he would not have delivered the fort to Ingoldsby even if the major had produced 'any satis faction of his power.' He had taken up his own power at the behest of the majority of the people; but, he acknowl edged, it needed for its right exercise 'more wise and cunning powerful pilots than either of us ever was.' He begged forgiveness for the mistakes that he and his adherents had made, some through ignorance, . . . some through a jealous fear that disaffected persons would not be true to the present interest of the crown of England, some peradventure through misinformation and misconstruction of people's intent and meaning, some through rashness by want of consideration, and then through passion, haste, and anger.
For all these errors he craved the pardon of God and of man. When the sheriff asked him if he were ready to die, He replied, Yes, and lifting up his eyes he prayed, and then said that he had made his peace with God and that death did not scare him and desired that his corpse might be delivered to his wife . . . and he said that, You have brought my body to shame, I hope you will not despise my family therefor. . . .
Then to his son Milborne he said, I must now die; why should you die? You have been but a servant to us; and further he declared, I am a dying man and declare before God and the world that what I have done was for King William and Queen Mary and for the defence of the Protestant religion and the good of the country, and therefore I must die, upon which I will receive God's judgment; and then he said, When this my skin shall be eaten through, with this my flesh I shall see God, my eyes shall see him and no stranger. When the handkerchief was put about his head, he said, I hope these my eyes shall see our Lord Jesus Christ in heaven. I am ready, I am ready.
The Jeffers affidavit says that the deponent saw Leisler and Milborne put to death, ' being first hanged and then their heads cut off, and heard Leisler declare his innocency and that he died a martyr for King William.' Robert Livingston, now mentioned for the first time since Ingoldsby's arrival, had also risen early and found a place near the foot of the gallows. When it came Milborne's turn to speak, says the Farmer paper, He prayed for the king and queen and the governor and council, he pardoned the judge that had condemned him, saying that the Lord would forgive him, he was ready to lay down this terrestrial coat, being assured that his heavenly Father would clothe him with a new one in the kingdom of heaven. Then to Mr. Livingston he said, You have caused the king [that] I must die, but before God's tribunal I will implead you for the same. Then to his father he said, We are thoroughly wet with rain but in a little while we shall be rained through with the Holy Spirit. The sheriff asked him whether he would not bless the king and queen; he answered, It is for the king and queen I die, and the Protestant religion to which I was born and bred. I am ready. I am ready. Father, into Thy hands I recommend my soul.
The letter of a Dutchwoman who signed only as 'N. N.' but gave the date as August 6 of this year 1691 is known in an English version, headed 'Translate out of a letter written from New York to Amsterdam,' which was first published in 1872. It had then recently come from England with documents of ascertained authenticity and appears itself to be authentic. It says that the Leislerians had not deserved of the king and queen that 'such wicked judges' should be sent over who, listening to one party and not to the other, had put two per sons to death without hearing Leisler's defence, . . . nay, though Leisler's wife and children in the most abject posture did prostrate themselves at the governor's feet and begged of him that he would hear their husband and father but half an hour speak since he had heard none but his adversaries and enemies, and if that time was too long yet he might give him audience but one minute ; yet all this was in vain, he must be hurried to the execution without being heard, and thus they died gloriously as two martyrs.
In a drizzling rain the populace had thronged about the place of execution. An account preserved by Dunlap as written down from tradition says that when Leisler died, The shrieks of the people were dreadful especially the women some fainted, some were taken in labor; the crowd cut off pieces of his garments as precious relics ; also his hair was divided out of great veneration as for a martyr.
On the other hand it is also recorded that there were many who insulted Leisler and Milborne as they passed to the gallows, and openly rejoiced at their fate; and there seems to have been one, a woman, whose hatred went to savage lengths. In certain memoranda compiled by Du Simetiere in 1769 he says : One Mrs. Latham about thirty years ago was living in New York and said then to a lady of my acquaintance that she lived in Leisler's family, that she helped at the laying of him out, and that his head was sewed to his neck, that his body was open at the place of execution, and the executioner was taking out his heart, as it was said, to bring to a lady who had promised him a reward for it, but a gentleman present pre vented him from doing it, saying why he should offer such an insult to a man that never injured him. Milborne was not dead when the executioner took him down from the gallows, and lifted up his arm as if to parry the blow of the axe that was to cut his head off. They were buried in a ground belonging to Leisler to the east of the Commons of the city, near a street now called George Street in the new plan of the city.
George Street is the present Spruce Street. The exact burial spot is thought to have been near the corner of Park Row and Spruce Street or between Spruce and Frankfort Streets back of the Tribune Building of to-day. Frankfort Street, it is believed, was named at a later time for Leisler's place of birth.
`These were the days of wrath and utter darkness,' these days of the spring and summer of 1691, said the petition of the New York assembly in 1699. Even `the public faith of government was violated,' for `a reprieve had been sealed to respite the execution' of Leisler and his son-in-law; and cer tainly more than they would have met the same hard fate but for Governor Sloughter's sudden death and 'the reflection he had, though so late, of this barbarous and unwarrantable strange execution.' Variously, at the moment and afterwards, those who thought the execution strange and barbarous apportioned the blame for it. Lord Bellomont, who took office as governor of New York in 1698 and favored the Leislerians, called James Graham, the speaker of the assembly, `the principal author of the mur der of Leisler and Milborne.' Loyalty Vindicated chiefly blames not the speaker nor the house but Leisler's enemies who were of the council : And these malignant confederates so far prevailed with the assembly of New York to compliment and flatter Colonel Sloughter as to pass several votes against the whole proceedings of the happy revolution and to excuse the barbarous severity of the illegal condemnation and bloody execution which he had ordered.
Certain Leislerians who petitioned the Lords of Trade in 1709, when the old feud was still burning, said that Bayard, whom they called the 'Dutch head of a pretended English party,' and 'passionate Mr. Nicolls' had been foremost in soliciting the execution of Captain Leisler for pretended high treason, bearing him 'a mortal grudge' a deeper grudge than their friends because of their long imprisonment. Gov ernor Sloughter, said the assembly in 1699, was lodging in Bayard's house and therefore was . . . the more pressed and sooner prevailed on by Bayard's importunity to sign the warrant of execution. And as an infallible token of the share he had in that counsel, there was a flag hung out of a window of his house for two days together, before the day of execution, as a trophy and signal of the point gained by him on the said governor and of the victory over the lives, not only of innocent, but most deserving men.
The Dutch letter of 1698 distributes its censures more widely : The governor could not be so readily persuaded to sign the execution, which at last they got him to do after having made him drunk and under promise of a large sum of money, for he was a poor man.. . . Everything was done to impress him with the necessity of the moment. All the three Dutch ministers exaggerated in the pulpit as well as in their conversation the pretended tyranny of Leisler, and declared that an example ought to be made of him. Even the wives of the principal men threw themselves at the feet of the governor begging him for the love of God to have compassion on them and the country, saying that a union nevermore would come as long as those villains were alive and therefore he ought not to hesitate to let them be hung, and then at once they would have peace and union which otherwise would be impossible. At last, having hereto been in particular induced by his covetous wife, he reluctantly and with great sadness signed the warrant of execution, crying aloud in great oppression, 0 God ! how shall I be able to answdr for it before Your Majesty and my king ; and so he had from that time not one peaceful hour.
The charge that the governor had sold the lives of two men seems soon to have dropped out of mind; but the belief always persisted in New York that because of Nicholas Bay ard's insistence he had signed the warrant while he Was drunk.
Cadwallader Colden believed that he was drunk and so, am parently, did William Smith, writing that when `no other measures' could prevail with the governor, . . . tradition informs us that a sumptuous feast was prepared, to which Colonel Sloughter was invited. When his Excellency's reason was drowned in his cups, the entreaties of the company prevailed with him to sign the death-warrant, and before he recovered his senses the prisoners were executed.
Sumptuous feasts or not, it was common enough at that period for a gentleman to be drunk of an evening. But Sloughter is hardly entitled to the full benefit of Smith's explanation. Probably he had been sober when he asked the council whether the delay of the execution of justice 'might not prove dangerous' ; and it may be thought that a seasoned soldier recovered his senses between the Thursday evening when he signed the warrant and the Saturday morning when the prisoners were hanged. The real responsibility for the execution, legalized murder or lawful punishment as it may be considered, must be laid in equal measure upon Sloughter and his five advisers, the five who were present at the council meeting on the 14th Bayard, Van Cortlandt, Philipse, Nicolls, and Minvielle. No one could have compelled a gov ernor to speak as Sloughter then did; and no governor could have ventured so to speak and to act without the hearty sanc tion of a quorum of his council.
Sloughter himself saw fit to charge the whole responsibility upon the council and the house. He had been inclined, he wrote, to reprieve the condemned, . . . but the people were so much disturbed thereat, and the Council and Assembly did represent to me the great damage it would be to the King's service, and a discouragement to future loyalty, if the law was not executed upon the principal actors, which I was constrained to do having respited all the sentence save the hanging and separating their heads from their bodies.
Leisler and Milborne were the only persons who have ever been executed for treason in the province or State of New York, but they were not the first, as is sometimes said, who so suf fered in the colonies. There were precedents for Governor Sloughter's decision to hang them without waiting for the king's commands. In Virginia after Bacon's Rebellion of 1676 thirty-seven persons were tried and executed for treason, and after the `Plant-Cutter's Rebellion' of 1682 two were hanged.
Again, Leisler and Milborne were certainly not, as they have been called, proto-martyrs of the Revolution.' They were far from being revolutionists in the spirit of 1776. They neither made nor wished to make a stand against the powers that were in England; they simply determined to resist, in support of these powers, those that had recently been cast down. Moreover, a conscious risking of life for conscience' sake is needed to make even the most innocent of victims a martyr; and nothing was further from Leisler's mind than that, by holding New York for William and Mary, he risked a condemnation for treason at the hands of their appointees.
A curious relic, called the Leisler Medal and handed down for generations in a New York family, is now owned by the Historical Society. It is a gold medal, an inch and a half in diameter, struck in the year 1681 in honor of Lord Shaftes bury and bearing his portrait. Added at some later day is an inscription in exquisitely cut capital letters running around the edge : REMEMBER WELL AND BAER IN MYND A FAETHFUL FRIND IS HARD TO FEIND. This seems the bad spelling not of an Englishman but of a German. But if, therefore, it appears to support the tradition that Leisler engraved the words while he lay in prison, the words them selves do not. He had no one to reproach but the king and his officials and very open enemies. His friends had been faithful. Nor is it credible that the little letters can have been so beautifully engraved except by a goldsmith's practised hand and delicate tools.
The execution of two men who had been condemned for treason was not allowed to interfere with the regular course of public business. On Friday the 15th the assembly passed a revenue act to continue for two years and an act which, 2 o recognizing the 'great care' the governor had taken concerning the peace of his province, granted him money to defray the ' extraordinary ' expense he had incurred because of the dis order there, and also guaranteed the collector of customs against damage from any demands or complaints that might be made against him as a consequence of unavoidable irregu larities. And on this day or on the following morning, the Saturday when Leisler died, there was passed an act for par doning, with some exceptions named, 'such as have been active in the late disorders.' On the same Saturday morning the governor signed these three bills; and then, says the Journal of the house, he went with the members of the house and of the council to the City Hall where were `read off and pro claimed' all the acts of the session. But under date of Mon day, May 18, the Journal says that all the same persons then went again to the City Hall `and read off and proclaimed the acts, which the badness of the weather prevented doing on Saturday last' and also, very likely, some manifest disin clination to listen on the part of the populace. In the after noon the assembly adjourned. On the 19th the governor issued a proclamation for recalling fugitives under the recent act of amnesty. Then he was free to go up to Albany.
The act of amnesty and the proclamation were dictated by prudence : the number of New Yorkers who had fled before the face of the king's executive was disturbingly large. The persons excepted from the pardon were Leisler and Milborne, the six others `already attainted of treason and murder,' and twenty-two more, among them William Lawrence, Dr. Samuel Staats, Captain Benjamin Blagge, Hendrick Van Vuerden, John Coe, Cornelius Pluvier, Jacob Mauritz the sea captain, Robert Lecock, and Johannes Provoost, all of whom had served on Leisler's council; Joost Stoll, William Churcher, Richard Panton of Westchester, Captain Jochem Staats of Albany, Richard Pretty the sheriff of that county who, like Staats, had from the first been on Leisler's side, and Jacob Melyn, the son of Cornelis, who was said to have been in trea sonable correspondence with the usurper.
Toward the end of July, Governor Sloughter having then returned to New York, he suddenly died. Many suspected poison; and when an autopsy showed that death had come from a natural cause pneumonia, to judge by the physicians' report the Leislerians interpreted this to mean either delir ium tremens or remorse for the executions of May 16. Noth ing in Sloughter's letters, however, suggests that he felt the least remorse or regret. He wrote home that he had quieted the people, had at last reduced the province to 'its true allegiance,' and had settled a peaceful government, for the lack of which the adjacent colonies were ready to devour each other.
He did not live long enough to learn that it is dangerous to give a political party the chance to remember its leaders as martyrs. Instead of quieting New York he had merely ter it for the moment, and in the two graves he dug had sowed a handful of dragons' teeth. In Queen's County, where there had been a revolt against Leisler, his death passed almost unnoticed. On Manhattan and elsewhere in the vicinity it enflamed the people as no words or acts of a living leader could have done. After Sloughter's death the council, according to the terms of his commission, should have assumed executive power with the first councillor, Joseph Dudley, as president. But Dudley was in the West Indies; and the council conferred executive authority upon Major Ingoldsby as commander in-chief in the province. Danger on the frontier was the reason for thus exalting a military officer. But fear of a popular uprising probably contributed its influence. At once several persons were proceeded against as rioters ; others, threatened that unless they pleaded guilty to this charge they would be accused as traitors, were kept many months in confinement; and by proclamation seditious `pamphlets' and meetings were forbidden. The ' Translate' of the Dutchwoman's letter of August 6, speaking of the death of `our dear Leisler with his son,' says : . . . we are under a great trouble by reason of the present wicked government for which we may complain to God. If things go on after this rate there is no living any longer here for Christian souls. I would have departed before this time but that they will not suffer anybody to go . . . for as I have already said it is no longer living here, because they endeavor to undo all of us utterly who have sided with Leisler ; it is not enough to them to have hanged Leisler and his son-in-law until they were half dead and then wickedly to have butchered them, for which the whole country mourns, but our husbands and those that have sided with him have been forced to fly and seven of them are clapped up in prison and are to be tried for their lives. All this is only because we all have been so faithful to King William and Queen Mary. . . . It is impossible to relate everything for the sad condition we are in would require a whole book.
If Leisler had suffered death simply at the hands of a gov ernor fresh from England, the passions that his fate so power fully stimulated might soon have died down as other governors quickly followed one another in office. But his adherents believed that he had been, as one of them said, `revengefully sacrificed' by the fellow-colonials who were his enemies. This conviction deepened as they learned of the lenient way in which King William's government treated those who in other colonies had taken a stand similar to theirs in New York; and its constant expression forced the anti-Leislerians to maintain in moral as well as in political self-defence a defiant, aggressive attitude.
It is needful to dwell upon these facts, it has been needful to tell in detail the story of Leisler's career, because the episode meant much more to New York than a mere struggle between two factions for temporary power. In one sense it did not affect the history of city and province as did less conspicuous hap penings. That is, it had no such influence upon the attitude of the mother-country or the arrangements it made for the province as had, for example, the refusal to pay taxes which brought about the establishment of an assembly in 1683. But it gave birth in New York to antagonistic parties such as had not been born of the contentions between the West India Company and its colonists or of the change from Dutch to English dominion. It turned into party leaders the little group of 'persons of quality' who had begun to gather around the king's representative, and gave them a body of adherents that they had not had before; and it also solidified and, so to say, organized the popular party, giving it as a war-cry the cry of revenge for innocent blood. When in 1695 reversed the action of the court in New York, the old passions were fed with fresh fuel. So they were by the disinterment and the stately reburial of the bodies of Leisler and Milborne in 1698; and so, again, by a chance, eagerly grasped by the Leislerians in 1702, to bring Nicholas Bayard to trial for his life, to bring him within sight of the gallows, for acts defined as treason by the statute which in 1691 he himself had induced the legislature to enact.
In fact, the Leisler episode so powerfully affected the mind and the temper of the people of New York that for more than twenty years the chief feature in their history was a passion ate struggle for political and social ascendancy between parties still known as Leislerian and anti-Leislerian. It nurtured animosities, at once personal and public, of a sort unknown in other parts of English America. It was a main reason why all through the first half of the eighteenth century, when the other colonies were quieter than in the seventeenth, New York was in a ceaseless turmoil. Even at the time of the Revolution the last sparks of the feud had not died out. Indeed, one may say that it is not yet extinct, for the heat of its embers as they smoulder in the documents of the time makes it hard to think temperately, impartially, of Leisler and his enemies so hard that more than one modern writer has distorted contemporary evidence and misstated the plain est testimonies in an effort to prove either that, as Sloughter said, never a greater villain than Leisler lived, or that, as his own friends said, never a more innocent martyr died.
This does not mean that Leisler, or even Leisler's name, is well remembered in New York. While students of its his tory have quarrelled about him more than about any other colonial character, its people have forgotten him. Not un naturally, for he constructed nothing, was identified with no cause of deep significance, left no writings of a lasting interest, and founded no long-lived family; and his career has not chanced to attract such a hand as, turning history into song or story or drama, may win for figures of the past a new life in the present. This may yet be done. Writers who can reach and hold the popular ear may not always neglect such good material completed by the tale of the reversal of the sentence of the New York court by the parliament of England and, in the figures of Mary Leisler, Milborne, and Gouverneur, supplying suggestions for an interwoven love-story. If it is done, Leisler himself will prove most interesting if shown as he really was neither villain nor martyr but a patriot born under a hapless star, a choleric, prejudiced, untrained, yet devoted and by no means unintelligent hard-struggling, hard-pressed, and most unfortunate leader in what he believed was a righteous and necessary popular movement; if shown as one whose mistakes were in tact and temper (largely Milborne's temper) rather than in aim and plan; one who, indeed, accomplished nothing of permanence but had no real opportunity so to do, and who had enough energy, honesty, tenacity, and executive power, and enough appreciation of the needs of the moment, to warrant the belief that under other conditions and with better preparation he might have made his mark as a successful administrator of public affairs.
When Governor Sloughter reported that he had reduced his province to a `true allegiance' he used an empty and a mis leading phrase. Of allegiance, in the sense of loyalty to the crown, there was no question when he arrived. Nothing justified the charges of disloyalty laid against the Leislerians ; whatever some of their opponents may have felt two years before, none now doubted that William and Mary were safely seated on the throne of Julies Stuart; and, as James's func tionaries were again in favor, it may safely be said that no one regretted the change. Nor in after years did a Jacobite spirit ever show itself in New York.
Nevertheless, the partisan strife that had been wholly local in its origin was to have its influence upon the relations of the province with the mother-country not, it has already been said, by affecting ideas and actions in England but by affecting the spirit of the New Yorkers and consequently their dealings with political affairs and with the representatives of the crown.
For many years one governor after another was forced to take sides with one faction or the other and thus to throw one or the other into determined opposition. This worked, of course, in various ways to the detriment of the province, impeding helpful legislation and hampering the kinds of prog ress that are furthered by peace and concord. Each party, wrote Cadwallader Colden, as at different times it was encour aged by different governors, opposed the measures taken by the other, and therefore public policy was ' perpetually fluc tuating' and often one day 'contradictory' to what it had been the day before; and meanwhile the successive governors, finding their `private account' in the favoring of this or that faction, did their part in keeping up the conflict.
But, if bad in these and other ways were many of the linger ing effects of the Leislerian episode, it had one lasting good result of great importance. That there was always a party in active opposition to the government was a fortunate fact in a province shut as tightly as New York in the royal hand, a province unchartered, unprivileged, uninspired by such memories of an early time of freedom as survived in New Eng land, unprotected save by the intelligence and the energy of its own sons. The persistent strength of party feeling in New York meant, in short, a habit of watchfulness and aggres siveness in public affairs which largely helped to open the path for revolution.
Naturally the resistance of the New Yorkers to outside authority, like their contests among themselves, had its ad mixture of personal and factional ambition, of political chi canery, of private or corporate greed masquerading as pa triotism. Yet in the chequered story there are admirable chapters telling of battles for high causes fought with unselfish ardor and of notable victories that benefited all the Thirteen Colonies. And the good effect of this long training in a close attention to political matters and in the methods of political warfare plainly appeared when the old jealousies and hatreds at last died down, when factions reshaped themselves in forms of deeper significance, the dividing line shifted from local issues to wider ones, and the people of New York stood grouped no longer as the friends and the enemies of Jacob Leisler, no longer even as a country party and a crown party, but as rebels and loyalists, as patriots and Tories.