The Legacy of <i>Forsey v. Cunningham</i>: Safeguarding the Integrity of the Right to Trial by Jury

Click to increase image sizeClick to decrease image size Notes1. William Blackstone, Commentaries on the Laws of England, vol. 4 (a facsimile of the first edition of 1765–69) (Chicago: The University of Chicago Press, 1979), 407.2. Ibid., 342–43.3. Leonard Levy, The Palladium of Justice: Origins of Trial by Jury (Chicago: Ivan R. Dee, 1999); see chap. 4, Trial Juries.4. Patricia U. Bonomi, The Lord Cornbury Scandal: The Politics of Reputation in British America (Chapel Hill: The University of North Carolina Press, 1998), 71–72.5. See Paul Finkelman, ed., A Brief Narrative of the Case and Tryal of John Peter Zenger (St. James, N.Y.: Brandywine Press, 1997).6. Thomas Forsey, in partnership with his brother, Benjamin, was a merchant doing business in New York City and New London, Connecticut, during the 1750s and 1760s. Thomas Truxes, ed., Letterbook of Gregg & Cunningham, 1756–1757 (Oxford: Oxford University Press, 2001), 51, n.118. Waddell Cunningham (1729–97) was born in Northern Ireland, the son of John and Jane (Waddell) Cunningham. By 1752, he was a young merchant in New York City and quickly rose to be a prominent member of the Belfast‐New York traders. He entered into a series of partnership agreements with Thomas Greg of Belfast that lasted from 1752 until the 1780s. When he died in Ireland in 1796, his estate was valued at £70,000 sterling. Truxes, 43–56.7. Milton M. Klein, “Liberty as Nature's Gift: The Colonial Origins of the Bill of Rights in New York,” in The Bill of Rights and the States: The Colonial and Revolutionary Origins of American Liberties, ed. Patrick T. Conley and John P. Kaminski (Madison, Wis.: Madison House, 1992), 235.8. Truxes, 51, n.118.9. New York Gazette, or, the Weekly Post‐Boy, 25 August 1763.10. Ibid., 1 September 1763.11. Ibid.12. Ibid.13. Ibid.14. The Earl of Halifax to Cadwallader Colden, 5 September 1763, Letters and Papers of Cadwallader Colden (hereinafter Colden Papers), New York Historical Society Collections (1922), 56: 234. The full extent of the political intrigue that swirled around this incident has not yet been fully explored. There is clear evidence that Cunningham attempted to exert political influence to quash the legal proceedings. In addition to Halifax's letter, prior to the trial, Cadwallader Colden responded to a letter from Cunningham: “Agreeable to your Request I return to you two of the Three Memorials you presented praying to be relieved against the Prosecution commenced against you at the suit of the Crown. On my laying them before the Council, though they as well as myself looked on your case in a Light which would have entitled you to a favourable Opinion they thought it improper for them to intermeddle therein, and without their concurrence I cannot take on me to grant you a Nolle Prosequi,” Cadwallader Colden to Waddell Cunningham, undated letter (probably Spring 1764), Colden Letter Books, New York Historical Society Collections (1877), 9: 325.15. The Report of an action of assault, battery and wounding, tried in the Supreme Court of Judicature for the Province of New York, in the term of October 1764, between Thomas Forsey, plaintiff, and Waddell Cunningham, defendant (New York: John Holt, 1764), 1, (hereinafter Report); Herbert A. Johnson, “George Harison's Protest: New Light on Forsey versus Cunningham,” New York History 50 (1969): 64; Klein, The American Whig: William Livingston of New York, rev. ed. (New York: Garland Publishing, Inc., 1993), 413.16. Ibid.17. Johnson, 77.18. Ibid.19. Ibid., 76–77.20. New York Gazette, or, the Weekly Post‐Boy, 1 September 1763.21. Johnson, 78.22. Ibid.; Klein, American Whig, 413.23. Robert Ross Waddell was the son of Robert Waddell and a cousin of Waddell Cunningham. He became a junior partner in Greg, Cunningham & Company in 1761. Robert assumed responsibility for the management of the New York operations of the firm in 1764, when Waddell Cunningham left the colony. Truxes, 44, n.80; 52.24. Johnson, 78.25. Ibid., 79. George Harison (d. 1773) was a close friend and associate of Waddell Cunningham. He lived on Broadway and held the positions of surveyor and searcher at the New York Custom House until he was replaced by Alexander Colden, the son of Cadwallader Colden, in 1756. Harrison may have looked the other way in respect to a number of smuggling operations in which Cunningham was involved. Truxes, 51, n.121; 89.26. Johnson, 79. There is a good reason to believe that neither Thomas Forsey nor Waddell Cunningham was present in New York for most of the controversy that surrounded the litigation that carries their names. Cunningham had posted a sufficient bond to guarantee any verdict against him and had left New York for England. His business partner, Robert Ross Waddell, served as his attorney‐in‐fact during and after the trial. Johnson, 65. See also Truxes, 52. And from a notation by John Watts, “Mr: Thomas Forsey now at New London [Connecticut],” it also appears that by July 1764, Forsey too had left New York behind him. Watts to Samuel Johnson, 9 July 1764, Letter Book of John Watts (New York: New York Historical Society, 1928), 274.27. Johnson, 80.28. Ibid., 62; Klein, “Prelude to Revolution in New York: Jury Trials and Judicial Tenure,” William and Mary Quarterly, 3d ser., 17 (1960): 453.29. Leonard Woods Labaree, ed., Royal Instructions to British Colonial Governors, 1670–1776, vol. 1 (New York: Octagon Books, Inc., 1967), 321. Emphasis added.30. Ibid., 325.31. Johnson, 80–81. Chief Justice Horsmanden's statement of the independence of the bench was not original. Similar sentiments were expressed by Chief Justice Edward Coke in Jentleman's Case in 1583. Steve Sheppard, ed., The Selected Writings of Sir Edward Coke, vol. 1 (Indianapolis, Ind.: Liberty Fund, 2003), 157–60.32. Ibid., 82.33. Carole Shammas, “Cadwallader Colden and the Role of King's Prerogative,” New York Historical Society Quarterly 53 (1969): 106; Klein, American Whig, 389.34. Ibid., 398; Mary Lou Lustig, Privilege and Prerogative: New York Provincial Elite, 1710–1776 (Cranbury, N.J.: Associated University Presses, 1995), 110–11; Shammas, 115.35. George Harison to Cadwallader Colden, 24 November 1764, Colden Papers, New York Historical Society Collections (1922), 56: 388.36. Ibid.37. John Tabor Kempe to Cadwallader Colden, 31 October 1764, Colden Papers, in Collections, vol. 6 (New York: New York Historical Society, 1922), 56:368.38. Ibid.39. Ibid.40. Ibid.41. Johnson, 66.42. Ibid.43. “Reasons offered by Daniel Horsmanden, Esqr Chief Justice,” Colden Papers, in Collections, vol. 6 (New York: New York Historical Society, 1922), 56:380.44. Ibid., 381.45. Ibid.46. Ibid.47. Report, 16.48. Ibid., 19.49. Ibid., 20.50. Ibid., 23.51. Ibid., 25.52. Ibid., 26.53. Ibid., 28.54. “Cadwallader Colden's Opinion on Appeals,” January 1765, Colden Papers, New York Historical Society Collections (1923), 57:1.55. Ibid.56. Ibid.57. Ibid.58. Ibid., 6.59. Ibid.60. Lieutenant‐Governor Colden to the Lords of Trade, 22 January 1765, in Documents Relative to the Colonial History of the State of New York, vol. 7, ed. E. B. O'Callaghan (Albany, N.Y.: Weed, Parsons and Company, 1865), 695.61. Lieutenant‐Governor Colden to the Lords of Trade, 13 December 1764, in Documents Relative to the Colonial History of the State of New York, 7: 679.62. Ibid., 680.63. Colden to the earl of Halifax, 13 December 1764, Documents Relative to the Colonial History of the State of New York, vol. 7, ed. E. B. O'Callaghan (Albany, N.Y.: Weed, Parsons and Company, 1865), 682.64. Colden to the earl of Halifax, 22 February 1765, Documents Relative to the Colonial History of the State of New York, vol. 7, ed. E. B. O'Callaghan (Albany, N.Y.: Weed, Parsons and Company, 1865), 705.65. Ibid.66. Colden to the earl of Halifax, 13 December 1764, 685.67. Colden to the Lords of Trade, 13 December 1764 and 22 January 1765, in ibid., 680, 698.68. Colden to the earl of Halifax, 23 January 1765, in ibid., 701.69. William Smith, Historical Memoirs, vol. 1, ed. William H. W. Sabine (New York: Colburn & Tegg, 1956), 23.70. Smith to Governor Robert Monckton, 5 November 1764, ibid., 26.71. Smith to Governor Monckton, 3 December 1764, ibid., 27.72. Watts to Governor Monckton, 10 November 1764, Letterbook of John Watts, Merchant and Councillor of New York, January 1, 1762–December 22, 1765 (New York: New York Historical Society, 1928), 309.73. Watts to Sir William Baker, 24 February 1765, in ibid., 336.74. For the best study of the early life of William Livingston, see Klein, American Whig.75. Dorothy R. Dillon, The New York Triumvirate: A Study of the Legal and Political Careers of William Livingston, John Morin Scott, and William Smith, Jr. (New York: Columbia University Press, 1949).76. Thomas E. Carney, “A Religious Conflict in Education: The King's College Controversy as a Historical Precedent to Separation of Church and State, 1752–1756” (Ph.D. diss., West Virginia University, 2001); W. Livingston et al., The Independent Reflector, ed. Milton M. Klein (Cambridge, Mass.: Harvard University Press, 1963).77. “Sentinel, No. 1,” New York Gazette, or, Weekly Post‐Boy, 28 February 1765.78. Ibid.79. “Sentinel, No. 3,” New York Gazette, or, Weekly Post‐Boy, 14 March 1765.80. Ibid.81. Colden to the earl of Halifax, 27 April 1765, Colden Letter Books, New York Historical Society Collections (1877), 9:479.82. Colden to Board of Trade, 14 April 1765, ibid., 476; Colden to Sir Jeffrey Amherst, 3 May 1765, ibid., 10:2; Colden to Governor Monckton, 3 May 1765, ibid., 10:2.83. Colden to Sir Amherst, 3 May 1765, ibid., 10:2.84. Archives of Maryland: Proceedings and Acts of the General Assembly of Maryland, 1764–1765 (Baltimore: Maryland Historical Society, 1942), 59:29.85. Ibid., 31.86. Ibid., 342. Emphasis added.87. Ibid. Emphasis added.88. Ibid., 345–50.89. Ibid., 345–46.90. Ibid.91. Ibid., 347.92. Ibid., 349.93. Robert R. Livingston to Robert Livingston, 19 October 1765, copy, Bancroft Collection, vol. 275, New York Public Library, cited by Daniel J. Hulsebosch, Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664–1830 (Chapel Hill: The University of North Carolina Press, 2005), 139.94. Colden to Sir Jeffrey Amherst, 3 May 1765, Colden Letter Book, New York Historical Society Collections, 10:2; Colden to Governor Monckton, 3 May 1765, ibid.95. “Order of the Privy Council,” 26 July 1765, Colden Letter Books, New York Historical Society Collections 10:39.96. Johnson, 74.97. Ibid.98. Colden Papers, vol. 7, in Collections 56:95.99. Moore to the Lords of Trade, 22 February 1766, in Documents Relative to the Colonial History of the State of New York, vol. 7, ed. O'Callaghan (Albany, N.Y.: Weed, Parsons and Company, 1865), 814.100. “State of the Province of New York, 6 December 1765,” Colden Letter Book New York Historical Society Collections, 10:74; Colden to Board of Trade, 6 December 1765, Colden Letter Book, New York Historical Society Collections, 10:81–82; Colden to Sir Amherst, 13 January 1766, Colden Letter Book, New York Historical Society in Collections, 10:89.101. Watts to Sir Monckton, 12 October 1765, Letterbook of John Watts, Merchant and Councillor of New York, January 1, 1762–December 22, 1765 (New York: New York Historical Society, 1928), 393; Watts to Mr. Moses Franks, 22 December 1765, Letter Books of John Watts, Merchant and Councillor of New York, January 1, 1762–December 22, 1765 (New York: New York Historical Society, 1928), 407; Smith to Monckton, 8 November 1765, in Smith, 30.102. “Report of the Attorney and Solicitor Generals on Appeals in New York, 2 November 1765,” in Documents Relative to the Colonial History of the State of New York, vol. 7, 816.Additional informationNotes on contributorsSusan KolbThomas E. Carney is an associate professor of constitutional history at the University of Baltimore. Susan Kolb holds an MBA and is an independent scholar.

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