The Historical Society of the Courts

of the State of New York

n the late forties, Judge Fuld’s new lawclerks were selected by Columbia’s LawSchool Dean, Young B. Smith. His firstsuch clerk was Maurice Rosenberg, Editor-

In-Chief of the Law Review. For some reason Inever could fathom, I, a poor somewhat con-fused boy from Brooklyn who had never met ajudge before, was the second.

It was like being dropped onto MountOlympus by parachute.

The setting was impressive: Cardozo’s for-mer chambers in New York City; that magnifi-cent Temple of Justice, the New York Court ofAppeals Hall in Albany with probably the mostbeautiful courtroom in the country; and thatbenign, smiling, welcoming modest and bril-liant judge with his law assistant, VirginiaHughes, and secretary Dorothy Houts, ready tohelp the newcomer feel comfortable.

Beneath that magnificent Albany courtroomwere filed the unpublished memoranda of theCourt of Appeals greats. Touching their work,you could almost feel the power, charged withthe wisdom of New York’s jurists going back tocolonial times, and through the reception, toEngland’s ancient court of law and equity.

Being helot to this god was dazzling but, asI soon found out, daunting.

There were the drafts. The first, by the clerk,based upon Fuld’s dictation, was disdainfullythrown back across the desk. “Do you reallyexpect me to sign my name to this?,” he wouldask, with gritted teeth and a barely restrainedurge to throw the inkwell or even the desk—or

BY Jack B. Weinstein

perhaps a thunderbolt—at the offender. Bydraft 32 things looked better: a sow’s ear hadbeen transformed by the judge into a polishedjewel of common law.

Between the first and thirty-second draftsterror ruled. “If you don’t change your ways,Jack, you’ll never be a lawyer.” (I had split aninfinitive.) To Ken Feinberg: “Now I knowwhy I have never chosen an N.Y.U. graduate asa clerk.”

To me he’d declare: “You’re fired. Yourwork is impossible.”

Dejected, I’d walk from 44th Street to ourapartment in London Terrace on 23rd Street tobe greeted by my wife Evie and our toddler

The Honorable Stanley H. Fuld *

OFFICERS AND TRUSTEES:

Albert M. Rosenblatt, President

John D. Gordan, III, Vice-President

E. Frances Murray, Secretary

Stephen P. Younger, Treasurer

Sue M. Nadel, Executive Director

Helaine M. Barnett

Richard J. Bartlett

Barbara A. Brinkley

Penelope D. Clute

Norman Goodman

Henry M. Greenberg

Andrew L. Kaufman

Judith S. Kaye

Stephen Rackow Kaye

Robert G. M. Keating

E. Leo Milonas

A. Thomas Levin

Jonathan Lippman

Bernard S. Meyer

Leon B. Polsky

M. Catherine Richardson

Leon Silverman

Christine W. Ward

VOLUME 1, NUMBER 2 SPRING / SUMMER 2004

He lights the way for all of us who seek, however inadequately, to emulate his love of the law and

his enormous skill.

CONTENTS—

The Honorable Stanley H. Fuld, BY Jack B. Weinstein . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

From the Director / Contributors to this Issue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

The Price of Vanity–or the Lawyer with the Ears of an Ass, BY John D. Gordan, III . . . . . . . .3

Two Centuries of Law Reporting, BY Gary D. Spivey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

Peggy Facto–Murderess or Victim?, BY Penelope D. Clute . . . . . . . . . . . . . . . . . . . . . . . . .12

Historical Society Member List . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15

continued on page 10

”“

In MemoriamHonorable Stanley H. Fuld

1903 – 2003

I

2

Dear MembersFrom the Executive Director

Contributors to this Issue

Penelope D. Clute is the City Court Judge in Plattsburgh, NewYork. From 1989 to 2002 she was the District Attorney ofClinton County and from 1974-1988 a partner in thePlattsburgh law firm of Clute Clute & Thompson. She has beenresearching crimes in the North Country for the last severalyears.

John D. Gordan,III is a litigation partner in the New York officeof Morgan, Lewis & Bockius LLP. He is currently vice presidentof the Historical Society and one of its founding trustees.

Gary D. Spivey has been State Reporter since 1999. Before that,he held editorial and executive management positions in thelegal publishing industry.

Jack B. Weinstein is a Senior U.S. District Court Judge for theEastern District of New York. He served as a law clerk for ChiefJudge Stanley H. Fuld from 1949 to 1950.

Sue NadelExecutive Director, The Historical Society of the Courts of the State of New York

I AM PLEASED TO PRESENT YOU WITH THE SECOND VOLUME of the newslet-ter of The Historical Society of the Courts of the State of New York. In this newsletter,Jack B. Weinstein shares with us his personal reflections on the distinguished juristStanley H. Fuld (1903-2003). You will read of Judge Fuld’s significant impact onAmerican Law and his contribution to “making the Bill of Rights a living force in NewYork.” John D. Gordan, III takes us back to the early 1800s to the trial of FrancisMezzara, a painter charged with public hatred, ridicule and contempt for painting andadvertising a portrait of a local attorney with the ears of an ass. Gary D. Spivey providesan insider’s view of the development of official court reporting in New York State andPenelope D. Clute explores, through original source material, the case of Peggy Facto,one of eleven women put to death by hanging in the period between 1639 and 1825.

Launched just a short time ago, The Historical Society of the Courts of the State of NewYork is dedicated to preserving, studying and celebrating what is surely among thenation’s oldest and most vital legal histories. Through our website, newsletters and jour-nal, the Society documents the history of New York’s laws, courts, legal profession andculture. The oral history project, already underway, enables us to capture the voice andexperience of some of New York’s most distinguished jurists. The annual lecture, in itsfirst year, explored New York’s role in the ratification of the Federal Constitution andmore recently, James Kent’s contribution to the development of the common law inAmerica. Our growing membership reflects a shared commitment to preserving this legalhistory. I thank you for your past generosity and look forward to your continuing sup-port as we move forward with this exciting project.

Chief Judge Judith S. Kaye (right) and Judge Albert M. Rosenblatt (left)

being presented with The Documentary History of the Ratification of the

Constitution, Volume XIX: Ratification of the Constitution by the States, New York,

Volume 1 by Distinguished Professor John P. Kaminski (center) at the

Historical Society’s inaugural program, “Framing of the Constitution: New York’s

Role,” held on April 22, 2003 at the Association of the Bar of the City of

New York. The event drew a standing-room-only crowd of judges, attorneys

and scholars.

Dear MembersThe Historical Society

of the Courts of the

State of New York

SPRING / SUMMER 2004

84 NORTH BROADWAYWHITE PLAINS, N.Y. 10603

PHONE (914) 682-3222FAX (914) 997-8982E-MAIL: The_Historical_Society@courts.state.ny.us WEB SITE:

www.courts.state.ny.us/history

BOARD OF EDITORS

Judith S. KayeAlbert M. RosenblattLeon B. PolskyE. Frances Murray

EDITOR-IN-CHIEF

Henry M. Greenberg

MANAGING EDITOR

Sue Nadel

ASSOCIATE EDITORS

David MarkusElana Shneyer

DESIGN

Patricia Everson Ryan

3

his was a prosecution for criminal libel tried in the Court of General Sessions of the

City of New York on August 4, 1817. Presiding at thetrial at the City Hall was Jacob Radcliff, the Mayor, justas he did in civil actions in the Mayor’s Court, theurban equivalent of a Court of Common Pleas. TheCourt of Sessions dated from the early days of Englishcolonial supremacy; its existence was first codified bythe Judicature Act passed by the New York ProvincialAssembly in 1683 and extended by the Judicature Actof 1691, which established our present Supreme Court.By 1817, the composition of the Court of GeneralSessions was similar to the Old Bailey’s, sitting for theCity of London and the County of Middlesex—theMayor, Aldermen and the Recorder. It existed here insome form until late in the 20th Century.

The defendant was a portrait painter named FrancisMezzara, lately of Rome, possibly a Frenchman. Hewas certainly not American, for according to the reportof the case in the New-York City-Hall Recorder:1

The defendant, by his counsel, had moved for aspecial venire to summon a jury de medietatelinguae, under the statute, which motion wasgranted. On the return of the venire, a numberof the jury were called who did not understandthe English language. The court directed these tostand aside, and that the sheriff should summona tales of such as spoke the language.

The case was prosecuted by Hugh Maxwell,District Attorney for New York County, assisted

by three other counsel. In the standard reference workfor the bar of the period, Maxwell is described as:

an eminent lawyer of the New York bar. He wasfirst appointed [District Attorney]…in 1817, andagain in 1821, after the adoption of the new Constitution. He continued in office until 1829.… Deeply and thoroughly learned in the Englishand American criminal law, with rare elocution-ary powers, a pleasing, genial manner, he wasformidable before a jury. But his natural hatredof crime gave him that determination in the trialof criminals which sometimes rendered him

The Price of Vanity orThe Lawyer with the Ears of an Ass

obnoxious to the charge of beingvindictive in his efforts to convictpersons indicted.2

A visitor to New York City ten yearslater described Maxwell as “a great tall

gangling fellow, with a sly countenance,slipery tongue and slip slop gate; his face

is fair, long and brazen....”3 One of thelawyers assisting Maxwell, described in the

report only as “Price,” is undoubtedly William M.Price, a longtime associate of Maxwell’s at the criminalbar who served as United States District Attorney for theSouthern District of New York from 1834 to 1838,abandoning his post to flee to Europe with $70,000 instolen government funds and later committing suicide.4

The indictment included several counts, but theessence of the charge was that “contriving him the saidAaron H. Palmer to bring into public hatred, ridiculeand contempt,” Mezzara “falsely and maliciously didmake, utter and publish a certain picture, portrait orresemblance of the said Aaron H. Palmer with the ears

T

Mezzara “falsely and maliciously did make, utter and publish a certain

picture, portrait or resemblance of the said Aaron H. Palmer with the ears of an Ass.…”

by John D. Gordan, III

4

of an Ass....” Aaron H. Palmerwas described in the indictmentas “a counsellor and attorney atlaw in this city, and a master inchancery and public notary.”

At the trial Palmer testifiedthat at a dinner given by aFrench nobleman residing inNew York, he had been intro-duced to Mezzara, whom hesubsequently invited to hishome. On that occasion,Mezzara:

proposed to draw a portraitof the witness and was verysolicitous that he should sitfor that purpose; allegingthat there was a very strikingpeculiarity in the forehead,and that the head of the wit-ness was a head of study—expressing it in French as“une tete d’etude.”

Palmer, by his testimony “reluctant-ly,” sat for the portrait, but after it wasexhibited, Palmer “considered itunworthy of an artist of eminence;and his friends pronounced it to be acaricature.” Palmer tendered Mezzarahis fee of $65.00 for painting the por-trait and authorized him in writing tokeep the picture as well. Mezzara,“considering his professional skilldecried, and his feelings wounded,refused to receive the money, …alleging that [Palmer] had woundedhis self-[esteem], and that he wouldhave satisfaction.” Later in the day,Mezzara had second thoughts andsent for the money from Palmer, whoby this time had changed his mindand refused to pay it.

Mezzara sued Palmer for the fee inthe Mayor’s Court and lost, with costsof $24.00 awarded against him. Thedeputy sheriff testified that when hecame to Mezzara’s studio to levy forthe costs, Mezzara “represented thathe had no other property to satisfythe execution except the picture . . .which the witness recognised as thelikeness of Mr. Palmer.” When thedeputy sheriff returned to take it awayby carriage for public auction, he“found it disfigured by the appendageof Ass’s ears to the head.” Mezzarawas also charged with putting anadvertisement in the “RepublicanChronicle”:

Curious Sheriff’s Sale. We havebeen requested to mention,that there will be sold, thisforenoon, at public vendue, atNo. 133 Water-street, a PIC-TURE intended for the likenessof a gentleman in this city, whoordered it painted. But as thegentleman disclaimed it, itremained the property of thepainter, and is now seized byexecution. In order to enhanceits value, the painter, who is aneminent artist from Rome, hasdecorated it with a pair of longears, such as are usually wornby a certain stupid animal.

Palmer found out what was happen-ing just before the well-attended auc-tion began and sent an agent to bidon the picture for as much as $30.00,but one of Mezzara’s friends got it for$40.00, from which Mezzara himselfcheerfully paid the deputy sheriff the$24.00.

The final prosecution witness,“John W. Jarvis … a portrait painter,”testified that when he had seen theportrait in its original state, “it was animperfect likeness, and rather a botchthan the performance of an accom-plished artist.” When Jarvis next sawthe picture, “it was in the possessionof the defendant, who was exposing it,seemingly in a triumphant manner, inPine-street, with the appendage ofAss’s ears.”

Mezzara called three witness-es, none of whom gave conse-quential testimony. All wereFrench, “and Edmond C. Genetwas sworn as an interpreter.” ButMezzara’s counsel defendedstrongly on the followinggrounds, among others:

the portrait having beenrejected by Palmer as nolikeness, it could not form thebasis for a libel of Palmer;

Mezzara did not publish thelibel if there was one: thedeputy sheriff did when heoffered the portrait for sale;

Palmer having abandoned theportrait and refused to pay forit, Mezzara “had a right tomake the best use of it hecould.”

Following instructions from MayorRadcliff, who charged them that theirverdict depended on Mezzara’s intentand that the verdict in the Mayor’sCourt meant only that the portrait“was not such a likeness as Palmerhad a right to expect,” the jury stayedout all night, but in the morningreturned a guilty verdict. Mezzara wassentenced to a $100.00 fine.

In this little farce of a trial, there areglimpses of people, principles andpublications of no little historicalinterest.

I. THE JURY DE MEDIETATE LINGUAE

In the chapter on trial by jury in hisCommentaries on the Laws of England,Blackstone discusses the

jury de medietate linguae … pur-suant to the statute 28 Edw. III.c. 18. which enacts, that whereeither party is an alien born,the jury shall be one half aliensand the other denizens, ifrequired, for the more impar-tial trial. A privilege indulgedto strangers in no other countryin the world; but which is asan[c]ient with us as the time ofKing Ethelred, in whose statutede monticolis Walliae (thenalien to the crown of England)cap. 3. it is ordained, that “duo-deni legales homines, quorum sexWalli et sex Angli erunt, Anglis etWallis jus dicunto.5

John Wesley Jarvis (1780–1840)By Henry Inman, c.1822

Courtesey, Fogg Museum, Harvard University

5

The ancient statutory lineage ofthis right began a year earlier thanBlackstone mentions, in theStatute of the Staple of 1353, deal-ing with disputes involving foreignmerchants at fairs. In 1354, in thestatute Blackstone cites, the mixedjury was extended to all disputes,including those to which the Kingwas a party, thus embracing crimi-nal cases as well as civil.

In New York, an alien’s right toa mixed jury, half aliens and halfcitizens, was codified by theLegislature and enacted into law insection XXI of An Act for regulat-ing Trials of Issues, and for return-ing able and sufficient Jurors,passed April 19, 1786:

[in] all Manner of Juries andInquests hereafter to be takenor made between Aliens andCitizens of any of the UnitedStates of America, be theyMerchants or others, in anyCourt, or before any Justice orJustices, and whether this Statebe Party, or interested, or not,except in Cases of Treason, theone Half of the Jury or Inquestshall be Citizens of this State,and qualified by this Act toserve on such Juries orInquests, and the other Half ofAliens, if so many Aliens orForeigners be in the City,County or Place where suchJury or Inquest is to be taken ormade....

The practice in New York seems tohave differed from what it had been inEngland, for the foreign veniremenhere who could not speak Englishwere set aside, while in England, atleast in the seventeenth century, itappears that interpreters were swornto translate for the foreign jurymen,and that the prisoner would be per-mitted to address the jury directly inhis native tongue.7

No such right, of course, existstoday, having fallen into disuse hereand in England in the 19th century.Despite its ancient lineage and occa-sional calls for its revival by radical-ized academics8 and others, it formsno part of the present right to a jurytrial protected by the SixthAmendment.9 The most recent com-prehensive treatment of the subject10

explains persuasively that the exis-tence of the mixed jury is attributableto the existence of foreign mercantileenclaves in England whose inhabitantsmaintained their own laws and cus-toms. Thus, its disappearance mayreflect a political consensus that oursociety has become sufficiently inte-grated not to warrant such a safe-guard.

II. PEOPLE

The main protagonists at the trial—Mezzara and Palmer—seem to haveleft no recognizable traces behind.Three others who participated in thetrial did: Jacob Radcliff, the Mayor;John Wesley Jarvis, the portrait-paint-ing witness; and Edmond C. Genet,the “interpreter.”

a. Jacob RadcliffHis was apparently a story of failed

promise. Born in 1764, a graduate of what is now Princeton, Radcliffstudied law in Poughkeepsie from1783-1786 in the office of EgbertBenson, the attorney general, alongwith another student, James Kent.After service in the state Assembly andas assistant attorney general, in 1798Radcliff was elevated to the then five-judge Supreme Court by GovernorJohn Jay, joining Kent, who had beenappointed earlier the same year, andBenson, appointed in 1794. In 1802

Radcliff and Kent published atwo-volume revision of the Lawsof the State of New York. However,in 1804 Radcliff resigned andresumed practice in New YorkCity, according to Kent “ambitious& restless friendless & tormentedby a malignant Jealousy.” Kent,who broke with him in 1813,described Radcliff as ultimately“sunk into Poverty & Contempt &… at last miserably Destitute … asad Example of bad Temper, &perverted ambition, & want ofSteadiness in Business....”

But there were some brightmoments in Radcliff’s long spiraldown to death in 1844. In 1804he was one of the founders of thecompany which leased and ulti-mately developed the land whichtoday is Jersey City. In 1809-1810and 1815-1818, the shifting tidesof state politics led to Radcliff’s

displacement of and his replacementby DeWitt Clinton as Mayor of theCity of New York. In 1821 Radcliffserved as a delegate to the New YorkConstitutional Convention, thedebates at which reflect that he playeda not-inconsiderable reformist role.11

b. John Wesley JarvisJarvis was a successful portrait

painter of the second rank at a timewhen Gilbert Stuart held the first.Born in England in 1780, he came toAmerica as a child and emerged inNew York City as an engraver in 1802.Within five years he had moved to thepainting of portraits and in 1815 suc-ceeded in obtaining his single greatestcommission—full-length portraits ofnaval heroes of the War of 1812 fordisplay in City Hall. This occupiedhim into 1817, when he testified atMezzara’s trial, along with a portraitof the once and future mayor, DeWittClinton, followed the next year by aportrait of Ambrose Spencer, then aJustice of the New York SupremeCourt and uncle by marriage ofDeWitt Clinton, and the year after thatby one of Major General AndrewJackson. In the 1820s his competitionseemed to gain an upper hand, andJarvis’s marriage fell apart, but hisoccasional trips south gained himcommissions, including a striking por-trait of Chief Justice John Marshall.He died in 1840.12

DeWitt Clinton, (1769–1828)The New York Historical Society

6

Publication of these monthlyreports in pamphlet form beganin January 1816; the publisherwas Daniel Rogers, a lawyer, andhis stated purpose was the report-ing of criminal proceedings,which comprised the bulk but byno means the totality of the con-tents of the Recorder. The priceto subscribe was $3 per year. Anannual index of cases was alsopublished.

The printer for the 1816 yearwas Charles N. Baldwin, whoused its covers to advertise non-legal publications he printed, andwhose prosecution for criminallibel as proprietor of the“Republican Chronicle and CityAdvertiser” is reported in theNovember 1818 issue. From1817 onwards, each issue carrieda certification that the Recorderwas “useful and interesting” and“worthy of patronage and sup-port” signed by several luminar-ies including Daniel D. Tompkins(Vice President of the United

States and member of the New York bar), DeWitt Clinton(by then, Governor of the State of New York), Jacob Radcliff(at that time, Mayor of the City of New York) and otherpublic officials including the Recorder, a Justice of theSupreme Court and the District Attorney. However, like somany other efforts of this kind, the Recorder provedephemeral: the last evidence of its existence is the two-hun-dred page case index for 1821, in which digests of topicalout-of-state cases are also inserted, along with a plea byDaniel Rogers to his subscribers, dated May 29, 1822, “that immediate payment of all arrears is indispensable.”Although at least a portion of the Recorder was com- mercially reprinted in 1842, it remains inaccessible to historians.14

c. Edmond C. GenetGenet (right) burst

into the United Statesin the spring of 1793 asthe ambassador of theGirondist revolutionarygovernment of France.Landing at Charleston,he made a triumphantmarch northwards, turningout enthusiastic supporters bythe thousands and recruitingAmericans to man ships hecommissioned as French pri-vateers against British ship-ping, for whose prizes he pur-ported to establish Frenchprize courts on American soil.Even before Genet arrived inMay at the American capital,Philadelphia, PresidentWashington had issued a neu-trality proclamation, andGenet’s frigate, “L’Embuscade,”had sent two prizes intoPhiladelphia, one owned byAmericans. This highlyinflamed situation continuedfor the balance of the year, during which Genet brazenlysought to raise support within the United States over thePresident’s objection and traded insults in the press witharch-Federalists Chief Justice Jay and Senator Rufus King.The President demanded that France recall Genet, in Paristhe Girondists gave way to Robespierre and the Terror,and the French government sent Fauchet, a new ambassa-dor, to Philadelphia with orders to recall and arrestGenet. Genet came to believe that the warship thatbrought Fauchet carried a guillotine on board for use onhim.

He did not go back. In November 1794, he consum-mated in marriage the romance he had begun as ambas-sador with Cornelia, daughter of Governor Clinton andfirst cousin of future Mayor DeWitt Clinton. After herdeath in 1810, he remarried—the daughter of thePostmaster General this time—and lived on as a gentle-man farmer until his death in 1834.13

III. THE NEW-YORK CITY-HALL RECORDER

In the period before the Civil War, the City Hall inNew York was the site not only of the executive govern-ment of the City but also of its courts. Apart from theCourt of General Sessions and the Mayor’s Court, inwhich the Mayor presided, the pages of the Recorderreport proceedings there in these additional courts duringthe six-years of its publication:

Marine Court (with Henry Wheaton presiding)

Supreme Court (a single Justice on circuit)

Chancery Court (Chancellor James Kent presiding)

Court of Oyer and Terminer and General Gaol Delivery

United States Circuit Court

Supreme Court (en banc)

Endnotes:1. Vol. II, No. 8, at 113 (August 1817).2. L.B. Proctor, The Bench and Bar of New-York (New York: Drossy, 1870), 11.3. Patricia C. Cohen, The Murder of Helen Jewett (New York: Random House

1999), 333-34.4. The United States Attorneys for the Southern District of New York: The First

Hundred Years (New York: Federal Bar Council, 1987), 28-29.5. William Blackstone, Commentaries on the Laws of England, III, 360 (1768).6. I Laws of the State of New York 303, 311 (1789).7. E.g., The Tryal of George Borosky et al., 3 State Trials 1 (1719).8. L.H. LaRue, A Jury of One’s Peers, 33 Washington & Lee L.Rev. 841 (1976)

(discussing the American cases).9. United States v. Wood, 299 U.S. 123, 145 (1936) (Hughes, Ch.J.).

10. Marianne Constable, The Law of the Other (Chicago 1991).11. The substance of these paragraphs is taken from the note on Radcliff in the

Dictionary of American Biography by Professor Don K. Roper, the leadingscholar on the early history of the Supreme Court. Radcliff has fallen oth-erwise from grace into anonymity.

12. Harold E. Dickson, John Wesley Jarvis American Painter 1780-1840 (NewYork 1949).

13. Meade Minnegerode, Jefferson Friend of France 1793—The Career of EdmondCharles Genet (New York 1928). William R. Casto, French Cruisers, BritishPrizes and American Sailors in (K.R. Bowling and D.R. Kennon, eds.),Neither Separate nor Equal: Congress in the 1790s (Ohio 2000). John D.Gordan, III, United States v. Joseph Ravara in M. Marcus (ed.), The JudiciaryAct of 1789 (OUP 1992).

14. E.g., Constable, supra note 10, at 183 n.2. A copy is available at the NewYork Law Institute.

7

n April 7, 1804,the New York StateLegislature enacted a

law1 that provided for thedesignation of an officialreporter to publish the decisions of the SupremeCourt of Judicature and theCourt for the Trial ofImpeachments and theCorrection of Errors (precur-sors to today’s Court ofAppeals). George Caines, aNew York City author andattorney, was appointed tothat position, and officiallaw reporting commenced inNew York. This year, as offi-cial law reporting in NewYork marks its 200thanniversary, the LawReporting Bureau, under thetwenty-fifth State Reporter,continues the tradition ofofficially publishing thedecisions of the New Yorkcourts.

THE BEGINNINGS (1804-1845)

“It is unimaginable thatthere ever could have beenlaw without law reporting,so vital is the recorded wordto the very existence,progress and stability of oursystem of justice,” writesChief Judge Judith S. Kaye ina foreword to a newly-pub-lished booklet on the historyof law reporting in NewYork.2 Yet, during the colo-nial era and the early yearsof American independence,the common law was largelyunwritten. Trial proceedingswere rarely transcribed, andjudges did not hand downwritten decisions as a matterof course. James Kent, whowas appointed to New York’sSupreme Court of Judicaturein 1798 and was namedChief Justice in 1804, thesame year that official lawreporting was instituted,lamented the lack of lawreporting in these words:“When I came to the Bench

there were no reports orState precedents. The opin-ions from the Bench weredelivered ore tenus. We hadno law of our own, andnobody knew what it was.”3

As Chief Justice, and later asChancellor of the Court ofChancery, Kent encouragedhis colleagues to transcribetheir decisions and sought tofoster reliance on these writ-ten decisions. “The reports ofjudicial decisions,” he wrote,“contain the most certainevidence, and the most

authoritative and preciseapplication of the rules ofcommon law.”4

The Kent-JohnsonCollaborationThe historical record doesnot reveal Kent’s role, if any,in the passage of the 1804statute that initiated officialreporting, but his contribu-tion to the origins of officiallaw reporting in New York isundeniable.5 Kent influencedthe appointment of hisfriend, William Johnson, to

succeed Caines as officialreporter in 1806. Johnson’sReports were noted for theirthoroughness and accuracy,and he is credited with set-ting the high standard ofthe official reports.Following Kent’s appoint-ment as Chancellor in 1814,Johnson was also named thefirst official reporter of thedecisions of the Court ofChancery.

The personal and profes-sional collaboration of Kentand Johnson established thefoundation of official lawreporting in New York andmade the New York OfficialReports a model for thenation. In admiration oftheir work, United StatesSupreme Court JusticeJoseph Story was moved toremark: “No lawyer can everexpress a better wish for hiscountry’s jurisprudence thanthat it may possess such aChancellor and such areporter.”6

Kent wrote on the occa-sion of Johnson’s retirementthat “you retire with my grat-itude, love, and admiration.If my name is to live in judi-cial annals, it will be in asso-ciation with yours.”7 Inaddition, he later dedicatedhis Commentaries toJohnson. In turn, Johnsonwould dedicate his ChanceryReports to Kent.

While these expressions ofmutual admiration soundexcessive to modern ears, therelationship between judgesand reporters in the earlynineteenth century was sym-biotic, as later expressed inthe observation that “[a]nofficial reporter is as essen-tial to the usefulness andreputation of a judge as apoet is to a hero,”8 and inthe unspoken corollary thata hero is essential to thework of the Homeric poet.The contents of the earlyreports were determined by

Two Centuries of Law Reporting

The future consolidation of law reporting was foreshadowed by the publication of advance sheets combining the reports of the three separate

reporters’ offices. This early example bears the original addresss labelfor delivery to Supreme Court Reporter Marcus T. Hunn.

by Gary D. SpiveyO

8

the individual reporter. Reporters fre-quently attended court proceedings togather information for their reports.They selected the cases they wouldpublish, stated the facts, summarizedthe views of counsel, and provided thewritten opinion submitted by thecourt or summarized the views ofthose judges who gave oral opinions.The reporters also supplied annota-tions, including what today would becalled headnotes, often printed in themargins, identifying the main issuesdiscussed in the case.

Kent’s Criticism of CainesWhether Kent’s admiration forJohnson colored his disdain forJohnson’s predecessor, George Caines,is unknown. What is known is thatKent lobbied to have Johnson replaceCaines, was highly critical of Caines asa reporter and as a person, andexpressed his disgust over Caines’efforts to regain the reportership uponJohnson’s retirement.9 The politics ofthe day may at least partially explainKent’s attitude toward Caines. BothKent and Johnson were Federalists,while Caines appears to have been aJeffersonian. Caines dedicated his LexMercatoria Americana, a commerciallaw treatise, to Jefferson and wroteadmiringly to Jefferson requesting per-mission for the dedication (to whichJefferson replied in kind).10 Also, onthe eve of his appointment as reporter,Caines argued for the prosecution in aNew York Supreme Court ofJudicature case in which a printer wasaccused of libeling Jefferson.Federalist icon Alexander Hamiltonargued for the defense, and Kent wrotean opinion favoring the defense.11

Furthermore, one of Kent’s sharpestcriticisms of Caines was for givingshort shrift to the argument byHamilton in Vandervoort v Smith (2Caines 155 [1804]).

As the nineteenth century unfold-ed, the official reporting of decisionsspread gradually to New York’s othercourts. Official reports of the NewYork City Superior Court commencedin 1828 and those of the Vice-Chancellors’ courts 1831.

Official reports of this era are called“nominative” reports, since they arecited by the name of the reporter whocompiled them. For example, the first volume of William Johnson’sChancery Reports is cited as “1 JohnsCh.”

Establishing Roots in AlbanyIn the early days of official lawreporting in New York, the reportersappear to have operated out of theirprivate law offices. Caines andJohnson were located in New YorkCity, and the third reporter, EsekCowen (1823-1828), had an office inSaratoga Springs. But beginning withthe fourth reporter, John L. Wendell(1828-1841), most reporters havemaintained their offices in Albany. Allof their known offices can be foundwithin a quarter-mile radius of the siteof old State Hall (now Court ofAppeals Hall).

EXPANSION OF LAW REPORTING(1846-1916)

The New York Constitution of 1846and related legislation initiated drasticreform of the court system and estab-lished the groundwork for a unifiedsystem of official reporting of cases ona statewide basis. Among otherreforms, the Court for the Trial ofImpeachments and the Correction ofErrors and the Court of Chancery wereabolished, the jurisdiction of theSupreme Court was radically altered,and a new court of last resort—theCourt of Appeals—was created. TheFirst Series of the New York Reports,covering cases decided by the Court ofAppeals, commenced publication in1847 under a reporter formallydenominated the “State Reporter”12

and appointed by the executivebranch.

The Judiciary Article of 1869 con-tinued the reorganization initiated bythe 1846 Constitution. Four GeneralTerms of the Supreme Court, the pre-cursors to today’s Appellate Division,were authorized. The Article alsotransferred the authority to appointthe State Reporter from the executivebranch to the Court of Appeals andprovided for official publication of thedecisions of the Supreme Court by aseparate Supreme Court Reporter.

In 1874, the most prolific reporterof the nominative reports, Marcus T.Hun, became Supreme Court Reporter.He would hold the position for 32years, publishing 200 volumes. A reso-lution published in 108 App Div xlvupon his retirement states: “His long-continued efforts for the improvementof the reporting system of this Stateconstitute a distinguished public serv-ice which merits and has received the

James M. FlavinState Reporter: 1953 – 1976

William JohnsonSupreme Court Reporter: 1806 – 1823

James Kent

The Third Series of the OfficialReports was introduced in January2004, the bicentennial year for official law reporting in New York.

9

universal approval both of the bench and the bar.”

While the official reports of theNew York City Superior Court hadbeen issued since 1828 and those ofthe New York City Court of CommonPleas since 1850, there was as yet nostatewide system for the publicationof the decisions of the lower courts.Concern over the multiplicity of unofficial reports led to a broad condemnation of the “evils” of lawreporting and to a bar association proposal to place law reporting undercontrol of a council modeled after theEnglish Council of Law Reporting.13

These concerns were assuaged, in1892, by legislation creating the officeof Miscellaneous Reporter.14 This newoffice was charged with reporting theopinions of all courts of record, otherthan the Court of Appeals and theGeneral Terms of the Supreme Court,as were deemed to be in the publicinterest to be published. TheMiscellaneous Reports soon com-menced publication.

With the creation of the AppellateDivision of Supreme Court under theConstitution of 1894, the AppellateDivision Reports supplanted theSupreme Court Reports and were pub-lished by the Supreme Court Reporter,Marcus T. Hun continuing in that role.The 1894 Constitution also createdthe Appellate Term of Supreme Court,and from the beginning its opinionswere reported in the MiscellaneousReports.

Presaging the eventual consolida-tion of law reporting, advance sheetscombining the reports of thereporters’ offices were authorized by1894 legislation.15

An 1896 rule first imposed therequirement, which continues to thisday, that “[a]ll cases cited in the briefsfrom the courts of the state shall becited from the reports of the officialreporters.”16

Thus, as the nineteenth centurycame to a close, the tripartite systemof official statewide reporting of thedecisions of New York’s courts was inplace, and the preeminence of theOfficial Reports was firmly established.

CONSOLIDATION OF LAW REPORTING

(1917-1956)

A 1917 law set up a Board ofReporters chaired by the State Reporterand authorized the Board—subject to

the approval of the Chief Judge of theCourt of Appeals—to enter into a sin-gle contract for the printing and publi-cation of its three publications andthe combined advance sheets.17

Legislation enacted in 1924 abol-ished the office of the MiscellaneousReporter and transferred its functionsto the office of the Supreme CourtReporter.18

A constitutional amendment in1925 created a State Law ReportingBureau, under the direction of theState Reporter.19 The State Reporterwas charged with publishing the deci-sions of all the courts of New York.The constitutional authority was exercisedin 1938.20 The offices of State Reporterand Supreme Court Reporter weremerged, and the Law ReportingBureau was established with LouisRezzemini serving as the first StateReporter under the modern model ofofficial reporting in New York.

Then as now, the Bureau operatedunder the general supervision of theCourt of Appeals and under the direc-tion and control of a State Reporterwho is appointed and removable bythe Court.21 A liaison Judge providedgeneral oversight of the Bureau onbehalf of the Court, consulted withthe reporter on matters requiringCourt approval and presented lawreporting issues to the full Court asappropriate.

Official reporting was now central-ized in the Law Reporting Bureauunder the State Reporter. The Bureauwas charged by the 1938 statute withpublishing all the decisions of theCourt of Appeals (New York Reports)and the Appellate Division (AppellateDivision Reports) and any decision of the lower courts determined by thereporter to be worthy of reportingbecause of its usefulness as precedentor its importance as a matter of public interest (MiscellaneousReports).

The introduction of a Second Seriesof the Official Reports in 1956 provid-ed an opportunity to give a uniformappearance and format to what hadpreviously been three separate publi-cations. A Style Manual established auniform style for all three publica-tions.22 The New York Reports,Appellate Division Reports andMiscellaneous Reports were now com-ponents of a consolidated productline, produced by a common staff in

accordance with common editorialstandards.

TECHNOLOGICAL INNOVATION(1957 - PRESENT)

The second half of the twentieth cen-tury was a period of technologicalinnovation in the editorial productionand publishing of the Official Reports.

New Editorial TechnologiesDuring the tenure of the technologi-cally progressive State Reporter JamesM. Flavin (1953 - 1976), electric type-writers came on the market and intothe Law Reporting Bureau. The use of the IBM electronic typewriter, with its revolutionary design andincreased typing speed, set the stagefor the implementation of computertechnology in the editorial process.

Computers became an integral partof the Law Reporting Bureau’s opera-tions in the 1970s with the installa-tion of two terminals remotely con-nected to the printer’s IBM minicom-puter system. In the early 1980s, theoffice migrated to a Wang multiusersystem with an on-site minicomputer.Ten years later, the Wang system wasreplaced by interconnected personalcomputers, a file server and networkedprinters. During the past decade, allBureau employees have beenequipped with computing equipment,and the Bureau utilizes technology innearly every aspect of its editorialoperations. In addition, the Bureauhas become part of the Office ofCourt Administration’s CourtNet widearea network, greatly facilitating theexchange of decisions between Judges’chambers and the Bureau.

New Law Reporting TechnologiesIn 1965, a novel approach to legalresearch—electronic retrieval of deci-sions from a computer database—piqued the interest of State ReporterFlavin. A contract was entered intobetween the State Reporter andInternational Business MachinesCorporation “to test a pilot caseretrieval system for New York StateCourt of Appeals cases.” This initiativegained some momentum in the fol-lowing year with the New York StateSenate’s approval of a $7,500 appro-priation to pursue the concept. Undera 1967 contract, an IBM workstationwas provided to the Law ReportingBureau for transmitting the text ofNew York Reports 2d volumes to theremote IBM Datatext System. While

10

Seth. “Judge Fuld just called tofind out how we were. He’s look-ing for you. He needs you imme-diately to help him on an opin-ion.” So back I’d go.

It wasn’t that he didn’t love us.He did. It was that he was protect-ing this goddess, the common law,from a succession of bumpkinswho were soiling her pristine gar-ments with their inadequateresearch and lack of understandingof the law.

Then there was the Fuld oralmanual of style. Among myfavorites are:

“Remember, Jack, you’re writingfor someone who reads and runs;try to write clearly.”

“Don’t waste words. Be suc-cinct, but not cryptic.”

“Your repetitive subject, verb,object is boring. Try to be moreinventive.”

“Dashes are best to emphasize aphrase. But colons, semicolons,and parentheses have their place.”

“Write the facts with impeccableaccuracy, but slant them so thereader knows how the case mustcome out without reading the lawpart.”

“Don’t use the same exotic wordtwice in the same opinion.”

Ken Feinberg produced a greatparody acting the part of Fuld onthis or other matters at the Judge’s65th birthday party thrown by hisclerks. He imitated Fuld pontificat-ing: “Do you have to repeat thesame word over and over again?You’ve used ‘the’ on the 3rd, 18thand 32nd page. Try to develop avocabulary, Ken.”

His deadpan humor leavenedmany of the chamber’s conflicts.At the 65th birthday party when wehanded him his well tied up pres-ent, he could not unravel the knot.“If you can’t untie, cut,” heannounced with droll Alexandrianmock seriousness.

When the Judge asked for a 48state survey of a legal issue, theCity Bar Association’s library nextdoor was opened until midnightwith now archaic tools of research:

Honorable Stanley H. Fuld continued from page 1

the pilot case retrieval system did not immediately prove to bepracticable, Flavin would continue to pursue the concept of acase retrieval system. As chair of the New York State BarAssociation’s committee on electronic legal research, he led thedevelopment of on-line legal services in the state. His earlyexperiments with computerized case retrieval foreshadowed thenext chapter in official reporting—the electronic publication ofthe Official Reports.

Authorization for electronic publication came in a 1988statutory amendment providing for publication “in any medi-um or format” in addition to print, including “microfiche,ultrafiche, on-line computer retrieval data base, and CD-ROM.”23

This authority was exercised in 1992 with the publicationof the Second Series on CD-ROM. An Internet-based updateservice was developed in 1997 as an adjunct to the CD-ROMand print products to provide subscribers the most recent courtdecisions not yet available in the advance sheets or on CD-ROM. These developments were followed in 1999 with the on-

line publication of the Second Series on Westlaw (West being the contractor under theOfficial Reports publishing contract).

With the rapid expansion of the Internet at the dawn of the twenty-first century camean increasing public interest in obtaining current court opinions through this new medi-um. In response, the Law Reporting Bureau Web site was launched in 2000, providingfree public access to a Slip Opinion Service database of recent decisions.

In 2001, the remaining gap in electronic coverage of the Official Reports was closedwith publication of the First Series on Westlaw. In addition, coverage provided by theSlip Opinion Service was enhanced to include all otherwise unpublished Appellate Termopinions and all lower court opinions that the reporter deemed of interest but previous-ly had been unable to publish in the printed reports because of space limitations.

A THIRD SERIES FOR A THIRD CENTURY

At the dawn of the third century of official law reporting in New York State, a ThirdSeries of the Official Reports was introduced in January 2004. In the Third Series, theOfficial Reports were redesigned in all media to take advantage of the attributes of eachmedium in a manner consistent with valued traditional attributes. Content was expand-ed to include previously unpublished materials, the format and arrangement of materi-als were enhanced for greater clarity and improved utility, and the physical appearanceof the bound volumes and advance sheets were modernized. Print and electronic materials were integrated, and research references to on-line materials were added.

Like the nominative reports and the First and Second Series that preceded it, the ThirdSeries of the Official Reports will continue to serve the bench, bar and citizenry by providing a faithful rendering of the decisions of the courts of the State of New York.

Two Centuries of Law Reporting continued

Endnotes

1. L 1804, ch 68. 2. New York State Law Reporting Bureau, But How Are Their

Decisions to be Known?: Celebrating 200 Years of New YorkState Official Law Reporting (2004). This article drawsextensively from the booklet.

3. Letter from James Kent to Thomas Washington, Esq.(Oct. 6, 1828), reprinted in An American Law Student ofa Hundred Years Ago, 2 Am L Sch Rev 547, 551 (1911).

4. James Kent, 1 Commentaries on American Law, at 473 (2ded 1832).

5. See generally John H. Langbein, Chancellor Kent and theHistory of Legal Literature, 93 Colum L Rev 547 (1993);and Judith S. Kaye, Commentaries on Chancellor Kent, 74Chi-Kent L Rev 11 (1998).

6. North Am. Rev (July 1820).7. Letter from James Kent to William Johnson (Apr. 29,

1823) as quoted in William Kent, Memoirs and Letters ofChancellor Kent, at 127 (1898).

8. 2 Chester, Courts and Lawyers of New York, at 843 (1925).9. Donald M. Roper, The Elite of the New York Bar As Seen

from the Bench: James Kent’s Necrologies, 56 New-YorkHist Soc’y Q 199, 212-213 (1972).

10. Letter from George Caines to Thomas Jefferson (Mar.

10, 1801) (Image 167) and Letter from Thomas Jefferson to George Caines (Mar. 21, 1801) (Image338), both in Thomas Jefferson Papers at <http://memo-ry.loc.gov/ammem/mtjhtml/mtjhome.html>.

11. People v Croswell, 3 Johns Cas 337 (1804).12. Reporters of the Supreme Court of Judicature and the

Court for the Trial of Impeachments and Correction ofErrors were informally known as “State Reporters” fromas early as 1814.

13. Editorial, How Law Reports Are Made, [New York City]Commercial Advertiser, June 13, 1873; The BarAssociation Scheme of Reporting, 8 Alb LJ 389 (1874).

14. L 1892, ch 598.; 15. L 1894, ch 387.16. General Rules of Practice rule 43, adopted pursuant to

Code of Civil Procedure § 17, eff Jan. 1, 1896.17. L 1917, ch 775.; 18. L 1924, ch 173.19. 1925 amend to NY Const, art VI, § 22.20. L 1938, ch 494.21. Judiciary Law § 430.22. This article is styled in accordance with the 2002

Edition of the Style Manual. 23. L 1988, ch 137, codified at Judiciary Law § 434 (5) (b).

Endnotes

ALR, the Digests, key numbers,Shepard’s and endless shelves of lawreports, statutes and law reviews. Thatwas before the computer. I recentlyasked a law clerk for information onthe nail polish industry. Two minuteslater she returned with the latestmonograph from Taiwan.

Despite the tensions, a bond ofrespect and affection developedbetween the jurist, and each of hismany awed clerks in that wonderfulfellowship of demanding work. Wewere helping him modernizeAmerican Law.

I still keep his old annual summerpostcards from Switzerland and theAdirondacks. I know he intervenedbehind the scenes to help at criticalstages of my career. Among my Fuldmemorabilia is a set of audiotapes werecorded together to prepare for apresentation to the entire ColumbiaLaw School; they are studded withself-deprecating humor.

Judge Fuld transformed jurispru-dence. Choice of law, separation ofchurch and state, elevation of stateconstitutional protections to defendagainst future denigration by theSupreme Court, and criminal sub-stance and procedure reform are but afew examples. He burnished everypart of the law the Court of Appealsdealt with during the quarter of a cen-tury he dominated it.

Encomia from the greats on theSupreme Court and other courts, pro-fessors, governors and many lawyersfilled the pages of the law journals.Jurisprudence Professor Harry Jonesrightly called him one of the handfulof the greatest common law judges ofall time. Justice William O. Douglaspraised him for “making the Bill ofRights a living force in New York.”

Fuld was a perfectionist. Onlylocking up an opinion in a bound volume stopped the polishing.

When I became a judge I tried,unsuccessfully, to measure up toFuld’s standards. As I finished eachopinion I had a mental image of Fuldtaking out his pen to improve it. Icouldn’t help thinking, “I know itshould be better, Stanley. I did thebest I could.”

The New York State Reporteradored Fuld, so he would tolerate

almost infinite corrections of galleysand page proofs. When I tried that, avice-president of West Publishing camein to see me. He was kind enough topoint out that I was no Judge Fuld, buthe made it clear that the WestReporting System could not afford suchtinkering proofs.

My first case with Judge Fuld, Peoplev. Olah,1 presented a simple criminalissue. A defendant had been convictedin New Jersey on an indictment charg-ing a $200 theft as a felony. The NewJersey statute made the cutoff betweena felony and a misdemeanor $20. NewYork’s dividing line was $100. Thequestion: was the New Jersey convic-tion a felony for purposes of NewYork’s dreaded second felony penaltyenhancement statute.

If the defendant knew that his fatedepended on Fuld, the brilliant ex-prosecutor, the defendant would prob-ably have been terrified.

After all, this Judge had beenThomas Dewey’s law man as head ofthe Appeals Bureau in the ManhattanSpecial Prosecutor’s office, where hehad developed the legal theories thatled to the destruction of the Schultzand other New York gangs. By thetime then-Governor Dewey appointedhim to the Court of Appeals in 1946,Fuld had become the nation’s preemi-nent criminal law and prosecutorialtheorist.

But the Judge was as protective ofcriminal defendants’ rights as of oth-ers’. “It is the [operative words of the]statute upon which the indictment wasdrawn that necessarily defines andmeasures the crime,”2 Fuld held, rulingfor the defendant. “The analysis wouldhave been the same,” the Judgeexplained to me, “had he pleadedguilty to stealing a $1,000 gold coin.”

Fuld brushed aside language in ear-lier decisions that suggested a resultopposite to his analysis as obiter dicta.

He had, however, a slightly differentviewpoint about his opinions. He toldhis law clerk, who objected to citing asa holding what I thought was dictum,“If I wrote it, Jack, it’s not dictum.”

I saw him at work on Dorsey v.Stuyvesant Town Corp.3 He attempted toconvince a majority of the Court thatwhen an insurance company obtainedfederal funds to build a large housing

11

project on condemned land with taxrebates, it was engaged in state actionand could not discriminate againstminorities in selecting tenants. Fuldlost 4 to 3. But he established a rulethat Brown v. Board of Education4 andmany other cases mimicked years later.

The Judge’s dissent begins:“Undenied and undeniable is the fun-damental proposition that ‘distinctionsbetween citizens solely because of theirancestry are by their very nature odi-ous to a free people whose institutionsare founded upon the doctrine ofequality.’”5 It ends: “The mandate thatthere be equal protection of the laws,designed as a basic safeguard for all,binds us … to put an end to this discrimination.”6

With this case he brought to bearhis mastery of the common law. Hestudied medieval property law atColumbia—earning the coveted Beckreal property prize—so he understoodhow the law could transform villains into free landholders andAfrican Americans from a segregatedand discriminated-against minorityinto truly free and equal citizens.

The law would at last, he trulybelieved, fully enforce the constitu-tional rights of us all.

Stanley Fuld’s work stands as a bea-con. He lights the way for all of uswho seek, however inadequately, toemulate his love of the law and hisenormous skill; to follow his quest forequal treatment for all who seek pro-tection under the rule of law.

* The Honorable Stanley H. Fuld died on July 22,2003 at the age of 99. He served as a judge ofthe Court of Appeals for an unprecedented 27years. First appointed to the Court as anAssociate Judge by Governor Thomas E. Deweyin 1946, he was elected that year to a 14-yearterm and again in 1960. He was elected ChiefJudge in 1966 and served in that position untilhis retirement from the bench in 1973.

1. People v. Olah, 300 N.Y. 96, 89 N.E.2d 329(1949).

2. Id. at 98, 89 N.E.2d at 330.3. Dorsey v. Stuyvesant Town Corp., 299 N.Y. 512, 87

N.E.2d 541 (1949). 4. Brown v. Board of Education, 347 U.S. 483

(1954).5. Dorsey v. Stuyvesant Town Corp., 299 N.Y. at 536,

87 N.E.2d at 552 (Fuld, J., dissenting) (quotingHirabayashi v. United States, 320 U.S. 81, 100(1943)).

6. Id. at 545, 87 N.E.2d at 557.

12

n the 186 years between 1639and 1825, eleven women areknown to have been put to death

by hanging. Peggy Facto was one ofthem. In Daniel Hearn’s LegalExecutions in New York State: AComprehensive Reference 1639-1963, theentry relating to her execution reads:

Peggy Facto, white. Murder. This young woman disposed ofher illegitimate baby but deniedcriminal intent to the last. Fewdetails survive about this case.She was executed at Plattsburghon March 18, 1825.

Based on new research by the authorusing source documents, a moredetailed picture is now available. Butstill the pivotal question remains: wasPeggy Facto a murderess, or was she thevictim of society’s prejudices?

On September 5, 1824, a new-borninfant was found dead in a wooded areaof Beekmantown in Clinton County,New York. A string was around its neckand much of its body had been con-sumed by fire. In October, the GrandJury indicted Peggy Facto and FrancisLabare with murder and with conspira-cy and abetting in the first degree.1

Trial was held before Circuit CourtJudge Reuben H. Walworth of SaratogaSprings at the Court of Oyer and

Peggy Facto—Murderess or Victim?

Terminer in Plattsburgh on January 19,1825. The defendants were tried sepa-rately on the same day, with Peggy Factobeing first. According to JudgeWalworth’s trial notes, the People calleda witness who knew Peggy Facto, sawher in August when she was “far gone inher pregnancy,” and after the child wasfound, saw evidence of the delivery.Another witness told of finding thechild about twelve to fourteen rodsfrom Peggy Facto’s house, with a stringtied around its neck, wrapped up in alinen cloth, burned, with the side of itshead broken in. He, and another manwho saw the child where it was discov-ered, stated they could not tell what sexit was, but that it appeared to be “fullgrown,” and there was hair on the headwhere not burned.

Mary Chandreau testified to PeggyFacto’s pregnancy and to a conversationshe said she had with the defendant inthe jail. She said that Peggy Facto toldher that she took a string from hergown to tie the child’s neck. Mrs.Chandreau asked Peggy “why she didnot send for her and she said the onethat was with her would not go for her.”

The verdict against Peggy Facto wasguilty. In his later communication tothe Governor, Judge Walworth said that“the testimony on the trial being so irresistible that the jury was out but a

very short time....”It appears

that her trial wasimmediately

followed thesame day bythat of her co-defendant,FrancisLabare.The samewitnesses testified

again aboutPeggy Facto’s

pregnancy,finding the dead

child, and jail-house conversationwith Peggy Facto. Peggy Facto, who did

not testify in her own trial, was thensworn to testify in that of FrancisLabare. According to Judge Walworth’snotes, she swore that

On the night of the delivery sheasked [Labare] to go find hermother & he refused. She thenasked him to go find Mrs.Chandreau & he refused, andnext asked him if he meant to lether die there & he said thedamned old bitch, I can do bet-ter than she can. She thenrequested him to help her & hedid & then the child was born &he took it out and went off & wasgone an hour, and when hereturned . . . he came towards herwith a knife & threatened her lifeif she said anything about it.

She added that Labare never had any-thing to do with her except one night.The notes next state that Francis Labarewas sworn, but give nothing of his testi-mony.

The verdict regarding Francis Labarewas Not Guilty.

When he sentenced Peggy Facto todeath, Judge Walworth sounded fero-cious. The full text of the sentencingwas printed in the January 29, 1825 edi-tion of the local newspaper, thePlattsburgh Republican. Key passagesare reproduced in the sidebar (right).

According to the April 23, 1825

Judge Reuben H. Walworth

by Penelope D. Clute

I

13

Plattsburgh Republican, “After convic-tion, a strong feeling prevailed in favorof having a pardon granted; and wewere among the number who thoughtit desirable that the governor shouldcommute her punishment.” The articlealso referred to strong criticism of thejudge and jury, and the claim of newlydiscovered evidence, which the news-paper referred to as “probably someold woman’s story.” Every death sen-tence imposed now is automaticallyreviewed by the Court of Appeals. Butthe Court of Appeals did not exist until1847, and it appears that no appellatecourt reviewed Peggy Facto’s convictionand sentence. Instead, the trial judgemade an “official report” of the case toGovernor DeWitt Clinton. That reportwas dated January 24, 1825 and isreferred to in the Governor’s letterdenying clemency. The Governorquotes Judge Walworth as reporting tohim that:

I became satisfied that thewoman was perfectly aban-doned and depraved and thatshe had destroyed this child andprobably the one the year previ-ous, not for the purpose of hid-ing her shame which was openand apparent to everybody thatsaw her but for the purpose ofridding herself of the trouble oftaking care of them and provid-ing for their support.

On February 28, 1825, GovernorClinton wrote to Peter Sailly, Esq., ofPlattsburgh, acknowledging a February13 letter from Judge Walworth whichenclosed a petition signed by Sailly“and a number of respectable citizenssoliciting a pardon for the said PeggyFacto either on condition of leaving theUnited States or otherwise. The peti-tion stated three grounds for the inter-position of the Executive—with manydoubts as to (1) the guilt of the con-vict, (2) this being a case that requiresa public example, and (3) the policy ofexecuting any person for the crime ofmurder when the public opinion ismuch divided on this subject.”

In his response to Sailly, theGovernor quotes Judge Walworth asreiterating in his February 13 letter thathe has no doubt as to her guilt and

Judge Walworth’s words to Peggy Facto

T IS WITH EMOTIONS AND FEELINGS themost painful, that I enter upon the

discharge of the important duty whichdevolves upon the court, and which I amnow compelled to perform. It is to pro-nounce the sentence of the law, which is todeprive a fellow mortal of existence, andsend her to the bar of her Creator and herGod to answer for the conduct of her pastlife and where her destiny must be fixed foreternity.

If in the discharge of this most painfulduty, which can ever devolve on those whoare entrusted with the administration ofhuman laws, I should in dwelling upon theenormity of the offenses which you havecommitted, and the unexampled wicked-ness of your past life, make use of stronglanguage to show the aggravation of yourguilt, and the depravity which you haveexhibited; be assured it is not for the pur-pose of wounding your feelings, neither isit intended to oppress or afflict one onwhom the righteous judgment of heaven isso heavily pressing. It is, if possible, toawaken you to a proper sense of your awfulsituation. It is, if possible, to reform youand prepare you to meet the ignominiousdeath that awaits you. It is, that by contri-tion and repentance, you may be enabledto shun a punishment more dreadful thanany which can be inflicted by human law-s on the eternal ruin of your guilty soul.

From the testimony given in your trial,there can be no doubt of your guilt, or of theaggravated circumstances attending thecommission of the crime. There is every rea-son to believe you were immediately anddirectly concerned in the murder of yourhelpless infant, whom you were bound bythe laws of society, and the ties of nature, tocherish and protect. Yes, there are very strongreasons for the belief that your own wickedhands have perpetrated the horrid deed. Andif there was any other guilty participator inthe murder, that your own wickedness anddepravity instigated and persuaded him toparticipate in your crime. To the crime ofmurder, you have added the crime of per-jury, and that in the face of Heaven, andeven on the very threshhold of eternity. I amalso constrained to say, it is much to befeared, that you will meet more than onemurdered child, as an accusing spirit at thebar of Heaven.

Wretched and deluded woman! In vain

was the foul and unnatural murder com-mitted under the protecting shade of night,in your lone and sequestered dwelling,where no human eye was near to witnessyour guilt. In vain did you endeavour toconsume your murdered infant in the fire.In vain did you secrete the body, andendeavour to obliterate all traces of yourwretchedness and shame.

Miserable and infatuated mortal! Youforgot the eye of your God was fixed uponyou. The eye of that God who suffers noteven a sparrow to fall without his notice,and to whom the light of the day and thedarkness of the night are one and the same.. . .

Your crime with all its aggravations isnow before you, and you are about toreceive the sentence which is shortly todeprive you of life. . . . When again in thesolitude of the prison, where you will bepermitted to remain for a few short weeks,reflect upon all the circumstances of thathorrid night when your infant was stran-gled by the hands of its mother. Reflectupon the situation of your husband whomyour depravity has driven from your bedand from your bosom—upon your agedparents whom your crimes will send totheir graves in sorrow. Reflect upon the sit-uation of your poor orphan children, onwhom you have entailed disgrace andinfamy, and who are soon to be left friend-less and unprotected, to the mercy of anunfeeling world. And when your feelingsbecome softened by these reflections, letme again entreat you, before the curtain oflife falls forever, and before the Judgmentseat of your God, that you fly for mercy tothe arms of a Saviour, and endeavour toseize upon the salvation of his cross.

Listen now to the awful sentence of thelaw which I am compelled thus to pro-nounce upon you. You are to be taken fromhence to the prison from which you came,and from thence to the place of execution,and there on the 18th day of March next,between the hours of twelve at noon, andtwo o’clock in the afternoon, you are to behanged by your neck until you are dead —and your dead body is to be delivered to thepresident and members of the MedicalSociety for dissection. And may that Godwhose laws you have broken, and beforewhose throne you must then appear, havemercy on your soul.

I

14

that “her execution would have affordedan example beneficial to the community.”However, he now has:

No hesitation in saying, after thefeeling which has been produced,that the execution of this womanwould be worse than useless…I dotherefore join with the petitionersin recommending a pardon for thisunfortunate woman.

Despite this urging, Governor Clintondenied the petition for clemency. Headdressed each of the three reasons, dis-posing of the first two by stating that “Therepresentation of the Judge and the facts ofthe case clearly establish the guilt of theconvict and the frequency of the horriblecrime of infanticide evinces the necessityof penal influence.”

He noted that “some enlightened andbenevolent men disbelieve in the justice,and many doubt the expediency, of thepunishment of death.” He agreed that itshould be inflicted only “in flagrantcases.” However, he suggested that thosewho signed the clemency petition maywell be wrong in questioning the efficacyof the example of execution, “[a]s theirexcellent character elevates them abovethose feelings which govern the conduct ofthe depraved and abandoned and theycannot realize in their own sentiments themotives that predominate with that of thecommunity. If terror loses its influencewith them then indeed the life of no manwill be secure.” He concluded that “[i]f apardon were granted in this case, it wouldbe a virtual declaration of the impunity ofinfanticide.”

On March 18, 1825, the death sentencewas carried out. As reported in thePlattsburgh Intelligencer:

At a few moments past twelve theprisoner was brought from the jailin a state of feebleness whichrequired the assistance of the offi-cers, by whom she was placed inthe vehicle prepared for the pur-pose—when the procession movedon, formed by the Light Infantrycompany under the command ofcaptain Sailly, and the RifleCompany commanded by LieutCouch—the whole under the com-mand of captain Baily. A crowd pre-ceded and followed the cavalcadeon foot and in waggons—the latterclass were a great part females ofvarious ages from the decrepitudeof the grandmother, down to the

rosy cheek’d maiden in her teens,all eager to witness the rare show, inwhich the death of a human beingwas to afford food for their curiosi-ty. Many of these had come from adistance, in spite of the badness ofthe roads, which could scarcely beworse.

When the prisoner arrived at thegallows which was plated in a fieldwest of the meeting house, she wastaken from the waggon and placedupon the scaffold by her attendants—to whose honor it may be said—that not one of them could refrainfrom tears . . .

[After joining the Monsigneur inprayer] she declared she was inno-cent of the crime for which she wasto suffer—and then she forgave allher enemies. She was then lifted upby one of the officers, who wasabout to proceed to the perform-ance of his duty, that on her utter-ing a faint scream excited either byterror or hysterical affection, heallowed her to be seated for amoment, when she become com-posed, and signified her readiness,upon which she was raised, and thecord adjusted, during which sheagain declared herself innocent,and prayed for the forgiveness ofher enemies, and while in the utter-ance of these words, the bolt waspulled, and the platform dropped,and with scarcely a convulsivemotion, her soul was consigned tothe land of spirits.

The crowd was orderly and quiet,and no fighting or disturbance tookplace among the lower order untillate in the day.

Once her body was cut down, thecrowd dispersed, many of the peo-ple making for local taverns and anafternoon of late-winter talk of thehanging and murder. A group fromGrande Isle [Vermont] who walkedacross a frozen Lake Champlain towitness the execution, had to takeboats back because the warmweather broke up the lake’s ice.Meanwhile, the woman’s body wasturned over to the local medicalsociety for dissection.

A women who later wrote her recollec-tions commented that “[a] great many

Author’s NoteLocating records from this case has been achallenge. The Indictment was found in acardboard box filled with old indictmentsin the basement of the Clinton CountyGovernment Center, but there were noother records from the trial. The Educatorat the Kent-Delord House Museum had atyped reproduction of Governor DeWittClinton’s letter denying clemency, but nota copy of the original. Eventually theauthor found a handwritten draft of theletter with Governor Clinton’s papers heldat Columbia University. The clemencypetition has not been located. It may bewith some petitions from the time periodthat are in the custody of the ExecutiveOffice at the Board of Parole. After exten-sive searching, the State Archives foundJudge Walworth’s trial notes. Many issuesof the Plattsburgh and Malone newspa-pers are on microfilm at Plattsburgh StateUniversity, but none could be foundwhich described the discovery of thebody, the arrest and charging of PeggyFacto and Francis Labare, nor any informa-tion about them, nor any articles aboutthe clemency petition and controversyover the sentence, except the April articlequoted above. For the full text of theIndictment, Judge’s sentencing remarks,Governor Clinton’s letter and newspaperarticles, go to-www.correctionhistory.org/northcountry/html/crimes/peggyfacto3.htm

Endnotes1. The Indictment charged that Peggy Facto and Francis

Labare . . . not having the fear of god before their eyesbut being moved and seduced by the instigation ofthe devil . . . as soon as the said infant was born withforce and arms . . .being alive then and there being inthe peace of god . . . feloniously, willfully and withmalice aforethought did make an assault . . . and didtake a certain string . . . of the bredth of one inch andof the length of two feet . . . and . . . so being fixeddrawn and tied around the neck of the said child . . .did choak and strangle . . . and did cast throw andpush into a certain place then and there situate where-in there was a great quantity of fire and . . . the saidinfant child by the fire was then and there burned todeath and killed roasted and in part consumed . . . andthere instantly died.

2. Governor DeWitt Clinton’s letter is at ColumbiaUniversity Rare Book and Manuscript Library, DeWittClinton Papers, Letterbooks of DeWitt Clinton 1825,Microfilm Reel 6, Special Collections Library, Call-Number X978 C-61, Stack 14.

3. Judge Walworth’s trial notes are in the New York StateArchives, J3011 Transcripts of testimony in CircuitCourts and Courts of Oyer and Terminer, Box 3 -Clinton County - January 1825.

4. The Indictment is in stored records at the ClintonCounty Government Center.

5. All newspaper articles are in the Periodical MicrofilmCollection at Plattsburgh State University FeinbergLibrary.

went to see her body, although it had beenagreed that it should not be seen. Manyyoung men went. So much talk was madeof this that they said that no other bodyshould ever be given to the doctors.”

Miserable and infatuated mortal! You forgot the eye of God was fixed upon you.“ ”

15

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