The rise and fall of Moses Simons: a black lawyer in the New York City criminal court, 1816-1820.
No black man practiced law in America before the 1840s. This is accepted historiography. Students and scholars of American history know the names: Macon B. Allen--1844, the first black man formally admitted to the bar; George Vashon--1848, first black lawyer in New York; John Mercer Langston--1850, first black applicant to an American law school. (2) Yale University's records tout Edward Alexander Bouchet in 1874 as the first black person to earn a Bachelor of Arts degree from Yale. (3)
These "firsts" are accepted as facts.
None is true, and moreover, they miss the mark by decades. In 1809 a black man graduated from Yale. Two years later, he attended Litchfield Law School under the tutelage of Judge Tapping Reeve. In 1816, he was admitted to the New York bar, and in 1817 signed the oath as counselor-at-law. (4) That man was Moses Simons.
Between 1816 and 1820, Simons practiced in New York City's criminal court, known as the Court of General Sessions, dominated then by a handful of lawyers. Flamboyant and silver-tongued, these professionals used the tropes of mercy and humanity to advocate for their clients. (5) In 1817 Simons's career looked promising. Several of his cases had been reported in Daniel Rogers's The New York City Hall Recorder. (6) These widely-read, monthly publications were held as good authority by court officials. Like his colleagues, Simons represented defendants accused of passing counterfeit notes, keeping bawdy houses, or stealing hats in a venue where whites and blacks testified for and against each other. Simons was originally from South Carolina, the son of one of five Jewish brothers who emigrated from London. He exemplified the twin proscriptions of the American dream that hard work is rewarded with economic success and education is the path to advancement. (7)
Then, in late December 1817, at a public dance Simons suffered a racially motivated outrage to his honor. Indignant, he slapped the transgressor across the face. Charged with assault and battery, he was tried in the very court in which he practiced. Two colleagues represented him and thirteen influential men testified on his behalf. A jury of his peers heard the case. He was convicted and assessed a small fine. (8) He continued to practice but those events and their aftermath presaged the end of his career.
That Moses Simons was probably the first black attorney in New York City is more than merely an historically-worthy new fact. (9) His rise and fall holds deeper significance. For years achievements of black people were invisible, giving rise to the supposition that there were no achievements. That Moses Simons is forgotten in our historiography, and that the records of both Yale University and Litchfield Law School fail to identify him as a black student and lawyer exemplifies this invisibility. Colleges and academies did not keep good enrollment records prior to the 1830s, and noting a student's ancestry was not the practice. (10) The information if generally known among his compatriots may later have been lost. By 1912, when the biographical sketches of Yale students were published, racial hatred had hardened and a black man having earned a Bachelor of Arts degree and practiced law in the early 1800s might have seemed inconceivable. But Moses Simons did exist. He lived, worked, and was accepted as a professional in a white world. He represented white defendants before all-white juries and co-counseled with other attorneys all of whom were white. The city's criminal bar was a clubby group, whose members socialized together at dinner and exchanged ideas at clubs. (11) Simons was of their number.
This is not to say that Simons's existence in recent historiography has been totally unnoted. McConville and Mirsky mentioned his trial in their study of the criminal court, but only to illustrate a point about opening statements. (12) Millender described him as "New York's first black lawyer," in discussing the members of the New York criminal bar as social outsiders. (13) Both cited Rogers's The New York City Hall Recorder as their source, but neither attributed any especial significance to a black man practicing in a New York court of law in the early 1800s. This essay is an attempt to coax Simons's career into the limelight.
That career holds yet another significance. America's history of racial inequality and virulent racism is so familiar that it seems inevitable. Slavery encouraged a belief of inherent black inferiority and racial hatred invited seemingly acceptable policies of discrimination. But during this brief period in New York City, there existed an opportunity for the trajectory of social justice for black New Yorkers to take quite a different path. The rise of Moses Simons demonstrates that a more equal society had precedent; his fall shows how it was checked.
New York City and the legal profession at the time were specifically suited to invite that opportunity of equality. The influx of immigrants and the trade boom after the War of 1812 led to economic upheavals, speculation, and social instability. The free black population in the city burgeoned. Recently-passed legislation, including the Gradual Manumission Act of 1799 and the 1817 Act Relative to Slaves and Servants, gave teeth to the New York Constitution of 1777 that declared all men are created equal. One place where that equality was daily practiced was the city's criminal court. It was a people's court. There, all manner and classes of both blacks and whites served as parties across racial lines. There, they sought and found justice.
By 1821, however, the members of the New York Constitutional Convention voted to enfranchise all white men but imposed a property qualification on "men of colour." That change institutionalized, formalized, and legitimized a rift in citizenship rights between blacks and whites. The reasonable hope blacks might have cherished that New York would become a society of equal citizens was frustrated for decades to come. Simons's professional career almost exactly coincides with this period. He began his practice one year before the 1817 Act and his career ended a year before the Constitutional Convention. His career personified the hope and failure of racial equality in New York City.
Using books, articles, primary sources, including wills, letters, district attorney files, and court records from the New York City Municipal Archives, this essay traces the rise and fall of Moses Simons.
Moses Simons's Ancestry and Education
Simons practiced law only briefly. Some of his cases were reported by the nominative court reporter, Daniel Rogers, but none of his legal papers are extant. He neither published his courtroom orations as did his colleague and occasional co-counselor, John Graham, nor counseled sensational cases, as did William Sampson. (14) Today he is barely known, unlike such notables as Hugo Maxwell, John Athon, Joseph Fay, and Robert Bogardus. Yet, these men all knew and worked with Simons. In fact, the last two represented him in the 1818 trial of People v. Moses Simons.
Developing a profile of Simons requires piecing together information from limited sources. Franklin Bowditch Dexter's biographical sketches of Yale graduates states Simons came from Jacksonboro, South Carolina, studied law, practiced in New York City, and then went to London, where he died in 1822. (15) Dexter failed to mention that Simons was the first Jewish student at Yale. Dan A. Oren in his history of Jews at Yale identifies him as such, saying that Simons entered the university in 1805. (16) In 1809, he graduated from Yale with a Bachelors of Arts degree. (17) Neither Dexter nor Oren notes that Simons was black. Perhaps they did not know.
The evidence of his being black is found in Rogers's description of his trial. Simons's paternal heritage is referenced there, but there is no record of his mother's status as enslaved or free. Further, an act of racial discrimination precipitated his trial and all the testimony for and against him concerned his being black. (18)
Jewish genealogical publications and archives have his paternal grandfather, Isaac Simons's progeny of five sons, Sampson, Samuel, Montague, Saul, and the elder Moses, immigrating to South Carolina from London between 1772 and 1783. (19) The family tree names no wives and lists only Montague's white children. (20) But other records reveal that Montague fathered at least one black son, Samuel B. Simons--"a free man of colour," who, at his death in 1813, owned substantial real and personal property. (21)
The wills of these Simons brothers show they owned considerable property, including slaves, valued between fourteen hundred and three thousand dollars. (22) That the Simons family owned slaves was not unusual. By 1820, over 75 percent of all Jewish families owned slaves. (23)
The wills also reveal clues about the family's relationship with blacks. For over twenty years Sampson had a mulatto mistress, who may have been the mother of his son, Saul. (24) Two other brothers, Samuel and Saul, bequeathed real and personal property, including slaves, to their "housekeepers," both of whom were free woman of color. (25) Although Samuel's and Saul's relationships with these women are not certain, white men who were intimate with black women commonly referred to them as "housekeepers" and bequeathed to them in their wills. (26)
His uncle Saul left fifteen hundred dollars to his "nephew Moses Simons, who is now at college in New Haven." When he turned twenty-one, Moses was also to have two hundred dollars per year for three years while completing his education. To raise the sum, Saul's executors were to "hire out four Negro slaves." (27)
It is a reasonable supposition that for Simons, the probable and certain sexual relations of his Jewish uncles and his father with women of color must have been both an accepted way of life, and one that chafed. As a small minority, the Simons family, like other South Carolina Jews, needed the support of their Christian neighbors to survive. (28) Despite their generosity toward a few blacks they were close to, it is unlikely that the family would have overtly championed for the freedom of blacks or agitated against slavery in the face of the accepted economic system. The relationships were not hidden, but the status of free blacks in Charleston was delicate. They were a respectable, economically independent, and class-conscious tier of society. (29) Although free blacks mingled with white laborers in South Carolina cookshops and taverns much as they did in New York City, they were not equal to whites in education, mobility, or legal matters. (30) They were artisans--tailors, carpenters, tavern keepers, not doctors or lawyers. (31)
White refugees streaming into South Carolina after the uprising in Saint Domingue brought tales of bloody carnage by former slaves, and the aborted Gabriel rebellion in 1800 led to legal crackdowns against all free blacks in South Carolina. The state's decision in 1803 to reopen the slave trade cemented South Carolina's firm commitment to slavery. (32) Free blacks were viewed as a threat both as alleged instigators of actual rebellion and as an implicit example to slaves. Like other free blacks, Moses Simons would have been "more black than free." The law would have protected him as free, but the rigid color barrier in the South would have circumscribed his life. (33)
Something about the young Moses must have prompted his family to pluck him from that constrictive society to send him to school up North. (34)
Upon his arrival at school, he did not trumpet his blackness. This is reasonably certain because the records of neither Yale nor Litchfield identify him as black. The young men at the law school and the young ladies at the Litchfield Female Academy included illegitimate children of respectable men, one of whom was the daughter of New Jersey Governor Aaron Ogden. (35) Perhaps, therefore, his fellow students were schooled not to probe too deeply into their classmates' ancestries. In any case, his color brought no obvious repercussions. While at school, he fully associated with the other students. (36) Following law school, he secured an apprenticeship in Albany with Abraham Van Vechten, the State Attorney General. (37)
By 1814, however, Simons was looking for work. In March he wrote to the Secretary of State James Monroe for a job. (38) Monroe apparently offered nothing and by 1815, Simons was in debt. A bankruptcy notice to his creditors was published in the newspaper. The New York County Clerk's records show that between 1815 and 1817 seven creditors entered judgments against him. (39) Lawyers having money troubles were not unusual. John Graham published his trial speeches to raise cash. (40) Joseph D. Fay, another attorney, had seventeen judgments against him issued between 1812 and 1815, and a Litchfield Law School contemporary, Stephen Shelton, had judgments entered against him in 1817 by four different creditors. (41)
By 1816, Simons was living in New York City and that year, he was formally admitted to the New York bar. (42) He took the oath as a Counselor of Law on October 30, 1817. (43) The record also shows that Simons was an emotional man. In August 1817 he had an altercation with this same Stephen Shelton, who also practiced in the Court of General Sessions. (44) In some unspecified way, Simons physically attacked Shelton, who filed a contempt charge against him. Upon a warrant, Simons was arrested. The record frustratingly fails to give the reason for the attack. In answer to the Interrogatories, Simons admitted that he committed the assault and battery but asserted it was "under circumstances of great provocation." When the case was called two months later, he pleaded guilty and was fined six cents, plus costs. (45) The small fine was fairly standard for assault and battery cases. (46) The altercation did not seem to have hurt Simons's practice. In 1816 Rogers published five of Simons's cases. (47) A perusal of the 1817 court records show that year, he had approximately thirty. (48)
New York City 1816-1820 and the Court of General Sessions
That a black man was admitted to practice law in 1816 may seem astonishing. While certainly remarkable, the time, place, and legal profession in New York was ripe his inclusion. Admitted to the bar in the early 1800s were an array of interesting personalities, including Irish radical emigres, William Sampson and Thomas A. Emmet; John Graham, who while in London mixed in radical circles, and Barent Gardiner who published a weekly journal to proclaim his political views. (49)
Then too, during the early 1800s, the city experienced social and economic upheaval. In 1814 the signing of the Treaty of Ghent reopened shipping, and the trade boom brought an increase in complex business transactions, changes in methods of production, wage laborers displacing slaves, and a rise in speculation that resulted in fortunes made and lost. (50) New York City grew dramatically. Between 1810 and 1820 the city's population exploded from ninety thousand to one hundred and twenty-three thousand. (51) The free black population also grew so that by 1810, black people made up almost 10% of the population, with about 84% of them free. (52) With the 1817 Act Relative to Slaves and Servants, which affixed 1827 as the final demise of slavery, New York was moving toward a freer society. (53) Blacks and whites co-mingled in neighborhoods, slaves negotiated for freedom, and free blacks, committed to establishing themselves as equal citizens, joined political parties, formed societies, and set up schools. (54) In the criminal court, it was common for blacks and whites to testify for and against each other.
Increases in population also led to overcrowding, desperate poverty, and disease. (55) Individuals elbowing for a place in the teeming city clashed. Bawdy houses, often catering to interracial clientele, cock fights, liquor sales, and crowded dancing cellars at any time might erupt into altercations. (56) For example, in 1816, Peter M'Intyre was charged with keeping a cock-pit "for the resort of divers idle, dissolute persons of ill name, lame and dishonest conversation ...". (57) The indictment charged "waging, betting, drinking, tippling, gambling, and misbehaving., in contempt of decency and good morality to the great scandal and damage and common nuisance of the people of the state of New York." (58) This "bloody arena" was kept at M'Intyre's public house, Washington Hall, later the scene of the "outrage against [Simons's] honor." (59) Riots were also common, spurred by religious, ethnic, or class differences. Even the housing shortage might generate a riot. (60) Conflict led to court action.
The Court of General Sessions was busy in response. By 1813, it met monthly, handling petty crimes of burglary, robbery, assault, and fraud, presided over by the Mayor. (61) The state Constitution entitled criminal defendants to counsel. If a defendant requested an attorney, the court would assign one. If the client could not pay, the attorneys often acted pro bono. (62) While New York attorneys eagerly accepted fees paid, pro bono work on an interesting case might establish a favorable reputation. Reputations garnered more clients. (63) Lawyers were "officers of the court" and the practice required a license granted by the chief judge based on good character and learning. Seven years of preparation were necessary, at least three of which had to be as a clerk or apprentice with a practicing attorney. Three to four more years of practice were required to be admitted as a "counselor." Counselors, such as Simons, were fully qualified to act as solo representatives. (64)
New York City's criminal defense lawyers did not view their work as a duty or unsavory interlude between the more genteel, respectable commercial and real estate transactions and debt cases. Rather, these specialists enthusiastically embraced the work. Further, they used the very instability wrought by the city's economic, social, and political changes to argue that pity and mercy shown to defendants would kindle obedience and morality in the rootless and masterless. (65) In seeking mercy, attorneys' arguments and trial speeches were full of sentimental oratory, literary quotes, and allusions. In one case, for example, Graham begged the jury to "permit not the rich man to cause the honest mechanic to moisten, with ineffectual tears, his lonely pillow." (Emphasis in the original.) (66) Attorneys entertained while attempting to persuade.
Simons's professional colleagues were deeply committed to correctly apply the law. They often argued the fine points, such as exactly what statute was violated, or what part of a legislative act applied. (67) The craft mattered. For example, in 1816, in what must have been one of Simons's first New York City cases, he represented two men charged with grand larceny. (68) Because of a technical error in the indictment, one of the men was excused. During the trial, Simons made a tactical blunder. He called the excused man to testify that the accused was innocent. That opened the door for the prosecutor to impeach the witness's credibility. He produced a witness who testified that the excused man had told him that the pair had stolen the property. However, the prosecution could not prove Simons's client was ever seen in actual possession of the stolen goods.
Before charging the jury, the judge offered Simons some advice, hoping it "will be of much use to the Counsel." Had Simons offered no testimony, his client's acquittal would have been certain because the prosecutor failed to prove actual possession. By calling the witness, however, Simon had jeopardized the outcome. "Counsel should be extremely cautious of introducing testimony" unless it surely corroborates his case. (69) The serious business of the court obliged the bench to help a young lawyer learn his craft.
No evidence exists that the court in any way regarded Simons as an unequal practitioner or that his color interfered with his professional life. Perhaps, for the most part, he and his colleagues ignored it. We do know from the court records, that until his practice faltered, Simons didn't represent black people. But it also seems clear that he was not trying to "pass" as white. His trial showed that his colleagues and friends knew he was black. A witness testified that when Simons dined at his tavern with other attorneys, he was, on occasion, asked to leave the table, especially when "there were Southern gentlemen present." (70) Simons did not protest that he wasn't black, or claim that he was merely a dark-complexioned Jew, for example. Instead, he quietly removed himself. Yet, he was not thereafter barred from dining at the tavern. He continued to represent clients with the white attorneys, and he had powerful white friends who later testified on his behalf at trial. As a practicing attorney, his color did not seem to matter.
This is not to say that in its administration, the court was oblivious to color. The nominative reporters and court records designated non-white parties as "black" or "mulatto." Also, the clerk recording the sworn affidavits identified the deponents as "black," "colored," or "mulatto." Yet color did not appear to play any significant role with Simons's colleagues. They represented black people, both free and slave.
Despite the noting the party's color in the record, the law applied, at least on the face of it, to whites and blacks equally. (71) Myriad cases show actions and witnesses crossed racial lines. For example, white citizens encouraged a black man to successfully prosecute a white youngster for stealing his wallet; a white man's claim that he didn't kill his wife was successfully disputed by the testimony of two black women that he had beaten her and delivered the mortal blow; a black servant accused a white man of rape; a black doctor testified on behalf of two white boys accused of stealing a black man's horse; in a nuisance suit, the white fire inspector's testimony on behalf of two black carpenters thwarted their wealthy neighbors' attempt to close their shop. (72) Grocers, mariners, cookshop owners, free black men and women, "coloureds," and whites flocked to the courts as prosecutors, defendants, and witnesses. (73)
Ordinary citizens had a stake in the court. Individuals played an active role in initiating arrests, acting as witnesses to crimes, or personally tracing stolen goods, through advertised rewards or personal investigation. They often collaborated with the police to apprehend criminals, and the Mayor and aldermen encouraged citizens to enforce regulations that in a later period would be handled by the police. (74) So, for example, black oyster seller owner, Joseph Thompson, chased two white men for passing a counterfeit note in payment for their dinner. Thompson caught one and personally hauled him to the watch house, where he was searched. (75)
Despite the careful record-keeping identifying blacks and mulattos, the official court record of the two cases in which Simons was a defendant was silent as to his color. He was not identified with a "B" or "M" in the Minutes or in the affidavits. (76) In fact, if it were not for Rogers's publication of the trial, Simons's identity as a black man would not be known. Yet, ironically, Simons's case is the only case I found in which the defendant's blackness was a blatant motivating and relevant factor for the action. If Simons had not been black, neither the assault nor the trial would have occurred. Up to the date of his 1818 trial, Simons's practice was proceeding apace. Either alone or with co-counsel, he worked regularly. From Rogers's account of the Simons trial, we also know that Simons had well-connected friends. One described him as having a "delicate sense of honor." (77) This sense of honor was the catalyst to the events of that night in January 1818.
The Trial of Moses Simons and its Aftermath
On December 20, 1817 Simons and his brother attended a public dance held at New York City's elegant Washington Hall. (78) Hosted by Charles Berault, master of a dancing school, these "publics" were open to all for a dollar. Having enjoyed that evening, the brothers went again. On that second night, Simons's brother danced with "the handsomest girl in the school," after which about a dozen other gentlemen complained to Berault that he had allowed "two coloured men into the dance." They also warned Berault that unless the brothers were excluded, a quantity of pupils would quit the school. One pupil who testified for the prosecution at Simons's trial contended that the brothers' presence was generally disagreeable and it "rested solely on the ground of their complexion." (79)
Upon hearing the complaints, Berault took the brothers aside saying that although he himself harbored no objection to their attendance, he feared the loss of business should he allow them to stay. Simons responded that if they would be permitted to take a turn around the ballroom "as if nothing had happened," they would leave. Berault agreed and following that, the brothers left. (80)
But something had happened. Simons had been humiliated and he refused to let it rest. On January 8, 1818, Berault hosted another dance. This time Simons went alone, bought a ticket, and attempted to enter. The doorkeeper barred the way. The resulting fuss at the door drew the dancing master. Simons demanded the names of those who had previously objected to his presence, but Berault refused to grant the request. (81) At the trial a witness for Simons recalled that Berault shoved or pressed against Simons, who said, "If you will not give me up the names, take that." Simons slapped Berault across the face. (82)
Simons's attorney, Joseph Fay opened his argument saying that Simons was "an accredited gentleman" who "had received a liberal education in one of the best universities in the country, and that his connections were wealthy and respectable." Having been refused admission, Simons "in a momentary excitement of passion, while smarting under the indignity offered to his feelings ... inflicted the blow." But, Berault, by his "outrage" was the first aggressor: "he thereby struck the first blow, and had no right to complain." The defense "would rely on the constitution, which had declared all men equal," on Simons's membership in an honorable profession, and would "appeal to the sympathies and moral feelings of the jury." Then, in typical oratory, Fay adapted a quote from Alexander Pope's "Essay on Man." He changed Pope's word "condition" for "complexion," saying an "enlightened community" will "sanction this philanthropic sentiment ...:
Honour and shame from no complexion rise Act well your part, there all honour lies." (83)
Simons's witnesses were pillars of the community. They included a director of the National Insurance Company, a merchant, and the Surrogate of the City of New York. (84) That these professionals came to Simons's defense is telling. First, it indicates that the members of the legal profession were not the only white men to accept Simons as of their number. Second, even if up to then, Simons had ignored his blackness, all the participants knew what the trial was about: a black man, a member of their group, had slapped someone for turning him away from a public gathering because he was black.
Edmund C. Genet, son-in-law of Governor Clinton and French emissary, testified that he had known Simons since 1812, and that he was "much respected," and "no other prejudice existed against him except on account of his complexion and that not among persons of an enlightened mind." Racial prejudice was acknowledged, but deemed, at least as regards Simons, "unenlightened." Genet mentioned Simons's "delicate sense of honor" and asserted that on that evening, his demeanor had been "prudent and discreet." (85)
The other witnesses also testified to Simons's respectability, standing, and character: in coming North, Simons had been recommended by General Porter, (presumably Andrew Porter, the Revolutionary War hero) and while at the preparatory academy in Connecticut, he boarded with "one of the first families of that state." At Yale, he attended public balls and fully associated with his fellow students, all sons of respectable gentlemen. His legal training under Judge Reeve and apprenticeship under Van Vechten were also noted. One witness for Simons testified that while studying law in Albany, Simons dined at the same table with many respectable men, including Governor Ogden who shook his hand "in a friendly, familiar manner." While in Albany, he boarded at Gregory's Hotel, an establishment frequented by "the first gentlemen of the country." (86)
Once testimony was given as to Simons's standing as a respectable man and a professional, however, that standing was open to attack. The prosecutor lost no time. He called Peter M'Intyre, the keeper of Washington Hall, who testified that once when Simons had eaten there, an objection was made to his presence. William B. Cozzens, keeper of Tammany Hall, a witness for Simons admitted that when Simons dined there, Cozzens heard frequent complaints, especially when Southern gentlemen were present. When that happened, Simons was asked "in a confidential manner" to leave, and he always did. Cozzens then said that he did not know whether he had the legal right to exclude Simons, but admitted it would be better for his business if he did. William Rose, another witness for Simons admitted that the dissatisfaction with Simons at the table at Tammany Hall was "general." (87)
It is interesting to note that despite the disapprobation from some guests and Cozzens's supposition that his business interest would be served by excluding Simons, he was not excluded.
Up to this point, the references were to Simons's "complexion." M'Intyre's testimony of objections to "two coloured men" was as far as the euphemism was stretched. But while the witnesses tiptoed around the issue, the District Attorney seized it by the throat. Simons's friend, John Watts, former New York State Assemblyman, had described Simons's character as "perfectly fair and unexceptional." On cross, the District Attorney queried, "suppose you had a sister ... at a public ball, would you be willing that she should dance with the defendant--however fair his character may be?"
Watts turned coy. He answered, "I have my private opinions, and those opinions are sacred. I shall, therefore, decline answering your question."
According to Daniel Rogers's report, that was the last exchange before summations. How it must have hung in the courtroom. Watts might have supported Simons's right to be at the dance, he might have ringingly asserted that excluding Simons for no reason other than his "complexion" was contrary to the tenets of equality. That to do so was unacceptable. Instead, his response effectively blasted the notion that Berault's exclusion was the "first" blow. If Simons's own friend was reluctant to declare that dancing with a white girl was acceptable, one could not fault Berault's fear for his business.
Simons was a well-educated professional with a growing practice. His color had not held him back. But the laws that loosened the shackles of slavery, the expansive economic changes in the city, the court's color-blind administration of justice, the equality he experienced in his profession was now suddenly, through the testimony of friends, not a testament to the same social equality open to any educated, respectable man regardless of color, but an equality that applied only to his professional life.
Mayor Radcliff's charge to the jury said the determination of the case did not depend upon the rules of politeness and he characterized much of the testimony as irrelevant. The only issue before the court was whether Simons was guilty of assault and battery. Simons was found guilty and fined ten dollars.
Despite the public forum, that might have been the end of it. But Daniel Rogers chose to publish the trial. And then he did more.
Trials at the time were rarely transcribed, so there were no authoritative precedents upon which judges could rely. In the words of Chief Justice James Kent, "we had no law of our own, and no one knew what it was." (88) Rogers, a lawyer himself and present in the courtroom, became one of the nominative reporters, selecting for publication what he deemed "the most interesting trials and decisions" for his subscribers, who were both attorneys and layman. From 1816 to 1822, he sold his monthly publications for three dollars per year. In the preface to the bound volumes, he stated his intention was "to illustrate and enforce by example the general principles of morality." (89) He also used the forum to publish his own views. He might have ignored the Simons case, or reported it without comment. He did neither.
After describing the trial, Rogers offered his opinion on the role of blacks in the society. He claimed to be "tender of private feelings," but ardent for "truth." (90) Then in an orgy of racist invective, he spewed three columns presaging the worst diatribes of the late nineteenth century. While decrying slavery as originating in "fraud, avarice, and crime," he announced that "there is a point beyond which we cannot go. Universal benevolence is laudable; the prostration of all distinction among men, monstrous."
Though "all men have equal rights; at the same time, we assert, that there is and ought to be a distinction in society between those whom we are proud in elevating to the highest station of honour, as our most distinguished citizens, and men of that race who, for centuries, have been in the bosom of our county in the condition of slaves and servants." It would be a "political absurdity" to assert that "all men are equal" means anything more than "an equality of rights in law." (Emphasis in the original.)
So Rogers agreed with some of the trial testimony that black men were not, and ought not to be, socially equal. "The Goths and Vandals of the torrid zone are in the bosom of our country ... but let us not, through a false philanthropy, introduce them into the bosom of families, to participate ... in the amusements and courtesies of life." He urged "let not the African tinge mantle on the cheeks of our descendants."
But his commentary then focused on professional equality. In his view, that too ought not to be countenanced. Parents and friends have an "abstract right" to bestow a liberal education and prepare any young man for an honorable profession, and a judge could not legally reject any man of good moral character and competence who presents himself for examination to become an attorney. Further, it was true and right that "in this country, the road to distinction and eminence in all professions is open for all men." But despite "the positive institutions of the country" and regardless of a man's qualifications, if the bar feels his admission, would derogate its dignity, the members of the bar can refuse to associate with him. The bar can say, we "forbid acknowledgement of this man as an accredited member of our fraternity." Rogers wished that this "different cast of men" should "remain in their place."
That Rogers attacked Simons's professional standing is significant because while Simons had been asked to leave the dance and a few dinner tables, no record shows that he was ever asked to leave the court or that his color constricted his practice. Instead, the record demonstrates that he was an accepted professional. Rogers admitted the law did not prohibit Simons from practicing. Yet, he would have denied Simons the opportunity based solely on his color.
The record is silent as to the reaction by Simons or his colleagues to the publication. We do know from the trial date on February 10 to the end of March, Simons made no appearances in the criminal court. He then represented Sarah Heddy, who confessed to stealing a hat. Heddy was black. (91) After the trial, Simons changed his practice of not representing black people. During 1818, he had twenty-eight cases, several on behalf of black defendants, including a slave. (92)
In 1819, the number of cases Simons handled dropped to about eleven. In 1820 he had a total of only eight. Ironically, in his last case, he won an acquittal for his client on a charge of assault and battery. (93)
In 1821, Simons left New York for London. (94) He died there in 1822.
The events at dance at Washington Hall led to Simons's trial, which virtually ended his career. Prior to then, he was a practicing attorney associating with other professional and respectable men. He must have felt sufficiently secure in himself and his position in society to defend his honor against the actions of Shelton and Berault, both white men.
That he chose to contest Berault's charge is interesting. He might have pled guilty, as he had after the Shelton altercation, paid a fine, and been done with it. Perhaps he was loathe to have a second uncontested assault and battery conviction on his record. Or perhaps he was fed up with having to leave dinner tables and dances to satisfy the prejudices of Southern gentlemen and bigoted, jealous New York swells. Perhaps he wanted to take a stand against such men. He must have thought he had a reasonable chance to win.
But Simons and his attorneys knew the law: assault and battery was not a crime of moral turpitude such that character would be relevant. (95) Yet, they called in a passel of influential witnesses to testify to his character. They knew that words alone, without a threat or actual attack, did not justify assault and battery. (96) Yet, his lawyers argued that Berault's "outrage" of not admitting Simons, was in effect, "the first blow."
In the Court of General Sessions, race or color was irrelevant for the adjudication of the myriad cases in which whites and blacks accused and supported each other. The court exemplified the ideal that all men were equal. Simons was a professional, who lived and worked within the circle, sharing clients, advancing the law as a colleague. At his trial, his lawyers appealed to the moral feelings of the jury because barring Simons from a dance, in which every other man in the courtroom would be welcomed, was a moral outrage. Given their work world, it was a reasonable argument. The jury, however, was obligated to apply the law, and perhaps they concluded that no matter how morally outraged, one simply cannot go about slapping people.
It is worth pointing out, however, that Simons did continue to practice. His colleagues did not refuse to associate with him as Rogers urged. He continued to represent white clients, as well as black, both alone and as co-counsel, and Rogers even reported some of those cases. (97)
This was before the 1821 change to the New York Constitution that institutionalized a difference in citizenship of blacks and whites. It was prior to the thuggery against blacks of the 1820s and 1830s that blossomed into the segregated Jim Crow society of the nineteenth and early twentieth centuries with which we are so familiar. Whether Simons suffered what DuBois called "double consciousness" as the only black man in a white institution is probably unknowable. (98) In any case, up to the trial, this black man was doing well professionally.
During his career, new laws were loosening the shackles of slavery and the city was moving toward a freer society. Black and white New Yorkers regularly turned to the Court of General Sessions to settle affronts to their dignity, seek justice, and assert their citizenship.
America's history of oppression of blacks abetted by de facto and de jure segregation is a deeply familiar narrative. It bounds our understanding of the lives of blacks in America. Recently, historians have mined the riches of court cases to illustrate particular aspects of black New York life or to make a theoretical point. Through the 1811 trial, conviction, and hanging of James Johnson, Shane White explored the subterranean culture of black dancing cellars and the fascination they held for respectable whites. (99) Through the 1808 bastardy trial of Alexander Whistelo, Craig Steven Wilder illustrated the emergence of the concept of race and its currency with white society. (100) Leslie M. Harris discussed how the arson trial and conviction of Rose Butler in 1819 served as a warning that growing freedom for blacks threatened whites. (100) All enrich our understanding.
But our historiography is made more robust by including the career of Moses Simons. It bears noticing that in the early 1800s, a black man earned a BA from Yale, and graduated from a law school that was the alma mater of numerous United States Congressmen, cabinet members, governors, and two Vice Presidents. (102) He was admitted and practiced as a colleague with white men in a court that adjudicated conflicts of ordinary black and white citizens. He felt sufficiently secure in his place in that society to defend his honor and then to solicit and gain the support of eminent colleagues to argue on his behalf.
Moses Simons did everything one could expect of a young man to gain the respect and standing of the society. As a man of color, he embodied the striving of all hopeful men to be participants in a community of men created equal. For a time he succeeded. For a time he exemplified the American dream.
(1.) Laura Copland is Assistant Dean of Faculty Affairs at the Eugene Lang College the New School for Liberal Arts in New York City.
(2.) This essay uses the term "black" for non-whites, unless quoting or referencing another source. Clay Smith, Jr., Emancipation, The Making of the Black Lawyer 1844-1944 (Philadelphia: University of Pennsylvania Press, 1993), 33-34, 93, 391-2. But cf., J. F.D. Smyth. A Tour in the United Slates of America, Vol. 1, 1784, referenced a Virginia attorney. "Williams who is said to be and is very much like a mulattoe." http://www.arehive.org/details/cihm_41222, 123. No other details are included.
(3.) Catalogue of the Officers and Graduates of Yale University 1701-1924 (New Haven, 1924). 217.
(4.) Catalogue of the Officers, Simons. 145: Admission to the Bar. 1765-1847. Division of Old Records, NY County Clerk. Municipal Archives. NYC. NY.
(5.) Michael J. Millender, "The Transformation of the American Criminal Trial. 1790-1875" (UMI no. 9701246. UM1 Dissertation Services, 1996): 133-142. Millender counted 354 appearances by lawyers noted by Daniel Rogers between 1816 and 1819, and of that number 283 were by the same fourteen of the more than fifty practitioners. He notes that the figures do not include non-reported cases, 134.
(6.) Daniel Rogers, The New York City Hall Recorder, Vol. I-VI (New York: Charles Baldwin. 1816-1821).
(7.) James Oliver Horton, Free People of Color (Washington D. C.: Smithsonian Institution Press, 1993), 167.
(8.) Moses Simon's Case, 3 City H. Rec. 39, Feb. 1818 (Rogers omits the final "s.")
(9.) Millender, "The Transformation of the American Criminal Trial," 107.
(10.) See Karen N. Peart, "Talk Recounts Experience of Yale's First Black Graduates" Yale News, April 24, 2009, http://news.yale.edu/2009/04/24/talk-recounts-experience-yale-s-first-black-graduates; see also, Lynn Templeton Brickley, "Sarah Pierce's Litchfield Female Academy, 1792-1833" (ProQuest Dissertations and Theses, 1985): 52, 71. Dexter's Biographical Sketches, for example, did not identify Simons as Jewish, n. 12.
(11.) Mike McConville, Chester L. Mirsky, Jury Trials and Plea Bargaining: A True History (Oxford, G.B.: Hart Publishing, 2005), 36-40.
(12.) McConville and Mirsky, Jury Trials and Plea Bargaining, 122-3.
(13.) Millender, The Transformation of the American Criminal Trial, 122, n. 2.
(14.) John Andrew Graham, Speeches Delivered at the City Hall (New York 1812), http://books.google.com/books?id=YgJAAAAAYAAJ&printsec=frontcover&dq=John+Andrew+Graham,+Speeches+Delivered+at+the+City+Hall+1812&source=bl&ots=luO-ZXvN9u&sig=-ZolbXyaWaqyaABMd7LmIlRn9b0&h1=en#v=onepage&q&f=false. William Sampson, for example, counseled in The Journeymen Cordwainers' Case and The Trial of Amos Broad. See Trial of the Cordwainers of New York, http://books.google.com/books?id=o_c-AAAAYAAJ&pg=PA1&dq=new+york+cordwainers+case-f*sampson&h1=en&ei=wXFFIrOKIniCtgesvKHyBO&sa=X&oi=bookresult&ct=result&resnum=l&ved=OCCoO6AEwAA#v=onepage&q=new%20york%20cordwainers%20case%20sampson&f=false. The trial of Amos Broad, New-York, 1809, 1-31, Sabin Americana. Gale, Cengage Learning. New York University http://galenet.galegroup.com/servlet/Sabin?af=RN&ae=CY3800220956&srchtp=a&ste=14.
(15.) Franklin Bowditch Dexter, Biographical Sketches of the Graduates of Yale College, Sept 1805-Sept 1815, Vol. 6 (New Haven: Yale University Press, 1912), 279. Barnett A. Elzas wrote to Dexter in 1911, Your Moses must be the son of [Montague or Moses]." Franklin B. Dexter Papers, Yale University Library, 712, Series I, Box 16. It is unclear why Dexter favored Moses as the father. Jewish sons are not usually named for their fathers and Sampson's son Saul and two of Montague's sons (one black and one white) were named for uncles. For reference to Sampson's son, Saul, see, Sampson Simons's Case, In the Court of Ordinary. July 26, 1811, South Carolina Probate Records, Bound volumes 1671-1977, 409-458 and Cohen and Moses v. S. and M. Simons, Reports of the Judicial Decisions in the Constitutional Court of South Carolina, Vol. 1, Charleston, 1814, 446, http://books.google.com/books?id=5x15AAAAIAAJ&printsec=frontcover&dq=Reports+of+the+Judicial+Decisions+in+the+Constitutional+Court+of+South+Carolina&source=bl&ots=gU8uNH-c5H&sig=BTw4XkOt3RE6eevEjoni0LU5hUl&h1=en#v=onepage&q=cohen&f=false For reference to Montague's black son. Samuel, see n. 13. I have found no corroborating or disputing evidence of Moses Simons's trip to London or death in 1822. The Dexter papers show no source.
(16.) Dan A. Oren, Joining the Club, a History of Jews of Yale (New Haven: Yale University Press, 1985), 6.
(17.) American Watchman, Vol. 1, Iss. 19, October 2, 1809 (America's Historical Newspapers), 2.
(18.) Simon's Case, 3 City H. Rec. 39.
(19.) Barnett A. Elzas, The Jews of South Carolina. (Philadelphia: J.B. Lippincott Co, 1905). 98-9.
(20.) Malcolm H. Stern, First Jewish American Families: 600 Genealogies 1654-1988 (Baltimore: Genealogical Publishing Co., 1991): Joseph R. Rosenbloom, A Biographical Dictionary of Early American Jews: Colonial Times Through 1800 (University of Kentucky Press, 1960), references the wives for Montague and the elder Moses, 160.
(21.) Rebecca Simons v. Montague Simons et al, South Carolina Southern Circuit in Equity. Bill of Discovery for Relief, filed June 23, 1813. 49.
(22.) No will is extant for the elder Moses Simons. Charleston County Wills, and Inventories and Miscellaneous Records. Sampson's will: Vol. 31 (18071818), 455, and Inventory. Book E (1800-1819), 46-7: Montague's Will: Vol. 32 (1807-1818) 706-7 and Inventory, Book F (1800-1819), 598-99: Samuel's Will: Vol. 36 (1818-1826), 972-74, and Inventory, Book G (1824-1834), 2-4, Saul's Will, 1809, Jacob Rader Marcus Center http://www.americaniewisharchives.org.
(23.) Jacob Rader Marcus, United States Jewry, 1776-1985 (Detroit: Wayne State University Press. 1989), 585-86.
(24.) Sampson Simons's Case, In the Court of Ordinary. July 26, 1811. South Carolina Probate Records, Bound volumes 1671-1977, 409-458. 434-6, 440. https://familysearch.org/pal:/MM9.3.1/TH-1-19445-12027-7?cc=1919417&wc=9385961 The mistress was Diana Elliot, aka Diana Massing, 435. In the dispute over the validity of the third Will, drawn just hours prior to Sampson's death, the probate testimony of the man who drew up the second Will (a few days earlier), stated that Sampson wanted to leave nothing to his brothers, Samuel and Montague, because "they have got enough already, and what they had would go among a parcel of mulattoes." The second Will gave most of the estate to the children of some cousins and only one hundred dollars to Samuel and Montague. There was controversy as to whether his son, Saul, was Diana's child because he was fair skinned and had straight hair. Sampson had been urged to settle the matter of Saul's birth, but he never had him registered as a white child, though one probate witness testified that Sampson said he would. Sampson also refused to put Saul's name in the Will. 425, 435-6. Saul disputed the validity of the third Will saying his father was out of his senses at the time the Will was made. Just prior to Sampson's death, Montague asked Saul to "hold his tongue" and not dispute the third Will (which gave most of Sampson's money to Montague and Samuel), saying, "You know you are a coloured person and your oath won't be taken." Saul asked if Montague could prove it. Montague said no, but "he would get persons who would do it." During the proceedings, Saul's testimony was contested on the grounds that he was colored. Finally, the court ruled that because the testimony was equivocal and to disenfranchise a citizen the proof ought to be clear, and because of the whiteness of his skin and the straightness of his hair, Saul would be "deemed the son of a white woman." Interestingly, neither Will bequeathed anything to Saul.
(25.) Samuel Simons's Will. Vol. 36 (1818-1826), 972-74, he bequeathed to Maria Chapman, "a free woman of colour": Saul Simons's 1809 Will, Jacob Rader Marcus Center http://www.americanjewisharchives.org; Kaye Kole, The Minis Family of Georgia, 1733-1992 (Savannah: Georgia Historical Society, 1992), 35. Saul bequeathed to Hannah Leion. The fourth brother, Montague also bequeathed to his "housekeeper." He left Maria Edwards $500.00, but her color and status is uncertain. Charleston County Wills, Vol. 32 (1807-1818) 706-7.
(26.) Bertram Wallace Korn, Jews and Negro Slavery in the Old South 17891865 (Elkins Park, PA: Reform Congregation Kenesetb Israel, 1961), 50; E. Horace Fitchett. "The Traditions of the Free Negro in Charleston, South Carolina," Journal of Negro History 25, no. 2, (April 1940): 139-152, 140-2.
(27.) Saul Simon's 1809 Will, Jacob Rader Marcus Center http://www.americanlewisharchives.org.
(28.) See, Jacob Rader Marcus. U.S. Jewry, 1776-1985, 42-49.
(29.) Fitchett. "The Traditions of the Free Negro in Charleston, South Carolina." 139, 143.
(30.) Ira Berlin. Many Thousands Gone, the First Two Centuries of Slavery in North America (Cambridge, MA: Belknap Press. 1998). 313. Harris. "Charleston's Free Afro-American Elite," 290. For a list of free blacks' prohibitions from legal procedures; see, Herbert Apthcker, "Eighteenth Century Petition of South Carolina Negroes," The Journal of Negro History 31, no. 1 (Jan. 1946): 98-99.
(31.) Robert L. Harris, Jr., "Charleston's Free Afro-American Elite, the Brown Fellowship Society and the Humane Brotherhood," The South Carolina Historical Magazine 82, no. 4 (Oct. 1981): 303. Harris argues that Charleston mulattos never formed a third caste, but were always subordinate to whites.
(32.) Winthrop D. Jordon, White Over Black: American Attitudes Toward the Negro, 1550-1812 (Chapel Hill: University of North Carolina Press. 1977), 395-399 and 373. 377. 406
(33.) Jordon. White Over Black. 170-1; Berlin, Many Thousands Gone. 322.
(34.) He entered Yale in 1805 but attended a preparatory school prior to that. See, Simon's Case, 3 City H. Rec. 39. 40.
(35.) Evening Standard. (n.d.) c. 1874. Litchfield Historical Society. Reeve Collection. Box U. "Articles." and private conversation with Lynne Brickley. Litchfield Historical Society historian, Aug. 13. 2010.
(36.) Simon's case. 3 City H. Rec. 39, 41.
(37.) The apprenticeship is referenced in the trial, but I found no mention of Simons in the Van Vechten Legal Papers in Albany. Those papers do reference Van Vechten's position as State Attorney General. Van Vechten Legal Papers, NYS Manuscripts, Albany, Collection No SC 16906 Box I. 1686-1800s Folder 3.
(38.) Moses Simons to James Monroe, March 1, 1814, National Archives Microfilm Publications, Microcopy No. 438, "Letters During the Administration of James Madison. 1809-17"; Roll 7, Record Group 59, College Park. Maryland. In the letter, Simons says. "Attached to the republican interests, and emulous of devoting myself to the public service. I have the honour to desire you to consider me an applicant for any office which you may hereafter think me qualified to fill." The signature in the letter matches the signature of Moses Simons in the Roll of Attorneys 18111823. The oath under which Simons and his colleagues signed their names stated: "I do swear to well and truly demean myself in the practice of a Counsellor at Law according to the best of my knowledge and ability." Municipal Archives, NYC, NY.
(39.) The Albany Argus, Vol. 3, Iss. 283, p.3. Oct. 10, 1815. American Historical Newspapers; NY Cty. Clerk Judgment Index Retrieval System, NY County Clerk's Office, Municipal Archives, NYC, NY.
(40.) Millender, "Transformation of the American Criminal Trial," 135-6.
(41.) NY Cty Clerk Judgment Index Retrieval System, Fay, Reference numbers 1812-328; 1813-39, 105, 613. 677, 686; 1814-479A, 712, 727, 854; 1815520, 589: some were with multiple plaintiffs against Fay; Shelton, Reference number 1817-893, multiple plaintiffs. Municipal Archives, NYC, NY.
(42.) Thomas Longworth, American Almanac, a New York City Directory, 1816-1826, 1816 (New York).
(43.) Roll of Attorneys, 1811-1823, parchment roll, 9th page. Municipal Archives, NYC, NY. Records show that Simons also represented clients in civil court. See, e.g., City of NY Court of Common Pleas, called the Mayor's Court, Municipal Archives, NYC, NY, See. e.g., Atkinson v. Therry, Jan. 19, 1818, Mayor's Court Record Book, June 16, 1817-Feb. 16, 1818, 238; also, Chambers v, Clark, June 1819, Mayor's Court Record Book, Feb. 15, 1819-Feb. 21, 1820, 14.
(44.) Samuel H. Fisher, Litchfield Law School 1774-1833: Biographical Catalogue of Students (New Haven: Yale University Press, 1946), 180; William Key Bond, "List of LLS students" 1811, Yale Law Library, 5 Vols. See, e.g., George F. Norton's Case, 3 City H. Rec. 90, Shelton co-counsel, 3 City H. Rec. 90, June 1818.
(45.) People v. Simons, Ct of Gen Sessions, Roll 8: Vol. 25-29, Jan. 1817-June 1819, 479-80, Municipal Archives, New York, NY; "People v. Simons," DA Indictment Files, Roll 64: Oct. 8, 1817-Dec 4, 1817, Oct 15, and Nov. 15, 1817, Municipal Archives, New York, NY; People v. Simons. Court of General Sessions, Roll 8: Vol. 25-29, Jan. 1817-Jun 1819, 486, Municipal Archives, NYC, NY.
(46.) For example, an attorney, Hagerman beat nearly to death the editor of the Evening Standard, William Coleman. The judge found no justification for the attack, but fined Hagerman $250. See 3 City H. Rec. 73, 79-80, June 1818. In People v. Beach, Court of General Sessions, Roll 8: Vol. 25-29, a laborer was convicted of the assault and battery and fined one dollar. In contrast, the theft of goods worth $25 might result in a nine month prison sentence and burglary of a gold watch might garner life in prison. See, People v. Mary Nichols, DA Indictment Files. Roll 63. July 12. 1817-Oct 8, 1817, 2 City H. Rec. 152 Summary of cases for August Term 1817 and John Wilson, 5 City H. Rec. 109, Summary of cases for December 1820, and James McKinley, 6 City II. Rec. 67. Summary of cases for October 1821.
(47.) Court records began listing the attorney's names handling cases in 1817. Thus, Simons may have had more cases in 1816. Municipal Archives, NYC, NY.
(48.) Court of General Sessions, Roll 8: Vol. 25-29, Jan. 1817-Jun 1819.
(49.) Millender, 135: Howard B. Rock in The New York City Artisan, 17891825 (Albany: State University of New York Press. 1989). 260. n. 27.
(50.) Sean Wilentz. Chants Democratic: New York City and the Rise of the American Working Class, 1788-1850 (New York: Oxford University Press, 2004), 23-24. 33, 36: Shane White, Somewhat More Independent. (Athens: University of Georgia Press. 1991) 24-26: Christine Stansell. City of Women Sex and Class in New York, 1789-1860 (New York: Al Fred A. Knopf, 1986), 5-7.
(51.) White. Somewhat More Independent. 25: Stansell, City of Women. 4.
(52.) David N. Gellman and Joseph Quigley, eds. Jim Crow New York, A Documentary History of Race and Citizenship. 1777-1877 (New York: New York University Press. 2003). 68-72: White, Somewhat More Independent. 26.
(53.) An Act Relative to Servants and Slaves, March 31, 1817, Section III, http://www.nyscss.org/pdfs/resources/nyandslavery/Chapter%20D/Documents/1817.%20Gradual%20manumission.pdf.
(54.) White, Somewhat More Independent, 171-179; Robert J. Swan, "John Teasman: African American Educator and the Emergence of Early Black Community in NYC," Journal of the Early Republic, 12. no. 3 (Autumn 1992): 331-356. 334; Horton, Free People of Color, 158; Craig Steven Wilder, In the Company of Black Men (New York: New York University Press, 2001). 73-9. 95-6, 105; Daniel Perlman, "Organizations of the Free Negro in New York City, 1800-1860," Journal of Negro history, 56, no. 3 (July 1971): 181-197, 182.
(55.) Edwin G. Burrows and Mike Wallace, Gotham, A History of New York City to 1898 (New York: Oxford University Press, 1999) 426; Stansell, City of Women, 4-15.
(56.) Stansell, City of Women, 15 (interracial bawdy houses); Charles Meyer, et al., 1 City H. Rec. 67, 69, April 1816 (cockfighting in Washington Hall); Shane White, "The Death of James Johnson," The American Quarterly 51, no. 4 (Dec. 1999): 753-795, 777, 789-790 (dance hall altercation).
(57.) Charles Meyer, et al., 1 City H. Rec. 67, April 1816.
(58.) Peter M'Intyre, et al, Dist. Att. Indictment Files, Mar 16, 1816--June 6, 1816, # 56, Municipal Archives.
(59.) Simon's Case, 3 City H. Rec. 41.
(60.) McConville and Mirsky, Jury Trials, 27; Millender, 109, and see, also Andrew Mickle and Elizabeth, his wife. 1 City H. Rec. 96, June 1816 (a new tenant attempting to move in before the old tenants were ready to leave led to a fight and then escalated to full scale riot in the streets); and People v. Broad, indictment for nuisance, Jan 15, 1817, Court of General Sessions Minutes, Roll 8: Vol. 25-29, June 1817-1819 and Scott et al, 2 City H. Rec. 25, Feb 1817, and Amos Broad, 3 City H. Rec. 7, Jan 1818 (riot at Broad's church).
(61.) Millender, "Transformation of the American Criminal Trial," 113.
(62.) McConville and Mirsky, Jury Trials, 36-7.
(63.) Millender, "Transformation of the American Criminal Trial," 108. But cf. McConville and Mirsky, Jury Trials, 37, n.124. Their study showed that the identity of the lawyer did not appear to impact the disposition or manner in which trials were conducted. But criminal defense attorneys also represented clients in civil cases, which in which reputation might factor in the choice of attorney by the parties. See Mayor's Court Minute Book, 1861-1820, Division of Old Records, NY County Clerk, Municipal Archives, NYC, NY.
(64.) McConville and Mirsky, Jury Trials, 36. A three-year clerkship was required if the applicant had four prior years of classical education. See, William D. Williamson, "American Lawyers," The American Quarterly Register, (1831-1843) (American Periodical Series Online), 15, no. 4 (May 1843) http://books.google.com/books?id=Fp40A0AAIAAJ&pg=PR4&lpg=PR4&dq=american+quarterly+register+mav+1843&,source=bl&ots=K8dFBwrE5&sig=1mYJmnthsfrBt7-tqN1q0b-IMbaw&h1=en#v=onepage&q=american%201awvers&f=false 418, 428, 434.
(65.) Millender, "Transformation of the American Criminal Trial," 22, 41-2.
(66.) John Andrew Graham, Speeches Delivered at the City Hall (New York 1812), http://books.google.com/books?id=YgJAAAAAYAAJ&printscc=frontcover&dq=John+Andrew+Graham.+Speeches+Delivered-Fat+the+City+Hall+1812&source=bl&ots=luO-ZXvN9u&sig=-ZOlbXyaWagyaAliMd71mllRn9b0&h1=en#v=onepage&q&f=false., 24. Rogers notes Graham's "usual rhetorical flourishes." George Wellington, 1 City H. Rec. 144, 1816; see, also People v. Simon, 3 City H. Rec. 39 and Peter M'Intyre 1 City H. Rec. 67, April 1816, and Millender, "Transformation of the American Criminal Trial," 108.
(67.) David McCullough, 2 City H. Rec. 45 March 1817 (Simons, representing the defendant who stole a watch on a ship originally anchored in Georgia, moved to dismiss citing a lack of jurisdiction); Edward Latham, 1 City H. Rec. 45, March 1816 (discussion at trial as to whether to charge him with burglary or larceny).
(68.) Edward Van Orten and James Stewarts cases, 1 City H. Rec. 62. April 1816.
(69.) Ibid, 1 City H. Rec. at 64.
(70.) Simon's Case, 3 City H. Rec. 39.
(71.) McConville and Mirsky. Jury Trials. A longitudinal study of over a thousand cases found similar sentencing for blacks and whites convicted for similar crimes. 13. 182-183. However, if the standards or evidence in the convictions were not scrupulously equal, i.e., if blacks were convicted on more flimsy evidence than whites, similar convictions would be unequal. See, Mark V. Tushnet. The American Law of Slavery, 1810-1860 (Princeton: Princeton University Press, 1981), 18.
(72.) See. Thomas Davis, 1 City H. Rec. 166, Oct 1816 (whites testified for a mulatto man against white boy); Hugh Curry, 4 City H. Rec. 109, July 1819 (black neighbors helped convict husband for manslaughter); People v. Charles_Carpenter, The New York Judicial Repository. Vol. I, December 1818, reporter, Daniel Bacon, Esq. (New York: Gould and Banks), Hein Online March 25, 2010. 165-173 (rape trial of black servant); Bowering and Harrington, DA Indictment Files. Sept. 11, 1816--Dec. 3, 1816. Box 59 Municipal Archives. New York, NY and 1 City H. Rec. 167, October 1816 (black doctor testified for two white boys accused of stealing black man's horse); William Hamilton and James Latham, 2 City H. Rec. 46 March 1817 and Court of General Sessions Minutes, Dec 11. 1816 463-474, Roll 60 DA Indictment Files, Dec. 3 181.6-Feb. 5, 1817.
(73.) McConville and Mirsky, Jury Trials, 11, 24. 71; cf. Allen Steinberg, "The Spirit of Litigation: Private Prosecution and Criminal Justice in 19th Century Philadelphia," Journal of Social History, 20, no. 2 (Winter 1986): 231-49.
(74.) McConville and Mirsky, Jury Trials 47-57; Millender, "Transformation of the American Criminal Trial." 114. See, also, Hugh Wallace's Case. 4 City H. Rec. 111, July 1819 (passerby seeing an escaping assailant pursued him intending to arrest and bring him to the police).
(75.) Simons represented the two white men accused of passing the counterfeit note. Their affidavits accused each other and lacked credibility of their innocence. Simons, apparently, couldn't do much for them, and the men were convicted. People v. Reynolds and Dickinson. DA Indictment Files Box 60, Dec 3, 1816-Feb 5, 1817, Municipal Archives, New York, NY and People v. Reynolds and Dickinson, 2 City H. Rec. 47, March 1817.
(76.) People v. Simons, Ct of Gen Sessions, Roll 8: Vol. 25-29, Jan. 1817-June 1819, 479-80, Municipal Archives, NYC, NY; Berault v. Simons, Minutes, Jan 1817-Jun 1819, Vols. 25-29, Role 8,360, District Attorney Files, Dec 4 1817-Mar 6 1818.
(77.) Simon's Case, 3 City H. Rec. 39.
(78.) Washington Hall, NYC, Http://books.google.com/books?id=xE-dybpieNEC&pg=PA621&dq=peter+m'Intvre+washington+hall&Ir=&cd=5#v=onegage&q=peter%20m'Intyre%20washington%20hall&f=false. On Simons's brother, I have uncovered no other reference to him, not even his name.
(79.) Simon's Case, 3 City H. Rec. 39.41.
(80.) Ibid., 3 City H. Rec. 39, 40.
(81.) The trial report states that both on January 8, and again in court, Berault stated that when Simons asked for the names of those who complained about his presence, he responded that he wrote Simons "a letter which ought to satisfy him." We know nothing about why Berault wrote Simons, nor the letter's contents, except that it, presumably, did not reveal the names.
(82.) See also, People v. Simons, 1 City H. Rec. 39, and Court of Gen. Sess., Roll 8, Vol. 25-29, Municipal Archives, NYC, NY.
(83.) Simon's Case, 3 City H. Rec. 39, 40. Fay was referring to the New York Constitution of April 20, 1777. http://www.nhinet.org/ccs/docs/ny-1777.htm.
(84.) Court of General Sessions, Feb. 6, 1818, Vol. 25-29, Municipal Archives, NYC, NY, names cross-checked with Longworth, American Almanac, a New York City Directory, 1816-1826.
(85.) Simon's Case, 3 City H. Rec., 39, 41.
(86.) Ibid., 3 City H. Rec., 39, 41.
(87.) Ibid., 3 City H. Rec., 39, 41. Both Cozzens and Rose were listed as offering evidence for Simons. Court of General Sessions. Roll 8: Vol. 2529, Feb 10, 1818, 402-3.
(88.) Gary D. Spivey, Two Centuries of Law Reporting," The Historical Society of the Courts of the State of New York, 1 (no. 2 spring/summer 2004), 7-10, 7. http://www.courts.state.ny.us/history/pdf/HSNLVol.2.pdf.
(89.) Rogers. City H. Rec., Preface. iii.
(90.) Simon's Case. 3 City H. Rec., 39, 42. All following quotes are found 3 City H. Rec. 42-3.
(91.) Wilder v. Heddy. DA Indictment Files, March 31. 1818. Roll 66. March 9, 1818-May 8, 1818. Municipal Archives, NYC, NY.
(92) People v. Paulding, DA Indictment Files, Nov. 10, 1818, Roll 70: Oct. 10, 1818-Dec. 9, 1818, Municipal Archives, NYC, NY. Simons represented an enslaved woman, Betsy Paulding in the last of three times she was before the court for having assaulted her master. Roll 60: Dec 3, 1816-Feb 5, 1817. Roll 70.
(93.) People v. Elizabeth Rourke, Court of General Sessions. Roll 9. Feb. 15, 1820, 235, Municipal Archives, NYC, NY.
(94.) The Simons family had relatives in London. See, Samuel's Will, Vol. 36, 992; Sampson's Will, Vol. 31, 455.
(95.) See. Thomas Gillespie, et al, 4 City H Rec. 154, November 1819.
(96.) William Key Bond. "Private Wrongs," Notebooks Vol. V (Yale Law Library, 1811), 397-579.
(97.) See, e.g., People v. George Streeler, Ct of Gen Sessions. Roll 9. Vol. 2932, Jan 1819-Sept 1820, 48; Henry Green, 3 City H. Rec. 96, June 1818; Peter Bowerhan, Samuel Hopkins, 4 City H. Rec. 136. October 1819 (Rogers even mentions that Simons addressed the jury); Brandon, Brown, and Griffith, 4 City H. Rec. 140, October 1819.
(98.) W.E.B. DuBois, "The Souls of Black Folk." Writings, (New York: The Library of America, 1986) 364; for a discussion of a black man in a white institution, see, Bruce Kuklick, Black Philosopher, White Academy, The Career of William Fontaine (Philadelphia: University of Pennsylvania Press, 2008), 129.
(99.) Shane White. The Death of James Johnson." American Quarterly, Vol. 51, No. $ (Dec 1999) 753-795, 777, 789-790.
(100.) Craig Steven Wilder, A Covenant with Color, Race and Social Power in Brooklyn (Columbia University. Press, 2000) 3.
(101.) Leslie M. Harris, In the Shadow of Slavery, African Americans in New York City 1626-1863, (U. of Chicago Press, 2004) 113-117.
(102.) Brickley. "Sarah Pierce's Litchfield Female Academy," Aaron Burr and John C. Calhoun later became Vice Presidents. 40.
Laura Copland (1)