SEYMOUR DURST ^^^^^^^ ' """"'''"A ' " ll'bi'}! you lfiWL\ plfine leave (his hook Became il baa been said "£\K'r'lbint} corner t bim who icoifs { (■/)( Orange. > Bloomfield. 6 The Counsel of the Plaintiffs were : William Pennington, Oliver S. Halsted, and A. C. M. Pennington, Esqrs. of New-Jersey ; Samuel Jones and William W. Van Wagenen, Esqrs. of New-York. For Defendant : Asa Whiteifead, Feed. T. Feelinghoysen, and I. H. Williamson, Esqrs. of New-Jersey ; Francis B. Cutting, Henry E. Davies, and Henry H. Anderson, Esqrs. of New-York. The Pleadings were as follows : DECLARATION. As yet, of ibe Term of April, in the year of our Lord one thousand eiglit hundred and forty-soven. Witness, HENRY W. GREEN, Esq. Cldef Justice. J. Wilson, Clerk. State gp New-Jersey. Essex Countyy ss. : The American Pruit Works put in their place, Alexander C. M. Pennington, their attorney, against Cornelius W. Lawrence, of a plea of trespass. Essex Cowity, ss. : Cornelius W. Lawrence puis in his place, Benjamin Williamson, his attorney, at the suit of the American Print Works, of a plea of trespass. Essex County, ss. : Cornelius W. Lawrence, the defendant in this suit, was summoned to answer the American Print 7 Works, the plaintiffs therein, of a plea of trespass; and thereupon the said plaintiffs, by Alexander C. M. Penning- ton, their attorney, complain, for that the said defendant, on the seventeenth day of December, in the year one thousand eight hnndred and thirty-five, at New-York, to wit, at New- ark, in the said county of Essex, with force and arms, &c. did blow up by gunpow"der, burn and destroy divers goods, wares and merchandizes 6{ the said plaintiffs, to wit, eight hundred cases prints, seventy thousand pieces prints, fifty cases drill- ings, one thousand pieces drUhngs, and a large quantity of prints, drillings, and other dry goods, wares and merchandizes of groat value, to wit, of the value of two hundred thousand dollars, there then being at New-York, to wit, at Newark aforesaid, whereby the said goods, wares and merchandizes, being of the value aforesaid, then and there became, and were w^hoUy lost to the said plaintiffs at New- York, to wit, at Newark aforesaid, to the damage of the said plaintiffs of two Imndred thousand dollars ; and therefore, they bring suit, &c, PLEA OF THE GENERAL ISSUE. And the said defendant, by B. Williamson, his attorney, comes and defends the force and injury, when, &c. and says, that he is not guilty of the trespass above laid to his charge, in manner and form as the said plaintiff hath above thereof complained against him ; and of this, the said defendant puts himself upon the country, &c. FIRST SPECIAL PLEA. And for further plea in this behalf, by leave of the Court here, for that purpose first had and obtained, according to 8 the form of the statute in such case made and provided, the said defendant, as to the blowing up by gunpowder, burning and destroying the said goods, w^ares and merchandizes, in the said declaration mentioned, says, that the said plaintiff his action thereof against him ought not to have or maintain, because, he says, that at the time of the committing the said supposed trespass in the said plaintiffs' declaration mentioned by him, the said defendant, to wit, on the seventeenth day of December, in the year one thousand eight hundred and thirty- five ; the citizens of the City of New- York, in the State of of New- York, were, and for a long time previous thereto, to wit, from the year sixteen hundred and eighty-six, had been a body politic and corporate, by the name and style of " The Mayor, Aldermen and Commonalty of the City of New- York," and from thence hitherto have continued and re- mained, and still continue and remain, such body politic and corporate as aforesaid, by the name and style aforesaid. And the said defendant further says, that there have been at all times, from the year last aforesaid, until and at tlie time of the committing of the said supposed trespass, certain municipal officers and magistrates in the said City of "New- York, called the Mayor and the Aldermen, charged and in- vested with judicial, administrative, and executive powers and duties, for the government of the said city, and the pro- tection of the citizens and inhabitants thereof, and the estate and property therem. And the defendant further says, that heretofore, to wit, on the 9th day of April, in the year 1813, the People of the State of New-York, by their Legislature, did pass an act, among other things regulating the destmction of buildings in the said City of New- York, whenever such destruction 9 shoijld become necessary, to prevent the spread of a confla- gration in the said city, and to save other buildings and pro- perty therein from taking fire, and being consumed thereby, entitled " An Act to reduce several laws relating particularly to the City of New- York into one Act in which said act, it was provided and enacted, that when any buildings in the City of New-York should be on fire, it should be lawful for the Mayor, or m his absence, the Recorder of the city, with the consent and concurrence of any two of the Aldermen thereof, or for any three of the Aldermen, to direct and order the same, or any other building whicli they should deem hazardous and likely to take fire, or to convey the fire to other buildings, to be pulled down or destroyed. And that, upon the application of any person interested in such build- ings so pulled down or destroyed to the Mayor or Recorder, or any two Aldermen, it should be their duty to issue a pre- cept for a jury to inquire of, and assess the damages which the owners of such building, and all persons having an estate or interest therein, have sustained by the pulling down or destroying thereof. And after providing the manner of con- ducting, executing and returning of the said inquiry and assessment, and the confirmation thereof, the act aforesaid further enacts, that " the sums so assessed by the said Jury shall be paid by the said Mayor, Aldermen and Commonlty" to the res2}ective persons in whose favor the jury shall have assessed the same, in full satisfaction of all demands of such persons respectively, by reason of the pulling down or de- stroying of such building. And the said defendant says, that the said provisions of the aforesaid act, from thence hitherto have remained, and still remain in full force and effect, and unrepealed . 2 10 And that the siiid defendant further says, that at tlie time of committing of the said supposed trespass in tlie said plain- tiffs' declaration mentioned by him, the said defendant, to wit, on the seventeenth day of December, in the year of our Lord one thousand eight hundred and thirty-five, the said City of New- York, in the said plaintiffs' declaration mentioned, and in which the said supposed trespass is therein alleged to have been committed by the said defendant, was densely popu- lated and compactly and closely built up with stores, dwell- ing-houses and other buildings, near to and adjoining each other, which were then used and occupied by the respective ovniers or tenants thereof for the residence of their families, the storing of goods, wares and merchandizes, and for other lawful purposes. And this defendant further saith, that on the day and year last aforesaid, and before the committing of the said supposed trespass in the said plaiutifJs' declaration mentioned, a fire had broken out in the said city, and for some time had been, and was then raging with great violence, and had burnt down and destroyed a great number of tJio said stores, dwelling-houses and other buildings, and threatened destruction to the said city, or to a great part thereof, and had actually communicated and set fire to a large number of said stores : to wit, to sixteen stores, including stores known and distinguished as number forty-four and number forty-six, situated on a public street in the said city, called Exchange Place, in each and all of which said last mentioned stores the said conflagration, at the time of the committing of the said supposed trespass, was raging with great violence, and threatened the destruction of adjoining buildings, and of a very large and valuable part of the said city. And the said defendant further says, that near to and in 11 the vicinity of the said stores so as aforesaid on fire, there were certain other buildings, commonly called stores, known as Nos. 48, 50 and 52, on the said street called Exchange Place, which, from their relative position in regard to the said stores so as aforesaid on fire, were peculiarly exposed to the danger of being set on fire, and were likely and liable, at any moment, to be ignited, and thereby to extend and com- municate the fire to other and numerous and valuable build- ings and stores, and to cause the total destruction thereof, with their contents, and to cause the destruction by the said conflagration of a large and valuable portion of the said city, and of the dwelling-houses and other buildings therein. And the said defendant avers, that but for the acts and conduct of the said defendant hereinafter mentioned, the said stores, above particularly mentioned or referred to as pecu- liarly exposed to danger, would inevitably, and within a few moments, have taken fire from the said stores or buildings then already on fire as aforesaid, and would have commu nicated the fire to other stores and buildings in the vicinity thereof, and would thereby have been the means of con- suming and destroying by fire many valuable stores and buildings, and of consuming and destroying by fire a very large and valuable portion of the said city, and of the stores and dwellings therein, together with the goods, wares and merchandizes and other property, in such stores, dwelling- houses and buildings there being. And the said defendant further says, that he was, at the time last aforesaid, and for a long lime previous thereto, had been, and still is a resident and citizen of tlie sai^ City of New- York, in the State of New- York, and the owner of valu- able buildings and property, real and personal, in the said 2* 12 city, and was present at and during the time of the iiforesaid fire, and as such resident citizen and owner, aiding, advising and assisting in preventing the spread of the said fire, and in the protection of the buildings and property in the said city from destruction thereby ; and this defendant being so pres- ent at the said fire, had reason to believe and did believe that the said stores or buildings, so hereinbefore particularly men- tioned or referred to as peculiarly exposed to the said fire, would immediately and inevitably take fire and be burned up, with their contents, notwithstanding every effort that was or could be made to save the same from destruction, and would communicate the flames to adjoining buildings and cause the destruction of a large part of the said city as afore- said, unless the said stores or buildings were immediately and without loss of time destroyed, by blowing up the same with gunpowder, or in some other way instantly demolishing the same, so as to prevent the further extension of the said conflagration. And the said defendant further says, that to prevent the further spreading of the said conflagration, and the destruc- tion of a large portion of the aforesaid city, and of the build- ings and property therein as aforesaid, the immediate destruc- tion of the said stores or buildings, Nos. 48 and 52, so herein particularly referred to as aforesaid, without waiting to re- move thereout the goods, wares and merchandizes, if any, then being therein, was absolutely necessary, and without such immediate destruction of the said stores or buildings, the said fire and conflagration could not and would not have been arrested, but would have extended itself and liave con- sumed and destroyed a large and valuable portion of the said city as aforesaid ; and for this reason and witli this purpose 13 and intent, and for none other, the said defendant, on the day and year aforesaid, did advise, cause and procure the said stores or buildings, Nos. 48 and 52, to be blown up with gun- powder and destroyed, thereby necessarily and unavoidably destroying tlie said store or building, No. 50, as it was lawful for liim to do for the cause aforesaid. And the said defendant further says, that on the day and year last aforesaid, at the place aforesaid, hc'was the Mayor of the said City of New-York, and that Edward Taylor and Egljert Benson, also citizens of the said city, were then re- spectively Aldermen of said city, and that they, the said de" fendunt being such Mayor, and the said Edward Taylor and Egbert Benson being such Aldermen, were and each of them was present when the buildings aforesaid were on fire as aforesaid, and did deem the said stores or buildings, Nos. 48 and 52, hazardous and likely to take fire, and to convey the fire to other buildings. And' the said defendant, and the said Edward Taylor and Egbert Benson, Aldermen as aforesaid, in accordance with the aforesaid Act of the Legislature of the State of New- York, regulating the destruction of buildings in the said city deemed hazardous and liltely to take fire as aforesaid, when such destruction was necessary as aforesaid, consented and concurred together in advising, causing, and procuring the blowing up and destruction of the said stores or buildings, Nos. 48 and 52. And the said defendant further says, the said goods, wares and merchandizes in the introductory part of this plea men- tioned, were in the aforesaid buildings or stores, Nos. 48, 50 and 52, so as aforesaid blown up with gunpowder and de- stroyed as aforesaid, at the said time when the said defend- 14 ant advised, caused and procured the same to be blown up and destroyed as aforesaid, whereby the said goods, wares and merchandizes were also consumed, blown up and de- stroyed. And the said defendant further says, that at the time of the blowing up and destruction of the said last mentioned buildings or stores, the said goods, wares and merchandizes could not have been removed or saved before the said stores or buildings would have taken fire, and endangered and com- municated the flames to other buildings, and thereby con- sumed a great and valuable portion of the aforesaid city, and of the buildings and property of the citizens or inhabitants thereof. Wherefore, the said defendant says, that for the cause aforesaid, and in the manner, and on the day and year aforesaid, and to prevent the spreading of the said conflagra- tion, and to save a large and valuable portion of the aforesaid city, and the buildings and property of the citizens therein, from being burned up and destroyed, he did necessarily (doing as little injury or damage as it was possible for hira to do,) blow up by gunpowder, burn and destroy the said stores or buildings, Nos. 48, 50 and 52 ; and in so doing, did neces- sarily and unavoidably blow up by gunpowder, burn and de- stroy the said goods, wares and merchandizes, in the intro- ductory part of this plea and in the said plaintiffs' declaration mentioned, as it was lawful and necessary for him to do, for the cause aforesaid, to wit, on the day and year, and at the place aforesaid, which is the same supposed trespass in the introductory part of this plea mentioned, and w^hereof the said plaintiffs have above thereof complained against the said defendant ; and this he is ready to verify. Wherefore, he prays judgment if the said plaintiffs ought to have or main- tain their aforesaid action thereof against him, &;c. 15 SECOND SPECIAL PLEA. And for further plea in this behalf, by like leave of the court here for that purpose first had and obtained, according to the form of the statute in such case made and provided, the said defendant, as to the blowing up by gunpowder, burn- ing and destroying the said goods, wares and merchandizes, in the said declaration mentioned, says, that the said plain- tiffs, their action thereof against him, ought not to have or maintain; because, he says, that at the time of committing of the said supposed trespass, in the said plaintiffs' declara- tion mentioned by them, the said defendant, to ^\it, on the seventeenth day of December, in the year of our Lord one thousand eight hundred and thirty-five, the said City of New- York, in the said plaintiffs' declaration mentioned, and in which the said supposed trespass is therein alleged to have been committed by the said defendant, was densely popu- lated, and compactly and closely built up with stores, dwell- ing-houses and other buildings, near to and adjoining each other, which were tlien used and occupied by the respective owners or tenants thereof for the residence of their families, in storing of goods, wares and merchandizes, and for other lawful purposes. And this defendant further saith, that on the day and year last aforesaid, and before the committing of the said supposed trespass, in the said plaintiffs' declaration mentioned, a fire had broken out in the said city, and for some time had been and was then raging with great violence, and had burnt down and destroyed a great number of the said stores, dwelUng- houses and other buildings, and threatened destruction to the said city, or to a great part thereof, and had actually com- 16 municated and set fire to a large number of said stores, to wit, to sixteen stores, including stores known and distinguished as No. 44 and No. 46, situated on a public street in the said city, called Exchange Place, in each and all of which said last mentioned stores the said conflagration, at the time of the committing of the said supposed trespass, was raging with great violence, and threatened the destruction of adjoining buildings, and of a very large and valuable part of the said city. And the said defendant furtlier says, that near to and in tlie vicinity of the said stores so as aforesaid on fire, there were certain other buildings commonly called stores, known as Nos. 48, 60 and 52, on the said street called Exchange Place, which, from their relative position in regard to the said stores so as aforesaid on fire, were peculiarly exposed to the danger of being set on fire, and were likely and lialjle at any moment to be ignited, and thereby to extend and communi- cate the fire to other and numerous and valuable buildings and stores, and cause the total destruction thereof, with their contents, and to cause the destruction by the said conflagra- tion of a large and valuable portion of the said city, and of the dweUing-houses and other buildings therein. And the said defendant avers, that hut for the acts and conduct of the said defendant, hereinafter mentioned, the said stores above particularly mentioned or referred to as pecu- harly exposed to danger would inevitably and w ithin a few moments have taken fire from the said stores or buildmgs then already on fire as aforesaid, and would have communi- cated the fire to other stores and buildings in the vicinity thereof, and would thereljy have been the means of consuming and destroying by fire many valuable stores and buildings. 17 and of consuming and destroying by fire a very large and valuable portion of the said city, and of the stores and dwell- ings therein, together with the goods, wares and merchan- dizes, and other property in such stores, dwelling-houses and buildings there being. And the said defendant further says, that be was, at the time last aforesaid, and for a long time previous thereto, had been and still is a resident and citizen of the said City of New-York, in the State of New- York, and the owner oj valuable buildings and property, real and personal, in the said city, and was present at and during the time of the aforesaid fire, and as such resident citizen and owner, aiding, advising and assisting in preventing the spread of the said fire, and in the protection of the buildings and property in the said city from destruction thereby ; and this defendant being so pre- sent at the said fire, had reason to believe and did believe, that the said stores or buildings so hereinbefore particularly mentioned or referred to as peculiarly exposed to the said fire would immediately and inevitably take fire and be burned up, with their contents, notwithstanding every effort that was or could be made to save the same from destruction, and would communicate the flames to adjoining buildings, and cause the destruction of a large part of the said city as afore- said, unless the said stores or buildings were immediately and without loss of time destroyed, by blowing up the same with gunpowder, or in some other way instantly demohshing the same, so as to prevent the further extension of the said con- flagration. And the said defendant further says, that to prevent the further spreading of the said conflagration, and the destruc- tion of a large portion of the aforesaid city, and of the build- 3 18 ings and property therein as aforesaid, the immediate destruc- tion of the said stores or buildings, Nos. 48 and 52, so herein particularly referred to as aforesaid, without waiting to re- move thereout the goods, wares and merchandizes, if any then being therein, was absolutely necessary, and without such immediate destruction of the said stores or bnildings, the said fire and conflagration could not, and would not have been arrested, but would have extended itself, and consumed and destroyed a large and valuable portion of the said city as aforesaid ; and for this reason, and with this purpose and intent, and for none other, the said defendant, on the day and year aforesaid, did advise, cause and procure the said stores or buildings, Nos. 48 and 52, to be blown up with gunpowder and destroyed, thereby necessarily and unavoidably destroy- ing the said store or building, No. 50, as it was lawful for him to do, for the cause aforesaid. And the said defendant further says, that the said goods, wares and merchandizes, in the introductory part of this plea mentioned, were in the aforesaid buildings or stores, Nos. 48, 50 and 52, so as aforesaid blown up with gunpowder and de- stroyed as aforesaid, at the said time "when the said defend- ant advised, caused and procured the same to be blown up and destroyed as aforesaid, whereby the said goods, wares and mercliandizes were also consumed, blow^n up and de- stroyed. And the said defendant further says, that at the time of the blowing up and destruction of the said last men- tioned buildings or stores, tlie said goods, wares and mer- chandizes could not have been removed or saved, before the said stores or buildings would liave taken fire, and endan- gered and communicated the flames to other buildings, and thereby consumed a great and valuable portion of the afore- 19 said city, and of the buildings and property ol the citizens or inhabitants thereof. Wherefore the said defendant says, that for the cause aforesaid, and in the manner and on the day and year aforesaid, and to prevent the spreading of the said conflagration, and to save a large and valuable portion of the aforesaid city, and the buildings and property of the citizens therein from being burned up and destroyed, he did neces- sarily (doing as little injury or damnge as it was possible for him to do,) blow up by gunpowder, burn and destroy the said stores or buildings, Nos. 48, 50 and 52 ; and, in so doing, did necessarily and unavoidably blow up by gunpowder, burn and destroy the said goods, wares and merchandizes, in the intro- ductory part of tills plea, and in the said plaintiff's declara- tion mentioned, as it was lawful and necessary for him to do, for the cause aforesaid, to wit, on the day and year, and at the place aforesaid, which is the same supposed trespass, in the introductory part of this plea mentioned, and whereof the said plaintiffs have above thereof complained against the said defendant, and this he is ready to verify : wherefore, he prays judgment if the said plaintiffs ought to have or maintain their aforesaid action thereof against him, &c. SIMILITER TO PLEA OF THE GENERAL ISSUE. Aiid the said plaintiffs, as to the plea of the said defendant by him firstly above pleaded, wherein he puts himself upon the country, doth the like. SUPREME COURT, STATE OF NEW-JERSEY. Cornelius W. Lawrence. And the said plaintiff, as to the plea of the said defendant, by him secondly above pleaded, says, that the said plaintiff ought not to be barred from having or maintaining his afore- said action against the said defendant, by reason of any thing by the said defendant in that plea alleged, because he, the said plaintiff, denies that the said defendant did, as Mayor of the said City of New-York, with the consent and concurrence of the said Edward Taylor and Egbert Benson, as Aldermen of the said city, in pursuance of the said act of the Legisla- ture of the State of New- York, in the said plea mentioned, cause and procure the said stores or buildings, Nos. 48 and 52, in Exchange Place, in the said city, in the said plea men- tioned, to be blown up by gunpowder and destroyed ; and that the immediate destruction of the said stores or build- ings, without waiting to remove thereout the plaintiffs' goods,* wares and merchandizes there being, was absolutely neces- sary to prevent the further spreading of the said conflagration REPLICATION. The American Print Works, vs. In T?'espass. 21 in that plea mentioned, and the destruction of a large portion of the aforesaid city, and of the buildings and property there- in, as aforesaid; and of this, he puts himself upon the coun- try ; and the said defendant likewise, &c. And the said plaintiff, as to the plea of the said defendant, by him thirdly above pleaded, says, that the said plaintiff ought not to be barred from having or maintaining his afore- said action against the said defendant by reason of any thing in that plea alleged, because he the said plaintiff says, that he the said defendant, being a resident citizen of the City of New-York, and causing and procuring the stores or buildings, Nos. 48 and 52, in Exchange Place, in the said city, in the said plea mentioned, to be blown up by gunpowder and de- stroyed, the immediate destruction of the said stores or buildings, Nos. 48 and 52, in Exchange Place, in the said city, without waiting to remove thereout the plaintiff's goods, wares and merchandizes then being therein, w-as not abso- lutely necessary to prevent the further spreading of the said conflagration in that plea mentioned, and the destruction of a large portion of the aforesaid city, and of the buildings and property therein, as aforesaid ; and of this, he puts himself upon the country ; and the said defendant likewise, &c. A. C. M. PENNINGTON, Attorney for Plaintiff. The cawse was opened to the jury, on behalf of the plain- tiffs, by Mr. Van Wagenen, and the following testimony was produced by the plaintiffs. 22 CiiAs. H. Haswell, sworn. — Examined by Mr. Van Wacenen. I reside in the City of New- York ; am Chief Engineer in the United States Navy. I resided in New- York, in Decem- ber, 1835, and was present at the groat fire in that year. Was then a member of the Fire Department. The hose be- longing to our engine became frozen in the early part of the fire, and I reported this fixct to the Chief Engineer, who or- dered me to use my own discretion, and do the I)est I could. I was in Exchange Place on the morning of the 17th of De- cember. The fire broke out between eight and nine o'clock, P. M. of the 16th. I got there between twelve and one. Several buildings were blown up by powder that night. The first building I understand was No. 48 Exchange Place. It was blown up by order of Cornelius W. Lawrence, then Mayor of the City. Qurs. Did you take any part in the blowing up ? A?is: I did. After it was decided to blow it up, I gave or- ders to clear the street, to keep away the citizens who were in it. Powder was placed in llie basement. The train was laid in the basement to the street, and the doors in the base- ment were shut as close as possible. Shortly afterwards the building was blown up. Part of No. 50 Exchange Place was destroyed by the explosion of No. 48. I cannot say, if No. 48 was on fire at the time it was blown up. Cross-exaniinaiion hy Ma. Davies. I was not connected witli the Navy Department at this time. Had then been a fireman for ten years. My attention 23 was first turned towards the cupola of the Exchange, which was on fire. I was beyond WiMiam-street then, towards the East River. I remained in the neighborhood of William- street and the Exchange. I cannot say at what time the fire crossed William-street. The fire progressed rapidly. The weather was very cold — the wind frdm the northwest. There w^as no snow about the fire, but there was deep snow on the ground. The hose attached to the hydrants was so frozen that the water did not flow. This was generally the case with all the engines. The departmenl generally was disabled. All the hose that came under my observation was frozen between twelve and one o'clock. It was a night of remarkable coldness. When the building No. 48 Exchange Place was blown up, the fire was not progressing rapidly ; the wind had fallen, and the flames spread with less rapidity. A consultation was held sometime before, by Mayor Law- rence, Aldermen Benson, Taylor and Smith, Mr. James A. Hamilton, (then U. S. District Attorney,) General Swift, Colonel Monroe, Mr. Charles King, and Mr. Wenman, late Chief Engineer of the Fire Department, and other prominent citizens, and it was decided to blow up No. 48 Exchange Place, The counsel for the plaintiff objected to evidence of the conversation of bystanders, as irrelevant. The Court overruled the objection, so far as to admit the conver- sation of those engaged in consultation with the Mayor, this forming a part of the " res gestae ;" and the plain- tiff"'s counsel excepted to the decision of the Court. Mr. Wenman, I believe, and myself took the principal direction of the blowing up of No. 48. 24 Direct Examination resumed. The part I took was to see that the street was cleared ; and after the powder was taken into the basement, I took in some pieces of champagne baskets and other materials for laying the train. I took a piece of cloth and some paper, and dipped them in camphene, and spread it along the floor, to lay the train upon. I then shut the doors of the base- ment to aid the explosion. It would be difficult to say with precision, how long time elapsed between the giving of the order and the blowing up of the building — perhaps twenty minutes. I will withdraw my answer of twenty minutes, as to time, and make it over half an hour. James T. Griswold, sworn. — Examined by Mr. Van Wagenen. In December, 1835, I resided in New- York. I was then bookkeeper in the house of Lee, Savage & Co. No. 52 Ex- change Place. I was in the building, No. 52, the night of the great fire, and had the general management of removing the goods in the part of the building occupied by Lee, Savage & Co. As near as I remember, the fire crossed William- street not far from two o'clock, A. M. The building, No. 52, was blown up by gunpowder. I was busy in the store when some gentlemen came in. I told them we wanted the room. One of them said, '* This is Mr. Griswold." Mr. Lawrence then said, " Wc are the Mayor and Aldermen of the city." He added, that they were about sending to Brooklyn for pow- der to blow up the building, but that we could go on remov- ing the goods until the powder arrived and he gave us warn- 25 ing. We accordingly went on removing the goods until some individuals, I don't know who, cried out "Powder," and said the powder had come. Some persons were en- gaged up stairs, and I cried to them "Powder," and they came down. I saw Mr. Lawrence shortly after that in front of the store, on the sidewalk opposite Garden-street church. I told him I thought we had abundant time to remove the goods from the store before the fire would reach it. I then took the keys of the store from the place where they were kept and handed them to Mr. Lawrence. I cannot say what I said, but it was something to the effect that I abandoned the store and gave it up to him. I don't remember what Mr. Lawrence said. I can't say that he made any answer when I told him that I thought there was time to remove the goods. My recollection is, that there was only one door in front of No. 52, excepting the door to go up stairs. We were on the first floor. We occupied it with dry goods — chiefly with broad-cloths. There was a long building in the rear, front- ing on a large yard, and there was an arched passage about three feet wide, running out to the yard. We occupied the yard in common with other stores. There was a carriage- way running into Beaver-street from the yard. Our house was the last warehouse in Exchange Place, towards Broad- street, and around the corner there was a large boarding- house fronting' on Broad-street. The windows of the store opened upon the yard of this boarding-house. We had just commenced throwing out goods into this yard by permission of the lady keeping the boarding-house, who told me that the house was cleared. I had asked the privilege of going through the house, which was granted. I handed Mr. Law- 4 26 rence the keys after Iho cry of powilcr. I don't tliiuk No. 48 was blown up till about five o'clock, nor till about an hour after I gave up the keys, and I think it was near six o'clock when No. 52 was blown up. I should think there was nearly an hour's difference. Cross-examination hy Mr. Davies. I was at No. 308 Pearl-street, near Peck Slip, when the fire broke out. I went immediately down to the fire. It was a little after nine o'clock. The fire, when I got there, was all around the other side of Wall-street, the buildings burn- ing with gi'cat rapidity, like so many shavings. It w ent very fast. I think the fire had crossed Pearl-street. I can't tell what time the Exchange took fire. I w ent down to Hanover Square. They were removing the goods from the stores into Hanover Square. These goods were afterwards burned up. It being very cold, I went up to our store and built up a fire to get warm. Reached our store probably about ten o'clock. The firemen were not then working. It was the opinion of many gentlemen that the whole southern part of the city would be burned up, including our store. I w atted then to see what the end would be. I saw the fire when it crossed Willi am -street. I was busy removing goods when it crossed William-street. I should think I had made prepara- tions for moving, and commenced moving, while the fire was between Hanover and William streets. I commenced mov- ing goods about three hours after I reached the store — about one o'clock in the morning. The preparations I spoke of were looking out for vehicles and men. Only a short time elapsed after those preparations before we commenced remov- 27 ing the goods. I think about three-quarters of an hour elapsed after I commenced moving the goods before the fire crossed Wilham-street. After the fire crossed William-street, we continued our efforts to remove the goods. I should think it was about two o'clock when the fire crossed William-street. It was probably three hours before No. 48 was blown up. I did not examine my watch. When Mr. Lawrence came in and told us he had sent for powder, No. 48 had not been blown up. I can't tell how near tlie fire was to No. 48 at the time when Mr. Lawrence came in. I don't think I went out of the store after the fire crossed Wilham-street, for the purpose of watching the fire, till I went out and gave the keys to Mr. Lawrence. I don't remember how long, nor about how long I remained in the store after I was told it would be necessary to blow it up. I was busy, and can't well remember about ,time. I can't tell whether Garden- street church was on fire when I gave the keys to Mr. Law- rence ; I think it was. I was standing on the steps of the store when the bell of Garden-street church tolled, being caused by the fire, and that made an impression on my mmd. I don't remember whether I had then given the keys to Mr. Lawrence. It was a long time after I gave Mr. Lawrence the keys, before No. 48 was blown up. I thought I could have re- moved the goods. Our goods were heavy goods, and were mostly in boxes. We didn't remove them in boxes. We took them out. The boxes were generally open. I can't say what proportion of the goods were removed when I ^avc the keys to Mr. Lawrence. I can only state by guess work. We had not removed the goods from the first floor. We had removed pcrliaps four- 4^. 28 fifths of the goods. I judge of the tiuantily by the value. We removed part of the goods across Broad-street, about half a block in Beaver. Those wc removed from the first floor, we carried to Mrs. Holm's boarding-house, comer of Exchange Place and Broadway. Others we removed to Wall-street, between Broad-street and Broadway, on the south side of the street. I believe Edwin Lord & Co. occupied the upper part of the store, except the upper loft. The budding was a four story building. I don't remember how many men were employed in removing the goods. I should say there were eight or ten. Wc had no horses and carts, and only one hand cart. We couldn't get any more. I offered fifty dollars for a wheel-barrow, but couldn't get it. The man w ouldn't sell it. They were very valuable that night. The other goods wore removed by hand. We had also one truck, such as they use in stores. Other goods were carried on shoulders. There was much snow and ice at that time obstructing the streets. It greatly obstructed the streets, both for veliiclcs and passen- gers. I didn't see goods in Garden-street church. I don't know whether they were removing goods from the upper loft of our store. The goods which were thrown into the yard, I took away myself to Pine-street. I took them away as soon after as I could. I don't know how long after. It was after day- light, and after the explosion. Only a very few goods were there. The fire stopped at No. 53. I don't know whether, when we began to remove the goods, we first removed the most valuable or not. We moved our books and papers very early. We removed the books before the burning of the Exchange. I don't know at what hour. It was some- time after we built our fire. I was at the corner of Ex- change Place and Broad-street when No. 52 was blown up. 29 I think that by the blowing up of No. 48, a part of No. 50 was blown down. I don't know if there was any fire in No. 50. I didn't see the powder put in No. 02. I don't know how long after the pow"der was put in before the building was blown up. I didn't see the powder going in, but I saw what I supposed to be powder, in the street opposite my store, covered with a tarpaulin, going towards No. 52. Nearly an hour elapsed before No. 52 was blown up. When I saw the powder, it was before No. 48 was blown up. I think about an hour elapsed before No. 52 was blowTi up. I do not suppose that the powder I saw could have been the powder which blew up No. 48. The Court here adjourned to half-past two o'clock. Afternoon Session. C7-oss-cx(mnnation of Mn. Griswold, continued Inj Mr. Cutting. When Mr. Lawrence first came into the store, I should think five or six persons accompanied him. He said, " We are the Mayor and Aldermen of the city," referring to those about him, as I understood him. He said, Ihey had sent to Brooklyn for powder to blow up the building we were in, (No. 52.) I am positive that he said they liad sent. He said that we might go on till tlie powder came, and then he would give us notice. That is all tlic conversation we had at that time. I thmk they all left the store. I cannot now recollect the names of any of the gentlemen who were with Mr. Lawrence. I think that I knew Alderman Benson by \ 30 sight ; and am positive tliat some of them knew me. I do not remember whether Alderman Benson was present at that time or not. I don't recollect saying anything else to Mr. Lawrence until after the cry of powder, wlien I handed him the keys. I am not positive what I said to liim. The sub- stance of what I said to him was, that I abandoned the store to him. I cannot recollect that I said anything else in sub- stance than that I abandoned tlie store. I can't recollect that he said anything. I left him immediately, thinking I had done my duty. I saw Mr. Law rence two or three times after that. I think I saw him after that, before No. 48 was blown up. I think I saw him at the corner of Broad-street and Exchange Place. I told Mr. Lawrence then that I thought we could have removed the goods. I think it was on that occasion that I said we could have removed tlie goods. I did not have any further conversation with him, and I don't remember that he said anything. After Mr. Lawrence went out of the store we kept on working vmtil some one cried "powder," that "the powder had arrived;" but who the person was who cried out, I have no idea. Mr. Lawrence did not return to the store to tell me that the powder had come. When the cry was given, T called out to those who were in the loft. I then went out. I should think that it was then I saw what I called the powder, covered with oiled silk or tarpaulin ; it must have been about that time. These occurrences were about the same time. I can't say how many cases or packages of goods there were in the store be- fore we began to remove them. I don't think there is any one who can say. I am able to tell how many goods were taken out only by the result of after examination. All that was not at the places where we sent the goods, we put down 31 as destroyed by the fire. Mr. Ulysses Brewster was assist- ing at the store at that time. He is now living in New- York. No goods from other^ores were piled up in front of our store. Direct exammat'io?i resumed. I don't recollect having made any reply to Mr. Lawrence, when he came into the store at the time I have mentioned. I don't recollect when our previous inventory was made. Our usual time for making an inventory is the 1st of January. A great many of the goods were taken by laborers, but some friend accompanied them. I told Mr. Lawrence, I thought we had abundant time to have saved the goods. That was before there had been any explosion at all, I think ; it may have been nftcr. I may have said the same thing several times. Henry A. Stone, sworn. Excnnined hy Mr, Van Wagenen. I resided in New- York in 1835, and reside there now. At the time of the great fire, in 1835, I was clerk in the store of Stone, Swan & Mason, No. 48 Exchange Place. That building was destroyed by an explosion of powder. Twenty- five bales of brown drilling were in that store at the time, belonging to the American Print Works. Their value was $1,866, 61-100. We had sold the goods to that Company. 32 Cross-examination by Mr. Davies. We had sold these goods to the American Print Works two or three days before. They were not left with us by that company for sale. They had not been delivered. They were sold at eight months' credit. They were not then paid for. Edwin Lord & Co. were agents of the American Print Works. I don't know whether Edwin Lord & Co.'s check or note was given or not, though I suppose it was. Cross-examination continued by Mr. Cuttinc;. I believe I sold these goods myself to Edwin Lord. I know that Edwin Lord & Co. were agents of the American Print Works. I know that these goods were eventually paid for, because they were not on our bad debt book. Ed- win Lord & Co. actually paid for the goods, I am sure, because that was in the course of business. At the time of the fire, the note was not given. The goods were charged to Edwin Lord & Co. and paid for by their note. If they had not been paid for, I suppose we should luLve had recourse to the American Print Works. I don't know the arrange- ment existing between Edwin Lord & Co. and the American Print Works. Direct examination resumed hy Mr. Van Wagenen. These goods were burned up. I arrived at the store about eleven o'clock. Wo left the store, No. 48 Exchange Place, because they brought powder there. We had a great many more assistants then than in an earlier part of the night. There were about forty persons removing goods from our 33 establishment when we were obliged to leave. I cannol say that any obstruction was given to removing goods. (A map shown to witness.) — The map shown exhibits the yard in rear of No. 48 Exchange Place, communicating with Beaver-street. Our basement story struck the carriage-way flush, the basement in front being the first story in the rear. The number of persons there had increased. Tliey had been increasing before the powder came. I didn't see how many persons were in Exchange Place when the fire crossed William-street. I was not in the street, I was in the store. It is difficult 1o say how long aflcr notice was given that powder was there, before the building was blown up. I should say it was an hour. It is impossible to judge of time on that night. Cruss-cxaminati(m by Mr. Cutting. These goods were sold to Edwin Lord & Co. They be- came responsible for them. The goods were subject to their order. They coulcl do as they pleased with Ihem. I don't know whether Edwin Lord & Co. made advances to tlie Ame- rican Print Works. They used to sell their prints and buy goods for tlicm. I did not observe the time when the store was blown up. \^"e began to remove our goods, I should say, about half-past one o'clock. We removed them to the west side of Broad-street, above Exchange Place. I will not say positively whether we had carts or not. I think w e had two carts, but am not positive ; I offered any price for lliom. I think we ofitrcd to pay the value of a horse and cart for the use of it that night. I think this was between three and four o'clock in the morning. I presume we had all the assistance 5 34 we could get. After tlie iiiorniiig' broke, we could have got more, but it was too late. There is no way of telling the number of packages that were got out. We got out goods valued at $95,500 and over. Direct exami/iaiion resumed by Mr. Van Wagenen. TJiere were two little old buildings between No. 52 Ex- change Place and Broad-street, built of brick ; low build- ings, not warehouses. There was a store on the corner, fronting on Broad-street, of brick, about three stories high ; a retail grocery store. The buildings between No. 53 und the grocery were, I think, but two stories high. They were infirm buildings. By infirm, I mean not as valuable and not as large as the others. They were very shallow. The build- ing No. 48 was S7 J- feet deep. No. 52 was deeper than No. 48. The difficulty of removing goods from the lofts was much greater than from the first story. We carried down by hand and lowered by machinery at the same time. It would not require twice as much force to remove from the second and third stories as from the first. I do not know for whose benefit the recoveiy will be, if there is a recovery in this case. Five per cent, discount was made on sales for cash. The cash price of the goods would be $1,773.75. I proposed to Mr. Lord, that he should take the goods. I didn't suggest any thing as to the Print Works that I remember. Very likely the Print Vv''orks were mentioned. Francis Bacon, sworn. — Examined hy Mr. A'an WAtiENEN. In 1835, I resided in New- York, and was engaged in busi- ness. Was a member of the firm of Edwin Lord & Co. 35 Our ])lace of iiusiness was. No. 53 Exxliangc Place. I was there during a portion of the time of tlie lire. We had a large amount of printed goods belonging to the American Print Works on consignment, which were destroyed by fire. Ques. What was the value of the goods in that store be- longing to the American Print Works, destroyed by the fire and blowing up in 1835 ? Ans. $64,747.02. This was the credit value. Tiic cash value was $61,725.50. Cross-examination hy Mr. Davies. The goods were in that store, because we were the factors of that company. We received goods to sell on their ac- count, on commission. We rarely purchased for them ; pur- chasing for them was not our business. I don't remember making any purchases for thcni. Ques. Did you make advances to them on the faith or credit of goods in your possession at this time ? Objected to by plaintiffs' counsel, as irrelevant. Objection sustained by the Court ; and defendant's counsel excepted to the decision. Ques. Did not Edwin Lord & Co. commence a suit, and claim a recovery for these identical goods 1 Objected to by plaintiflV counsel, as irrelevant. Defendant's counsel ofTers to prove, that at the time the goods were destroyed, Edwin Lord & Co. had a right to the proceeds of the goods destroyed ; tliat they 5^- 36 have authorized the bringing of this suit, and hxixe made arrangements by which they are to allow a proportion of the recovery, as a compensation for services in bring- ing and prosecuting the suit. The objection was argued by Mr. Whitehead for the defendant, and Mr. A. M. C. Pennington for the plain- tifTs, and by Mr. Cutting in reply ; the court was of opinion that the evidence was not admissable, and ruled accordingly. Tlie counsel for llie defendant excepted to the decision. Cross-cxamiiuition o/" J''iiAN(;rs Bacon, conUiwcd hy Mr. Davies. The amount of property destroyed in the store, belongmg to Edwin Lord& Co. was $13,466.25. The amount claimed by them was 880,036. Ques. What amount had they insured ? Objected to by plaintiffs' counsel. Defendant's counsel offers to prove, by this witness, that Edwin Lord »fe Co. had insured $103,000; and that they received on this insurance, $47,000 from in- surance companies incorporated under the laws of the State of New-York, and doing business in that State. Objection overruled, and testimony admitted. I have no recollection how mucli we were insured. We were largely insured. I can't remember the figures. T can't say whether it was over *^100,000; cannot say it ex- 37 ceeded $1000. I think it likely I could lefrcsh my memory by looking at the books of our house, if they are in existence. Edwin Lord and myself composed the firm of Edwin Lord and Co. Ques. Did not Edwin Lord & Co. claim the full amount of loss, S89,000, under this insurance — the claim being made under Ihc laws of New-York ? Objected to by plaintiffs' counsel. Objection sustained ; and defendant'.s counsel exccpti'd to the decision. Cross-€xa?//inalion confimicJ hy j\Ir. CvTTiNt!. I was able to speak with accuracy on Fridaj of ihc amount belonging to plaintiffs, because I had a paper before me with the figures. I spoke entirely from the paper. {Paper jjrodiiced.) The figures on the paper were made by a young man named Culver. Ho is at sea. I don't know- where tlie paper -was made out. Tlierc is no other paper than this from which I speak of the loss. I don't knowwhen the paper was made out. I don't know that it was made out in 1838, unless there is a date fipon the paper. I don't know by whom the pencil marks, calculating interest, were made. The endorsement is in iny liaiidwriting, but I can't tell when I first saw the paper, nor when J last saw it before this trial. Excepting by looking at that paper, I am unable accurately to state the amount of plaintiffs' property which was destroyed. The item of $64,400 is the property of the American Print Works ; I cannot tell, with certainty, without looking at the paper. The item of 810,000, I pre- sume, is the property of Burgess, Tomlinson Co. of Eng- 38 land. I don't like to swear to it without seeing the paper. The item of $13,466.25, I took from another paper. {Produces it.) Except from comparing the two papers, I could not have .stated the amount as accurately as I have stated it. I think I could approximate very nearly to it. The second paper is in my handwriting, excepting the pencil marks.- I made this paper out in 1838, at the time it bears date; I suppose, February 37, 1838. I can't say whether the two papers were made out about the same time. The item of 889,000, was composed of the racrctiandize of Edwin Lord & Co. and of merchandize held by them in trust and on commission, including 864,000 of the American Print Works. I have no doubt but that our house were under ad- vances to the American Print Works at that time on these goods. I can't tell the amount of their advances ; the ac- counts were not in my hands. I can't, state any sum at all —not whether it was $1,000 or $50,000. I don't know whether it was nearer $1,000 or $50,000 after the fire. I have little doubt but that Edwin Lord & Co. wei-e creditors of the American Print Works. I think Edwin Lord is alive, but don't know where he lives. The young man. Culver, was book-keeper. I don't know wOiere the books arc. The words, " verdict, $93,220.48," on the paper, are in my hand- writing. The words, " Edwin Lord & Qo. claim for dama- ges," are in my handwriting. This claim was for goods owned by them, and held by them as representatives of others. I suppose tlie words "verdict, $93,220,48," were put down by me because a verdict was rendered in our favor for that amount. T think very likely I was in court at some time about that claim. I had a great interest in il, but I can't speak positively as to being in tlie court room myself. 39 I suppose the books of the firm arc willi Edwin Lord, I kst saw them about ten years ago, in the rear of No. 52 Ex- change Place. I have no question but that we were under advances to the American Print Works, but I can't say the amount. I don't know whether the account with the Ame- rican Print Works is settled. David N. Lord was President of the American Print Works at the time of the fire. Edwin Lord & Co. were stockholders in that company to the amount of $25,000 or S35,000. The capital stock wa.s $100,000. They were thus interested at the time of the fire. James K. Mills & Co. of Boston, Mr. Bird, of New Jersey, and David N. Lord, were the other stockholders. I" don't know the amount of their interest. Edwin Loi'd & Co. are not inlrrcsted in the amount of this recovery, that I know of. I have not stated that Edwin Lord &z Co. are in- terested to the amount of one half, and Mr. Van Wagenen, the other half. I never made any arrangement about the commencement of Uiis suit, nor the proportion of interest. I don't know whether Edwin Lord did or did not. A portion of the memorandum shown is in the handwriting of Edwin Lord. I can't state any further than I have stated about the insm-ance. We were very largely insured, probably approx- imating to the value of our stock. Our stock was valued at $140,000 or $150,000. $53,000 or $54,000 were saved. I can tell this only by looking at my memorandum. The $140,000 or $150,000 I have mentioned, included the goods of the American Print Works. I can't tell the amount col- lected from the underwriters. All the Insurance Companies w-ere insolvent, and paid various rates of dividends. I can't say whether we received 25 or 75 per cent, on the amount insured. 40 Direct exajnination resumed by Mr. Van Wagenen. Defendant's counsel objects to further examination of witness, on the ground that he is an interested party. Ques. Have you any objection to executing a release of any interest you may have. Am. I have no objection. Release to the American Print Works produced by plaintiffs' counsel, and executed by witness. Qucs. Except from the papers sliown, can you say what amount of goods belonging to the American Print Works was in your store at the time of the fire ? Objected to - by defendant's counsel, as well as any further examination of the witness, on the ground that he was still interested in the event of the suit, as a stock- holder in the American Print Works. Counsel for plaintiffs prays time to prepare a more full release, — which is granted. Release prepared and executed by witness. Defendant's counsel still objects, on the ground that a transfer of stock cannot be made by general release, like that executed. Objection overruled ; and defendant's counsel excepts to the decision. I cannot state, from any other source tlian the two papers before me, tlie amount which the American Print Works had with us. (Two papers, marked A. and C. are produced by .plaintiffs' counsel, and shown to witness.) 41 These two papers are in my handwriting. By this paper, it appears that the value of the goods of the American Print Works was 868,501.60, of which were saved ©3,754.58, leaving balance $64,747.02. I ascertained this amount by taking from the inventory of goods on hand on the 16th Dec. the amomit saved. I had the charge of the goods in the sales department. I must have assisted in taking an account of the goods saved. I have no doubt of the accuracy of this estimate. I have compared this inventory with the papers before mentioned, and they are alike. Cross-examination, hy Mr. Cutting. There were no assets of the firm of Edwin Lord &; Co. that I know of, after the fire. I don't know that our firm ever made an assignment for the benefit of our creditors. The property of the firm was gradually absorbed in the pay- ment of debts. I think the stock of the American Print Works was sold while I was in Europe. I don't know whether it was for the benefit of our creditors. I don't know any thing about its transfer. I have the impression that the stock was transferred by us, but I don't know. It was many years ago, I last saw the paper marked A. I made up the paper from the invoice books and inventory. I think our commer- cial year ended Dec. 1. I suppose the inventory was made up then. I don't know where the original books are. I think this paper was made up between December 16 and the 1st of January after, for the purpose of making a claim against the underwriters. I received this paper now from Mr. Van Wagenen. I don't know where it has been since I last saw it. We made up the inventory as fast as we could after the 6 43 fire. We assumed, in makingourinvenlory, that all the goods we could not find, were destroyed. The amount of our own goods that were saved, was about S50,000. Of the American Print Works, less than S4,000. The amount of goods out of which less than $4,000 was saved, was S68,000. The style of packages was different, and we could readily distinguish between the goods of the American Print Works and our own. We saved our own, I suppose, from instinct of self preservation. Qucs. What was the amount which you claimed as your loss, from the underwriters ? Objected to by plaintiffs' counsel. Objection over- ruled, and evidence admitted. Ans. We claimed about 889,000. There was abont two or three years' litigation about it. I can't tell what amount was finally allowed. I don't think the whole was allowed. I can't say whether the amount allowed was $80,000, or $40,000, or ®30,000. I can't say any thing about it. I never had any settlement with Mr. Lord. If I ever heard the amount allowed, I don't recollect it. I have no recollection at all as to how much the companies paid. Without this memorandum, I could not tell how nmch was lost, or how much saved. The words, "Verdict, 10th March, $93,220.48," are in my handwriting. I don't remember when this was written. I presume it was when it bears date. The amount is for the goods destroyed, with interest. I think not quite the full amount. Ques. On what occasion did you write those words ? Ans. I presume, when I received word what the verdict was. 43 Ques. Had Edwin Lord & Co. made any advances to the American Print Works on the faith and credit of the goods in their building destroyed by fire ? Objected to by plaintiffs' counsel ; objection sustained ; and defendant's counsel excepted to the decision. The firm of Edwin Lord & Co. continued about three years after the fire. I don't know whether or not Edwin Lord & Co. ever gave credit to the American Print Works for the amount received from the insurance companies for these goods. I don't know w^hether any satisfaction was ever made to the American Print Works for any of these goods. The American Print Works has continued business ever since. I know, because I have seen goods purporting to be manufactured by them within the past year. I saw such goods in 1836 or 1837. I didn't see any from 1837 to 1844. I don't know that they did or did not fail in business. I don't know of any of their officers. I don't know that they have an organization. Our firm were factors of the Ameri- can Print Works, and had the goods on consignment. Plaintiffs' counsel reads in evidence, the charter of the American Print Works. Laws of New- Jersey, 1833, p. 113. The plaintiffs here rested their case ; and the counsel for the defendant moved for a non-suit. The Court overruled the motion ; and the defendant's counsel excepted to the decision. 44 The case was then opened by Mr. Davies, for the defence, as follows : MAY IT PLEASE THE COURT. Gentlemen of the Jury : The duty has been assigned me by my associates, to open the grounds of defence in this cause, and to call the attention of the Court to the law applicable to this case ; and that of the Jury to the facts we shall lay before tliem. We shall earnestly invoke your attention and calm deliberation, while we spread before you the grounds upon which we con- fidently expect your verdict. We congratulate ourselves, that the rights of our client are to be passed upon by a selected jury of twelve men of this county of Essex ; and we appre- hend that upon the principles of law which will be laid down to you by the Court, you will have little difficulty in arriving at conclusions satisfactory to your own consciences, and fa- vorable to the defendant. Our first duty is to ascertain who are the parties to this controversy ? The nominal plaintiff is a corporation created by the laws of the State of New Jersey ; but it is in proof, that it is almost wholly owned by citizens of the cities of New- York and Bos- ton. It is therefore controlled by them, and the real plaintiffs are not therefore Jersey men, as claimed by the counsel for the plaintiffs, — strangers in the city of New- York, who have been denied by the courts of that State, that justice which they have awarded to their own citizens. No, gentlemen, the plaintiff to the record is what is called a bogus corporation, — created by the laws of your State, — yet owned, controlled and managed in another State, and by citizens of that other 45 State. The true plaintiffs are, therefore, mainly citizens of the State of New-York, and have no peculiar claims 1o your sympa- thy as Jersey men, or as strangers in New-York ; who on that account have been unjustly treated by the Courts of that State. Who is the defendant ? Cornelius W. Lawrence, indi- vidually and personally. That is the character in which he is prosecuted here ; and in that character, and that only, can you regard him. This has been so settled by your Court of Errors and Appeals. .fudge Randolph, in delivering the opinion of the Court in this rase, when it was before that Court for consideration, says, " In this suit, we only know the defendant ; and if damages be recovered, they will be against him personally ; and we know of no legal obligation in the city of New-York to relieve him — this, it is true, would be of no consequence in a clear case against the defendant, but in a case like the present, it is worthy of consideration." I do not deny that the corporation of the city of New- York defend this suit ; that I appear here as the counsel of that city, to aid my associates in maintaining that the defendant was fully justified in committing the> alleged trespass. The city of New- York has a deep and vital interest in the ques- tion to be determined by the decision of this cause. So has every other city, town, or village in the country ; nay, every citizen has a deep interest in the result. That interest is far beyond any pecuniary results connected with this case, large as they are. This decision affects the safety and wel- fare of all cities ; for if it shall be held, that a man, or a public officer, acting from good motives, under the common law right of necessity when a fire is raging, threatening destruc- tion to every thing around it, steps forward and destroys 46 buildings or property, to stay the fire ; is to be deemed a trespasser, and personally liable to pay the value of the property destroyed, who will hereafter be found ready to act in any extremity, however great ; or in any emergency, how- ever tlireatening? The citizens of New- York have, therefore, a deep interest in the result of this trial ; not more so, however, than those of any other city of our country. If "a verdict is obtained against Mr. Lawrence, he must individually respond to it. I do not deny tliat the city or the State should indemnify, and hold Mr. Lawrence harmless. The city cannot legally do it without the aid of the State Legislature ; and I am free to say, that if tliat could not be obtained, I have such confidence in the integrity and generosity of my fellow-citizens, that I believe the amount would be generously subscribed, and Mr. Lawrence would not be left to suffer individually for an act performed for the public good and benefit. I am quite sure this would have been promptly done, on the morning after that terrible night, when his praises were upon every man's tongue, and he was regarded as the saviour of a large part of our beautiful City. But, gentlemen, the Court will tell you that you have nothing to do with these considerations. You are to know only the parties upon the record ; and that the defendant you arc to convict as a trespasser, or to fully acquit, is Cornelius W.Lawrence. For what is this defendant placed upon trial before you ? It is sought to charge him as a trespasser and wrong- doer, for the value of goods contained in certain buildings in the city of New- York ; which buildings he caused to be de- stroyed on the morning of December 17, 1835. The most calamitous fire that ever occurred in this coun- 47 try, and Imrtily equallccl in extent and amount of property lost, by that of any other, commenced in the city of New- York, on the evening of the 36th December, 1835. It was a cold and bitter night, the weather unparalleled in its sever- ity. The fire commenced in a narrow street, iu a large silk w^arehouse, ruiming through from Merchant-street to Pearl- street, near the upper end of Hanover Square. In a few minutes its violence defied all efforts to confine it, or arrest its progress. Soon it gained the entire mastery, and our gallant and noble band of firemen were overpowered by its strength ; and then there occurred the failure of all the accus- tomed and known means to arrest its progress. The engines were frozen up, the hose lay in the street like logs, frozen solid, and the weary and exhausted firemen, when they could do nothing else, employed themselves in rescu^ing safes, books, and goods. The fire had then the entire control of the city, and it went from street to street like some huge machine, levelling with the ground large store-houses ; and consuming in its progress all that was combustible of them or of their contents. When over six hundred buildings had been destroyed, and more than $20,000,000 of property had been lost, and all means to arrest the conflagration had failed, then the defen- dant, as Mayor of the city, determined to resort to the last source of safety, — ^the use of gunpowder. It is related in Lord Clarendon's History, as a memorable instance of folly, that the Lord Mayor of London, in 1666, when that city was on fire, would not give directions for, or consent to the pulhng down forty wooden houses; or to the removing the furniture, &:c. belonging to the lawyers of the Temple, then on the circuit, for fear he should be answerable 48 for trespass ; and in consoquencc of this conduct, half that great city was burnt. History will record no such folly committed by the defen- dant in this cause ; and although the result has shown, that for seventeen years he has been harassed with trespass suits, and been pursued from State to State by the lawyers of Wall-street, I venture to say, that if he could, on that event- ful night, have foreseen all this, be would have been none the less fearless, nor for a moment hesitated in the discharge of his duty. What did the defendant, on an occasion which blanched the cheek of a London Lord Mayor, who cowed and who was paralyzed by the fear of some forty lawyers of Temple Bar? He boldly determined tiiat the fire must be stayed ; that the responsibiUty must be assumed; and let the consequences to himself be what they might, he would know naught else but his duty. As soon as a sutEcient quantity of pow"der could be procured, he caused the buildings -18 and 52 Ex- change Place, to be blown up. The fire was then raging at that point : the destruction of these buildings stopped its pro- gress there. This is a great and controlling fact. He then proceeded to other points, repeated the like experiment, and in a short time the fire was entirely subdued. This example of the Mayor of New- York gave courage to other places, and demonstrated, that when all other means should fail, the use of gunpowder was eiFectual. As an illustration : Some months after this, a fire was raging in the city of Quebec. It obtained the mastery there, and all the ordinary means to stay its progress proved futile. Following the example of the defendant, gunpowder was 49 used, and with like success ; and the person who used and employed these means to save that city, instead of being har- rassed by trespass suits, received the thanks of the coiiiorate authorities, and the honor of Knighthood from the Crown. A memorable circumstance occurred in your own city of Newark. Shortly after this fire in New-York, one broke out on Broad-street, in this city. It progressed from Market- street towards the State Bank, and threatened the destruc- tion of a large portion of this beautiful town. A Captain Williamson, a stranger in your midst, volunteered to use gun- powder to blow up a building on Broad-street, and thus arrest the conflagration. A Mr. Stephens, a merchant here, furnished the powder, and the result was eminently suc- cessful, and the fire extinguished. Those whose property had thus been taken and destroyed, pursuant to this great law of necessity, brought trespass against Capt. Wilhamson and Mr. Stephens ; and a jury of this county of Essex held them free from all censure, and entitled to public commen- dation. All that we ask for the defendant in this case is, that the same law and justice may be meted out to him. Why did the defendant destroy these buildings and the property in them ; and how does he justify that act ? By the great law of necessity. It is the right to destroy property to prevent the spread of a conflagration, and thus save other property. It appertains to any individual. It is a natural right, existing independent of all civil governments, Chief Justice Green, of this State, says of this law of necessity, " It is both anterior and superior to the rights derived from the social compact. It springs not from any right of property claimed or exercised by the agent of de- 7 50 struction in the jivopevty destroyed, but from tlie law of necessity. The principle, as it is usually found stated in the books, is, that ' if a house in a street bo on fire, the ad- joining houses .may be pulled down to save the city.' But this is obnously intended as an example of the principle, rather than as a precise definition of its limits. Tlie prin- ciple applies as well to personal as to real estate ; — to goods as to houses ; — to life as lo property ; — in solitude as in a crowded city ; — in a state of nature as in civil society. It is referred by moralists and by jurists to the same great priiiciple which justifies the exclusive appropriation of a plank in a shipwreck, though the fife of another be sacrificed ; with the throwing overboard of goods in a tempest, for the safety of the vessel ; with the taking of food, to satisfy the instant de- mands of hunger ; with the trespassing upon the lands of another; lo escape death from an enemy. And the common law adopts the principle of the natural law, and places the justification of an act otherwise tor^^ous, precisely upon the same ground of necessity." This principle and its apphcation are well illustrated in an anecdote, which is related of one of the eminent judges of England. It is said that two friends were on a fishing excursion in a stream, and had located themselves for that pur^jose just above the point where the stream poured over a high preci- pice. The life of a man going over it was of no value ; certain death was inevitable. One of these friends lost his position, fell into the stream, and in an agony of despair was floating down, .lust before reaching the precipice, when certain destruction awaited him, he caught a branch of a tree, which stayed his progress. Ilis friend came to his \ 51 rescue, but not being able to reacb him or afFord him any- other means of rehef, he took a barbed spear, and thrust it into one of his le^s, and drew him to the shore in safety. The friend was profuse in his expressions of gratitude to his noble preserver. The scene soon changed. The wounded man, whose life had been saved by the exercise of this law of necessity, suffered more than he had anticipated, and disease attacked his hnd), and amputation became necessary. Then skilful and ever ready counsel, learned in the law, suggested that this was a beautiful action of assault and battery ; that such injuries should not 1)C permitted to go unrecompensed, and that an exemplary verdict must be rendered against the man who had thus unlawfully assaulted and wounded him. The case came on for trial before one of the Judges at a circuit in the country. After the evidence had been adduced, and tlie court and jury had been enlightened by the ingenious arguuienls of able counsel ; the learned Judge stated to the jury, tiiat the case was one of great embarrassment and diffi- culty, and that he desired till the next morning to consider of it. In the afternoon, this Judge, for more convenient and calm reflection, walked in the fields, meditating upon the in- structions he was to give to the jury the next day. Wliile passing a hedge, he heard on the other side a bevy of boys discussing the case. They had been attending his court ; and had organized a mimic one, and empanelled a jury, and counsel were engaged for each party. After going over the testimony that had been given, the counsel were heard, and the boy Judge, with much gravity, said : " Gentlemen of the- jury, this is a most embarrassing case. It is true, the de- fendant has illegally assaulted the plaintiff, and he has there- 7* I 62 by sustained great damage. On mature reflection, I think the plaintiff must be replaced in the stream, in the precise position he was in when the defendant assaulted him ; and then the plaintiff, with the certain conviction that he must soon go over the precipice, must himself fix the value of the amputated limb, and that amount the defendant must pay." " That is it," says the Judge ; " I know now how to charge the jury in the morning," It is further related, that, that boy judge subsequently became the distinguished Lord Chief Justice Holt. ^t7g^n^leineii7"4he-Tiia1»-g^ the defendant did not resort to the aid of gunpowder at an earlier period of the night ; and thus by destroying the property of others, save that of these plaintiffs. Is it reason- able for the plaintiffs to make such allegations ? They com- plain, that the defendant destroyed their property ; to which he replies, true, but it was done under the law of necessity, to save the property of others ; and this is my justsfication. Instead of denying this, the plaintiffs allege that you should, at an earlier period, have destroyed other property ; and then the necessity of destroying ours, would not have occurred. But, gentlemen, though unnecessary, we shall show to you, that as soon as the Fire Department became paralized, and the resort to gunpowder was ascertained to be the only means remaining to arrest the conflagration, the defendant made every exertion to procure the powder without the least delay ; and that as soon as it could be procured, it was ap- plied to the destruction of these buildings ; and with com- plete success, in subduing the fire. This natural, individual right, which pertained to any and every individual in the time of a fire, to destroy property or 63 buildings to stay a conflagration, also imposed upon the indi- vidual the duty of justifying such trespass, by showing the necessity. This was found in practice difficult, and expen- sive to individuals ; and for this reason, few were willing to take the hazard or incur the responsibility of its exercise. A great fire occurred in the City of New- York in 1S05 ; and it was found then that none of the magistrates or officers of the city, or private individuals, were willing to take the hazard of destroying private property, and trusting to courts and juries to vindicate the act under the law of necessity. The Corporation of New- York, in 180G, applied to the Legislature of that Ktate to regulate this law of necessity, so far as it applied to the City of New-York, and stated their willingness, if the Legislature would authorize the Mayor, with the consent of any two Aldermen, to destroy buildings in case of fire for the purpose of arresting it, that the Corpo- ration would pay the value of the buildings so destroyed. Accordingly, an Act was passed in the year 1806, and re- enacted April 9, 1813, which provides, " That when any building or buildings in the City of New-York shall be on fire, it shall be lawful for the Mayor, or in his absence, the Recorder of the City, with the consent and concurrence of any two of the Aldermen thereof, or for any three of the Al- dermen to direct and order the same, or any other building which they may deem hazardous and likely to take fire, or to convey the fire to other buildings, to be pulled down and destroyed," The act further provides, that the corporation of the city shall make compensation for the value of the buildings so destroyed, and pay all damages which the owner thereof or 54 any party interested in such building may sustain by such act of destruction. This, gentlemen, as you perceive, is an alteration of the rule of the common law ; as by thai, no compensation was made in like cases. After this fire of 1835, (and this was, by the way, the first occasion since the passage of the act of 1,806, that it became necessary to destroy buildings to stop a conflagration,) the parties who supposed they had sustained damage by the act of the defendant, made their claims upon the corporation of New- York, for the damages which they had sustained. But before I proceed to discuss what the courts oftlie State of New- York have decided in reference to this statute, in the cases arising upon those claims, I beg leave to call the atten- tion of the court to a familiar principle, and one which has received the sanction, not only of the courts of New- York, but tliat of the highest court of this State. It is, that in each State, it is the province of its courts of justice to determine the construction of its statutes ; and as their construction becomes the law of the State, it must be regarded and fol- lowed as such by all foreign tribunals. This was directly held by the Superior Court of New-York, in the case of Hoyt vs. Thompson, (3 Sand. Rep. p. 416.) That was a case in w^hieh the effect of a law of the State of New Jersey, in reference to the powers of Receivers of Corporations appointed by the Courts of New Jersey, came directly in question. DuER, Justice, in dehvering the opinion of the Court, says : " It may be perfectly true, that it is competent to a State Legislature to direct a transfer to receivers of all the pro- perty and effects, wherever situated, of an insolvent corpo- 55 ration, created by its own laws, and that it woald be our duty to give full faith and effect to the judgment or decree of a State tribunal, in conformity to the provisions of such a statute. But there is conclusive evidence, that in this cause the act of tlie Legislature of New-Jersey, and the consequent order in Chancery, were not designed to operate, even within the jurisdiction of that State, as a transfer to the receivers of the whole or any portion of the property of the insolvent corporation. In a case which escaped the attention of the counsel, Williuk vs. The Morris Canal and Banking Com- pany, (3 Green's Ch. Rep. 400,) the Chancellor of New- Jersey expressly decided, that the only effect of the statute, and of the order which he had founded upon its provisions, was to substitute the receivers in the place of the directors of the Company, for the purpose of settling up and closnig its affairs ; and that the Company was not dissolved, nor the title to its property changed, but only a power delegated to the receivers to take charge of and sell it. " This construction of the statute, we think, is fully justi- fied by its terms ; and, at any rate, it is that which we are bound to adopt. In each State, it is the province of its courts of justice to determine the construction of its statutes ; and as the construction which they adopt becomes the law of the Slate, it must be regarded and followed as such by all foreign tribunals." The soundness of this principle is distinctly affirmed by the two judges of the Court of Errors and Appeals of this State, who delivered opinions in this cause. Judge Carpenter says ; " The Supreme Court of the United States, in cases depending upo,n the laws of a par- ticular State, uniformly adopts the construction which the 56 courts of the State have given to those laws, ' This course,' says Chief Justice Marshall, ' is founded on the principle, supposed to be universally recognized, that the judicial department of government, when such department exists, is the appropriate organ for construing the legislative acts of that government. Thus, no court in the universe which professed to be governed by principle, would, we pre- sume, undertake to say that the courts of Great Britain or France, or of any other nation, had misunderstood their own statutes ; and therefore erect itself into a tribunal which should correcl .:uch misunderstanding. We receive the construction giveu l y'the courts of the nation as the true sense of the law, and feei ourselves no more at liberty to depart from that con- struction than the words of the statute.' Elmendorf vs. Tay- lor, 10 Wheat. 152. This doctrine, so forcibly and justly expressed, and so important to the proper working of our system of associated State governments under different laws, administered by different judicial tribunals, is to be found in almost any volume of the reports of that high tribunal, where it is acted upon as a settled rule." Judge Randolph says: "Are we to sit in judgment upon the decisions of the highest courts of the State of New- York, made upon the construction of their own statutes ? and in- stead of adopting the invariable rule of the United States courts, which hold the decisions of State courts upon their own laws to be paramount, are we to say coolly to the judi- ciary of our sister States, You do not understand your own laws ; — your decisions are worthless, and we will overrule them ; — declare your laws unconstitutional, and mulct in dam- ages for their violation, your citizens and officers ? If such should become the general course of decisions in this coun- 57 try, it would require no great skill to estimate the duration or 'calculate the value of the Union.' " Before we ascertain the points settled by the courts of New- York, it hecomes necessary also to advert to another princi- ple, well established, that is, — whatever affords a justification of the act where it is committed, is equally a justification wherever that act may be called in question. This precise point was adjudicated in Mostyn vs. Fabrigas, (Cowper's Rep. p. 161.) This was an action of trespass, brought by the plaintiff for trespass and false imprisonment against tlie defendant, who, as Governor of the Island of Minorca, had caused the plaintiff to be arrested and impris- oned.- It was contended, that such arrest being lawful by the laws prevailing in the Island of Minorca, where it was made, the defendant could not be convicted of a trespass in the courts of Great Britain, where the suit was tried. Lord Mansfield, in delivering the opinion of the court, says : " Whatever is a justification in the place where the thing is done, ought to be a justification where the case is tried." We now proceed to an examination of the cases decided in the courts of New- York, arising under this statute, and the principles established by them. And in this connection, it may not be out of place to remark, that the provisions of this statute were never invoked until the happening of the great fire of 1835. It had lain a dead letter upon the statute book for near thirty years. The first of these cases will be found in 17 Wend. Rep. page 290. In this suit, Mr. Lord, the occupant of the store No. 50 Exchange Place, claimed to recover damages for the loss of goods destroyed by the blowing up of this building, 8 5S under the statute. He claimed to recover the amount of such loss, on the ground that as tenant of the store, he liad an interest in the building destroyed ; and therefore, by the statute, entitled to be compensated for the amount of his damage, growing out of the destruction of his goods. Chief Justice Nelson, in dchvcring the opinion of the Court, says, "It maybe observed, preliminarily, that it was competent for the legislature to vest magistrates with the authority conferred ; the individual whose property has been destroyed in the exercise of it, must be confined to the remedy here prescribed." On page 290, he says, " No doubt, at common law, any person, in case of actual necessity to prevent the spreading of a fire, might prostrate a building in a block or street, williout being responsible in trespass or otherwise. No legal redress existed for the injury, though tlie sufferer might have been thereby ruined. This was so resolved, among other things, in the saltpetre case, by all the Justices, in the reign of King James. 12 Co. 18." He regards this to be a well settled common law principle, and that it applies to the question of responsibility by a citi- zen, acting under the influence of an overruling necessity, solely for the public good, and that the decision turned, " not so much upon the want of merit in the claim for redress, as upon the injustice of making the defendant liable, who had thus acted for the benefit of the public." On page 291, he adds, that " in all cases of this kind, the individual concerned in the taking or destroying of the property, is not liable personally. If the pubhc necessity in fact exist, the act is lawful." Justice Bronson, who delivered a dissenting opinion on the ground that the statute only authorized compensation to be made for the buildings destroyed, on page 297, says, " The 59 court can only allow what the statute has given. That au- thorizes payment for the buildings and not for goods ; and therefore nothing more than what the statute allows can be given." On page 302, he says, " The statute was not en- acted for the purpose of legalizing a tort, but for the pur- pose of designating the individuals who should execute this law of necessity ; and for the further and more important purpose of changing the burthen in the specified case, when the magistrates were authorized to interfere, from the indivi- dual sufferer to the city corporation. The act does not pro- ceed upon the ground that any wrong is done to the owner of the property, and he might have been left without remedy, as is the owner of a ship's cargo, destroyed to prevent the spread of infection." This case was carried to the Court of Errors of the State of New- York, and the judgment of the Supreme Court was aflarmed, (18 Wend. Rep. p. 126.) Chancellor Walworth, in the opinion delivered by him in the latter court, on page 129, says, "The principle appears too well settled, that in a case of actual necessity, to prevent the spreading of fire, the ravages of a pestilence, the ad- vance of a hostile army, or any other great public calamity, the private property of an individual may be lawfully taken and used or destroyed, for the relief, protection, or safety of the many, without subjecting those whose duty it is to pro- tect the public interest, by whom or under whose direction such private property was taken or destroyed, to personal liability for the damages which the owner has thpreby sus- tained. In relation to the subject under consideration in this case, the defects which existed at the common law were, that when it 8* 60 might become necessary for ihe officers of the corporation to destroy property of an individual to prevent the ravages of a fire, no provision was made for compensating the individual for liis private property whicli was taken for the benefit of others ; and, notwithstanding, the officers were protected from personal responsibility when they could show that the destruction of the property was necessary to produce the eifect, they were by the common law bound at their peril to decide correctly as to such necessity, to protect themselves from liability to make good the loss." The next case is that of Stone, Swan and Mason, against the Mayor, &c. of New- York, reported in 20 Wend, page 139. In this case, the plaintiffs claimed, under the statute, as lessees of No. 48 Exchange Place, not only for the value of the goods destroyed owned by them, but such as they held on commission, upon which they had made advances. The jury in the Common Pleas, under the charge of the judge, assessed the value of the goods owned by the lessees, as also the value of those held by them as factors, to the ex- tent of their advances. The judge charging that the lessee of a building destroyed was entitled to receive the full value of the goods destroyed, although he held them merely as a factor for sale on commission ; because a commission mer- chant having goods on hand for sale, upon which he had made advances, or bad a lien, was in law deemed the owner of the goods, and was entitled to recover the full value thereof in his own name. Nelson, Chief Justice, in dehvering the opinion of the Supreme Court, says, " Here, the damages to be assessed and recovered, are expressly limited to persons possessing an estate or interest in the building destroyed, not given gener- 61 ally to the party aggrieved. It is the damage which this particular dcKcription of persons, and none else, have sus- tained, which are provided for by the statute. We must re- member too, that the act of pulHng down the building was lawful at common law ; that here is no substitution of the city in the place of the trespassers to be held accountable upon principles regulating the damages the same as claimed by them, and that the damages rest solely, both as regards the right to recover and liabilitij to pay, vpon the terms of the statute itself" The judgment of the Common Pleas was affirmed as to the goods owned by the plaintiffs, they being lessees and interested in the building, but set aside as to the goods held by them on commission. From this judgment, Stone, Swan and Mason appealed to the Court of Errors, and the case is reported in that court, in 25 Wend. p. 157. Senator Edwards, in delivering the opinion of that court, thinks that the statute had received too broad a construction in allowing damages to be assessed against the coi'poration for goods in the buildings, though owned by a person hav- ing an interest in the building. On page 161, he says, " In my view, they (the Legislature) have not designed this statute to aid, or in any manner affect the conunon law remedy, except as to the species of property it has designated." On page 162, he adds, *' I think the statute was simply de- signed to affect only two objects : 1 . To designate who should be authorized to order the destruction of buildings, in case of fire, to stop its progress. 2. When done, to provide compensation for the building so destroyed." On page 163. — " I apprehend that the act gave to these 62 officers no new authority. They undoubtedly had this au- thority at common law, when the necessrity of the case would justify them in exercising it ; and the principle object of the law was to designate the particular individuals to discharge that duty." Paige, Senator, on page 1G5, says, "As tlic statute only authorized the damages of the owners of the buildings de- stroyed and of those who have an estate or interest therein, no allowance under it can be made, directly or indirectly, to owners of goods stored in such buildhigs or deposited there for sale on commission, such owners having no estate or interest in the building." Verplanck, Senator, one of the most distinguished and learned members of that Court, on page 174, says, " But there is also another ground upon which the property or rights of individuals maybe justly sacrificed to the neces- sities of others, when neither the State as a whole, nor the public in the general sense of tliat term, have any interest in such sacrifice. This may be seen in cases of innninent peril when the right of self-defence, of the protection of life or pro- perty, authorizes the sacrifice of other and less valuable property. The throwing overboard of goods in a storm, — the pulling down of houses to prevent the spreading of a con- flagration, are common examples of the exercise of this right. This is a natural right, arising from inevitahle and pressing necessity, when of two immediate evils one must be chosen, and the less is voluntarily inflicted in order to avoid the greater. Under such circumstances, the general and natural law of all civilized nations, recognised and ratified by the express decisions of our own common law, authorizes the destruction of property by any citizen, without his being 63 subject to any right of recovery against him by the owner. The agent in such destruction, whether in protection of his own rights or of those of otliers, which may he accidentally under his safeguard, acts from good motives and for a justi- fiable end, so that against him the sufferer has no rightful claim." On page 175, he adds, " Thus those, who, whether magis- trates or private citizens, under the pressure of inevitable danger, and to prevent a greater calamity, find themselves compelled to destroy the effects of others, are not. and ought not to be adjudged trespassers, although they do not act for the State or the public, but merely for the service of some few^ of their neighbors or fellow citizens, and have thus in- flicted involuntary injury upon some, to prevent a much greater calamity falling upon others." On page 177, "The necessity of the case compels the destruction of some property in order to save more ; tliose who commit this act of salutary and well intentioned violence, are exempted from responsibihty, upon every ground of jus- tice and of positive law." This last case disposed of all who made claims against the corporation of the city of New- York, under the statute of that State. They had settled, that, under the statute, there could be no claim for damages, but by an owner of a building destroyed, or by a person having an interest therein. That, by the common law, the act being done under the exercise of necessity, no remedy existed, and that in no event could the individual actor be made personally liable ; and that he was especially justified, when by law it was made his duty to act, and he had so acted in good faith, and without any malice. Then the experiment was tried, to make the corporation 64 responsible for the value of the goods destroyed in the build- ings blown up, on the ground that the defendant, as Mayor, acted as the agent of the corporation, and that it was bound by and responsible for his acts. Suits were commenced against the corporation, to recover from it the value of the property destroyed by the defendant, as Mayor of the city. One case only is reported, that of Russell vs. the Mayor, &c. and -it was commenced and tried and decided by the Superior Court of the City of New-York, in which my venerable friend, (Chief Justice Jones,) now here on the opposite side, presided for nearly twenty years, with a reputation and ability that reflect the highest honor on him, and which will remain to him, even after he shall sleep with his fathers. The opinions delivered in the Superior Court and in the Supreme Court, to which the case was carried, are only found in the report of the case in the Court of dernier re- sort, in 2 Denio's Reports, p. 461. The Superior Court rendered judgment for the corporation; and that judgment was affirmed in the Supreme Court ; and subsequently, also affirmed in the Court of Errors. Judge Oakley, now Chief Justice of the Superior Court, delivered the opinion of that Court, and held that the benefit from the act was local ; and that the corporation did not in any sense represent the individual and private property of the citizen ; and a measure intended to protect or save such pri- vate and individual property, cannot be said to confer a benefit upon the city as a body corporate. That the law under which the Mayor and two Aldermen acted, does not make them the agents of the Corporation ; for it is clear, that it invests them with power to act in the 65 premises according to their own discretion, and against even the expressed prohibition of the Corporation. If, on the oc- casion of the fire alluded to, the Corporation had, in the most formal manner, passed an ordinance prohibiting the Mayor from acting under the law, it would, nevertheless, have been competent for him to have exercised the power granted to him. The Corporation, as such, is not connected with it any more than it would have been if the law^ had designated the members of the Chamber of Commerce, to perform the duties assigned to the Mayor and the two Akler- dermen. The Corporation is not responsible for their acts, any further than it has made them so. In these views, Mr. Justice Bronson, who delivered the opinion of the Supreme Court, fully concurred ; and says, " This covers the whole ground." Senator Sherman, who delivered the leading opinion in the Court of Errors, on page 473, says: "The destruction of this property was authorized by the law of overruling ne- cessity ; it was the exercise of a natural right belonging to every individual, not conferred by law, but tacitly excepted from all human codes. The best elementary writers lay down the principle, and adjudications upon adjudications have for centuries sustained, sanctioned and upheld it, that in a case of actual necessity, to prevent the spreading of a fire, the ravages of a pestilence, or any other great public calamity, the private property of any individual may be law- fully destroyed for the relief, protection or safety of the many, without subjecting the actors to personal responsibility for the damages which the owner has sustained. Starting as I do, (says he,) with the indisputable right which existed to destroy the building in question, without 66 reference to any statute, but subjecting, as it is conceded, to the inconvenience of justifying themselves by evidence of the actual existence of such necessity, I can still conceive an abundant motive for the act in question. The power was conferred upon discreet and prudent individuals, possessing in their official situation strong evidence of tlie confidence of their fellow-citizens. It was suitable, that the power should be thus vested, in order to prevent, on the one hand, the ruinous and overwhelming calamity that might be consequent upon the refusal of any person amid the consternation caused by the rapid spread of the destructive conflagration, to as- sume the responsibility of interposing by the exercise of this right ; and on the other, to prevent its exercise by the reck- less and irresponsible, wlio might, in a panic, in the al)sence of any such designation of persons upon whom the duty should be devolved, uselessly destroy millions of property belonging to its citizens. To prevent the recurrence of either of these misfortunes, it was wisely determined to regulate so important a matter as this." * • # * • He adds : " The assumed necessity supersedes all laws of general application made for the preservation of life, liberty, and property, and subjects these vast interests to destruction by any irresponsible person who may take upon himself the exercise of the power in question. By the common law, it is left to be exercised at the peril, and upon the personal ac- countability of him who shall resort to it, promising him no other reliance, or dependence, or immunity, than the verdict of his peers, to be founded upon clear and satisfactory evi- dence, of the overwhelming nature of the approaching calam- ity, for the staying of which this hazardous and perilous right was by him exercised." 67 Porter, Senator, on page 479, in his opinion, concurs in these views of the common law, as laid down by all the Judges ; and adds, " Such being the common law, and it be- longing to every individual to exercise the right, or to ab- stain from it at his discretion, it was doubtless found by experience that in a large city, where fires were frequent, and large ones not unfrequent, and when the means of ex- tinguishing tlicm were continually improving, and more or less doubts hanging over the question of absolute necessity, individuals were unwilling to run the hazard, in any case, of ordering the destruction of a building to prevent the spread- hig of a fire. They might be subjected to annoying law- suits, however pressing the necessity and justifiable the act ; and in every instance, they would have cast upon them the burden of proving a case of overruling necessity ; and if they failed in this respect, it would involve them in loss, and per- haps in ruin ; and, as each case must depend upon the opinion of witnesses, and as opinions are liable to vary, an instance of any one volunteering to order a building to be torn down or blown up, must have been exceedingly rare, if it ever happened. It was probably from such considerations, that the defend- ants (the Corporation) in their solicitude for the welfare of the city, made the application for the passage of the laws in question. They asked that certain officers might be author- ized to exercise their judgment in a proper case, and direct the destruction of buildings in order to prevent the spread of afire, and that the City should be required to pay the dam- ages. This act was ^iro tanto an alteration of the common law. It substituted the judgment of the officers designated in the place of actual necessity. And as an equivalent for 9* 68 the great public benefit which might and probably would grow out of the provision, it required the defendants to pay the damages specified in the act." We have now examined carefully the decisions of the courts of New- York upon this statute, and the constructions given to that statute in connection with the fire of 1835. We find it well established — 1. That any individual, in a case of actual necessity, to prevent the spreading of a fire, may lawfully destroy the private property of any one for the safety or pro- tection of the many, without subjecting himself to personal responsibility for the damages which the owner has sustained. 2. That to justify such necessity, the burden of proving a case of overruling necessity was cast upon the indi- vidual so destroying property ; and if he failed, he must respond in damages for all the property so destroyed. 3. That the hardship of this, and the unwillingness of pri- vate individuals to run the hazard in any case of or- dering the destruction of a building to prevent the spreading of a fire, induced the Corporation of New- York to apply for the passage of this act to regulate this law of necessity. 4. That this act was, pro tanto, an alteration of the com- mon law. It substituted the judgment of the officers designated, in the place of actual necessity; and con- ferred upon them the discretion of acting, and the right to determine when to act. 5. Those who commit this act of salutary and well inten- tioned violence, are exempted from personal responsi- bihty, upon every ground of justice and of positive law. 69 It beine; the duty of the defendant, by law, if he deemed those buildings hazardous, and likely to con- vey the fire to other buildings, to cause them to be blown up ; if he acted from good motives and justi- fiable ends, he cannot be liable as a trespasser. This point is most fully and clearly settled in a late case in the Supreme Court of the United States, Dinsmore vs. Wilkes, 12 Howard, 389. It was there held, that asunder the Act of Congress, passed March 2, 1837, the commandant of a squadron had power to detain a marine, after the term of his cnhstment had expired, if in the opinion of the commander, the public interest required it, the decision of this question by the commander was final, and conclusive; and he was not liable to an action for mere error of judg- ment, even if the jury should suppose that a milder punishment than that inflicted would have accom- plished his object. Chief Justice Taney, in delivering the opinion of the Court, says, " If the jury believe, from the whole testimony, that the defendant, in alt the acts com- plained of, was actuated alone by an upright inten- tion to maintain the discipline of his command, and the interests of the service in which he was engaged, the plaintiff cannot recover." The statute of New-York, having substituted the judg- ment of the officers designated, in place of the actual necessity, their judgment as to such necessity, and the time when it should be exercised, is final and conclusive. That the statute made such substitution, we have 70 the jiulgineiit of the Court of Errors of New-Vork ; and Judge Carpenter, in the opinion delivered by him in this case, in the Court of Errors and Appeals, says, " The act which conslituttd them judges of tire necessity of destroying tlie buildings, made them judges of the time at which the act of destruction be- came necessary." That this judgment was final and conclusive, we have the authority of the case of Dinsmore vs. Wilkes, just cited. To the same efFcet, is the case of Martin V. Mott, 12 Wheaton, 31. The note to that case says, the authority to decide whether the exigencies — contemplated by the constitution of the United States, and the act of Congress, of 1795, ch. 101, which provides, that whenever the United States shall be invaded, or be in imminent danger of in- vasion, &c. it shall be lawful for the President of the United States to call forth such number of the militia as he may judge necessary to repel such invasion, and to issue his orders for that purpose to such officers as he shall think proper — have arisen ; is exclusively vested in the President, and his decision is con- clusive upon all other persons. Judge Storv, in delivering the opinion of the Court, says, " The power thus confided by Congress, to the President, is doubtless of a very high and delicate nature. A free people are naturally jealous of the exercise of military power ; and the power to call the militia into actual service is certainly felt to be one of no ordinary magnitude. But it is not a power which can be executed without a correspond- 71 ent responsibility. It is, in its terms, a limited power, . confineil to cases of actual invasion, or of imminent danger of inyasion. If it be a limited power, the question arises, by whom is the exigency to be judged of and decided ? Is the President the sole and ex- clusive judge, whether the exigency has arisen ? or is it to be considered as an open question, upon which every officer to whom the orders of the President are addressed may decide for himself ; and equally open to be contested by every militia man who shall re- fuse to obey the orders of the President ? We are all of the opinion that the authority to decide whether the exigency has arisen belongs exclusively to the President, and that his decision is conclusive upon all other persons. ***** The law does not provide for any appeal from the judgment of the President, or for any right in sub- ordinate officers to review his decision, and, in effect, defeat it. Whenever a statute gives a discretionary power to any person, to be exercised by him upon his own ppinion of certain facts, it is a sound rule of construction, that the statute constitutes him the sole and exclusive judge of the existence of those facts. It is no answer to say that such a power may be abused, for there is no power which is not susceptible of abuse." 8. The defendant acted as a public officer in the lawful dis- charge of his duty in blowing up the buildings ; and if in doing this, he has unintentionally and necessarily in- jured the plaintiffs by the destruction of their goods 7'2 ill the building so lawfully destroyed, he is not an- swerable therefor. This principle is fully sustained in the case of Ex- ecutors of Radcliffe vs. Mayor of Brooklyn, 4 Corn- stock, p. — and the opinion of Judges Carpenter and Randolph in this case. 9. It is not conipelcnt to admit, as plaintiffs do by the pleadings, that the destruction of the building was lawful, and yet the defendant liable as ei trespasser for the destruction of the goods in the buildings. The dcstmction of the building and its . contents, was one continued act. Mayor v. Lord, 18 Wend. 135. A striking case to illustrate this principle, is that, of RatcliiTe vs. Eden, Cowpcr Rep. 485. This w"as an action for damages under the statute, 1 Geo. 1, ch. 5, sec. 6, which makes the hundred liable for " riotousi}/ dertiohshing or imlling down a house, in whole oj- in part." No mention is made in the act, of the destruction of the furniture. The rioters demolished a great part of the dwelling-house of the plaintiff; and broke open the shutters, and destroyed the furniture and house- hold goods, &c. The question was, whether the hundred was liable for the destruction of the furni- ture and the goods ? Lord Mansfield : — " The statute says the hundred shall be answerable in damages occasioned by such demolishing, or beginning to pull down or demolish. What is the case here ? The whole is one act. The mob force in at the doors and windows ; and by one continued act, destroy part of the house and many of 73 the goods. There is no distance in point of time ; but it is one continued act, without intermission. * * If there had been any distance of time, or if the goods had been carried out of the house, and then destroyed, it might have been a different thing, be- cause that would have been a distinct act. But there is no drawing the line in this case, between actually demolishing the house and destroying the furniture. It comes therefore, very near the case of pulling down the whole house, and thereby crushing the furniture." AsHURST, Justice, says, " If the house had been burnt, there could have been no doubt ; and here it was all one continued act." We say, therefore, that the act of destruction of the building being lawful, all the incidents necessarily resulting therefrom are also lawful ; and that the defendant cannot be held re- sponsible for the consequences necessarily and unavoidably resulting from a lawful act. Believing these positions to be sound, and that they fur- nish a complete and triumphant vindication to the defendant, I shall now proceed to call the attention of the court to the principles settled by the Courts of the State of New-Jersey, since the transfer of this litigation from the Courts of the State of New- York to those of this State. It was necessary for me, gentlemen, to ask in advance, your patient attention ; and if I have not already too far trespassed upon your indul- gence, I shall yet occupy your time a little longer, for the purpose of stating to you and the court, the law of this case, as settled by the courts of your own state. We have seen, 10 74 gentlemen, wliat the Courts of New- York have decided, in reference to the questions arising' out of this fire of 1835. I address now gentlemen, most of whom are strangers to Mr. LaiATeuce, and know not who he is, or what claims he has to your favorable consideration. He is one of tlie most respected citizens of New- York ; distingnished for the integ- rity of his character, his calm and cool demeanor on all occa- sions ; educated as a member of a society proverbial for hesitancy and caution in all their acts ; yet, like all others of that society, when convinced of their duty, are fearless in its performance. Mr. Lawrence had for years been an eminent merchant of the city ; had been elected a Member of Congress, and while occupying a seat in the House of Representatives, was elected Mayor of the city, after a most animated contest in 1834, in opposition to one of our most eminent citizens, the Hon. Gulian C. Verplanck. In 1835, he was almost unanimously again elected Mayor ; and the same result ensued in 1836, after the occurrence of the acts we are now called upon to investigate. Mr. Law- rence was appointed by President Polk in 1845, Collector of the Port of New- York ; this position involved the necessity of Mr. Lawrence occasionally visiting the City of Washing- ton ; and the idea was then first entertained, by those who had for years been litigating in the Courts of New- York, and had failed in the suits instituted there, to intercept Mr. Law- rence on his return from the Capitol, for the purpose of making him responsible in the Courts of New-Jersey, for the official acts done by him in the City of New-York, and for which the courts of that state had decided he was not person- ally responsible. 75 In the years 1845 and 1846, no less than thirty -tlu'ee suits were commenced against him in the courts of this state. An af phcation was made to the Chief Justice of the Supreme Court, to hold Mr. Lawrence to bail — (the damages in these suit being laid at about 8800,000 ;) that application was re- fused ; and another application was immediately made to another Judge, and granted, but subsequently revoked ; Mr. Lawrence not having passed through the State of New Jersey at the time it was supposed he would, the process against him ran out, and a new process was issued. Mr. Lawrence, in ignorance of all these proceedings here, and of the trap set to catch him in the discharge of his official duties, visited Washington, in the month of February, 1847; and on his return from that city, at the depot at the foot-of Market-street, in this city, was arrested, and held to answer in all these suits ; and for this enormous amount, in a foreign state, where he was a stranger, and where he could not compel the attendance of witnesses necessary to his justifi- cation. Many of his most important witnesses had long since died ; others had scattered to places unknown ; and he has been called upon to vindicate acts which transpired now seventeen years since. No wonder he was appalled at this ; but he has met it with the same calm composure, and the same reliance that he did the awful calamity of the night of December 16, 1835, and with the abiding conviction, that truth and justice will eventually prevail. Mr. Lawrence, in language the most truthful and sincere, has often declared, that no instance of his life had caused him more mortification or anxiety than this arrest. By his own industry, he had acquired a handsome competency which was thus put in jeopardy. 10* 76 Since February, 1847, these causes have occupied the time and attention of the Supreme Court, and Court of Errors and Appeals of this state, to a very great extent, and to the exclusion of the suits of your own citizens ; and I suppose, gentlemen, I am not mistaken in saying, that the prosecution of these suits has cost the State Treasury over ten thousand dollars ; and how much they will cost that of this County of Essex, you, gentlemen, can more easily determine than I can. Bear in mind, gentlemen, that Mr. Lawrence is not a participator in bringing these suits into the courts of this state, and occupying their and your time. You sit here at the expense of the County of Essex, to listen to the testi- mony and arguments in this cause, and to pass upon matters which have already been adjudicated by the courts of New- York ; and there, and there only, do they appropriately belong. In the thirty-three suits commenced in this State against Mr. Lawrence, tjiere were two special pleas put in on behalf of the defendant. One was a justification for destroying the goods, under and by virtue of the statute of New- York, and nothing was said about the buildings. In thirty-one of these suits, there was an additional plea of the statute of limita- tions, to bar the recovery on tlie ground that the plaintiffs and the defendant being residents of other States than this, and more than six years having elapsed since the cause of action arose, it could not be maintained; and if the real parties had appeared on the record, that plea of the statute of limitations would have been put in, and been available, and would have disposed of this and the remaining suit, as it did of the thirty-one suits in which it was pleaded. The Supreme Court sustained both of those pleas ; but the Court of Errors 77 and Appeals sustained only the plea of the statute of limita- tions, in the thirty-one suits in which it was pleaded; and by a majority of one Yote, reversed the decision of the Supreme Court sustaining the plea of justification, under the statute of New-York. Judge Carpenter, in the opinion delivered by him in this cause, when last in the Court of Errors and Appeals, says, that " that Court reversed the decision of the Supreme Court, and overruled that plea, because it rested upon the statute alone ; w hich the Court held, so far as it attempted to confer any power over personal property, for w"hich it made no compensation, to be unconstitutional and void." The pleas now under consideration, and upon which the issues have arisen which you are to try, were then inter- posed ; and in stating their substance, I prefer to use the language of the learned Judge of the Court of Errors and Appeals, just quoted. He says, in that opinion, " This, (the first special plea,) justifies, not on the ground of a common law necessity, but of a necessity, so to speak, arising out of a statute. It sets up that the Mayor destroyed the buildings for the purpose of stopping the conflagration, under the ad- vice and with the consent of two aldermen, in the performance of a duty imposed upon him by the statute. It sets up the duty, imposed upon him by the statute, of destroying the build- ings in which the goods were stored, and alleges that the goods could not have been removed and saved before the said buildings would have taken fire, and endangered and communicated the flames to other buildings ; and that the said goods were therefore necessarily and unavoidably de- stroyed. Now, if the statute under which the buildings were destroyed, was a constitutional and valid law in respect to 78 the destruction of the buildings, and if llie officer, in the dis- charge of a public duty, lawfully performed the act by which the buildings were destroyed, and the goods were necessarily and unavoidably destroyed in the performance of that duty, it seems to me that the plea sets up a good defence. If, un- der the exigencies of the imminent peril, which, at the time of the great fire, threatened the city of New- York, it was the duty of the Mayor to order the immediate destruction of the buildings, as necessary for the preservation of the city, the necessity and authority of instantly blowing up the buildings, involved the authority and necessity of blowing up their con- tents with them, if they could not be removed. Whatever may have been the view heretofore taken of the New- York statute by this Court, as to the authority thereby conferred to destroy goods, it has not been held, here or elsewhere, that it is not a constitutional law so far as regards the destruction of the buildhigs, and to the extent to which provision has been made for compensation. The statute, as far as I understand the prior decision of this court, has only been held void pi-o tanto, where it author- ized destruction without providing compensation. In the destruction of the buildings, then, the defendant acted under a valid and constitutional law. Adopting the language of the court below, the real ground of complaint is, that the de- fendant exceeded the authority conferred by the statute, and thereby became a trespasser, because he destroyed not only the buildings, which he might lawfully destroy, but also the plaintiffs' goods which were in the buildings, and which the statute, it is alleged, gave him no authority to destroy. Now, for doing the lawful act of destroying the buildings, in order to arrest the conflagration, — an act, which in the exigency of 79 the case, was not only lawful, but the imperative duty of the defendant, as a public officer, to do ; if the goods were una- voidably and necessarily destroyed, it not being possible to remove them, but with the hazatd of losing all the benefit to re- sult from the act, the defendant ought not to and cannot be held liable. A public officer, acting in good faith, upon a sudden and alarming emergency, under the sanction of a con- stitutional and valid law, in a matter of public duty, is not to be held rcsposiblc for the unavoidable and necessary result of such act of duty. An injured party may have a right to resort to the public for satisfaction ; but the law has ever held, that the officer himself, not exceeding his power, and not guilty of oppression or bad faith, is not personally liable." As to the second special plea, the same judge says, " It is so framed as to set up a justification arising out of the common law doctrine of necessity, and it seeks no aid from the statute. It sets out that there was a fire raging in the city of New- York, which threatened destruction to a large portion of the city ; that certain buildings were peculiarly exposed and likely to take fire, and communicate fire to other buildings; and but for the acts of the defendant, w^ould have taken fire and communicated, &c. ; that to pre- vent the spread of the conflagration, and the destruction of a large portion of the city, the immediate destruction of the said buildings was necessary, without wailing to remove the goods therein ; and that for this purpose the defendant, a resident citizen, and owner of valuable buildings in the city, caused the said buildings to be blown up, and did thereby necessarily and unavoidably destroy the goods, &c. The plea does not in terras aver that the goods were the cause of alarm and danger, and therefore the immediate ob- 80 ject of destruction, but that necessity required the immediate destruction of the buildings, without waiting to remove the goods, which unavoidably involved the destruction of the goods. The plea sets up that the buildings and the goods were so connected, that the necessity of destroying the former, necessarily involved the destruction of the latter ; and the justification is made to rest upon the ground that the right to destroy the buildings must therefore include the right to destroy the goods. If, which I do not in the least doubt, there can be an im- perious overwhelming necessity of instantly destroying build- ings, without waiting to remove the goods stored therein, in order to prevent the spread of fire, I suppose this to be the mode in which that necessity must be pleaded, the goods themselves not being the cause of alarm or danger." Now, gentlemen, Mr. Lawrence leaves, with confidence, to you, the question — Whether he has, in the destruction of the plaintiffs' property, acted oppressively, or in bad faith ? and if he has not, the highest court in your State says, "he is not personally responsible." The second plea, you perceive, gentlemen, put in by the defendant, seeks no aid from the statute of New- York, or anything done under it, or in pursuance of its provisions. It is simply and nakedly the common law plea of necessity, and justifies the act in pursuance of that law. But the plaintiffs objected to that plea, on the ground that it could not be maintained, because it was not averred in the plead- ing that Mr. Lawrence had an interest in the property saved, or that he had thus acted to protect his own property; thus seeking to narrow down this great legal principle to the selfish mean consideration, that acts done under it could not 81 be justifiable, unless to save one's own life or property ; and that if the act be done for the genersl good, and to save the lives or property of others, it is not justifiable ; and the actor should be held a trespasser. Chief Justice Green says, if this were so, there would be an end to all efforts to stop the progress of the flames, and the destruction of property. This principle was fully dis- cussed in reference to this plea in the Court of Errors and Appeals ; and I would call the attention of the court to the opinions of that court upon that point. It was decided, that it was not incumbent on the defendant to aver or show any positive danger to his own property, or that it was in immi- nent danger. Such a limited view was not taken by that court. Is it reasonable to suppose, that the same means could not be lawfully used by a party to stop the progress of the flames, to save the property of others, which he might use for the protection of his own ? In vain would a call be made on firemen at a time of imminent danger, to take steps for destroying property to stop a conflagration, if such de- struction makes them trespassers, unless tlicir own property is to be saved by such act. We have therefore, gentlemen, the Judgment of the Court of Errors and Appeals of the State of New Jersey sustaining these pleas ; and holding that, if we prove tiie facts alleged in them, they or cither of them afford a full and ample defence to this action. And now, gentlemen, what facts are at issue in this cause ? What have the plaintifl^s denied, that we have alleged for our justification ? After setting out, as we have in our pleas, the fact that Mr. Lawrence, as Mayor, with the assent and concurrence 11 82 of two Aldermen, gave these directions, what has he morfe to prove ? We alleged that this fire was raging — that it had already- burned up a large portion of the city — that the fire was near to, and in the vicinity of the stores Nos. 48 and 52 Exchange Place, which were pecuharly exposed — that they were haz- ardous and likely to take fire, and thus communicate the fire to other valuable stores, and thereby consume and destroy a large portion of the city. All this the plaintiffs admit by their pleadings ; and I desire the jury particularly to bear in mind these admissions. The plaintiffs admit that these stores were peculiarly exposed to destruction — that the communication of the flames to them was inevitable — and that within a few moments they would have taken fire from the buildings which were already on fire — and that they would have communicated the fire to other buildings — and would, therefore, have been the means of destroying and consuming by fire a large and valuable part of the city. They also admit tlie defendant's statement, that he and the two Aldermen had reason to be- lieve, and did believe, the buildings were peculiarly exposed, and would immediately and inevitably have taken fire, and be burned up. All this is admitted by the record. They further admit, that the goods in these buildings could not have been removed or saved before said buildings would have taken fire and communicated it to other buildings. What then, have they denied ? First, That the defendant, in giving the order to blow up these stores, had the consent and concurrence of the two Aldermen. We shall see how far this is sustained by the proof. That issue tendered by the plaintiffs, we have already sustained by the testimony of their own witness. 83 We have no need to prove it further. They have clearly shown that the Mayor did act with the assent and concur- rence of the two Aldermen. But that there shall be no doubt on this point, we shall show by one of the Aldermen, that such assent and concurrence were given, and that the defendant refused to act until they were obtained. The next issue tendered by the plaintifTs, is, that the destruction of the buildings, without waiting to remove the goods there- from, was not absolutely necessary to arrest the progress of the fire. The plaintiffs have avoided taking the issue which Judge Carpenter, in his opinion, says is the material one, that the goods might have been removed. We insist, there- fore, having proved by the plaintiffs' own witness the first issue, the defendant is entitled to judgment ; on the ground, 1. That the destruction of the buildings being lawful, and the destruction of the goods being a necessary conse- quence, their destruction was also lawful. 2. That the destruction of the building and the goods be- ing one continued act, it is not competent for the plaintiff to separate them, and admit that one was lawful and the other not. If either was lawful, both are. 3. That it is recognized as law in this case by the Court of Errors and Appeals, that the act which constituted the Mayor and Aldermen judges of the necessity of desti"oying the building, made them also judges of the time when the act of destruction became necessary ; and the authorities before cited, show that their judgment is final and conclusive. If it w'ere possible that they erred in such judgment, is Mr. Lawrence to be held solely responsible for that error ? 11* 84 The Mayor and the two Aldermen ordered these stores to be blown up immediately; and can a party come to this court and say, that that judgment was wrong— that they should have waited to enable him to remove his goods ? — and is Mr. Lawrence to be held responsible, because they erred in that judgment ? This is not the law of the land; — it is not the law of this case. The Mayor and Aldermen agreed, in the matter of their decision as to the necessity of blowing up, and that it should be done immediately ; and as the Mayor is the person ap- pointed by law to carry into effect the judgment of those officers, he is protected by the law. The Mayor was the person designated to execute the judgment of this quasi court ; the officer to destroy the buildings, in compliance with its mandate, and to do it immediately, at the moment when they adjudged the necessity had arisen. Can it for a moment be contended that he can be held responsible for the order of that court, be it ever so erroneous ? The authorities already cited, conclusively show that he cannot. When a public officer is entrusted with discretionary power, he cannot be made amenable for any injury, when acting within the scope of his authority, and not under malicious motives or in bad faith. We claim a verdict from this Jury, if the court please, upon the principles settled by the Court of Errors and Appeals. Mr. Lawrence being engaged in a lawful act, is not respon- sible for any consequent injury that might have resulted to other persons. The act of blowing up was lawful ; the de- struction of the goods consequent thereon, he cannot be held responsible for, — that was a result he could not help. The 85 blowing up and destruction of the stores had to be done ; to render the act effectual for the intended purpose, it must be done immediately, — and the destruction of the goods was an unavoidable consequence. Gentlemen of the jury, we shall show to you, that tliis fire crossed William-street at Exchange Place, progressing west- ward, on the morning of the 17th December, about 1 o'clock; the whole city was then given up to the devouring element, no efforts were being made to stay the destroyer. It pro- ceeded along the southern side of Exchange Place, towards Broad-street, and communicated the flames to the store No. 48 Exchange Place. At this crisis, sufficient gunpowder had been procured, to make the essay to blow up a building, and it was immediately applied in the cellar of this store — and this store was instantly levelled with the ground. In its descent, it brought down part of the wall of the adjoining building, No. 50, and thus communicated the fire to it. It was then deter- mined to blow up the store No. 52 Exchange Place. At this time, a further supply of powder and the marines had arrived from the Navy Yard. Mr. Lawrence and the two Aldermen decided that it was necessary to blow up No. 52, and that it should be done immediately ; the Garden-street Church opposite was on fire. It was feared the fire would reach Broad-street, and then run round into Wall-street, and burn up the banks and buildings in that street. There was a large manufactory of furniture near by, in Broad-street ; and the rear of it abutted on the store No. 52. It was a large building, owned by Messrs. Meekes, and contained nearly a hundred thousand dollars' worth of mahogany and furniture, of the most inflammable character, and a large quantity of varnish; and it is conceded by all, that if the fire had com- 86 muiiicated to thi,s building, nothing could have saved the re- maining part of the block, and it must inevitably have de- stroyed all the buildings on Wall-street. Mr. Lawrence and the Aldermen deemed it necessary to destroy this building, No. 52, and to do it instantly, to arrest the fire — and it was done, and the fire was stayed. It stopped then ; — and he said to it, with more effect than King Canuet did to the waves : " Thus far shalt thou come, and no further." As soon as this was done, Mr. Lawrence proceeded to other parts of the city ; and by similar means, in a short time, completely succeeded in quelling the fire, and restored hope and confidence to an alarmed and despondent community. For these acts, Mr. Lawrence is sought to be charged as a trespasser ; and you are called upon to compel him to make payment for the goods thus necessarily destroyed. This is the precise nature of this suit against him. The plaintiffs charge him as a trespasser and a wrong doer ; and it is for you, gentlemen, to say whether, under all the circum- stances, that act was justifiable. Gentlemen, in the extended discussion of this case, and of the principles of law which have been settled as applicable to it, I have drawn largely upon your patience and forbear- ance. My duty to the defendant, as I regarded it, would not permit me to say less. I have endeavoured to present the law fairly and frankly ; and the testimony already given, I have discussed with candor ; that to be offered in addi- tion, I have stated as we expect it will appear, from the witnesses which we shall now proceed to call. Gentlemen, I desire you to bear in mind the great mission you are here called upon to fulfil ; and the sacred duty, as in- telligent jurymen of the county of Essex, you have to per- 87 form ; and to pass that judgment iipon the conduct of Mr. Lawrence, as either of you would wish passed upon your- selves. " You must also remember, that you sit in judgment upon a high public oflicer, acting upon the responsibility of his oath of office, with the eye of a whole city upon him, with the best and most honorable motives ; and I call upon you to measure out to "the stranger within your gates," the same law whicli the courts of this State have meted to your own citizens. When wc, Gentlemen, shall have mouldered into dust, and our individual names have been blotted from all remem- brance, — on the page of history will appear that of the defen- dant in this cause, as the bold and fearless Magistrate of what Avill then be the great Metropolis of the world ! who, in the earlier days of that great City, ui the hour of its fearful calamity, when its very existence was threatened, hesitated not to assume a responsibility which saved it from destruc- tion, and the property of its citizens from total annihilation ! This conduct will be contrasted with that of the pusillani- mous Lord Mayor of London, who, on a similar occasion, standing in fear of forty lawyers of Temple Bar, permitted that city to be nearly consumed by the devouring element ; — and the renown of the American Magistrate and his coadjutors, will add another laurel to the WTeath which will then adorn the brow of the genius of America ! Let not the same record state, that lliese honorable and meritorious actions, — which received the plaudits of all who witnessed them, — the thanks of an entire city, — the justifica- tion and approval of the Courts and Juries of the State where they occurred — ^were condemned, seventeen years afterwards, 88 by a jury of twelve men of the honorable Commonwealth of New Jersey. Nay, rather let it be said, as it will most certainly appear on that same page, that the dignified and learned Courts of this State, its intelligent and patriotic Jurors, without a mo- ment's hesitation, recorded their approving voices, and held free from all censure and accountability, the man who periled himself that he might save others !— and that you sent him from your tribunals of Justice, with the appropriate commen- dation : " Well done, thou good and faithful servant." The following testimony was then produced on the part of the defendant : — Chaeles King, sworn. — Examined hy Mr. Davies. I reside in New-York. I am President of Columbia College. I resided in the city of New-York, in the month of December, 1835. I have been a resident of the city some forty years. At the time of the fire, I was living in Bleecker- street. f went to bed uneonscions of a fire. I was aroused in about an hour, by a young relative, who said there was a great fire in Wall-street. I was then editor of the New-York American. I immediately rose, and went down to my office. I am certain as to the hour. It could not have been less than 89 half-jiast twelve o'clock. Tlie Exchange was on fire, when I got to Wall-street. I found my printers and workmen en- deavouring lo save all they could. I went in, and worked imtil the roof of my building took fire ; when I ordered all hands out, and left myself. In a quarter of an houi", it was all consumed. I looked on with exceeding terror, I confess, I never saw anything so formidable. There was an absence of water. The weatlier was intensely cold ; and the hose on the ground was frozen solid as ice, I walked down Wall- street lo Pearl-street. The fire spread rapidly ; and it oc- curred to me, that the time had arrived when some other power must be used lo extinguish the flames, besides water. I sought to find the Mayor, to suggest tiiis to him. Ifoundhim in Garden-street, in front of the church. I think, the fire had not then reached Garden-street. I said to the Mayor, that it was an occasion in which he should exercise discretionary power in blowing up buildings, as there were no other means to save the city. He seemed averse to the measure, lest it might be deemed exceeding his authority. There w^ere other gentlemen around ; and all seemed to concur in the necessity of such a resort. Mr. Lawrence said, " Where will I get the powder?" I replied, that there was powder in the Navy Yard. He then said, " How can I go to the Navy Yard ?" I said I w'ould go, if he would give me an order to the commanding officer. Mr. Lawrence then went into a store in Garden-street, with me, and wTOte to the commanding officer of the Navy Yard, asking his assistance to stay' the fire. I went immediately to tlie foot of Fulton- street, East River, as fast as I could ; where I found a boat- man who knew me, and who rowed me up to the Navy Yard, about a mile distant. I wished to go there direct, and I 12 90 believe the state of the tide allowed it. There was much ice in the river. V/e got on board the frigate Hudson. The frigate was in charge of Captain Mix, who Hvecl, with his family, on board. His orderly called him, and he came out. I told him my business. He told me, I would have to go to the Com- modore's for an order, and that he would have his men outside, and in readiness for me, when I should get back with the order. I found the Commodore awake, suffering terribly from the gout. He had a very fine fire in his room. He immediately sent for his lieutenant (Taylor, I think,) and ordered him to get ready all the marines, and all the powder ; of which he said, there was very little. A barge w as sent to Red Hook, on Long Island, where the powder w^as kept. I sat in the Commodore's room till all was ready. We all marched to the foot of Fulton-street, in Brooklyn— all the officers, marines, and sailors, that could be spared — Captain Mix leading. We crossed the Fulton ferry, and landed at Fulton-street, in New- York. My impression is, we went up thence towards Broad- way. I had said previously to Mr. Lawrence, that if those men should come, they would not act without liis authority ; and to the end that no time should be lost, I wished to appoint a place where I could find him on my return. Mr. Law- rence arranged that he would be on the pavement in front of Wall-street church, near Broad-street, or thereabouts. We went immediately to that spot. I think the powder was there before us. The Mayor was not there when we arrived. I told them, if they would remain, I would seek the Mayor. I went down Broad-street to Garden-street, and found him there, surrounded by a crowd of terrified people, all the place being on fire. I think Garden-street church was then on fire. I announced to him in no gentle or low 91 voice, that the officers and marines had come with the powder, and were awaiting orders. Mr. Lawrence came with me, and I put him in communication witli Captain Mix. After that, I remained with the sailors in Wall-street ; and in a short time an order was given to t!iem to follow their leader with the powder. The party of sailors took up tlu-ee or four kegs of powder, and proceeded down Broad- street. I went with them. As we went along, I was concerned, for the ground was frozen and covered with ice, and it was raining fire. The sailors look off their jackets, and covered the kegs of powder with them, to prevent them from exploding. We went into Exchange Place. I saw tliose men go to work. They dove into a cellar. I did not follow them. I believe my next step was, to ask the Mayor to give a roving commission to blow up. I went back to the church, where I had left some of the marines ; and it was be- fore I got back, tliat the explosion took place. The time was very brief, from the powder arriving in Garden-street until I heard the explosion. It was but a short distance from the corner of Garden-street to Wall-street church ; I think, not more than 150 or 200 yards. The Mayor, I pre- sume, was with Captain Mix when the sailors reached Garden-street witit the powder. Captain Mix is dead. Joseph G. Swift, sworn. — Examined by Mr. Davies. I was educated a military engineer. Was General-in-Chief (brevet) of the Corps of Engineers of the United States army, during the years 1812 and 1813. Was Colonel and General, Was educated an engineer. Have been familiar with the construction of fortifications. Am familiar with the prin- 12* 92 ciples of sapping and mining. Was in tlie city of New- York, on the morning' of tbe 17th of December, 1835. Was present at the fire during the night and morning. I came to the fire from the residence of Mr. Gouverneur. On my arrival in Wall-street, I found the fire raging furiously, and to a great extent Tlie night was severely cold ; and I observed great despondency among the people at the con- dition of things, fearing that the fire would not be got under. I obseiTed that the water thrown from the engines came down like hail, the cokl was so intense. Somewhere be- tween two and three o'clock, Mr. Schwart came to me, and said that the*Mayor wanted to see me. I went with him to llie Mayor. I think somewhere between Nassau and W^all streets. Conversation ensued between the Mayor, myself, and others. I am not positive who they were. The Mayor asked me, if I could give directions for blowing up buildings with powder. I replied that I could. He asked me if, by blow- ing up houses, the fire could be stopped. I replied, that I beheved it could. He then requested me to give directions for placing powder in a proper place in a store in Garden- street, for the purpose of blowing it up. I then considered what quantity of powder would produce a sufficient blast to destroy a building without scattering the fragments too far. I thought one Imndred or one hundred and fifty pounds of powder would do for a four story building, and I advised that tliat quantity should bo placed in the building. My advice was followed, and tlie building. No. 48 Exchange Place, was blown up. In the blast, a little more powder was put in than was necessary, for it injured No. 50. No. 50 was soon on fire. It was then determined to blow up No. 52, which was done ; and the building tumbled in on itself, without 93 scattering uuicli, and the fire was thereby arrested. Build- ings were blown up in other places, with similar effect. I am not certain that No. 48 was on fire when it was blown up. My impression is, that it was. I think that ten or fifteen minutes elapsed from the powder arriving until No. 48 was blown \ip. I think the Mayor gave tlie order for blowing up No. 48. It was a matter of advisement, and the Mayor approved. About ten minutes after the powder ar- rived, No. 52 w^as blown up. I think there was no question as to No. 5S being blown up, before No. 48 w as blovni up. It was because the fire was so near, No. 50 being on fire, that it was deemed necessary to blow up No. 52, in order to stop the progress of the flames. My impression is, that if time had been given to remove the goods, all would have been on fire, and the flames would have reached Wall-street. The effect of delay would have been to burn up the whole block. To Mr. WkiteJiead. — I believe the whole lower part of the city would have been destroyed, if the means of blowing up had not been resorted to. The engines had ceased playing previous to blowing up. Such a dismay never existed in the puljlic mind as at that time. To a Juror. — There was snow on the ground. To another Juror. — The snow" was not very deep ; it was very slippery. EfiBKRT Bknsox, sicorn. — Examined hy Mr. Davies. I reside in the city of New-York. I was elected an alder- man of the city, in 1835. I was alderman of the Third ward, at the time of the fire. I was at the fire a short time after it commenced. The fire commenced in Merchant-street, in a 94 building running back lo Pearl-slieel. That street has since been altered. To Mr. Jones. — Merchant-street ran below. Pearl j it was a little, crooked, narrow street ; — there the fire commenced. To Mr. Davics. — The lire spread rapidly. But atfirstj we kept it in check, for our engines were then playing, and we were in hopes that we would stop its progress. It continued, how'cver, to spread rapidly as it caught each building. The fire extended to Exchange Place, and very soon communi- cated with the Excliange. [SJiotvn a diagi-am.] This dia- gram presents the course of the fire. I was there, when the fire crossed 'over to William-street. The buildings on the south side of Exchange Place took fire, and burned rapidly. There was then no water. It was al)0ut twelve o'clock. A single stream would have saved the Exchange. I met Mr. Lawrence in Broad-street. He requested me to gel Alder- man Taylor, of the Second ward, and meet him at the corner of Pine and Nassau streets. I found Alderman Taylor. We went together to the corner of Pine-street. We saw- Mr. Lawrence, with other gentlemen. Alderman Morgan L. Smith, was one of them. Alderman Smith now resides in Texas. I cannot mention all who were present. We consulted as to what should be done to slop the progress of the flames. Mr. Lawrence asked for our ophiion and ad- vice. We gave it as our opinion, that powder should be used, and that it should be used to blow^ up those buildings on Ex- change Place. We decided, that No. 48 should be tried first ; and that it should be done immediately, as there would be no use in blowing up if we made any delay. We went down Broad-street to Exchange Place. The fire was raging fiercely. The powder arrived very soon after w^e got to the 95 corner of Exchange Place. 1 saw powder going to No. 48. I got out of the way. T heard the explosion in eight or ten minutes after. To the Court. — We thought it necessary to blow up these building.s to stop the conflagration, at the moment we did. Fifth Day, WaJnesday, Oct. 13, 1853. The court came in at ten o'clock. The jury were called, and the trial proceeded. Egbert Benson. — Exariwia/ion contmued hy Mr. Davies. The subject of blowing up the store No. 52 was not dis- cussed ])articularly until after the blowing up of No. 48. It was generally, but not particularly. After No. 48 was blown up, there was a consultation between Alderman Taylor, the Mayor and myself. We decided, that it was necessary to blow up No. 52. Blowing up No. 48 had not effected the object we had intended, for the fire was still raging ; and we then determined to blow up No. 52 ; we determined that it must be blown up immediately. It was on fire at the time. Black smoke was coming out. I have no doubt it was on fire under the eaves, the roof, and the upper part of it, and the smoke was a precursor of flames bursting out — which was the case in many instances that night. Very shortly after the decision — within fifteen or twenty minutes — the explosion was made. At the time we formed the deter- mination, the powder was tliere. I understood, that the powder had arrived from the Navy Yard, when tlie decision was made. We were then in Broad -.street. We saw No. 48 blown up, and immediately came to the detcrminalion to blow up No. 52. 96 Mr. Davies called the attention of the courtand jury, to the distance from Broad-street to No. 52 Exchange Place. The distance is about 120 feet. Witness. — From the blowing u|j of No.4S lo blowing up No. 52, not more than about 30 to 40 minutes elapsed. It was cer- tainly within an hour. This includes both occasions of blowing up, and the two consultations. From the firing of the first train to the firing of the second, was all within the hour. After I joined Mr. Lawrence at the corner of Pine and Nassau streets, I remained with him, but i might have been a short distance frorn him occasionally. Mr. Lawrence remained at one place. I suggested it to him, and he did so. Alderman Taylor came to Exchange Place after I did. I did not go into No. 52. I was never in it. I was around it. Mr. Lawrence did not, to my knowledge, go into No. 52. I would have known posi- tively whether he did or did not, if I had remained with him. My intention was to have remained with him until the blow- ing up. The Mayor, Alderman Taylor, and myself, con- sulted as magistrates of the city ; he, (Mr. Lawrence,) as Mayor, and we as Aldermen and Judges of the Court of Common Pleas. We all had the statutes given to us when we went into office. I had informed myself a little of my duty. At the time No. 48 was blown up, the buildings on both sides of the street to No. 4b weic destroyed. I don't know how many buddings. Garden-street church was on fire. About six buildings on the south side were destroyed. I doubt, whether tliere were any stores destroyed on the north side. Garden -street church was filled with goods. 97 Cross-examination, by Mr. Van Wagenen. The fire broke out next door but one to the corner of Han- over-street I think there was one building between the fire and the corner ; the fire w^as in the next building or the next but one to the corner. I think, the street where the fire broke out, was called Merchant, nowBeavcr-street. From my own knowledge, I can't say where the first powder came from. My impressions are, the first powder used came from out of town. The first powder that I knew of, we used to blow up No. 48. I do not mean by black smoke coming out, that fire and flames followed. I did not see flames come out. I did not go through the build- ings No. 48 and No. 52 that night. There were no means taken to stop the fire in Uiose buildings, before the powder was ap- phed. I saw no efforts made to that effect. The firemen were worn out. Not having the means to stop the fire, was the motive thut actuated us to resort to blowing up, to save the <;ity from the flames. This was the reason for deciding to blow up. The buildings on Broad-street were not burnt. The whole of that range was saved. Wall-street, between WUliam and Broad streets, was saved. A grave-yard occu- pied a large portion of the north side of Garden-street. The grave-yard was some eight or ten feet higher than the street. I think tlie church-yard property is correctly marked on the mapshown. Therewasabuildingusedasalecture-room. The distance between that building and the church, was about the same as the distance between the church and the buildings on William-street. There was a small building west of the church, between the church and Broad-street, not marked on the map. I think there was a building used for churcli purposes The 13 98 lower part was used as a paint store. I don't recollect the name of the occupant. The church was burnt. My impres- sion is, that the other building was not destroyed, only par- tially injured. The block on which the Exchange was standing, was entirely destroyed. The block of wooden buildings on Wall-street was destroyed. The buildings be- tween Exchange Place and Wall-street, and William-street to the west, and on the other side of WilUam-street, between the church and WilUam-street, and between Exchange Place up to the rear of the buildings on Wall-street, were destroyed. There was no blowing up there. Those were destroyed before we had powder. On the block where Nos. 48 and 52 were situated, there were no other buildings blown up. There were one or two warehouses and a few dwell- ing houses, and a large cabinet warehouse, on Broad-street, between Beaver-strcet and Exchange Place. The cabinet warehouse belonged to Mr. Meeks. To a Juror. — It is difficidt to say, which way the wind waa blowing, I think towards the west ; but in so large a fire, the wind blows every way. I think the powder was carried from the corner of Exchange Place to No. 48, in a wheel- barrow. The wind was northwest when the fire com- menced, but chopped round. The sparks were flying towards Beaver-street, while I was standing there. At the time of the explosion, I think I stood at the corner of Broad-street and Exchange Place. I wanted to get cut of the way of the ex-^ plosion, I know. The sparks were blowing towards Broad- street, when the powder was brought there. I first saw the powder at the comer of Broad-street and Exchange Place. John D. Camp, sworn. — Examined by Mr. Davies. I reside in Morristown. I was a passed midshipman on board the frigate Hudson, in 1835. I was in the city of New-York, on the morning of tlie 17th December, 1835. I was on board the frigate at nine o'clock. I heard there was a fire in New- York, and wished to go over, as I had relations, merchants, in that part of the city, but could not obtain permission. The wind was blowing hard from the northwest. I should think it was between two and three o'clock, when I was roused by an officer, who in- formed me that Mr. King was on board, requiring powder and assistance. As soon as the first lieutenant (Mr. Nichols) had arrived from the commodore's house, where he resided, I was ordered to go to the storekeeper's clerk, and get the keys of the magazine in tlie yard, and get powder. I took out all the powder that was in the magazine, and put it in a barge, that was manned for the purpose. I was ordered to take it to New- York, to a safe place, to the windward of the fire, and report myself to the Mayor. I intended to land as near the fire as possible ; but it was so intensely cold, I was forced to land at Catharine-street ferry. I placed the pow- der in a tarpaulin, and covered it over with another, and proceeded as fast as possible. The men's fingers became so numb, they could hardly carry it. I went in search of a cart. I saw a hand-cart, which I took with me, and follow, sd the men with it. I overtook tlie men, and put the powder into the cart. There was another officer sent with me, Mr. Paul. He stopped in charge of the barge. We went down as fast as possible, to the street below Fulton-street, then up into Broadway, and from Broadway to Wall-street ; then down 13* 100 Wall-street, to where the Custom House now stands. That was as near to the fire as I thought it prudent to approach without orders. I went down Broad-street, in search of the Mayor. I found him in a house, I believe, in Mill-street. I informed him that I had the powder on the corner of Broad and Wall streets, and that I was ordered to re- port myself for his instructions. He told me to run back as fast as possible, and hurry the powder to where he was. I was not familiar with the small streets in those days, but my impression is, that I took the cart with the powder to the corner of Beaver and William streets, and Exchange-street, where Mr. Iiawrence then was. The powder was taken out at this point, I met our commander there, who had come on with Mr. King and the marines, from Brooklyn. The powder was wrapped in the parties' jackets, and brought up through the streets to the fire. I do not loiow where it was taken to. I took a keg of powder to Coenties >Slip, and blew up a house myself. J may have been in Exchange Place, but am not certain. I placed powder in a house in Beaver-street, by the orders of Captain Mix, which I was to use at my own discretion. Cross-examined by Mr. Van Wagenen. The direction of the wind remained the same during the night, but it moderated towards morning. Ques. Was not the house in which you placed the powder, in the neighborhood of a building in which powder was sub- sequently placed by you ? Am. No. The house in Beaver-street was a, small two- story house ; and the building I left the powder in, was a large warehouse. 101 To Mr. Davies. — The fire was burning with great fury, and flying' in all directions with the course of the wind, in all parts of the city where I was. The lire showered about from the buildings that were on fire, and made the streets dangerous. Our clothes were destroyed and left unfit for use. The eiFect of large fires is to draw the wind towards them from all quarters, creating a strong current of air, and carry- ing the cinders very high in the air. To Mr. Cutting. — The effect of blowing up the store was to stop the fire. To Mr. Van Wagcnen. — The blowing up of houses ser^'es by the gap they leave, to stop the fire. You could stand within twenty feet of a house to be blown up, with perfect safety. I examined one house (which was a crockery store) that was blown up, the next morning, and found the fire raging in the broken mass of crockery-ware. To a Juror. — The Fire Department were useless. I exam- ined that particularly. I found the hose buried under the ice. The firemen could not do anything. The only remedy, I believe, was the blowing up, to stop the fire. The plaintiffs' counsel objected to the last answer ; and it was ruled out by the Court — ^the Court holding that none but firemen should express an opinion, as ex- perts, as to the necessity of blowing up, to stop the fire. To which decision of the Court, the defendants' counsel excepted. Robert B. Temple, sioorn. — Examined hy Mr. Davies. 1 reside in the city of Albany. I was attached to the United States army, and was stationed in New- York, in 1835, as 102 Naval Commissary, uiider Major-General Scolt. Was at the fire. The fire broke out about half-past nine o'clock. I seldom went to fires, but this continued so long, that I went out to see it a little after 10 o'clock, I went down, and found a very great fire raging. I had no particular duty, but went to look on, like others. I met many I knew. I went from point to point, as a matter of curiosity. The fire was beyond the Exchange, on the southeast. It was burning with grfeat vio- lence. The Exchange took fire. This was about 12 o'clock. The fire had acquired great force. It was one of the coldest nights ever known. The hose was entirely frozen. Every one was greatly alarmed, and there appeared no way of checking it. I recollect expressing my opinion after one o'clock, on the subject of blowing up buildings. Myself and others talked on the subject. Examination continued by Mr. Cutting. Up to this time, the firemen's services were useless, and they seemed paralyzed. The fire had increased in spite of their efforts. There were hopes, at first, that the fire would be got under, but they were temporary. I understood, that the Fire Department were prostrated, from the hose being entirely frozen. I saw the hose myself, and it was frozen. At this time, in Broad street, I think, I came across a knot of gentlemen, among whom was Mayor Lawrence, (it must then have been one o'clock.) I recollect, Mr. Charles King was one of them, as I knew him intimately, and Mr. .Tames Monroe was another — they were in consultation. I understood, that some of them were Aldermen of the city. No efforts were then being made to stop the flames. The Fire Depart- 103 ment were powerless ; and it was the impression of all that the city would be destroyed. Mr. King, Mr. Monroe, and some others, expressed themselves urgently, and were press- ing on the Mayor the propriety of using gunpowder to stop the flames. I expressed the same opinion, as that was the only means left to stay the progress of the flames. It had been some time, perhaps half an hour or more, since it seemed to be conceded by every one, that the firemen could do no more, and that the fire would have its way. This conversation with the Mayor and members of the Common Council lasted some minutes. The result of it was, after a little hesitation on the part of the Mayor, that he consented to give directions for its use, if powder dould be obtained. Mr. King said he would get some from the Navy Yard ; and I said I would go to Governor's Island for some. This met with the Mayor's approbation. Mr. King and I then separated. I went to Whitehall, found a stray boat, got two men, and started for Governor's Island. This must have been, I think, about 2 o'clock in the morning, or a little before. I went over to Governor's Island. I saw the com- manding officer. He hesitated a little at first, but I sat down and wrote an order for the powder, in the name of General Scotl, and signed it officially as his aid-de-camp — we then got the powder. I came back before the barge, but brought three or four kegs of powder with me, of 100 lbs. each, in a smaller boat. This was in advance of the barge. He gave me some soldiers to row me over, and a better boat than the one I crossed in, which was a crazy little thing, un- safe to cross in. I thought several times, we should be swamped as we were rowing over. The river was dangerous to cross. A gale was blowing. I returned to the city. It 104 must have been past 3 o'clock. Ntar Whitehall, I met a person in authority, in whose charge I left the powder, being satisfied he was a proper person. Did not see the powder after that. I sought the Mayor. I met him in the neighborhood of Broad-street. I told him I had brought the powder, and described the person to whom I gave it. I parted there with the Mayor. I understood that powder had come, and that they were about to blow up a building. I went to find where the blowing up was going on, I went into a street south of the Exchange. Believeit was Garden-street. lundersloodthatone building had been blown up ; and that another was to be blown up. I went into the cellar. They were then bringing in the powder, under the charge of a naval officer and some sailors. I saw it placed in the cellar, and was told it was in charge of a naval officer. I intended to have oifcred my services, if there was no one who understood the matter better. Hearing it was in charge of a naval officer, I gave no directions, but only made some suggestions. I heard Lieut. Mix's name mentioned as an officer present, but don't know who the officer was. After the preparations, I left the cellar, and went a httle way up towards Broad-street, to witness the explosion — the powder exploded, and the building was destroyed. It sunk, as if into water ; and according to my recollection, the fire stopped there, although I believe it had been burning rapidly to tliat point. The time which elapsed between the time I saw the powder going into the cellar and the explo-sion, was but a few minutes — not more than fifteen. To Mr. Whitehead. — The fire was burning very fiercely near the building whicli was blown up, and appeared to be approaching that building. Currents of air are drawn to- wards great fires. The natural course of a fire, would be to 105 go the way the wind was blowing. But this fire seemed to be governed by no rules. It went every way. Astonish- ment was expressed that fire appeared in many places that night, distant from the great fire. I am not positive as to the time of the blowing up. I believe that it was near 4 o'clock. It was before day light. Cross-exaviinecl hy Mr. Van Wagenen. It was near two o'clock, when I went to Governor's Island. The Exchange was pretty well burnt before I left. I don't know if the fire had then crossed William-street, but it was burning furiously in the neighborhood, Samuel L. Gouverneur sivorn. — Examined hy Mr..D.iviEs. I reside in the State of Maryland. I resided in New- York, in December, 1835, and was Postmaster of the city. The Post Office was then kept in the south-east corner of the Exchange. I was at home that night, and I was sent for about 10 or ] 1 o'clock. I went down with Gen. Swift. We did not then think that the Exchange, (which was a great distance to the westward of where the fire was,) would take fire ; and we moved nothing away for some time. Examination continued hy Mr. Cutting. The Exchange was westward of where the fire broke out. We prepared to move in case of necessity, but this we did not anticipate. The bulky matter was put in the Rotunda, a circular space, from which we thought it might be easily got 14 106 out. The fire advanced rapidly. AH ofourmatter was covered with other people'.s goods, brought there in the hope that the Exchange would not take fire, being a solid building. The fire, however, increased with great rapidity, much greater than any of the witnesses have stated. Soon after, to my astonish- ment, it was announced to me that tlie Excliange had taken fire in the cupola. This must have been after twelve o'clock. We removed all our hghter articles to the City Bank, at the other side of Wall-street. The fire advanced so rapidly, we were forced to remove from there. We then removed to Wilham-street, between Wall and Pine streets. The fire run- ning up Wall-street against the wind, we removed to the Custom House, which w^as then corner of Pine and Nassau streets. Tlicre our property was saved. The property in the Exchange of every description, was destroyed. The Post Office matter left in the Rotunda was destroyed. Most of the property in the office which was abandoned was bulky matter. I took out the letters and papers, and such other matter as myself, with some friends, could carry, in bags. The streets were obstructed in various ways by the engines, by the crowd, and particularly by the ice. There were no means of having anything carried away, but by myself and friends. The Fire Department was totally idle, and had ceased all effi*rts. The firemen were incapable of acting, some from drinking liquor, which they were obliged to take to keep themselves from freezing. There were no active efforts going on to stop the fire, nor could there be. I was not in Garden-street, w hen the buildings were blown up. Accord- ing to my recollection, I was at the corner of Nassau and Pine streets. I saw the Mayor and General Swift, and the Aldermen who have been named, and I expressed my opin- 107 ion, which every one did, that powder should be used to stop the fire. I thouo;ht Mr. Lawrence hesitated very much to take on himself this responsibility. I thought he hesitated more than I would have done. Cross-examined by Mr. Van Wagenen. The goods which I removed from the City Bank to the comer of Pine and Nassau streets, woidd have been safe in the City Bank ; but I did not think so. Every one was of opinion, that the City Bank would take fire. The heat was intense. The fire took another direction, and went down Garden-street. Wall-street is not a wide nor a narrow- street. Court adjourned till half-past two o'clock. Afternoon Session, October 13. James Monroe called. — Exa?nined hj Mr. Davies. I have resided in New- York about thirty-three years. I was Alderman of the City of New-York for three years ; and was acting Mayor of the city in 1834, in the absence of Mr. Lawrence. I was present at the fire of 1835. I got to the fire about half-past eleven o'clock. The fire was then raging between Pearl-street and the Exchange, in a street that at that time ran on tiie east of the Exchange. It is now called Hanover-street. When I arrived there, the night was ex- tremely cold. Having a knowledge of and acquaintance with the foreman of almost every company in the department, hav- ing been an Alderman three years, and being well acquainted 14* 108 with Mr. Gulick, Chief Engineer, with whom I had communi- cation at the fire, I asked him (after having examined the progress of the fire as rapidly as I could) what was his opinion as to his ability in stopping the fire. Plaintiffs' counsel objects to witness giving the opinion of Mr. Gulick. I satisfied myself that, from the state of the fire depart- ment, and seeing the want of a supply of water, that the progress of the fire could not be stayed without the aid of gunpowder in blowing up buildings to a great extent. I so expressed myself, in the most unqualified manner, to all the officers who came under my observation. I was present at the consultation wliich has been mentioned by foniier wit- nesses. I believe I saw the Mayor several times that night. I always expressed my opinion, that gunpowder should be used. I thought that before two or three o'clock, the Fire Department was completely paralyzed. Ques. Had you, or had you not, before twelve o'clock, in that night, been informed by the Chief Engineer of the Fire Department that that department was paralyzed, and unable to do anything more to stop the progress of the fire ? Objected to by plaintiffs' counsel. Objection sus- tained ; and defendant's counsel excepts. I came to the conclusion, between twelve and one o'clock in the morning, from my own observation, that the Fire Department were without efficiency. The, weather was ex- tremely cold, and there was snow on the ground, in the 109 streets. There was considerable ice on the ground, according to my recollection. 1 was in the neighborhood of Exchange Place that morning, when the buildings were blown up. Was there when the first building was blown up. I do not recollect the number. 1 saw the powder going in. I cannot say the house was on fire, when the powder was broughtj but the fire was near. I believed it was dangerous to the parties bringing it in. The explosion took place in about fifteen or twenty minutes after the powder was taken in. I was not in Exchange Place, when the second building was blown up, but heard' the explosion. I knew that it was to be blown up. I walked from Garden-street to the house of a relative in Fulton-street, and as I got to the door, 1 heard the explosion. It would take me fifteen or twenty minutes to walk there. This was the time that elapsed between the two explosions. The Chief Engineer of the Fire Depart- ment was in Wall-street, near the Exchange, when I saw him. He was giving directions to firemen, and talking to Alderman Labagh and others, who were round him. I saw no efforts used for the suppression of the fire. 1 do not mean to say, that the firemen were doing nothing. They were comirfg with their engines, but they were unable to do any- thing after twelve o'clock. I witnessed the fire during the night. The fire was spreading rapidly. Some buildings caught fire, and btu-ned up in a few minutes, ■^aw No. 52 after No. 48 was blown up. Some buildings situated as Nos. 52 to 48, in regard to the fire, would be untenable in a very few minutes. The communication of the fire was sometimes instantaneous. 110 Cross-examined by Mr. Van Wagenen. I do not know exactly the construction of Arthur Tappan's building on Hanover Square, which was burned. I suppose the rapidity with which a house would burn, would depend upon its construction. I suppose that a house covered with slate would not take fire as fast as others. Well built houses would not lake fire as fast as badly built ones. I was much struck with the fact, that the wind seemed to have lost all control over the fire that night. 1 kept in front of the fire, and had no opportunily of knowing how the fire proceeded in the rear. I think the Exchange must have taken fire between twelve and one o'clock. I do not recollect where the fire broke out. I first heard of the fire about eleven o'clock. The Exchange could not have taken fire much before one o'clock. It must have been twelve or one o'clock. The fire was extensive. The distance from where the fire broke out, to the Exchange, is short. I don't know the character of the buildings Nos. 48 and 52, but suppose they were the same as the buildings in Hanover Square. John Meeks smorn. — Exa?}iined hy Mr. Davies." I reside in New- York. I resided in Broad-street, in New- York, in 1835. {Designates, on mop shown, the buildings which he oca/pied at that time.) I occupied Nos. 43 and 45 Broad-street, a little more than half way down to Beaver- street from Garden -street. No. 41, north of us, was a large cotton store. It was 30 feet in front, 100 feel deep, and four or five stories high. It was occupied by Stebbins & Co. I suppose it was at that time full of cotton. No. 39 Broad-street, was a store of the same size and character. Ill Idoii't recollect what No. 37, north of it, was. I think Nos.37 and 35 had been dwelling-houses, butwere turned into stores. No. 33, was occupied as a paint store. That is the fourth build- ing from the corner. That was a deep lot. No. 33, was a four story building — Warner & Kiersted's paint store. I don't know ils depth. It was in the neighborhood of seventy feet. Quantities of paint, turpentine, oil and varnish were kept in that store. It was one of the largest establish- ments of that kind in the city. It was particularly inflam- mable. I don't recollect what No. 31 Broad-street was. I cannot tell what No. 29 was. No. 27, the corner house, had been a dwelling-house, but was turned into a store. It was three or four stories high. Two buildings on Garden-street, before you came to No. 53, were dwelling-houses. I knew Nos. 52, 50 and 48 — all those buildings had party walls. I did not think they were properly built. They were rather slight buildings ; and I remember, when they were built, I thought they were not built as they ought to have been. On the night of December 16th, when the fire broke out, I was in my house in Broad-street, below Beaver-street, on the west. I did business in Nos. 45 and 43. I watched the progress of the fire. It broke out between eight and nine o'clock, in a narrow street, that used to be called Sloat lane. The name has been since changed to Hanover-street. The fire pro- gressed rapidly. The wind was fresh. The fire burned quicker towards the east ; but soon after it broke out, it began to work very fast to the windward. About the time it crossed "WilUam-street, I suppose I must have been in my own store ; but I know that after the fire got to the corner of Garden and William streets, it went rapidly. It went hke a streak through the buildings. Nothing could stop it. lean- 112 not say how rapidly one building took fire after the other. It was but a very short time. I cannot say exactly. Gunpowder stopped the flames, by blowing up the building No. 52, That stopped the fire from getting into Broad-street, and burning it all up. The blowing- up that building, (52,) stopped the fire. It was all over after that. I did not see the powder put in, but heard the explosion. I don't know how soon I heard the second explosion after the first ; for when I heard they were going to blow up No. 52, I thought it best to go and look after my own store. I was in Broad-street, near Gar- den, when No. 48 was blown up. To Mr. Wliitehead. — Our stores were cabinet manufacto- ries, the largest in New- York. They were 140 feet deep, and covered two lots of ground. To Mr. Davies. — The front was from 45 to 50 feet, and four stories high. They were filled with cabinet work. The yard was filled with plank, lumber, &c. The yard covered three lots. We had no oil in the establishment, but had varnish. We had a considerable quantity of varnish at that time. The back part of the building had a flat roof, and joined the i-ear part of the building No. 52. It was called a drying shed. To Mr. Whitehead. — The drying shed was one story lower than the front. The value of our stock on hand at that time, could not have been less than from $75,000 to $80,000. Cross-exmnined by Mr. Van Wagenen. Mr. Joseph Meeks is my brother. I was in partnership with him then. None, or but few, of our workmen came to 113 the store that niglil, till day-light. They generally lived up town. Myself and brother, and another person, were all that were in the store. Some friends and acquaintances came in occasionally, Mr. Stickler's store was at the corner of Broad-street and Exchange Place. It was occupied as a grocery store. I know that it was formerly occupied as a residence. The next two houses in Garden-street, were little low two-story houses — I think with dormer windows. They had slate roofs, and were a good quahty of house at that time. These were adjoining No. 52. I should sup- pose, they were built about ten or fifteen years before the fire. 1 know that the majority of the buildings on Exchange Place, were built with party walls. I was in all of those houses, and passed into tlie yards. I believe that No. 53, and all the others, were built at the same time ; and all from No. 52 to the corner of William-street, were built with party walls. The stuff in my yard was on fire after day- light. Not before. Three or four of us put it out. We had a well in the cellar, supplied with water from a spring. There had formerly been a pump there. We often supplied neighbors with water. The working people began to come after day-light. The fire did not get inlo the building. The wall of No. 52 fell, and set fire to our lumber ; hot bricks fell upon the lumber, but we were prepared to put the fire out. We had applied to the Fire Department; and they sent us an engine, in case we should want it. The engine was broken and useless. The powder came providentially, and saved us. If the powder had been used before the fire crossed William-street, it would have saved a million of dol- lars. No. 52 was on fire before it was blown up. Smoke was coming out of the roof. 15 114 To Mr. Davies. — No. 52 was on fire before it was blown up. We were aU praying for powder when it came. If they had apphed powder on the other side of William-street, it would, in my opinion, never have crossed William-street. Samuel Swartwout sivorri. — Examined hy Mr. Davies. I was CoBector of the Port of New -York, in 1835. I was in the city of New^-York, on the morning of the 17th Decem- ber, 1835. I was in my own house, when the fire was an- nounced to me. I went out to look at it. I left my house at ten o'clock, and reached the Exchange at half-past ten. From twenty to twenty-five buildings appeared to be on fire at that time. I remained at the corner of the Ex- change, in Wall-street. I worked at an engine for about half an hour. I worked till the engine stopped. We could get no more water. The Exchange look fire about twelve o'clock, I think. After I arrived at the fire, it was very appalling. I went round to the corner where the fire com- menced. The fire was in Hanover-street ; and the street now called Exchange Place, was also on fire. The flames were extensive, and the heat was intense. I became very much excited, for I apprehended the city would be entirely con- sumed. I went to work at the engine, as a good citizen should. It was about eleven o'clock, or may be twelve o'clock, when the engine would no longer deliver water, because of the intense cold. At this time, there seemed to be a general panic among the firemen. Not an engine could play, when the E.\change took fire. After the engines had ceased to play upon the fire, I asked Mr. Gulick. the Chief 115 Engineer of the Fire Department, what was to become of us, if we all stood there idle, and saw the city burned down. The answer of Mr. Gulick, was objected to by plain- tiffs' counsel. The fire was so destructive in its progress, I believed that nothing could stop it. Not a gallon of water could be had to throw upon it. I went from that place to the Post office. It was kept in the south-east corner of the Exchange. I saw General Swift there. I went to ofTer my assistance. I went from there to the Custom House, between Pine and Cedar streets, near Nassau-street. I went to that part of the building where our office was. I sent for the key. The clerk came, and we put up the papers, ready to leave, if the fire should reach the Custom House. My attention was then called to a meeting of the Mayor and several Aldermen, in the corner building of Pine and Nassau streets. At the suggestion of some one, I went in, and reported to the Mayor the state of the fire department, from my own obsen'ation, and from what Mr. Gulick had informed me. I stated to the Mayor, that I had come from Exchange Place. These gentlemen were in consultation with the Mayor. I expressed my anxiety that something should be done, as the fire de- partment could not work, and it was a terrible night. I told the Mayor, that the engines could not deliver the water ; that buildings were consuming with great rapidity ; and that nothing but an act of God could stop the flames, unless some- thing was resorted to besides water. I said that Gen. Swift and myself had considered the subject of resorting to some other expedient besides water, for that water was out of the question. The Mayor asked me, if I could find General Swift, 15* 116 and bring; him to him ? I sought him, — found him, and brought him to the Mayor. There was a consultation between the Mayor and Aldermen, and bystanders and Gen. Swift and my- self. Mr. King was there ; and I think, Aldermen Benson, Taylor, Morgan L. Smith and James L. Hamilton. The conference was as to the means to be resorted to, and within the power of the chief magistrate, to stay the fire. That was the agony, — that the distress, It was almost immediately determined to use gunpowder, and blow up buildings ; — what buildings, to be afterwards determined on. General Swift's opinion was desired by the Mayor, as to the quantity of powder that would be sufficient, and the mode of using it. I recollect that distinctly. Those means were afterwards apphed. I know nothing about the blowing up. I was not present. I went to change my clothes, for I was covered with ice. When the engines were stopped, the fire was in the Exchange, and the terror was at its height. The old New- York Insurance Office, was a wooden building. Mr. Gulick suggested that wet blankets should be used to keep off the fire from it, the City Bank, and some others. This I witnessed, and this I approved of. I was not present in Exchange Place, when the buildings were blown up, but I was in Broad-street ; Alderman Benson and myself kept out of the w'ay of being hurt. I remember the building No. 48. I cannot say, if it was on fire before the powder was put in. The Dutch church was on fire before No. 48 was blown up. All the other buildings were burnt up. To give an idea of the rapidity of the flames on that awful night, from ahout half-past eight to midnight, thirty or forty buildings were consumed ; and before six o'clock in the morning, six hun- dred were burnt up, with their contents ; and the value of the 117 property destroyed, was estimated at twenty millions of dol- lars. It might have been fifteen or twenty minutes betwecti the explosion of No. 48 and the explosion of No. 53, To Mr. Wfiitehead. — There had been no abatement of the fire, nor could there have been any, up to the time when No. 48 was blown up. No one can depict the agony and distress of that night,— the feeling on the public mind, was of the profoundest horror — terror had taken possession of the minds of all. The weather was intensely cold. The fire went against the wind. It created winds. It went in every direction. Nothing stopped it. It w^as an awful night. No cross-examination. Prosper M. Wetmore, examined by Mr. Davies. I reside in the city of New- York, and have resided there forty years. I am a merchant. My store was at the time of the great fire. No. 87 Water-street, between Coftce House Slip and Old Slip. It was consumed on the night of the fire, in 1835. One building, near my store, No. 83 Water-street, was not burnt. It was the only building that was not burnt, in the space of sixty-three acres that was burned over that night. Tappan's store was in front of mine, and was burnt. I was in my residence, in Broadway, above Broome-street, when I be- came aware that it was a large fire. I went down town, as a matter of duty and interest. My first act was to ascertain the condition of my ow"n property. I went the nearest way to get to my store. As soon as I entered Water-street, I became immediately satisfied that the fire had passed over the spot where my store had stood the evening .before. I proceeded in my walk, however, as near as I could to the ruins. My lis principal anxiety was to know if the citizens or officers had endeavored to save the books. I was informed that the books of the houses there had been saved, and left at the market, m Old Slip. I arrived, with some difficulty, at the place where the market had stood, and found that it had been burnt up, with its contents. Having no further personal interests at stake, I was at liberty to help others ; and looked about me for that purpose ; — this was between half-past eleven and twelve o'clock. My place of business was in Water-street. The fire commenced in Merchant-street, near where Post's building now stands. My impression is, that the store in wliich it originated was on the northeast of the street. The wind carried the fire in that direction, and it burnt, following the course of the wind, without spreading to the right or left, down to the river. After it reached the river, it retraced its steps, and, to use a professional expres- sion, it worked to windward ; and then it was the fire reached the Exchange. I think, the Exchange didn't burn till one o'clock. It seems to me some of the witnesses place the hour too early. I passed from the site of the market in Old Slip, to Hanover Square. This was where the wealthiest silk houses in the city were situated. Nearly all those ex- tensive stores were destroyed or burnt. To give an idea of the force of the flames, in their downward progress towards the river, 1 would say, they seemed to jimp across Hanover Square. The goods had been removed as far as was practi- cable. Hanover Square was an open area of some seventy- five or eighty feet in width, and tapering to thirty or forty. At this time, my attention was attracted to an extraordinary sight. It was a pyramid of goods piled up in the square, — one or two hundred cart-loads. I examined them, and found 119 them to be of the ricliest kind of goods, left there for safety. When I returned to the same place in the morning, they were all burned to ashes. I went from Hanover Square into William-street, to the rear of the Exchange. I found the crowd there very great. I then went towards Garden-street. This seemed to me to be the track of the fire. It was then about half-past one o'clock. My object was to follow the course of the fire. As I approached towards Broad-street, passing through the crowd, I hesitated a moment; I was told, that they were to explode a building with gunpowder. I remained to see the efTcct of the explosion. I saw the building, No. 48, blown up. I did not sec the powder taken into (he building. My recollection is, that the store next to it was on fire. I cannot say whether No. 48 was on fire or not. I don't recollect so well relative to No. 52. When No. 48 was blown up. Garden-street church was on fire. I knew that the fire department was useless, and completely paralyzed. No water could be got. The weather was intensely cold. The engines were done working ; they could not be worked. Our firemen worked to the last. They had the disposition to work, but they had no water. The fire progressed rapidly up Exchange Place. It was a peculiarity of lliat conflagration, that the fire seemed to set at naught all brick walls. Great attention was drawn to the Water-street store, on No. 83, which was not burnt. My opinion is that its safety was a complete accident. It had wooden cellar doors in front, which was an attraction to fire. The building was occupied by a very energetic man, named Benson, a copper-smith. He shut himself up in his house, with assistants, in the commencement of the fire. He got water, and a hand engine, and wherever fire appeared, 120 he put it out. It was on fire several times. Mr. Benson and his assistants were at one time on the roof, and were given up for lost — but they were saved. The building above it was a large building, and the wall fell early in the even- ing. It fell from this building, smothering the flames. The building on the other side of it was a low" building, and quickly burned. No cross-examination. Samuel Jones Willis. — Examined by Mr Davies. In 1835, 1 was a cotton-merhant, of New- York, of the firm of Hicks, Lawrence & Co. Our store was No. 22 Exchange Place, on the south side. I belonged to the Fire Depart- ment. I was a fireman seventeen years, and was five years an engineer in the Fire Department. I have been an Alderman of the city. I was in the city, the night of the fire, in 1835, and was at the fire soon after it broke out. It might have been from nine to half-past nine o'clock. The * fire commenced in the store of Comstock & Andrews. The file burned very rapidly. After arriving at the fire, and waiting a short time, I was convinced that it would be a serious conflagration. I went to the store, and took away the books and valuables to my house, in Madison-street. I returned to the fire about ten o'clock. It then appeared inevitable, that our store would be burnt. We then began to remove the goods. When the fire reached us, a great quantity of goods remained in the store. The goods that we did remove, were afterwards burnt up in Garden-street church. Our store was burnt in the neighborhood of twelve, or half-past twelve o'clock. Very soon after the 121 fire commenced, I knew that tlie engines would be rendered useless by the intense cold ; and from that fact, I began to re- move early. At the time our store was destroyed, I don't remember to have seen a stream of water, or one solitary engine, endeavoring to stop the fire. It crossed William- street, towards Broad-street, very soon after it caught oiir store. There were four stores between our store and William-street. When it crossed, it burned with the greatest rapidity. The goods in the stores added a good deal to it's rapidity. I was not present at the consultation for blowing up. I saw Mr. Lawrence, and told him that, in my judg- ment, nothing but blowing up would stop the flames. I was seventeen years a fireman. That was my opinion then, and still is. There were no other means left but to blow up. I was in the neighborliood, w hen No. 48 was blow n up. The effect of delay in removal, would have been to have caused a great spread of fire. And there were no means of stopping it. There could be no calculating the damage, if there had been any delay in blowing up. The fire would not have stopped short of Broadway. X saw, what I supposed to be powder, carried into No. 48, by Mr. Wenman. A few minutes after I saw the powder going in, the explosion took place. Mr. Wenman went to look at the train. He returned imme- diately, and said that all was rig^lt. No. 48 was then on fire. Mr. Lawrence said, he would blow that building up. The fire communicated to the building No. 52. I saw the powder brought. I beheve that No. 52 was on fire. Alderman Benson pointed out to me smoke, coming out of the eaves. This smoke was from No. 52. It was almost immediately after the powder was brought into No. 52, that tlie explosion occurred. Had they delayed for the purpose of removing IG 122 goods, the fire would have got into Broiid-street. I think that it would have been impossible to liave saved anything from No. 50 and No. 52. There were great obstructions in the street. I don't tliinfc that any goods could have been brought out of No. 52, even an hour before tlie powder was put in. We had difficulty in getting our goods from the church, when we were convinced that it would be burnt. We saved but a very small amount indeed. The Court adjourned until Thursday morning, at ten o'clock. Sixth Day, Thirsdcnj, Ocioboy 11. The Court came in at the usual hour. The jury were called ; and the trial proceeded. Coit.NELius V. Andeusok sioom. — Exrmiim-d by Mr. Daviks. I reside in New-York, and have lived there since 1 was born. I am President of the Lorillard Fire Insurance Company. I was Chief Engineer of the Fire Department, from 10th May, 1837, to December, 1848. I was seven years a regular fire- man ; making in all ninetien years. I was present at the fire of 1835. I was in the engine-house, when the fire broke out, I was foreman of engine No. 1. The engine-house was at the foot of Duane-street. We reached the fire about nine o'clock, about ten minutes after it broke out, and went imme- diately to Hanover Square. When we reached the fire, I think the only building on fire, was the house where it commenced. We made many endeavors to stop the fire. 123 One of llie last aUeinpls we made, was in a house next but one to llio fire, about half way between South William-street and where the fire broke mit. We were directed to take our pipe into this house, for the purpose of " fortifying it," as we term it. We were directed to take our pipe, and go to tlie top of the house, to prevent the fire from commu- nicating to.it. We had not l)oen there above ten minutes, when we were directed by the Cliicf Engineer to leave the building, as it was all on fire. I lieard a great cry in the street, and immediately ordered llic men to get the hose out of the building. We descended to the third floor. 1 tried to get out of the building by the same way that I entered, but the stairway was so much on fire, I was forced to go down by a ladder put up on tlie outside. This was not more than ten minutes from the time I entered tlic building. Tliis was the last effort made there. Our next attempt was on the corner of South William-street and Stone-street, to keep the fire from crossing over South William-street. We were supplied from a hydrant on the corner of Stone-street. The goods out of the stores on Hanover Square, were thrown out upon the hose. I found the water had failed. 1 went to the liydrant, and saw the water flowing from the hydrant, but discovered that the goods which had been thrown out of Hanover Square had taken fire ; and in burning, had burned the hose. When 1 returned, the fire liad crossed William- street. Stone-street was piled full of goods. I reported to the Cliief Engineer, that the water was cut off, and tliat we must have a pas- sage made through Stone-street to Coenties Slip, or we should lose our engine. All the water had failed elsewhere, Wlien we went to Coenties Shp, the \vater in our engine had frozen solid. It was then between one and two o'clock. The 16* 124 men were in good condition for work, but we had no water. The night before, there had been two large fires, which had exhausted the reservoirs. No means existed to stop the fire. From two o'clock, we were standing idly looking on. I be- Ueve no other means existed, but blowing up with gunpowder to stop the fire. Hook andladdermen would make little pro- gross in pulling down buildings. The Rcsen oir in Thirteenth- street,- was the only place from which water could come. From my experience, as a fireman, I do not think it would have been possible that night to have removed goods from a store, after it was on fire. I never saw a fire burn so rapidly: I know little of the progress of the fire westward, for I was not on that side of the fire. I never saw fraifie buildings burn so rapidly as brick buildings burned that night. The fire pro- ceeded westward, after crossing Stone to William-street. It .was burning very rapidly. I think, judging of the obstruction in the streets, and the rapidity witli which the fire ran along, that no goods could be removed from a building next to a burning building. The last eflbrt made with engines during the night was made at the corner of Stone and Hanover streets. Ours were not the only pipes there. There were others there. We went to the roof of the second house from the fire, to prevent the fire coming on us in that way. We did not consider we could have done any good in the house next to the fire. From my ol)servation of the fire that night, I should think, that if they w-aited in Exchange Place till the building adjoining took fire, they would have been able to have removed but very few goods. I judge from the rapid progress of the flames that night, and from the obstructions I know to have been in the streets. 135 Cross-exajnined hy Mr. Van Wagenen. I was most of the time south of the fire. 1 think it reached the East River ^ritliin an hour after it broke out. It went on a straight hne to the river. Then it chopped round, and made its way back on the south side of Tappan's store. On the south side, Tajjpan's store presented an obstacle to tlie fire, until the stores north of it were burned. The fire then went round this store, and destroyed it. The fire then burned towards Wall- street. It swept rapidly on the south, to the East River. As rapidly as it had on the north. It seemed to go as fast one way as another. Tlie property was as fast consumed. As the buildings were burnt, the fire found fresh fuel. The heat diminished, as the fire went out. To Mr. WJiitehead. — Most of the goods removed out of stores, were afterwards ljurnt up. Silk?, sathis, and all de- scriptions of goods. John Cox sicorn. — Examined hy Mr. Davies. I reside in New- York, and have resided there since I was born — about forty-four years. I was connected with the Fire Department fifteen years. I ran with the engines when my father was Chief Engineer. He was Chief Engineer seven years. I was foreman of engine No. 26 ; and was on duty the night of the fire. I reached the fire about twenty minutes after the alarm. We ran down Wall-street to the East River. It appeared to be a very fierce fire. There were then one or two buildings on fire. It had not then crossed William-street. We went down to form a line to carry water to the fife from the river, foot of Wall-street. We got Ihe engine on the deck of a vessel, and got to work 126 in about Iweiily minutes. For some reiison, whicli I don't know, we got orders to stop playing. We waited about twenty minutes before we got orders to play again ; and at that time, our hose was frozen. I went in search of the Chief Engineer, and told him the condition of things. He gave me orders to take my engine from the deck of the vessel, and find hose if I could, and work along the course of the fire. We went up Wall-street, opposite Hanover-street. I sent men after hose ; and others for salt, to put into the en- gine, to keep it from freezing. We got hose. We then went into Water-street, about 150 yards south of Wall- street. We got into a line tliere, but we found the engine valves frozen, so that we couldn't do anything with her. I ordered the engine to be taken away, and the company to assist in removing books and safes. The fire was then breaking out on the west side of Water-street. I had made a purchase the day before in Water-street, and my goods liad remained there. I told the company that I had goods there to the amount of fifteen himdred dollars, and that I wanted their assistance to remove them. There were twenty- six men in our company. They commencedremovingthe goods, and by the time I thought I had my proportion of goods out, the fire was falling down the hatchway. When we commenced removing the goods, the fire was, perhaps, three stores off", and we hadn't been at work more than fifteen or twenty minutes. As the fire progressed, its rapidity became greater. We went down Water-street to Old Slip, and from there to tlie west side of the fire. We went through Hanover- street into Stone-street, to head off the fire, if we could ; from Stone to Broad-street, and from there into Garden- street. We assisted all the way in getting out books, and oc- i27 casionally a safe. This was our principal work. We got into Garden-street, about the time tlie Exchange took fire, (1, A. M.) The firemen had altogether abandoned the engines, in consequence of the cold. , The fire had not then crossed William-street towards Broad-street. Most of my men ac- companied me. The engines were by that time generally frozen up. The Department had stopped trying to extinguish the flames ; and were occupied as we were, in trying to save books and goods where they could. When we got into Gar- den-street, we stood looking for a while at the Exchange, which was burning. We then commenced in Garden-street, the corner of William-street, removing books and safes. There were some trucks such as they use in stores ; and once in a while they would get a case of goods on a truck, but not often, on account of the ice. Sometimes w^e broke open cases, and carried goods away in our arms. It was three quarters of an hour from this time, before the fire crossed William-street, We were principally at work on the south side, removing goods. We assisted in that direction fifteen or twenty minutes, after the fire crossed William-street, coming west- ward, when I drew off the men, and got as far as No, 48 Exchange Place. The fire was burning so rapidly, and the men were so worn out, that we started for the purpose of seeking refreshments. We stopped at No. 48, to see them carry goods into ' the church. The church was nearly opposite. While there, we were run against Jty those bringing goods out of No. 48. Some persons came out of No, 48, and asked me if I would assist. I said yes, that we were there for that purpose. I went into the store with the men. Some person said, if we would assist, he would compen- sate us. I said, we wanted no compensation ; we rame to 128 assist. Went to work, and threw out goods from front and rear. One of the men came and said, " What is the use of doing that, you are only blocking up every place." I told them, I would go out, and see if there was any way to get the goods out of the street. When I went out for the purpose, I saw an Irishman, who asked me if I would employ him. I told him I had no authority to do so ; but if he went into the store, perhaps the proprietor would engage liim. He said, there was a hand-cart near by, but that it was chained to a post. I told him to hold on a moment, and that I would go into the store, and get aji axe. I got the axe, and went with him, and got the cart. We cleared the way for the cart, and the Irishman carried goods in it to Broad- street. We worked at this about an hour. There were no means of taking the goods out of the yard. The yard was covered with goods. Tlierc were about a dozen, along with my company, helping to remove from No. 48. One of the men came and told me, the fire was coming into the building, and that there was no use in being there. I told him, they might back out, and all the men came out with me. No. 48 was then on fire.- I saw it myself. It was on the east, next the adjoining building. Met Alderman Morgan L. Smith, at the door. He told me, that they had sent for powder to blow- up some stores. He asked me to go along with him. He said he had been looking for some person to blow up those stores, and that if I would go with him, he would be very glad. He told me, he was then going for powder. I asked him, who was going to blow up the stores ? He said, he in- tended to assist himself; and that he would be glad, if I would help. I said I didn't know anything about it, but I would do all I could. He said, " Come along." We went into Broad- 139 street, and met Mr. Uzziah Wcnmaii. lie joined us, and we went up Broad-street, andfound powder in the neighborhood of Wall-street. Mr. Wenman found the powder in an open barrel, on a cart. He asked aman, in charge, why he brought it in that manner ? The man said, they got cartridges in the arsenal, and openedthe cartridges into the barrel. The barrel was about half full. We got the barrel, and carried it down to Broad-street. As we were going down the street, some one cried out, the powder was spilling behind us. We stopped ; and Mr. Wenman saw a man with a blanket over his shoulders, and cried out to him to stop. The man said, that he was not going to steal the blanket. We told him, we didn't care whether he intended to steal it or not, but that we wanted it. We took the blanket, and put it over the powder. It was raining fire at that lime. We then took up the barrel between us, and carried it to No. 48 Exchange Place, by the orders of Alderman Morgan L. Smith. We put it m the cellar, in the centre. We uncovered the powder, and laid a train to the cellar door on some canvass and mus- lin. A question was asked, who was going to fire it ? and some person, I don't remember who, cried out, that he would. I think, Mr. Wenman had lighted a candle in the cellar. I said, that all was ready, and they might go to work and fire it as soon as they pleased. We came out at the door. I don't know who fired ihe train. I suppose in about five minutes after, Mr. Wenman said, " Why doesn't that go off?" We started back to see why it didn't go off. We got op- posite the cellar, and Mr. Wenman said, "There it goes, its going up the barrel now — and then we ran. It immediately exploded. I was not injured at that explosion. I was, at a .subsctjuent one. When we brought in the powder to No. 17 130 48, that building was on fire. There cm be no doubt about it. It was in a few minutes after I left store No. 48, that we went up for the powder. No goods of any con- sequence could have been removed out of the store. If lye had delayed blowing up No. 48, they couldn't have saved any of the goods— all would have been burnt up. It only took twenty minutes to burn up a building at that time. The explosion of No. 48, shattered the store No. 50 ; but not so much as to prevent my going into it. I went in to see the effect of the shattering. I found the store on fire, and I then went into No. 62. I did not take notice that any goods were being removed. I w-ent up stairs in No. 52, and met a per- son, who told me that No. 52 was on fire np stairs. I im- mediately went down, and when I got into the street, I saw the smoke coming out of the windows. I heard in the street, that a party of marines had come from the Navy Yard, to blow up the buildings. I saw the marines take the powder into the cellar. I stood on the opposite side of the street. The powder was put into No. 52 in about two or three minutes after I got on the street. I lieard them cry out, " Clear the street, the marines arc coming," as I came out of the store. I judged No. 52 was on fire, from seeing a peculiar kind of black smoke- coming out. Firemen can generally tell whether smoke comes from a building on fire, or from some other cause. No. 52 was almost instantly blown up. I stood looking on to see how it would be blown up, by experienced men. They did it pretty much as we green-hands iJidj — ^with this e«;ception ; — the officer, after touching off the train, put his hands into his pockets, and walked off, as if nothingwasto happen. The blowing up of No. 52, stopped the progress of the fire towards Broad-street. I believe 131 nothing but the resort to powder, to blow up those buildings, would or could have stopped the flames. Those explosions occurred in the neighborhood of four o'clock. They occurred one after the other, in the space of fifteen minutes. The goods could not have been removed, if we had waited for them to have been removed, for that building would have been burned in fifteen minutes. If the fire had passed No. 52, it would have burned into Broad-street ; and had it got into Broad-street, there is no teUing where it would have stopped. It would have destroyed the whole southern part of the city. There were no means of stopping the fire but by ginipowder ; for there was no water, and nothing else, we could use. Cross-examined by Mr. Van Wagenex. In 1835, 1 was a baker. I am at present connected with the Stuyvesant Insurance Company, in the Bowery, corner of Broome-street, as surveyor to the company. The Fire Com- pany, of which I was foreman at the fire, was composed of twenty-six men. I can't tell their names. I was foreman of the company, four or five years. I don't know that it is usual to stand in the engine house, waiting for fires. I can't recollect the names of the men composing the company, for many years have elapsed. William Cox is the name of one. He is my brother. William Hancock w*as one, I think. I be- came foreman in 1830 or 1831. There were then twenty-six members. It is impossible to say how many members left be- tween 1830 and 1831. There were several companies formed out of my company. The members of the company helped me in Water-street. Henry F. Cox was another of the com- pany. 1 believe. He is another brother of mine. I don't re- 132 member the name of any individual tliat worked with me that night, out of the twenty-six ; but Ihey can be found by searching the records, in the office of the clerk of the Com- mon Council. I suppose that those two named helped me that night. Whoever belonged to the company, worked with me that night. Those two men, I believe, did belong to it. I recollect also, George Coutant and George Adams. I think, I have another brother w^ho belonged to it, James G. Cox. I beheve there was a man named WilHam Brown in the company. I think Mr. Coutant was assistant foreman. I sup- pose all those named belonged to the company, and that they worked with mc that night. If I had the records- here, I could tell with more exactness. I can't say how long it was after the burning in Water-street that I went to Ex- change Place. The buildings in that block in Exchange Place burned down in about twenty minutes. I am perfectly certain that No. 52 Exchange Place was on fire when I was in it. I met Mr. Smith in the street. Fire was raining down, in Broad-street. We went into Exchange Place, and put the barrel of powder in the centre of the cellar, No. 48. We laid the train of powder on muslin. It occupied not more than ten or fifteen minutes, from brhiging the powder till the train was ready. I went one side, after the train was set on fire. I don't know who touched the train off, whether myself or some one else ; those present didn't stand on ceremony. It was a dry train. Wenman and I went to see the cause of delay in the explosion. I saw the powder running xip the barrel. This was in eight or ten mimites from our lighting the train. What we did, was done as quick as it could be done. I may have been wrong in saying ten or fifteen minutes. T correct myself, and say it was done as quick 133 as possible. I hardly think it occupied ten or fifteen minutes from bringing the barrel into the cellar to lighting the train. I should suppose from bringing in the barrel to lighting the train, was five minutes ; and from the firing of the train till we went back and saw the powder going up the barrel, five minutes more. I am positive that No. 48 was on fire before the powder was put in. I saw the fire myself. I was looking to see the explosion. 1 said, I saw the fire in No. 48, when I was inside the building. When I came out, I saw the smoke. I may have seen fire also, but J am not certain. I then went into No. 50, up to the second story, to see the condition of it. I cannot say on what side of the store the stairway was. I did not go higher than the second story. I saw no fire on that story. I saw the fire through the hatchway. Tlie lop of No. 50, I believe, was off. I saw no fire on the first or second stories. 1 went up to the head of the stairs, and saw the fire through the hatchway. I do not know that fire came through it. I went up, and came down immediately. I then went hito No. 52. I do not know whether 1 was on the second or third story of No. 52. As I was going in, some one sung out, " The store is on fire." It could not have been long from the time of the explosion of No. 48, until I saw the smoke come out of No. 52. I did not see any fire in No. 52. When I came out into the street, I saw the smoke, and judged the store was on fire. When I came out of No. 52, I heard the marines were coming. 1 can't say how long it was from the putting in of the pow- der by the marines, to the blowing up, but think it was about five minutes. I did not go into the court yard of No. 48, nor into the building at the rear of No. 52. There was a passage- wav from No. 52. of about six feet, to the Imilding in the 134 rear. There was a communicalioii between the building in the rear and No. 52. 1 have never been called as a witness in any of the fire cases before this trial. The Court took a recess till half-past two o'clock. The Court came in at half-past two o'clock. Tiie jury were called ; and the trial proceeded. CoitNELTUs V. Anderson, re-called. — Examined by Mr. Davies. Mr. Gulick was Chief Engineer of the Fire Department at the time of the great fire of 1835. He is, and has been for years, in very infirm health. Joseph Meeks sworn. — Examined hy Mr. Davies. I reside in New- York. I am brother of John Meeks, and was his partner, in the furniture business, in Broad-street, in 1835. We occupied buildings Nos. 43 and 45 Broad-street, and the rear of No. 47 for a lumber yard. No. 43 Broad- street ran back and butted on a large building hi Exchange Place, known as No. 52 Exchange Place. The building fronting on Exchange Place did not reach ours ; but a rear building connected with it, and called by the same immbcr, did. A portion only of our building butted on No. 52 Ex- change Place. Our buikluig was not so high as the ware- house, No. 53 Excliange Place. No. 41 Broad-street, was a cotton warehouse. No. 39 Broad-street, was also a laigc cotton warehouse ; these were large, wide houses. They did 135 not reach on iVo. 52. The rear huildiiig of No. 52 Exchange Place was hi the rear of No. 41 Broad-street; and near to our north wall, there was one window ; and, I think, two in the rear building of No. 52 Exchange Place, looking towards No. 41 Broad-street and near our wall. I was on the premises the night of the great fire in 1835. We had furniture in our store, finished and unfinished. There was lumber in the yard. There were shavings in the shop ; likewise a quantity of varnish. Our stock in trade, at thai time, w^as from S0O,O0Cr to $80,000. I got to the fire about ten o'clock at night. I remained until eleven o'clock the next morning. I must have been there when the fire crossed William-street. I was in the Exchange, when it was on fire. I saw William-street on fire, and saw the fire cross to liuildings on tbc south side of Garden-street, now- Exchange Place. I thought it then time to look after ray own stores, and returned to our premises, to prepare in case the fire should reach us. I suppose that it was about half an hour after I returned, that I heard the first explosion. I ran to the top of the house, with a carman named James Coffee. 1 took up this man for the purpose of assisting me in tearing up a w^ooden shed, which was upon that part of our roof ad- joining No. 52. Our roof was tinned; and had erected upon the rear part of it a wooden shed, for the purpose of a dry- ing shed for our manufactures. I then saw smoke coming out of the eaves of the warehouse. No. 52. I beUeved it to be on fire, seeing the smoke. I looked over our north wall. Saw fire coming out ofthe windows of No. 52. lhaveno doubt but it w"as on fire. I was on the roof of the shed, wiien the explosion of No. 52 took place. It threw brick on Ihe 136 shed where I was. From five to fifteen minutes elapsed after I saw the smoke until I heard the explosion. I ran down stairs after the explosion, but returned immediately to the roof. We began to throw ofT the bricks, and I theu discov- ered that the roof was on fire. The bricks were so heated, we could not handle them. The carman burned both his hands, and I burned one of mine. We then got pieces of board, and pushed the bricks oflf with the boards. We got assistance from below, and we were fortunate enough to put out the fire. In the meantime, the lumber in the yard took fire. The fire did not proceed farther after the explosion. There was a small two-story building adjoining No. 52, but that did not take fire. Two-thirds of the rear part of No. 52 was blown down by the explosion. The value of our lumber in the yard, was from $7,000 to $9,000. It was all con- sumed. Cross-examined hy Mr. Van Wagene.v. 1 cannot say how near the rear building was to No. 52. I should think, about twenty feet. It was connected by a small passage. I think two-thirds of the rear builtiing was blown down by the explosion of No. 52. The rear building was on fire before the explosion. I think it look fire from an eating house in William-street. Delmonico's, I think. Two-thirds of the wall, perhaps, fell. A portion above our roof, aud the remainder fell into our yard, and de- stroyed our lumber. I cannot state distinctly how quickly the building in the rear burned. The wall ran south about forty feet. Two-thirds of the wall, above our roof, fell upon our 137 roof, and the remainder fell into our yard. The warehouse extended across the whole of the rear of No. 41, and across one-third of the rear of No. 39. The witness here described, from the map, the situ- ation of the buildings Nos. 41, 43, 45, and 47 Broad- street. The rear buildinj^ was entirely consumed at that fire. The lumber in our rear was entirely destroyed. We put out the fire in our own yard. It went no farther. The explosion of No. 48, took place between 4 and 5 o'clock. It was a little before day-Hght, that the lumber in our yard took fire. C.VLEB O. Halsted sworn. — Exandnedhy Mr. Davies. I reside in the city of New- York. I was a merchant in that city twenty-five years. My store was, at the time of the great fire, of 1835, No. 29 Exchange Place, one door from the northeast corner of William-street ; on the same block as the Exchange. It was in the rear of Mr. King's office. I reached the fire at 10 o'clock that night. The fire had not then crossed from Hanover-street. It was approaching very rapidly. Shortly after, it did cross Hanover-street, and the Exciiange took fire immediately. I commenced re- moving my goods about ten o'clock, to the church, that was on the west side of William-street, in Garden-street. The church was on Garden-street. The stores in Wil- liam-street abutted on the church-yard. There was con- siderable open space there. The church was built of stone. The walls were from 2 1o .3 feet thick ; and it was thought IS 138 that it would be a safe place for goods. There was a space of seventy-five or eighty feet round it. We removed almost our entire stock into the church, supposing it would protect us. We had a large number of men, and removed in about two hours. We then found that the fire was crossing William-street, and commenced removing the goods out of the church, to a grocery store, on the corner of New- street and Exchange Place. This was about half an hour after we put them in the church. Soon after the church took fire, the roof fell in. A very large amount of property was destroyed in the church. The fire that crossed William- street communicated to the church, across the vacant space. The fire progressed very rapidly. I was in Exchange Place, between William and Broad streets, when it was said that No. 48 was to be blown up. I can't say that No. 48 Ex- change Place was then on fire, but the fire was certainly very near it. I did not see the powder go into No. 48. I went into Broad-street before the explosion took place. I heard the explosion. I cannot say where I was, when I heard the explosion of No. 52. I cannot state accurately what time elapsed between the two explosions. It was not a great while. I would say, about half an hour. T think the fire was arrested at No. 52. Cross-examined by Mr. Van Wagenen. We were insured for S40,000 ; and we claimed from the underwriters 816,000. The property lost was small articles. We had removed all the larger goods. New-street is west of Broad-street. J cannot state the hour of the explosion of No. 52. I do not think that there was an hour between the 139 two explosions. There was a great effort made to slop the fire at William-street ; but after it crossed, it proceeded very rapidly. The wind was high in the early part of the night. I do not think there was so high a wind, toward morning. I cannot state the rate of progress of the fire. To Mr. Davies. — The fire of 1845 crossed Broad-street. It commenced on the west side, and crossed over. But I was not there. ToMr. Van Wagenen. — Ques. At that time was there not a large quantity of saltpetre and other inflammable matter, whicli spread the fire rapidly ? Ans. It was supposed so. To Mr. Cutting.— I was at the fire of 1845. That fire crossed Broadway, at the Bowling Green. It is double the width of Broad-street. It was one sheet of flame all the way across. To a Juror. — The building which the fire caught on the other side of Broadway, was owned by the editor of the Journal of Commerce. It was used as a hotel. The house was on the north side of the Bowling Green. ToMr. Davies. — Broad-street is wider now, than it was in 1835. It has been widened since tlien. Cornelius V. Anderson, re-called. — Examined by Mr. Davies. i recollect the fire of 1845. I was at that time chief engineer of the Fire Department. I saw the fire on Broad- way. It was in a large liquor store, above the Bowling Green. I saw the fire on both sides. It crossed to the other side of Broadway. At the point the fire crossed over, 18* 140 Broadway is about 150 teet wide, from building to building. The fire crossed that point, after being kept from crossing: in a narrower place. Cross-examined by Mr. V.»n Wagenen. The fire crossed to a building near the corner of Morris- street. All that building was burned down. There was a large liquor store on fire, and it was pointed out to me as the store the fire crossed from. The house on the corner of Morris-street had a wooden cornice. There was no other house on that side on fire. I believe burning liquor throws its flame a great distance. Uzznn Wenman, examined hij Mr. Davies. I am sixty-two years of age. I reside in the city of New- York. I have always resided there. I assisted in raishig a company of firemen in 1811. I remained in the department, as an active fireman, twenty-three years. I was seven years foreman of a company, seven years assistant-engineer, under Thomas Franklin and Jameson Cox, two and a half years chief engineer, and I was acting chief engineer for several years. I was then water purveyor of the city of New- York, and was engaged in that department until within two years since. I make it a practice to go to all large fires. I go to render aid, and to advise my fellow-citizens. I was at the great fire of 1835. While I was chief engineer, I pro- cured a map to be made, of the fire districts. I was the first who proposed the fire districts, and had a map made of them It was considered the best map at that time. I was in the City Hall on the evening of the 16th December, 1835, 141 when I heard the bell ring the alarm. This was between eight and nine o'clock. The fire commenced in the store of Comstock &, Andrews. I ran down to Merchant-street. I did not attach myself to a company. I saw that the store, when I reached it, was in flames. It was crossing to the house opposite, the flames nearly reaching the windows on the opposite side of the street. I rushed into the store, to aid in removing goods. We didn't get out more than two cart loads. Everything we took out was on fire in a few minutes. The fire Imrned so rapidly, that the people in- side got alarmed least they could not get out. It was im- possible to get out in front, and we then succeeded in getting out on the rear, through the iron l)ars before the windows, which we pried apart. 1 then went to Merchant-street, and saw it on fire down to Pearl-street, on both sides. I went from that to the rear of Wall-street, directly to the house where the firo originated ; one of the houses on the rear of Wall-street was in the act of taking fire. It was occupied by an insurance com- pany. The gable end was a blank wall. We saved that house. I went immediately to tlie corner of Hanover-street and Exchange Place. The Exchange was then taking fire, the first time. The windows were taking fire, ft was about half-past eleven o'clock. By great exertion, we succeeded in putting this fire out. I had considered that the Exchange was safe from fire, and had induced people to bring their goods there for safety. About half-past twelve o'clock, my attention was called to smoke coming out of the rear corner of the Exchange. I went up, and was going over the dome, when I found the fire had got to the roof. I came down and reported the facts. T ordered every thing to be 142 taken out as quickly as possible. The lower part of the Ex- change was filled with silks. We took the best goods away first. These goods were all destroyed afterwards. The Exchange was burnt up. I crossed over to the Bank of America, and stated to them, that it was Hkely the fire would cross Wall-street, and advised them to remove their books and papers. I recommended the vaults in their new build- ing, which were finished, though the building was not. I had a brother in the bank, and was interested in assisting them pn his account. I assisted to remove their books and papers to the new building. I found the windows on the upper side of Wall-street were taking fire. At that time, we had no engines that we could look to for assistance, the hose from Hanover-street to the river being entirely frozen ; all were inactive. I could not get an engine for the Bank of America ; all was frozen ; the Department was completely paralyzed ; we carried water into every room in tumblers, pails, or coal scuttles. I gave directions not to throw a drop of water, except where there was fire. I went up to the roof ; it was then on fire in six diflcrent places along the roof. I had a coal hod filled with water with me, and a small pitcher in my hand, and I poured a drop of water on the fire, where- ever it would appear: by this means, we stopped the fire. At tliis time, the Exchange was burning furiously ; part of the walls fell, and parties were injured. The heat was so in- tense, that I had to hang an iron fire fender on my arm, to keep the heat ofi" my face. My clothes were all destroyed by the heat. The width of the street, from building to build- ing, opposite the Exchange, was seventy-two feet. When I was coming down stairs, in the bank, I met a young man who belonged to the Phosnix Bank, who told me, that Mr. Dela- 143 field wanted to see me The ITioenix Bank faced Wall-street, and extended towards Garden-street church. Mr. Delafield requested me to get thirty or forty firemenj and come over and endeavor to save their baak. I stated that I would go over and see what was absolutely necessary to be done. This was towards morning, about three o'clock. I went on the building, and found that the rear stores, fronting on William-street, were on fire, and that the fire had crossed to Garden-street church. The roof of the bank did not take fire. There was a large dome on the roof. The front of the bank was in the vicinity of one hundred feet wide ; it covered the block on that side. The dome was on fire several times ; Imt I followed the same means as I used with the Bank of America, and extinguished the flames. I saw the fire cross from William-street to the south side of Garden-street, west of the Exchange. It took the north side first, and burned faster than the opposite side. The windows on the east side of the church took fire from the flames of the burning stores. The church-yard was two hundred feet in width. The church stood pretty near the middle of the lot, and was about seventy-five feet wide. The Bank was about seventy feet distant from- the corner of the church. I saw the fire communicate to the buildings on Garden-street. The fire took the corner Ijuilding on the south side. The church was burned by the time the house on the opposite side took fire. While I was standing on the roof of the Bank, the church burnt up. The steeple fell — it fell directlv into tlie church. The fire w^as burning rapidly, on the south side of Garden- street, towards Broad- street. Just after the steeple fell, Mr. Samuel J. Willis, Al- derman Smith, and another gentleman called at the Phosnix 144 Bank, and asked me, if I had ever blown up a building ? I said that I had not> but that I knew how it should be done. They told me, tllat Mr. Lawrence sent them to me, to know if I would undertake it. I said I would. The fire was then three or four houses west of William-street, and was proceed- ing rapidly. Mr. Delafield remonstrated with me, and opposed my going. I called his attention to the fire, which was then going with rapid strides. I pointed out the neces- sity of my going. I thought the place selected for blowing up, was the best place powder could be put, as it offered facilities for blowing up, and preventing the fire from going into Broad-street. I told this to Mr. Delafield. I said that, in case the fire was not stopped there, it would go into Broad and Wall streets, and burn up the Phoenix Bank. He then told me to go. At this point in the evidence, Major-General Sand- ford came into court ; and by consent, Mr. Wenman's examination was suspended, as General Sandford was unable to remain longer than necessary. Charles W. Sakdford sworn. — Examined by Mr. D.wies. I reside in the city of New-York. I have resided there some fifty years. I am and have been since 1837, Major- General of the Division of Militia in New- York city. I was in the city of New- York, on the night of the fire in 1835. I reached the fire an hour before the blowing up in Exchange Place. It was about three o'clock. I gave no advice as to the blowing up. I saw the progress of the fire. The Fire Department, in my opinion, with the means they had at command, could not stop the fire, from the coldness of the 145 weatlier, and the rapidity of the progress of the ilamcs. I saw the fire in Broad-street. It spread with the greatest rapidity and violence. The means used to stop the fire, was blowing up a building in Exchange Place. That stopped the fire. I did not see the powder going in. I was not near enough to see the preparations. I heard both explosions ; but I can- not say, what time elapsed between the two explosions. I did not witness either. The effect of the explosion was at once to stop the progress of the fire in that direction. I was not in command of any force that night, but was tlie next day. The district l)eing filled vnih people, who had assem- bled, some for levity, and some for plunder, I ordered out a large force, and remained in command for three days. Cross-examination hij Mr. Van Wagenek. In Broad-street, directly opposite Exchange Place, where the explosion took place, there was an immense amount of pro- perty piled up against the houses in several places, to the height of tlie second story windows, and exteiiding to the middle of tiie street. This mass of goods extended from above Exchange Place to Beaver-street, and covered that street. Direct examination resumed h)j Mr. Davies. If the fire had reached Broad-street, these goods would in- evitably have been destroyed. These goods were saved. I left a large force in charge of them. They were taken away by the owners, as rapidly as they were able to identify them, after the fire. 19 146 The examination of Mr. Wenman was then resumed, hy Mr. Davies. I am satisfied that the fire, if it had not been stopped by the explosion, would have destroyed the buildings on Broad- street and Wall-street. "Warner & Kiersted's paint store was directly opposite No. 52 ; and if that had taken fire, it would have communicated the flames to the buildings on Wall and Broad streets. Mr. Willis told me, that Mayor Lawrence had sent to the arsenal, in Elm-street, between White andV/alker streets, for powder. I remained on the Phoenix Bank, until the powder arrived. No. 44 Exchange Place was then down. The windows of No. 46 had blown out. The fire acted in that way. The first thing to be observed, when a building took fire, was the smoke coming out of the ridge of the roof. It would be but a few minutes, before the upper windows would fly out. In all cases, where houses are on fire, gas becomes generated, and ascends to the roof; that gas will lead the fire along the roof, and when the gas in the upper part of the building takes fire, the weakest part, for example, the windows, are blown out. It was from twenty to thirty minutes from the time the smoke issued from a building, in the manner I have described, before it was all on fire. At this time, as soon as the smoke began to issue from the roof of No. 48, 1 turned and went below, to go to where the powder was. I went to the corner of Nassau-street, where there was a cart, with a barrel of powder on it. A board was laid on the top of the barrel. The sparks were flying in every direction, like a snow storm. I remon- strated with the man, for the manner in which the powder 147 was brought. The man said he collected it (the powder) from cartridges intended for firing salutes. The barrel was about half full. He handed me powder in a cannister for a train. I got a piece of muslin, and covered the top of the barrel with the muslin. I asked a watchman to assist us, in carrying it. He put his club under the barrel, and Mr. Cox took hold of one end of the club. The policeman held the other end ; while I held up the bottom of the barrel ; and we passed down about one hundred feet, on the south side of Broad- street ; when I found the powder was trailing out of the bar- rel. As soon as I saw it, I ordered the barrel to be put down, I saw a man, with a blanket. I cried out to the man, to bring me the blanket. He brought it ; and we wrapped the powder in it ; we proceeded down Broad-street to Gar- den-street. I saw Mr. Lawrence, in front of the paint shop. He crossed over immediately to No. 48. At that time, as I ap- proached the cellar, I noticed the fire falhng through the hatchway. We took the powder into the cellar, and carried it about to the centre. We then set it down pretty lively. Immediately, some one took a piece of calico, and spread it towards the door. I asked for a slow-match. They said Mr. Hamilton had gone to prepare one. The train was laid on calico, towards the cellar door. I collected paper to lay at the end of the train. Mr. Hamilton then came with the slow- match. We then stated to Mr. Smith, that all was ready. Mr. Hamilton then said, that he ought to fire the train, as he had procured the slow-match. I did not contest his right, but handed him the candle. We then left the cellar. I halted to get several persons out of the way. I saw the train flash. A few minutes elapsed, when I thought the match could not have taken fire. Cox and I returned to the 19* 148 building. I looked down, and saw tlirough the open door the fire going up to tlic barrel. We made towards Mr. War- ner's. By the time we got there, the explosion took place. The whole building seemed to rise up and quiver, and then the whole fell in one mass. After the powder look fire, the explosion was immediate ; but the slow match detained it a little. Not ten minutes elapsed from bringing in the powder until the explosion. The buildings would have certainly been burned ; and as to the removal of the goods, that could not have been effected. The goods from the stores, Nos. 40, 42, 44, and 46, were thrown out into the rear. There was a court-yard in the rear, and passage way from it. The whole of the yard was level with the basement. All the goods that were thrown there, were burned up, because they could not l)e got out. I heard the cry of powder, as we went towards No. 48 ; and tlie people made their escape, as fast as possible, towards Broad-street. {Witness describes No. 52, on the map.') I went into No. 50, to see the efi'ect of the explosion. I saw that the wall was completely cracked ; the rear was on fire ; and, on the rear of the buildings, the fire was approach- ing more rapidly than in front. I saw the powder brought into No. 52, by the marines. I immediately remarked, to those who were witli me, that as the officer had come to blow it up, I would go to the Phoenix Bank, and witness the explosion from it. Just as 1 got to the bank, the explosion took place. The second explosion could not, at the greatest, have been more than tliirty minutes after the first. X believe that the fire would have crossed Garden-street, and burned Mr. Warner's paint shop, and would have then gone into Wall-street, had not the buildings been blown up when they 149 were. The fire stopped at No. 52. There were no other means, but gunpowder, to stop the progress of the fire. The powder was used at the proper time. It would not have been effectual at any other spot. Exchange Place was thirty- seven feet wide from building to building. Broad-street, at Exchange Place, was eighty-eight feet wide. That was the broadest place. At Wall-street, it was eighty-five feet ; and fifty-seven feet at Beaver-street. To Mr. Whitehead. — It is one hundred and twenty-five feet from Broadway, on the east, across to Morris-street. No. 52 would have been consumed by fire, if it had not been blown up. I was on the Phcenix Bank, when the fire crossed William-street. Either six or seven buildings were burned on the south side of Exchange Place, before it reached No. 48. I think No. 48 w"as the seventh building. All the build- ings, to No. 48, on that block, were destroyed in two hours. To Mr. Van Wageimi. — The house on fire, in Merchant- street, was the third house, and about forty feet from the corner. The Court adjourned till ten o'clock, Friday morn- ing. Seventh Day. — Friday, October 15, 1852. The Court was opened at the usual hour. The jury were called ; and the trial proceeded. Mr. Davies rose, and stated to the Court, that he proposed to call witnesses, who vi^ould prove that Lord & Co. had received upon their policies of in- 150 surance, from the insurance companies, the amount of S47,155 ; and for the purpose of raising the ques- tion upon this evidence, he would offer to prove this fact. This evidence was objected to by the plaintiff's counsel, as inadmissable. The Court sustained the objection ; and the defen- dant's counsel excepted. Mr. Davies then stated to the Court, that the de- fendant rested his case on the evidence adduced. The following additional testimony was then pro- duced, on the part of the plaintiffs. Mr. Henry W. Titds called, and examined by Mr. Van Wagenen. I reside on Long Island, in Suffolk county. I resided in New- York, in 1835. I was a builder. I carried on the busi- ness of a builder, at that time, for eight years. I built a num- ber of houses for Edwin Lord. They were on Exchange Place. I do not know how long those houses were then built. I don't think that No. 52 was built at the same time as the others. The character of these buildings, as to being fire-proof, I believe, was as good as that of any houses in New-York. I attended fires very frequently, and observed fires in reference to my occupation. The part of the block next to William-street, was built with party walls. The coping on the roof was higher than usual. The buildings on that block had been burnt up before, and these were built higher. 151 The walls of No. 52, according to my impression, were inde- pendent walls. No. 52 was not built at the same time with the others. I am inclined to think, that the party walls were only sixteen inches thick, while the walls of No. 52 were twelve inches, and the wall of No. 50, towards No. 52, was twelve inches thick. No. 52 was deeper than the other buildings. There was one window in the rear building of No. 52, ^t the end. The rear building of No. 52 had a separate and distinct foundation. The front and rear build- ings were at first separate. They were afterwards connected by a passage way. There was no communication between the cellars. I was at the fire, on the morning of the 17th December. I was in the neighborhood of the fire nearly all night, except perhaps a half an hour or an hour, when I went home to my family. The body of the fire was from the Ex- change, burning to the river. I watched the fire in those buildings which I had built. I had built about twenty stores in the neighborhood. The fire burned fifty or fifty-five stores that I had erected myself The fire burned very rapidy towards the west. I think the fire burned with less rapidity after it got into the block in Ex- change Place. The wind had died away. When I reached the fire, it was at its most alarming point. The fire burned slower as the night advanced. When I saw it, it was bumr ing towards the North River. All the way down to the East River was burned up. As it progressed, it seemed to burn slower. I have been frequently called upon, by insurance com- panies, to give my opinion as to buildings after they were burned. I believe that the fire w^ould not have reached No. 52. There was no building on the ground more substantially built. Looking at the progress of the fire, I believe that No. 48 152 would not have been burned. Tlic fire was burning; slower, because of the solid manner in which the houses were built. There were double walls carried up to the coping. All the houses had copings. Cross-exaviitied by IVTr. D.^vies. I put up llic rear building, but I don't remember when. The walls of that building were sixteen inches all the way up. It was a very large building. I was not in Garden-street, when No. 48 was blown up. I went to my house in Greenwich-street. Garden-street church was not on fire wlien I W'cnt home. The buildings on Garden-street, on the west side of William- street, were on fire. The fire was in the middle of Mr. Lord's block. The fire was within two stores of No. 48, when I went home. I was not in Garden-street, when No. 53 was blown up. I was probably going home then. When I re- turned, No. 52 was blown up. The fire was stopped at that point. I went into Mr. Meek's. I went from there to Punch's AUey. I found the fire subsided. The walls of the Exchange were very thick ; about two feet tliick. It was my opinion, that it would not have taken fire, or been burnt up. The walls of Garden-street church were two feet thick, and were a century old. I did not think that it would take fire. IknewMr. Tappan's store. I did not build it. Many houses having separate walls, were burnt up that night. Buildings of every kind were burnt up. I gave my opinion in 1844, as to the tearing down of No. 48, that it would be impossible to tear down such a house in less than 24 hours by day-light. I concur in that opinion now. I testified that it was customary in tearing down to save the material of a building. I testified 153 that it wouM take a week to tear down such a buiUing as No. 48, in such a manner as to save the material. I spoke of 24 hours, as being the shortest time in which such a house as No. 48 could be torn down. To Mr. Cutting. — I got to the ground, about half-past 1 1 o'clock. I cannot say, how many houses were then burnt. I should think, there were more than a hundred. I was on the ground from the time I arrived, until 5 or 6 o'clock in the morning, except about an hour, when I was at home. The fire had burned from the centre of Garden-street, to the East River when I left. It did not burn many more houses after I returned. The explosions took place, and the fire was stopped. The buildings, No. 48 and No. 52, were destroyed in the interval of my absence. I think the walls of No. 52 were twelve inches thick. I do not know positively that they were twelve inches tliick. There were no specifications at the time I built them. No. 52 was built about three years before the fire. The other houses were built before that. I cannot say, that No. 52 had party walls. . I should say, that it had not. There was no building contract. I am a car- penter. The mason work was done by Seaman & Hunt. They were employed by Mr. Lord, on my recommendation. To Mr. Van Wagenen. — Warner & Kiersted's store was on the north side of the church. There was a boarding house there. Warner & Kiersted's store was about twenty feet from the churcli. The buildings on the west of No, 52 were three stories high. I think the Exchange took fire on the southeast. To Ml-, Davies. — I never was a fireman. Witness described to the jury, from a diagram, the character of the buildings blown up. 30 154 To a Juror. — On my return, T came up 'Garden-street, and then went into Mr. Meeks's. From there I went into Beaver- street, and along the course of the fire. I don't know whether any buildings were blown up then. The roofs of the houses were covered with tin, laid on pine wood. Nelson .1. Elliott sworn. — Examined hy Mr. Van Wagenen. I reside in the city of New- York. I resided there in 1835. I occupied No. 42 Exchange Place. It was burnt up. I went into No. 50, occupied by Mr. Lord. I worked there about half an hour, removing goods. We left the store, when we were told that they were to be blown up. The facilities of removal then were greater than they were at first. There were then carts in Exchange Place, and the streets were clear. There were greater numbers to assist in re- moving, but not so great a crowd in the streets. People had been sent for with their carts. I don't know who said that the stores were to be blown up. From half to three quarters of an hour elapsed, after we left the store, until the explosion took place. No. 48 was thrown down by the explosion. I believe the whole of it was blown down, with the exception of the western wall. I went up to No. 50, to see the effect of the explosion. No. 50 was not much damaged by the explosion of No. 48. I did not see No. 52 after the explosion of No. 48. No. 48 was not on fire, when it was blown up. No. 46, I think, was on fire. I was at the corner of Broad-street and Exchange Place, when the preparations were made to blow up. 165 Cross-examined by Mr. Cutting. I went into No. 48, about 4 o'clock in the morning. I didn't look at ray watch on any occasion. It was a little past 4 o'clock, when I left my store, No. 42. I looked then at my watch. The store was all on fire. I was at work in the cellar. No. 42 was on fire about twenty minutes, when it had burned down to the first floor. When I left it, it was all on iire. I cannot say where the fire took first. I was in Mr. Lord's about half an hour. I was at the corner of Exchange Place, w^hen the explosion took place. The ex- plosion destroyed No. 50 as much as it did No. 48. I am pretty confident of that. I then went home. I only know what became of No. 53 by report. I did not stop to make any survey of the fire. I cannot say that any smoke was coming out of the front of No. 52. I first went to the front of No. 52, when we were ordered away. When No. 48 was blown up, the facilities for removal were greater than earlier in the night. There was then no crowd in the street. Be- fore that, there was a great crowd on the corner of William- street. The five had cleared the streets, the heat was so intense. The greater facility was in the rear. There were no carts there then. The heat cleared the streets in a de- gree. I saw no carts in Exchange Place, when I abandoned my store. When I left No. 50, I found fev^'er people on the Streets. I went directly in front of No. 52 after the ex- plosion of No. 48. I saw no fire in front. I could not say it was or was not on fire. When I say, that No. 48 was not on fire, I meant that it was not on fire in the rear. To a Juror. — Half a dozen of carts could go into the court at the rear. The alley was obstructed by goods. Those 20* 156 goods were burnt. Delmonico's, at that time, was an old brick building. The Court adjourned till half-past two o'clock. Afternoon Session. The Court came in at half-past two o'clock. Mr. Charles Has well re-called; and examined hy Mr. Van Wagenen. I was foreman of an engine company at the time of the ftre. Ques. What conversation had you with Mr. Gulick, the chief engineer of the Fire Department ? Objected to by Mr. Davies, on the part of the de- fendant. Objection sustained, and question withdrawn. The progress of the fire, towards Nos. 48 and 52 Exchange Place, was slower and slower. The fire was progressing slowly from William-street, because the buildings were at- tacked end-wise, and they do not burn so rapidly when thus attacked. The fire had then burned down Wall-street, to the river ; then along the river to Coenties Slip, through Old Slip, Old Slip is a continuation of William-street. It then crossed Water-street, and was communicating to the houses on the lower end of William-street. The fire was progressing slowly to Broad-street, working up to the wind- ward. William-street, at Hanover Square, where the fire crossed, is about twenty-two feet wide. The walk was 157 about five feet wide on each side of William-street. I thought that the fire would stop at Broad-street, as it was a natural barrier. I first went to the Exchange, in Wall-street, and then crossed to William-street. I do not know how No. 52 was built. I think the fire would have been stopped at No. 52, if the citizens had worked as hard then as they did after day-light. Ques. What was the effect of blowing up No. 48, on the fire? Ans. It hurried the fire very rapidly. The effect of blow- ing up was to cause the walls to fall down in the court, and to leave the flooring and rafters free from the wall. The fire caught them immediately. If a stream of water had followed the explosion, it would have stopped the fire, but there was no stream of water to act in conjunction with the explosion ; the exclamation, " If there was only a stream of water now," was heard twenty times. There was no fire in No. 50, when No. 48 was blown up. I think now it was a great mis- take to blow up No. 48. I thought the effect of the explosion, would have been better than it turned out. If No. 48 had not been blown up, I think there would have been abundance of time to have removed the goods, before the fire would have reached the stores, in a natural way. I was in No. 52 before the explosion. There was nothing like fire in No. 52, at the time of the explosion. The explosion of No. 48 took away part of No. 50. It threw down nearly the whole of No. 50. No part of No. 52 was injured by the concussion. It was, however, more exposed to the fire. The destruction of No. 4S presented the gable end of No. 53 to the fire. The bricks would be suflScient to stop the fire, if it continued on the w^alls, but it crept round the cornices. If the w4nd is contrary to the 158 flames, the fire progresses slowly. The fire was confined altogether to that locality. After Nos. 48 and 50 were blown up, the fire could commnnicate to the cornices or coping of No. 53, from the timbers of No. 50, in the ruins, which I should think extended up fifteen or twenty feet high. The fire communicated witli No. 52, under the roof, on the rafters. Fire licks round the corner of a l)uilding. It would have been easy to have fought the fire out of No. 52, when it reached it. I mean by fighting it out, people going and scraping it with sticks and cloths. They would have pre- vented it from burning. I saw a house in Beaver-street saved in that way, during that fire. They carried powder into a house in Beaver-street, to blow it up. I thought it could be saved without destroying it. I went to the naval officer in charge of it, and said, that I could save the building. He said, he did not like tlie hiterference of citizens. I told him, I would save it in twenty minutes ; and if not, I would help him to blow it. He consented, and drew his men out of the build- ing. I then went and got help. We went into the house and saved it, by fighting the fire out of it, with sticks and cloths. This was on the same block with No. 52. I saw buildings saved after the copings were on fire. To a Juror. — I have never seen a house saved, after the roof was on fire, without water. To Mr. Van Wagenen. — If the roof was all on fire, it would require a good deal of water to put it out. If the roof of No. 52 had taken fire, it would have required a great quan- tity of water to have put it out. Pipes would have been re- quired to reach the coping of No. 53. If No. 48 had not been blow n up, it w ould have taken an hour and a half before the fire would reach No. 52. The lower part of No. 46 was 159 not untenable. When No. 48 was blown up, the top of No. 46 was on fire. Mill-street is next to Beaver-street. Did not notice the progress of the fire towards Broad-street. My attention was not directed to the south side. Cross-examined by Mr. Cutting. I was twenty-six years of age in 1835. I believe, No. 48 was not on fire when it was blown up. It might have been on fire in the rear. When I was twenty-six years old, I was an auctioneer, in the furniture line. I was auctioneer a few months. I was for a few months before that out of employ- ment. A short time before that, I was in the commission busi- ness. I was in that business for about fifteen months. I was agent for Howell's works. I was their agent eighteen months. Before that, I was clerk and time-keeper to James P. Allaire. I was his clerk eighteen months. I was then about nineteen years of age, I think. Before that, I was clerk to David Rogers & Sons, West India sugar dealers. Before that, I went to school. I can't describe, on the map, the house that I saved in Beaver-street. It was somewhere about Nos. 43 and 45. There were no stores between it and No. 52 Exchange Place. The house saved was a dwelling house, three stories high, or two stories and attic, with dormer windows. This is the only house I knew to have been saved in that w"ay. The officer I applied to, was Captain Mix. He was in charge, and I suppose all the operations were directed by him. He was a tall, stout man. I saw another officer there. He aided, A small building alongside of it, towards Beaver-street, was on fire, and communicated the fire to the one I saved. I am chief engineer in the navy. There are nine chief engineers. I am 160 not engiiieer-in-chief. Our business is to superintend steam engines when they go to sea. Neither Mr. Wenman nor I took charge particularly of the blowing up of No. 48 Exchange Place ; each one w^as doing the best he could. Mr. Wenman and I acted principally in laying the train. The powder was covered with a tarpauUn. Itliinkit was a tarpauhn. It was not too dark to see a tarpaulin. I know nothing more than that the powder was in a keg. I cannot describe it ; it w'as too dark to see. There was a head on it. I knocked the head in with the heel of my fire boot. It is difficult to say, what sort of cask the powder was in. I fired the train out- side the building, on the steps leading to the cellar ; or Mr. Hamilton and I. It was three or four minutes before the ex- plosion. It hung fire. Mr. Wenman and Mr. Cox went back to see it. The match was formed of paper and pieces of a champagne basket, which I found in the street. This was as much as I was concerned in it, I do not know who brought the powder, or where it came from. T saw it at the corner of Broad-street. I do not recollect the man who had it. I do not recollect Mr. Wenman and Mr. Cox having it. I saw No. 46 Excliange Place on fire. I do not recollect how long it took to spread over all the building. The fire in No. 46 had extended to a moderate extent. I did not hear Mr. Elliott's testimony. If it took but twenty minutes to burn that building, it burned fast. If that was the fact, I should say the fire burned fast, as far as that building was concerned. I don't recollect how long I was in No. 52 ; perhaps five minutes. I do not know what goods were in No. 52. I do not know the quantities of goods, I climbed over. There were not a great many goods in the store. Ques. — ^When saying that there was time to remove the goods, what do you speak from ? 161 A71S. I did not turn my attention to it. Goods were thrown out. I do not think there were carts in the street. There were hand carts. Broad-street, at Exchange Place, was between eighty and one hundred feet wide. The goods were on one side of Broad-street. They were piled to different heights. Goods were in the street. Those goods were inflammable. Ques: What was the space from the houses on the east side of Broad-street, to these goods on the street ? Arts. Different distances. There were very few goods in Beaver-street. There was a paint shop on the north side of Garden-street, opposite No. 52. If that store had caught fire, there would not have been much danger of the fire spreading into Wall- street. I didn't know of any cotton warehouses on Broad- street. I knew Meeks's cabinet warehouse. If it had taken fire, the certainty is, that it would have burnt the houses near to it. The windows of the buildings in Exchange Place had no iron shutters on them. I do not recollect what the shutters in front were composed of. To a Juror. — A brick wall of eighteen inches, would be sufficient to protect wood from fire. If the bricks were so hot in the rear building of No. 52, as to burn a man's fingers in taking them up, I should think the building must have been on fire. Samuel R. Brooks, exa?nined by Mr. Van Wagenen. I resided at No. 84 Broadway, in the city of New- York, in 1835. I was present at the great fire, in December. I first went to a building in Hanover Square, occupied by Post, 21 162 Gibson & Post. Those people who were in the building, left it when it became unsafe. I went from there to No. 52 Exchange Place, to assist in removing goods. Mr. Edwin Lord occupied No. 52 Exchange Place. I arrived there about twelve o'clock. I was working in the building, (No. 52,) all the time. The fire had not crossed William-street, when I went into Mr. Lord's. We worked in removing goods until we received notice, that they were to blow it up. I remember coming out and crossing the street, and meeting Mr. Lawrence and Aldermen Benson and Taylor. I had some conversation with them. They went aw^ay towards Broad-street. I remained there a long time ; so long, that a large amount of goods could have been removed while I was standing there. I made some remarks lo the gentlemen relative to blowing up. I recollect that I concurred with them in the necessity of blowing up. There was no order with reference to No. 52. I didn't un- derstand that they were ordered to blow up No. 52. The fire was one or two buildings off. My impression is, that I waited near an hour. I regretted that I did not continue re- moving goods. They were a long time bringing the powder, I am not positive as to the time that elapsed between the blowing up of No. 48, and the blowing up of No. 52. It may have been half an hour or more. I went into No. 52, after the blowing up of the first building, and I felt gratified that it was unharmed ; and I thought that, if I could get people to assist, we could remove the goods. People did not wish to go in ; but I felt satisfied, that there was no danger. I weni in myself. There was no fire whatever inside. The effect of the first explosion was, that the walls of the exploded buildings fell in, and dragged every thing down. The ruins were up against No. 52, The buildingj No. 50, was thrown 163 down by the explosion. The fire was constantly approach- ing those buildings. I should think that No. 44 was entirely consumed, and No. 46 was in flames, at the time of the ex- plosion. The fire was coming towards us. Probably the coping of No. 48 was on fire before the explosion. I mean the cornices. Cross-examined hy Mr. Cutting. The time that we received the notice of blowing up, was about two or three o'clock. We had been removing goods from the lofts. We worked very hard. We had removed about one half of the goods. About 300 cases. We worked rapidly. We- had from five to twenty men assisting. It was, at first, difficult to get assistance. When I crossed to Mr. Lord's, the fire was not in Exchange Place. I recommended removal, because the fire was coming with such tremendous violence, in all directions, against the wind, that we couldn't tell where it would stop. It crept along against the wind, with tremendous rapidity. I was astonished to see its pro- gress. I worked half an hour. I would go and look out very frequently. The fire was coming up Garden-street. The notice of powder came from below. First one voice cried out, and then several voices cried out. I do not know who first gave notice. No stores were mentioned. When I went out, I saw two men with something across their shoulders, covered with a tarpauhn. I was told, that it was powder. This was after the explosion. I saw no powder, when I first came out. It was in consequence of the notice, that we left the store. Nothing more than that. I expected they would have blown it up. I was anxious to 21* 164 have it done. There were no flames coming out of No. 50. I saw smoke. There might have been flames. I went througli the building (No. 52,) through each room. I went into the rear building after thfi explosion. It belonged to Mr. Edwin Lord. I know when the explosion took place, if the bricks from No. 53 were hot enough to set a shed on fire, there must have been fire in No. 52. WoRTniNGTON D. HoDGKiNsoN swom. — Examined by Mr. Van Wagenen. I resided in the city of New- York, between Nassau and Fulton streets, in 1835; I was a fireman. I was attached to engine No. 25. No. 15 was not at the fire. I was pre- sent at the fire. I was in the rear building of Nos. 50 and 53, occupied by Hubbard &c Casey. Seeing that there was danger of the fire crossing William-street, I went to give my assistance in removing goods. I cannot answer as to time after the fire broke out ; my ideas as to time, that night, are one confused mass. I worked there nearly an hour. We re- moved a good amount of goods from the rear to the front. Hubbard &l Casey occupied the ground floor. Witness described the situation of the building from a map. We removed the goods through the two doors in the court- way, to the front. We were ordered out by some person. I believe it was a magistrate of the city. I could not posi- tively swear who it was. I worked in the store half an hour — it might have been an hour. I cannot tell the time of the 165 first explosion. After we left the store, we went down to the fire, at different places. When I returned, No. 52 was not blown up. I am positive as to that. I did not see the ex- plosion of No. 52. I then went round to Exchange Place, and when I came back, I was told that No. 52 was blown up. When I came back the first time, I was astonished to find that No. 52 was not blown up. I think there was no fire in No. 52. I presume, that No. 52 might have been saved with great exertions. I think that, if No. 48 had not been blown up, the goods could have been removed from No. 53. Ques. If the buildings, No. 48, 50, and 52 had burned as other buildings, could the goods have been removed? Ans. I am not positive as to the other goods ; but I know the goods of Hubbard & Casey might have been removed. Cross-examined by Mr. Cutting. Hubbard & Casey occupied the first and second floors in the court yard. They occupied no part on Garden- street. I know nothing of Lord & Co. I was not in their store. Hubbard & Casey ■were in the hardware business. We took out their goods in packages. These are the goods I said might have been removed. I noticed the fire particularly. In some parts, it raged with the greatest violence. I stood, with a police officer, on the corner of Exchange Place. The fire was burning in the same way in Hanover Square. It burned, in the early part of the evening, hke one streak of flame, with great fury. Up to ten o'clock, there were from thirty- six to forty houses burned down. I cannot say, how many had been burned, when twelve o'clock came. I cannot say, how many were burned altogether. The fire burned to 166 windward, and every way. It did not bum against the wind, as fast as it did before the whid. It burned more slowly against the wind. To Mr. Jones. — I cannot say how the wind blew in the early part of the evening. The night was very cold. Wlien I got to the Exchange, the buildings were all in flames in every direction. I cannot say, whether tlie wind was high or low, or in what direction it blew. It seemed to blow every way. I went to Adams's store, fronting Old Slip. I have no recollection of being in Broad-street. I saw the Garden- street church on fire. I cannot tell what lime it took fire. The first I knew of the approach of morning, was when I was informed that breakfast was ready. I cannot tell what time No. 48 was blown up. I could not tell when day-light came, the flames were so bright. I saw the Exchange on fire. I went down Wall-street to the docks. There w'cre buildings below Wall-street on fire. I was in Wall-street when the Exchange took fire. I was several times that night incommoded by the fire. This closed the proceedings of the seventh day. The court adjourned till ten o'clock, Saturday morning. EiGHTU Day, Saturday. The Court came in at the usual hour. The jury were called ; and the trial proceeded. James A. Ha.milton sworn. — Exavimed Inj Mr. Van Wagenen. In 1835, I resided in Westchester County, near Lockport. I recollect the great fire of 1835. I was at that time in the 167 city of New- York, with my family, at the City Hotel. I went to bed about 10 o'clock. My wife came to my bedside and awakened me, saying that there was a great fire in the city, and that the Exchange w^as on fire. I got up, and went to Wall-street. I saw there a great fire. I went into Broad- street, and saw the devastation committed by the fire. It was excessively cold. The wind blowing from the northwest. The cold was so excessive, that the engines could not play. That was generally the case. After going around, I went into Wall-street, opposite the Exchange. I entertained and ex- pressed the opinion, that the only way to keep back the fire from that part of the city that was not burned, was by powder. I urged tliat opinion on the Mayor, and others, with whom I conversed. I got to the scene in Wall-street, probably about 12 o'clock. I made the tour of the fire as a matter of curiosity. The opinion was then entertained, that powder must be used, and means taken to procure it. The Mayor having come to the conclusion that that mode of arresting the fire ought to be adopted, directed General Swift and my- self to go round and ascertain the different points where the blowing up of the buildings would be most effectual in ar- resting the fire. General Swift's opinion was considered of value, and not mine, (he having been in the Corps of En- gineers.) I went with him; and we, on examination and con- sulting together, decided on various points. In the course of the examination, we fixed on a building in Exchange Place, as proper to be blown up. In forming an opinion, we were influenced by two considerations : one was, that there were ranges of buildings to be preserved by making a vacuum ; and the other was, the rapid progress of the fire on the points fixed upon as proper to use powder. There was 168 no apprehension on our part, at that time, that the fire would cross Broad-street. There was serious ajjprehension in the minds of others, that it would. There was a range of valu- able property between the spoty we fixed on and Broad-street, which it was very desirable to preserve, and tlie fire was raging very fiercely in that direction towards Broad-street. That was the first point to which our attention was directed. It took some time to get the powder, from the time we made the selection. It was difficult to make progress through the crowds and other obstructions. Before this, means liad been taken to procure powder. There were no buildings blown up before five o'clock. I was witii Mr. LawTcnce, going around to different place.? for the purpose of procuring powder, and in our progress, we were in a grocery store in Broad-street. I felt that there was very great and unneces- sary delay in blowing up. I took out my watch, and said to Mr. Lawrence, " It is now past five o'clock ; and if anything is to be done in the matter, it should be done now." It is impossible to say, how long before this it was that I had stated to the Mayor the points fixed on, I believed that the necessary haste in so important a matter was not made. General Swift communicated to the Mayor, the result of our examination as soon as it was completed. Then we went around to different places, and took measures to get powder. Powder was found in various grocery stores. It was a long and tedious process. The powder tliat blew up No, 48, was got in different places where it was for sale. Some of the powder was brought to us in cartridges and cannistcrs. It was put into a lime cask. I thivik the process of emptying powder into the barrel ceased, somewhere near where the Custom House now stands. The barrel was less than half 169 full ; perhaps Iwo-fiflhs full. After we put the powder into the lime barrel, the powder was covered over with a cloak or something, to prevent it from igniting. Don't know who carried it — I did not. It was carried from that spot to the place where it was intended to be applied. The Mayor was with us, and Mr. Gulick and other gentlemen, some of whom I see in court ; also, Mr. Wenman and Mr. Cox. The pre- sence of Mr. -Gulick is impressed on my mind, from a con- versation which the Mayor had with him. The Mayor addressed him, and said, " It is your duty, as chief engineer, to set off this powder." He replied, "his business was not with powder — but with water." After we arrived at the store, the people who followed us, retired to the corner of Broad- street, and hut few were left with us. The cask was then carried into the cellar. A piece of calico goods was passed into the cask. I fastened one end of it with my penknife on the top of the cask ; the other was passed into the street, I took a cannister of powder, and laid it along the cahco to the door. Some light materials were obtained and put together, a lighted candle was provided ; and all retired, but the person who was to apply the match, and it was applied. The person who applied it, then walked down to the crowd, where the Mayor was standing with General Swift. The powder caught, and flashed off without explosion. After waiting for that, I walked up on the sidewalk opposite the building. I looked into the cellar, and saw the calico burning. Being satisfied, it would burn, I returned. It was very slow in going off, and I was impatient, and was again going to look into the cellar, but was stopped, it being thought danger- ous. I did not go, and the explosion was very soon after that. The front wall was thrown across the street. 22 170 If I had gone, I should probably have been prostrated. The quantity of powder had been insufficient, judging from the appearance of things where the explosion had been. We found the floor and roof had fallen in. One portion was resting against the adjacent building on the west. It was so prostrated, that if hook.s, such as firemen use, had been em- ployed to pull it down, it is my impression, the fire would have been arrested. That was not done. We had no hooks ; andthe whole fire department was so deranged and demoralized, that there was no direction, and no headto give orders. Myimpres- sion is, that the second tier or story of No. 48, rested against the building on the west. I am speaking of the floors of the building that was blown up. What portion remained stand- ing, rested against the adjacent building. I can't say, how many stores were between that and Broad-street. There was undoubtedly a house, next on the east, considerably consumed. The building on the west, according to my recollection, did not fall. Those timbers of the building in which powder had been employed, rested on the building on the west of it. Between the tune I took out my watch before the Mayor and the actual explosion, was probably an hour. I left the ground about seven o'clock. I was at no other explosion on the same street. I heard the explosion, how- ever. There was a considerable period elapsed between the explosions. We waited for powder. ^Vhcn the powder did arrive, we commenced making the explosions at the different points we decided on. We decided on those points in the early part of the night. I wish to explain. — ^We went round in the early part, and made selections of the points for using powder ; and when we returned, and saw that the building that we had decided on had been burned, we chose another. 17] We did not confine ourselves to any particular point. We did first decide on particular points. I can't state that No. 48 was a different store from the one first selected. When we came to No. 48, we fixed upon it as the best spot to apply the powder. The fire was burning on the windward. The wind was northwest. The fire brought the wind from, all quarters. We examined as to the inflammabihty of the building, and the property that would be saved. When we came to Exchange Place, we examined the vacuum that would be made by blowing up at that point, and we found that by explosions there, we could save all the property on the west. We examined, in every instance, as to the situation of the property, with reference to preserving as much of the property to the westward as we could. We applied powder on the east of a building, in Punch Alley. We did not place it on the west, for we found that by placing it on the east, we would make a greater vacuum. The building on Punch Alley had two corners, it was a wooden building. It was an immense explosion. The alley was very narrow. The cotton in the opposite store was set on fire. The cotton was put out, and the building was saved. We applied the powder as near to the buildings on fire, as we could to advantage. Cross-examined by Mr. Davies. The statue of my father, which stood in the Rotunda, in the Exchange, was burned. During the night of the fire, I visited several grocery stores with Mr. Lawrence. We got powder in six or seven stores. We weie diligent in endeavor- ing to procure it. We made all the efforts we could. I was at that time, United Stales District Attorney ; and at Mr. 22* 172 Lawrence's request, I wrote a note to the officer of the Navy Yard, advising him of the necessity for sending the powder and not to be over nice as to where it went to. We collected the powder as quickly as possible, at the corner of Wall and Nassau streets. I was very urgent in getting powder to blow up the buildings. I was impatient, and I know 1 thought that we did not proceed as rapidly as the urgency of the case demanded. We used all the powder we had, in the first explosion. General Swift's opinion was, that we had an in- sufliciency. We did not like to wait to get more. We thought it too important, and we did the best we could with what we had. From the time we started with the powder, until the match was applied, was fifteen or twenty minutes. The person in charge used all the despatch he could. No time was lost. There were cannon cartridges, which 1 sup-i pose came from the arsenal, in Elm-street. The time from the match being applied, to the actual explosion, was about five minutes. The lighted candle was placed to the combus- tibles outside the cellar. Tlie person who ignited it, walked away towards the mass of the people. We were anxious for the explosion. When it delayed in exploding, I walked up to the cellar, and saw that it was burning up to the barrel. I returned, impatient for the explosion, and I wished then again to go back ; but I was remonstrated with. It occupied in all, perhaps five minutes. The cellar door was left open. To Mr. Whitehead. — But one person applied the match. 1 applied the match. GeneAl Swift and 1 were left alone in the cellar. The question between us was, who should apply the match ? I had obtained the greater quantity of powder. He was an old soldier, and was not ambitious, and he gave the duty to a younger soldier. Mr. Haswell did not 173 apply the match. He was not giving directions. I was subordinate to no one, but General Swift, and he was General-in-Chief on that occasion. John P. Marsh sworn. — Examined by Mr. Van Wagenen. I resided in the city of New-York, in 1835, and was book- keeper of Stone, Swan & Co. That was the name of the firm at that time. I was with them some years. I was in the store the night of the fire. Nearly the whole of the night, I assisted in removing goods. We had directions from below, to come down from the loft, that powder was to be applied. I don't know who said so. I was then in the upper loft. I saw no fire in the loft. We were putting the goods on slings, and lowering them through the hatchway. Some were carrying goods m their arms. I was not at the explo- sion, but I heard it. It was from three quarters of an hour to an hour, from the time we got the order to come down, before the. explosion took place. There were more men at work in the latter part of the night than previously. I think there were carts coming. I think goods were carried away in hand-carts, and by hand, and by carts with horses. We had been removing goods from the store about one hour. It might have been more, or less. I was there more than an hour myself. I could not say, what quantity of goods were removed in that hour. There had been a large quantity removed. I could not give an approximation. To Mr. Cutting. — Stone, Swan & Co. occupiedt he whole store. I was in Broadway, opposite the Bowling Green, when I heard the explosion. I think it was our store, from its being the first I heard. We had not any horses or carts ourselves. 174 To a Juror. — The windows of the store on the rear were open. The case for the plaintiff here closed. And the counsel for the defendant, called — Theodore Hunt, who was sworn. — Examined hy Mr. Davies. I reside in the city of New- York. I am a builder. I had a partner of the name of Seaman, six or eight years. We constructed ten or twelve buildings for Mr. Lord, on Ex- change Place. Witness is shown a diagrara of the buildings. We built the store in the rear of No. 52. It was con- nected with the front by a passage way. Mr. Henry Titus did the carpenter work. We put up those buildings for Mr. Lord, in connection with Mr. Titus, in 1836, after the great fire. All of the stores we put up, were put up in 1836. We put up no buildings before the fire. We never put up build- ings there before the fire. I do not know how the first buildings were built. Lieut. De Camp re-called. — Examined hy Mr. Davies. I have heard the evidence of Mr. Haswell, that there was powder put in a house in Beaver-street, which was afterwards saved. Captain Mix had charge of our force that night. I pro- ceeded to a house in Beaver-street, with Captain Mix and some men, who brought the pow^der. The house I went into, was a two-story house, with attic and dormer windows. It was near Broad-street. I do not remember that Mr. Lawrence was with us. After surveying the house, I was 175 ordered, by Captain Mix, to put the powder in the entry. I got orders to blow up that house, when it should take lire, or when I should deem it necessary. There were no houses adjoining it, on the east, unburned. We w^alked around it, to see if it could be saved. After Captain Mix gave me the order, Mr. Saltus, the owner, came to Captain Mix, and begged him to take out the powder. He said, that the firemen and he would save it. This w^as after eight o'clock. Captain Mix would not comply with this request. He told the man, to apply to me, as I was left in charge. Captain Mix then went away. Mr. Saltus was anxious to have the powder removed. I told him, my orders were, to blow it up, when it should become necessary. It was nearly half an hour after, wlicn the old man came, almost on his knees, to me, and begged me to take out the powder. He said, that he had had three or four houses destroyed that night, and that it was the only one left. The fire was burning on the east side of it. I then took the powder, and brought it into the street. After the powder was taken out, we went in and opened the dormer windows, and got out on the roof, and put out a little fire, W'liich had communicated to the gutter of the house. There was no fire in the building. Mr. Haswell did not come to me, and ask me for twenty minutes to put out the fire ; for there was no fire in it. He made no such re- quest as he has stated, of me nor of Captain Mix, in my hearing. Captain Mix was there biit a few minute.s ; I was left by him in charge. This closed the evidence on both sides. Mr. Pennington, on the part of the plaintiff, stated to the Court his inability to proceed with the summing up on ac- 176 count of illness, and requested the adjournment of the case until Monday morning. The Court submitted the matter to the defendant's counsel. Mr, Davies replied, tliat, under the circumstances, they could not object ; but that they (defendant's counsel,) were willing to let the case go to the Jury without summing up on either side. The Court adjourned till 10 o'clock, on Monday morning. Ninth Day, Monday, Octoher 18. The Court came in at the usual hour. The jury were called ; and the trial proceeded. Mr. A. M. C. Pennington then opened the summing up, in behalf of the plaintiffs. He was followed by Mr. Frederick T. Frelinghuysen, of Newark, who opened the summing up for the defence, as follows : — My associates have devolved on me the duty of opening the summing up for the defence in this important case. You will not accuse me of any affectation of modesty, when I say I regret I cannot bring .to the discharge of tliat duty more ability. The plaintiffs in this cause, whoever they may be, or wherever they may reside, assuredly have one advantage over us — an advantage we may discover, but cannot obviate — it is the right of closing the argument. The gentleman who conducts and marshals this suit, has address enough to have reserved for that duty the venerable and erudite jurist, who 177 after a long life and experience, comes to us in full vigor of high intellect, possessed of all those qualities calculated to impress, perhaps beguile, both court and jury. With dis- criminating vision, he watches every step of the defence ; and if, through want of skill or inadvertence, any point is left un- protected, there he will, at his leisure, make the attack. If I had any anxiety, it would be from this cause ; but the abiding confidence I have in the justness, the righteousness ; yes, even the sacredness of my cause, and in the discrimi- nating intelligence of a jury of picked men of the county of Essex, removes all anxiety. I have said, this was an important cause. You are to de- termine whether an execution for about 8120,000 is to issue against Cornehus W. Lawrence. Whether no insignificant portion of the earnings of a life of industry and enterprise, are to be taken from him. I dare say, there are those who think this a consideration of no importance. Not so with you ; an old stale claim, raked up out of the embers of that dismal night, after seventeen years, will find little favour in that jury box. In vain do our adversaries try to delude this jury, by in- sinuating that the City of New- York is behind the curtain. The courts of New-York and New Jersey have decided, that if the defendant acted under the statute he is not liable — the insistment on which the plaintiffs can alone hope to recover, is, he acted outside of the statute, and not by its authority — that he is a trespasser — a tortfeasor — a wrong doer. It is said, the City of New- York would pay this judgment. Any tax payer could enjoin the payment. In the case of Christopher against the City of New- York, it is so decided ; and, Randolph, Justice, in our Court of Errors, says, " It is 23 178 worthy of remark, that Mr. Lawrence has no resort over to the city." It is further said, that a law would be obtained from the Legislature of New- York, authorizing the city to satisfy the judgment. You know, gentlemen, the uncertainties of Legislation. Such a law would be unconstitutional and void. What right has the State to pay judgments which may be obtained against trespassers acting in their individual capacity ? Any tax-payer in the State could enjoin any pay- ment under such an unconstitutional law. Again, it is urged, that the citizens would contriljute and raise a fund to pay the claims. The morning after the fire, the judicious and heroic conduct of the defendant, would have commanded untold gold. " When the ear heard him, then it blessed him ; when the eye saw him, then it gave witness to him ; — and the blessing of him that was ready to perish, came upon him." But seventeen years liave passed away. One half of those on the stage of action have gone to eternity. Great changes have taken place. The human heart is forgetful of obligations ; and, besides, we want no contributions. That is not the way my client has been in the habit of meeting his obligations. We came here to be justified, not condemned. We came to have worthy actions approved, not to be told how from door to door we could beg relief. And now, I ask, what must be the character of that claim which is so repugnant to justice, that in order to obtain a verdict, an eifort must be made to cast a veil over the victim, so that the jury may not see the full atrocity of the act they are called upon to perform ; so that they may be induced, by prejudice against the corporation of New- York, 179 to do what a sense of justice, and the evidence, will not per- mit them to do against Cornelius W. Lawrence. And, then, fearing that this subterfuge might fail, and the true defendant be discovered, the learned counsel has seen proper to visit Mr. Lawrence with opprobrious epithets ; vainly thinking that the idle words of a paid advocate could take from the well-earned and desirable reputation of a long and eventful life. If that learned counsellor ever does as much for his country, in any station he may fill, as he whom he would stigmatize did on the dismal night of the 16th of December, 1835, he will fulfd all the anticipations of his friends — high as they may be, high as they are. And, now, what are the issues, the questions, on which the jury is to find a verdict ? The plaintiff has simply declared that the defendant un- lawfully destroyed certain personal property in his posses- sion at the time, and thereby damaged him. I. To this, the defendant pleads the general issue, by which he denies that he damaged the plaintiffs, by destroying goods in their possession. This plea puts the plaintiffs to the proof of two things — 1. What property of the plaintiffs was destroyed by us 1 2. What was its value at the time of its destruction ? Hey^e the burden is on the plaintiffs. And they are to satisfy you ; — they are to demonstrate and make it certain that the plaintiffs' property was destroyed ; and what that property was. We admit, and will for ever glory in admitting, that we blew up Nos. 43 and 52 Exchange Place ! What is the proof tjiat their pj-operly was destroyed ? 23* 180 1. They say that twenty-five bales of goods, belonging to the American Print Works, were destroyed, in the possession of Stone, Swan and Mason, No. 48, and that these goods were sold for $1866.61. There is no proof that these were the goods of the Ameri- ican Print Works. Mr. Henry A. Stone, says, from the general course of business of Edwin Lord & Co. he under- stood these goods to be bought by Mr. Lord, on account of American Print Works. But, Mr. Bacon, of the firm of Edwin Lord & Co. tells us, that Edwin Lord &; Co. were not in the habit of making purchases for the American Print Works ; that he remembers no instance of their doing so ; that David A. Lord performed that business. Mr. Stone tells us, that the name of American Print Works was not used in this purchase. The extract from the books is here. {Reads it.) American Print Works do not appear in the whole transaction. Stone tells us the goods were at their (Edwin Lord & Co.'s) entire disposal. There is nothing to connect the American Print Works with the goods in No. 48. Let us consider the goods destroyed in No. 52 Exchange Place : Francis Bacon says, that goods of the American Print Works, to the amount of $61,725.50, were then destroyed. I submit, there is no proof of this. That it is our right, and yours, to have satisfactory evidence. The books were saved. Edwin Lord, who knew all about the transaction, is living in New- York. The books of the American Print Works can be had. Why is this proof kept hack ? I will tell you. The whole property of Edwin Lord & Co. amounted to 8140,000 or $150,000, and they were insured to the value of that stock. They saved $54,000 of goods. They presented a claim of $90,000 to the Insurance Companies, 181 and this included the claim for goods of the American Print Works. Did they not settle with the Insurance Companies ? Did the American Print Works not get credit ? Bacon says, he don't know whether they did or not. He says, he don't know that the American Print Works ever got satisfaction for their goods; and donH know that they did not. Is there a doubt hut that the Insurance Companies have paid this claim ? This is the reason that seventeen years have passed avpay vi'ithout this claim being proved. It may be true in lavr, that, as against strangers, the American Print Works would have right to recover, even if insurance was paid ; or that strangers and trespassers cannot take advantage of that payment. But such a developement would seriously aifect the equity and the claim ; and put an end to all this gammon about Jersey plaintiffs. This is the reason those books are not in evidence. Now, when a party keeps back the proof, if he has it, for such reasons, he deserves no favor at your hands. There is no proof that the property belonged to the Ameri- can Print Works. Mr. Bacon did not know the amount of ad- vances of Edw*in Lord & Co. to the American Print Works, or anything near it. He did not know the value of their stock ; how much insurance they received ; whether the American Print Works were credited or not. He knew nothing of the amount of goods of the American Print Works, but by two papers drawn up by him shortly after the fire, and by a paper drawn up by Culver, a book-keeper, now at sea. This is not proof. He must remember, independent of memorandum. The memorandum was made shortly after the fire. Would not the books show the matter settled? It appears that Edwin Lord & Co. paid Stone, Swan & Mason, 182 not uiilU August, 1 836. There is some potent and foul reason why so large a claim is risked on such slender testimony, if there is anything deserving that name. 2. The plaintiffs must show the jury, the value of the goods, at the time of their destruction. And here you are not bound down to any nominal prices — no fair weather estimates are to guide yovi. That terrific night annhilalcd all scales and tariffs of prices. The same dispensation which beggared one thousand in affluence all over the land, set at naught the calculation of the merchant. The learned judge has already said, "It is a ?iiatler of opinion what they are worth." What was the immense mass of luxurious silks piled in Hanover Square, which five hours before would have commanded untold gold, worth? Not worth half the value of the blanket which those heroic men tore from the shivering limbs of the passer by, to protect their priceless burden of powder. What were the piles of books and papers in the market place, which a few hours before were beyond all price, worth ? Not a single bucJcct of water. What were the the treasures in the Rotunda of the Ex- change, or the church in Garden-street worth ? Not worth the taper which Mr. Hamilton held, when he ignited that train. What were the goods of the American Print Works worth, already taken possession of by thaXfcurful enemy, which by its destructive ravages had paralysed and appaled that brave city ? What were they wortli, as those having them in charge rush from the building, crying — ^that "it was on fire?" What was the worth of those goods they abandoned volun- tarily, as worthless ? Gladly would they have annihilated them, that they might not feed, and nourish, and give greater strength to their foe. 183 It seems to me, that it required a seventeen years' discipline to summon hardihood enough to come calmly into the precincts of New-Jersey, and ask her citizens to declare that worth 8120,000, or worth a single stiver, which they them- selves, by their abandonment, had declared valueless. If there was no value to the goods, situated as they were, or if not proved whose property they were ; — on this issue, your verdict will be for the defendant. Second Issue. — It is a principle of common law, too familiar to be questioned, that to prevent pestilence, shipwreck, loss of life, starvation, or public calamity, private property maybe taken and destroyed, with- out the person destroying being hable to pay damages as a trespasser. It is subject to this rule, all men hold their property ; and, in consideration of so holding their property, all liave the benefit of the rule. The existence of the rule for the benefit of each, is the equivalent each receives for the destruction of his property under the rule. When the question comes to taking property to save life. Lord Coke says, " Every one ought to bear his loss a safeguard to the life of men." — (12 Coke, 62.) There is no right to damages. — (1 Dallas, 357.) Such was the law, when New- York, by statute, determined who should be under obligations to destroy private property in cases of necessity. 25 Wend. p. 143. 2 Donio, p. 474."5. And here, my learned friend grows eloquent about the dis- graceful proceedings of the Legislature of New- York. The statute gives compensation for the building destroyed — for 184 Ihe lease — for all personal property belonging to the owner — but none to those who have goods destroyed, who had no inte- rest in the building. And in the State of New-Jersey, where he expects such ample justice, no compensation is made for building, lease, or goods of any description, but the whole matter is left, as at common law, without other compensa- tion than the right to protection under the same rule. And if he really came to the Courts of New Jersey, because of the outrageous laws of New- York, I think there is little hope for him. No ; the plaintiffs have calculated on the easy virtue of a New Jersey jury, and will only meet with dis- appointment. The act provides, as we have seen, that the city of New- York shall, in certain cases, give damages. This is to create a penalty to prevent the ruthless destraction of property. {2 Denio, 474-'5.) Now, we have pleaded — That, by an act of the Legislature of New-York, in force on the I7th Decem- ber, 1835, the Mayor, with the consent and concurrence of two Aldermen, is authorised to destroy any building which they may deem hazardous and likely to take fire. And that the defendant, as Mayor, with the consent and concurrence of Aldermen Benson and Taylor, in pursuance of the act, procured the stores to be blown up ; and that the immediate destruction of the stores at the lime they were destroyed was necessary, without waiting to take out the plaintiffs' goods. The plaintiffs reply — That, the defendant did not, as Mayor, with the consent of the two Aldermen, and in pur- suance of the act, destroy the building ; and that the im- mediate destruction of the buildings, without waiting to take out the goods, was not necessary. 185 To sustain the plea, the defendant must prove — 1. That he, as Mayor, destroyed the building, with the concurrence of the Aldermen, and in pursuance of the act ; 2. That the immediate destruction of the buildings, at the time they were destroyed, without waiting to take out the goods, was necessary. And now, how is this to be proved ? The first point is proven — Judge Benson says, " That the defendant, as Mayor, together with himself and Alderman Taylor, adjudicated jS^o. 48 to be hazardous, and that it should be destroyed ; and after No. '48' was destroyed, that they adjudicated the same of No. 52." This testimony is confirmed by many others. Now for the second branch, to wit, "That the immediate destruction of liuildings, without waiting to remove the goods, was necessary." How is this to be proven ? The statute which authorizes the defendant and Alder- men to adjudicate, directs them to adjudicate on two matters — 1. What building to destroy. 2. When to destroy that building. If their adjudication is a good justification for destroying that building'; it is a good adjudication for destroying it when they did destroy it, or immediately, without waiting for any- thing. If this view is right, here is an end of the case. Bat here, the opinion of the Court of Errors, on the first pleas, is inter- posed. And lei us look at the history of this cause : — De- fendant originally pleaded, that he destroyed the building, and that the goods were in it, and were blown up, as it was lawful for him to do. 24 186 The Supreme Court, on demurrer, sustained this as a good defence. But our Court of Errors looked on the statute, not as regTihiting tliis natural law of necessity, but as a " taking of private property for public use," under the law of " eminent domain ;" and, as the courts of New-York had decided the statute, gave no compensation for goods in a building, which were owned by others than those who had an estate in the building. Our Court of Errors decided that the statute was in violation of the constitution of New- York, which provides that private property shall not be taken for public use without compensation, and reversed the decision of the Supreme Court, in these words, " If the statute, pleaded in this case, gave to defendant a right to destroy the goods in question, and if he did destroy them under and by virtue of that right, then it was done for the public use and benefit, and it was the destruction of private property for public use ; and as statute provides no compensation, the law is uncon- stitutional and void." — {Nevius^s Opinion.) The plea \vas then amended, so that it stales the statute, and that the building was destroyed under it, and that it was immediately necessary to destroy the building, without wait- ing to remove the goods. This plea, then, came before the Court of Errors ; and that Court reversed its former strange decision, sustained the pleas, and decided that it was not an exercise of the right of eminent domain, but an exercise of the great law of necessity ; and hence, not liable to the objec- tion of unconstitutionality. (Carpniter's Opinion, p. I, 2, 8, 9, 10, 14.) So the Court of Errors finally came back to the true ground, — that the statute only regulated the natural law of 187 necessity, and was no exercise of the right of eminent domain. And that being so, how are we to prove that it was neces- sary to blow up and destroy buildings then, when they were destroyed ? In the same way that we prove it was neces- sary to destroy that building, rather than one on Washington Park — hy the adjudication of the Mayor and Aldemeti. Had the law stood, as our Court of Errors first left it, that is, — " That the effect of the statute was to take private property for public use," without compensation being made for this property by statute, the statute would be un- constitutional ; and we would, as to the goods in question, have been acting outside of the statute, because, pro tanto, the statute was void. But as soon as our courts decided, as the courts of New-York had, that it was a regulation of the natural law of necessity, it is valid, and we act under it. We, in the language of decisions of our Court of Errors, justify, " on the ground of necessity, arising out of statute." The act makes the Special Court, composed of the Mayor and two Aldermen, judges of the time the destruction should take place, as well as of the building to be destroyed. We have proven the adjudication. Again : If the defen- dant acted under the statute, as he did, if the statute was constitutional — and it was constitutional, if it was but a re- gulation of the law" of necessity, as our courts say it was — then no public officer can be held liable for the necessary results of a public duty. The destruction of the goods in suit was a necessary re- sult, beyond question, of destroying that building, at that time. The difference between the second and third plea is this : the one is a necessity under the statute, met and 24* 188 satisfied by proof of the adjudicated necessity, as provided by the statute ; the other, a necessity at common law. If in this view, I am wrong, and we are bound to prove to the jury a necessity at common law, or to make proof aliunde, then let us treat the second and third pleas together. Was the destruction of No. 48 and No. 52 necessary for the safety of the city at the time they were destroyed, with- out waiting ? 1. There is one item of proof before the jury without ob- jection or exception from the plaintiffs, entirely uncontra- dicted. It is this ; that an uidividual who had been selected by a community larger than that of New Jersey, on account of his probity and intelligence, in obedience to the laws of the State and his official oath — without any personal cr selfish mo- tive — in view of all the circumstances, after consultation with those whose whole life and profession qualified them to judge, after due deliberation, with the concurrence of two sworn advis- ers — did, on the awful night of the 16thDccember, 1&35 — when the hearts of strong men failed them, adjudicate that it was necessary, instantaneously, to destroy those buildings. Are you more impartial than was that tribunal ? Are you under the sanctions of a more solemn oath ? Are you in the pos- session of more full information than the lurid visions of that awful night imparted? Can the aid which the learned advo- cates of the plaintiffs, or even the erudite and impartial court, give you now, by their counsels, be more safe than that which Col. James A. Hamilton, Col. Temple, President King, General Swift, Messrs. Brooks, Cox, and Wenman, gave that tribunal ? Not a single person in' that great city is shown at the time to have differed with, or dissented from, that judgment ; for 189 even Engineer Haswell then advised, and aided to execute the decision which he now comes here to convert into a tres- pass ! Seventeen years have rolled around — the courts of New-York have been open all the time — and now, on the soil of New Jersey, is the propriety of that determination, for the first time, questioned. Will your decision give more satis- faction ? At this point, 1 might leave the case. But we will go further : Was that decision right ? A deep snow obstructed the streets ; a strong wind set from the north-west ; men were paralysed by the severity of the night ; the hose were frozen and lay like logs ; the water was solid in the engines. Soon the water wns exhausted ; the firemen were idle ; con- sternation and dismay had seized all hearts. Millions on millions had been and were being destroyed. If that fire lasted ten hours, or six hundred minutes, a building and its contents were destroyed for every minute ; sixty-three acres of the most valuable and compact edifices were annihilated — an acre for every ten minutes. Thousands of families liad been and were being reduced to beggary. Had or had not the time arrived, when it was becoming in the defendynt to exercise the power which had been conferred upon him : Was this an occasion when that statute was in- tended to be effectual ? It is for you to say. In that confusion and dismay he was calm, deliberate, cautious, energetic, firm ; freely taking that responsibility which others would not participate in without his sign-manual for their protection. And is a New Jersey jury now to con- demn him ? No. If there is any spot on the earth where such a plea will find little favor, it is here. New- York specu- lators may impose upon us their corrupt and fraudulent 190 Insurance Companies and Banks ; but our courts of justice and our jury boxes will cast out so great an abomination as the claim before us. But let us be more minute. About one o'clock, on the night of the 16th of December, after the fire had been raging for about four hours, the Exchange was wrapt in flames. In defiance of all human effort, the enemy crossed William- street — communicated willi the buildings on the north side of Exchange Place — in a few minutes the flames rushed in the very teeth of the wind over a vacant space of 75 feet, and the Old Church, which had for centuries withstood tlie destruc- tive hand of time, with its soUd walls of stone, crumbled be- fore this fearful element. The flames about the same time extended to the south side of Exchange Place, at Wilham- street. According to the testimony of all the witnesses, it progressed up Excliange Place, with great rapidity. Mr. Wen- man, wlio was then on the Phoenix Bank, informs us, that the six buildings east of No. 48, (the building destroyed,) were consumed in two hours, — being twenty minutes to a building. Mr. Elliott, a witness of the plaintiffs, teUs us the store ad- joining No. 48, was consumed in twenty minutes. What folly for the plaintiffs to insist, that the fire proceeded slowly against the wind. Proceeding at first before the wind, the conflagration reached the East River in about an hour ; and by that time, had destroyed but forty buildings. After that, as if in mockery of all human calculation, it careered, and rushed, and leaped, in the very face of the wind, or rather made that ele- ment obedient to its will, and subservient to its destructive pur- poses ; and if forty buildings were consumed by the fire ad- vancing with the wind, more than five hundred were swept away, when, as Counsel say, it was slowly creeping against that 191 element. And now, it is pretended thai No. 48 was not in danger. General Swift testifies that No. 48 was on fire, according to his impression, before the explosion. Alderman Benson has the same impression. Colonel James Monroe saw the powder taken into No. 48, and swears, it was then ignited. Samuel Jones Willis says, that Mr. Lawrence said, they would blow^ up No. 48, as it was then on fire. He says, " I saw it in flames." Mr. Uzziah Wenman saw the smoke from the peak of No. 48 ; and when he came nearer, bearing on his shoulders that burden of powder, which, by the communi- cation of a single spark, would have hurried him to eternity, he tells you, he saw the fire falhng down the hatchway, as he entered that very building. The memory of so marked an event, cannot be impaired by time. The testimony of so heroic a man, cannot be questioned. Mr. Cox, whose memory was impressed by the same event, corresponds in his testi- mony with Mr. Wenman. A thousand witnesses may testify that they did not see the building on fire; and the evidence that it was in flames, is in no manner affected. If, then, No. 48 was on fire' before blown up, and if it took but twenty minutes to consume a building, the use of gmi- powder did not diminish the time the plaintiffs would have had for the purposes of removal, had it not been used. The only question in this cause, in any aspect, is, whether the buildings were destroyed too soon. Now, Messrs. Hamilton and Brooks, whom the plaintiffs have I)rought here, and recommended to your confidence, tell you they were impa- tient at the delay. It has been said, the Mayor was guilty of a " timid postponement." That is a confession of judgment. Were it true, that the Mayor delayed, did that lessen the necessity for the final action ? No, it increased it ; and it 192 even appears in testimony that the very goods for which my respected chent is called on to compensate, had been aban- doned by the plaintilTs. before the powder was brought. Mr. Cox, who was at work in the store, informs us, that such was the fact. He could have been readily contradicted by the occupants, some of whom have been on the stand ; liut no such eflbrt is made. 1 supposed it was an admitted fact, that the building^ adjoining No. 48, to wit, No. 50, was only partially destroyed by the explosion of No. 48. But, inasmuch as Messrs. Wen- man and Cox both testified that they were in No. 50, after the explosion of No. 48, the plaintiffs have called a witness, whose memory and judgment, like good wine, seem to ripen with time ; and he tells you, that budding was entirely destroyed, so that no person could enter it. But here the plaintiffs again fail in their unworthy efTort ; for Colonel Hamilton, in answer to their inquiries, informs us, that the timbers of the building exploded rested partly in the walls of the building west of it; which it could hardly have done, if the tenacious memory of the witness referred to had not for once led him into error. And now, gentlemen, I tliink it is equally clear, that No. 53 was on fire before the powder was placed into it. Mr. Brooks went all through the building before the explosion, and he saw no fire; but Messrs. John Meeks and Joseph A. Meeks saw the fire, and burnt their hands with the hot bricks. Mr. Cox saw the smoke bursting from it ; and Judge Benson says, they determined to destroy it, because then on fire. No. 52, being on fire, was blown up as soon as possible. Before Wenman could pass from Exchange Place to the Phoenix Bank, tlie explosion took place. Many other wit- 193 nesscs slate, that it was in twenty minutes after the first explosion. But if there had been a delay of twenty hours, instead of twenty minutes, the plaintiffs cannot complain ; it gave them the more time. Their complaint is not that we delayed, but that it was not immediately necessary. The plaintiffs say, there was a cry of " powder," and that drove them off; but there is no evidence that wo raised that cry. One of the occupants of No. 52, and Mr. Griswold, » clerk there, says, he delivered up the keys two hours before the explosion. This is a strange circumstance. Why, on that dismal night, in that terrified crowd, when every earthly hope seems to have departed, go through the idle ceremony of delivering keys, as a token of the surrender of possession ? And again, how did Mr. Brooks, just before the explosion, go all over No. 52, if the Mayor had the keys ? Mr. Gris- wold's two hours, he proves, by his testimony, not to have been twenty minutes ; for he says, he gave up the keys when he saw the powder in the streets. Did that powder remain two hours, subject to the shower of fire by which it was surrounded ? And besides, a number of witnesses state, that but a few minutes intervened between the coming of the powder and the explosion. There is one other fact better than the opinions of a thou- sand witnesses — its simple statement is more forcible than all comment. The act of the defendant, for which he is sued as a trespasser— the act for which you are called upon to visit him with damages— the act which they desire you to condemn— that act stopped the fire ! It calmed the anxious tortured hearts of thousands who w'ere watching the fearful ravages of the exasperated foe, which was approaching and 25 194 threatening them with destruction. Counsel may spin their fine theories — may work out their nice speculations — ^may summon their logic and their sophistry ; and we only answer, " It stopped the fire — it stopped the fire." That Infinite One, to whose will, not only the wind and the sea, but every ele- ment is subservient, thus set the seal of His approval to the act we here defend. Had the flames reached Broad-street' and ignited the combustible material there toUected, who can picture the desolation, the woe, the poverty that would have followed ! But one of the plaintiff's' witnesses says, that the fire would, at all events, have stopped at Broad- street. It requires a degree of assurance, that to my mind is incredible, for frail, ignorant man, thus to discern the future, and then swear to it. But we arc told, the defendant should have formed a line of men, with buckets, to the river, and thus hare extinguished the fire. A line to the river ! when the water ejected from the engines came down hail ; when the water, in many in- stances, was solid in the machines — when not only men's limbs, but men's hearts were frozen. And again, what had Mr. Lawrence to do with forming lines, or any other charge of the city ? He is not sued as mayor. If he had been, this suit could not have enjoyed the brief existence destined it. If he acted merely as an individual, he was hardly under the obli- gation to protect every man's property. The conduct of men that night proves the necessity. Such heroism as has been detailed before us, is not the product of times free from peril, but of those which try the soul, and wrest from it all that is noble and Godlike ! An allusion has been made by the gentleman who pre- ceded me, to politics. And we have been told, that the 195 defendant belongs to the Tammany party. What does the gentleman mean ? Does he dare to cast the brand of politics into the jury box — to pollute this temple of justice, by an ap- peal to the most dangerous of all prejudices? Would he drive from her abode, the blinded and impartial divinity who here presides ? I fear the effect of no such allusion with men such as you. This is an unconscionable suit. It is an experiment. Should it succeed, there are not wanting men who dehght in old stale claims, with rapacity keen enough and with maw empty enough, to be induced to rake over the embers of this fire, and from thence derive some further demand, by means of which the declining years of my client may be made wretched. Our Courts are sought for no worthy purpose. The honor of our State — your honor. is at stake in this matter. Gen- tlemen, I hope you will render your verdict without leaving your seats ; and show to the world, that he who, in times of peril, and when the hearts of others fail, stands firmly to his duty, shall never, in New Jersey, want for approving friends ! Mr. Cutting, in continuation. of the summing up for the defendant, then addressed the Jury, as follows : — May it please the Court; and, Gentlemen of the Jury — But for the singular importance of this case, in its private, and especially in its public consequences, I would not, after 25* 196 the very able and elaborate summing up of my learned asso- ciate, (Mr. Frelinghuysen,) detain you a moment, by any further discussion of the evidence ; but vi'hen I consider the portentous effects that might ensue, if, from any misappre- hension, you were to arrive at a conclusion adverse to my chent, I dare not consult my own inclinations, or assume the responsibility of relieving you from the fatigue and exhaustion of listening to another argument. Onerous as would be your verdict upon the individual fortunes of my client, and deeply mortifying as it would be to his feelings, if it were pronounced against him, it would be still more fatal in its public aspects, as conveying the solemn admonition and warning of an en- lightened jury to those citizens who are, or shall be, entrusted with the administration of public affairs, not to assume the responsibility, no matter how critical or imminent may be the public danger, of destroying private property, even in order to prevent a general devastation by conflagration, . or other impending catastrophe, under the penalty of being made individually answerable for the value of the subject de- stroyed, I omit any observations upon the subject of the amount of damages with which the defendant, if guilty of trespass, ought, in any aspect, to be charged, for that branch of the case has already been sufficiently discussed, and will confine myself to the two important issues which are raised by the pleadings. The plaintiff, in his declaration, complains that the defendant has committed a wilful trespass, by destroying a large amount of goods, contained in stores No. 48 and No. 52 Exchange Place, (formerly Garden-street,) in the city of New- York. The defendant, in two special pleas, has justi- fied the act, upon two distinct grounds ; first — that, by the 197 statute law of the State of New- York, he then being the Mayor of the city of New-York, was authorized, with the consent and concurrence of any two Aldermen of that city, to order any building which should be on fire, or which they might deem hazardous and likely to take fire, or to convey the fire to olher buildings, to be pulled down or destroyed ; and that, upon the occasion in question, viz. the morning of the 17th December, 1835, an extensive fire was raging in the First Ward, and was burning with great rapidity ; and that he, the Mayor, deemed the buildings. No. 48 and No. 52, likely to communicate the fire to other buildings, and with the consent and concurrence of tw^o of the Aldermen did, pursuant to the act, order them to be destroyed ; and, that they were accordingly blown up with gunpowder. That the immediate destruction of these stores, without waiting to remove the goods therefrom, was necessary ; and the goods in question were, thereby, necessarily destroyed. The second point of defence reposes upon the great principle of actual existing necessity, which authorized the defendant, as an in- dividual, by common law, independent of any statute, to destroy the buildings referred to, in order to arrest the spread- ing of the mighty conflagration which then menaced the destruction of a great portion of the city ; and it avers, that the immediate destruction of the buildings, without waiting to remove the goods contained in them, was necessary. The plaintiffs have replied to the first plea, denying that the Mayor, with thcconsent and concurrence of two of the Aldermen, did deem the immediate destruction of the build- ings to be necessary ; and denying, that the immediate de- struction of the buildings, without waiting to remove the goods therefrom, was in point of fact necessary. 198 In reply to the second special plea, they in substance put in issue, the existence, as a fact, of the alleged immediate necessity of destroying the buildings, without waiting for the removal of the goods therefrom. Each of these defences has been held, by the Court of Errors of this State, (New Jersey,) to be sufiEieient, assum- ing the facts to be as alleged by the defendant ; and, conse- quently, if you shall be of opinion, that he has proved them to be as averred, he is entitled to your verdict, upon each of these special pleas. As tothe justification under the statute, I think you will have ■ no difficulty in agreeing, that the testimony of the numerous witnesses leaves no room for doubt, that Mr. Lawrence, then being the Mayor of the city, did, after full survey and reflection, and after consultation with many of the most pro- minent of his fellow-citizens, deliberately decide, that the buildings in question were likely to communicate the fire to others, and that their immediate destruction was necessary ; and that Aldermen Benson and Taylor concurred in that judgment, and consented, that the buildings should be imme- diately destroyed by gunpowder. By the law of the State of New-York, under which the de- fendant w"as at the time acting, and by which alone he was to regulate his official conduct, his judgment upon the facts then existing constituted afull justification. He was a public officer, acting in the discharge of painfully responsible and delicate duties; he was required, by law, to form a judgment upon the spot ; and it would be doing violence to our sense of justice, if any court or jury were to punish him, for the consequences of the honest execution of a public law, whose requirements he was compelled to obey. Convinced of the necessity for destroy- 199 ing those buildings, had he any alternative ? If he had, from selfish or prudential motives, pusiUanimously shrunk from the execution of the law, ought he not to have been held re- sponsible for all the damage and loss that must have ensued, from his criminal refusal to fulfil his official duties ? If, then, he acted in pursuance of the injunctions of the statute of the State of New- York, which was imperative upon him, and was free from all personal responsibility by the laws of the state where the act was done, he is entitled, in all other places, when pursued, to have his conduct tested, and his responsibility measured, by the laws under which he was then acting, and to which he owed obedience. If, at the time and place of the act, he was justified, and then and there was free from liability ; he ought to be held equally justified, and free ■from responsibility, every where else. If right in New-York, he cannot be wrong in New Jersey. It would be a most im- politic, as w ell as cruel principle, to compel, by law, a public officer to act in emergencies of danger, and then to nndct him in damages in another state or country, for the necessary -consequences of that which, by the law regulating his con- duct, he was required to perform. I will not trespass further upon your time, by enlarging upon principles so obvious, and a disregard of which would overthrow all constitutional gov- ernment ; but, referring you to the instructions that you will receive from the learned Court, will proceed to discuss the other great question, \^1iether, independently of the statute, and as a private citizen of the city of New- York, there was or not, such an overruling necessity, as authorized him, in the exercise of a natural right, to destroy those buildings, without waiting to remove the goods therefrom, in order to arrest the progress of the flames ? If, upon the evidence, you 200 shall find, that such immediate necessity did exist, I presume the learned judge will instruct you, that, by the rules of the common law, it will be your duty to acquit the defendant from all responsibility to the plaintiffs, for the loss of their property, which was destroyed with the buildings. In this view of the case, the burden and peril of establishing, by satisfactory proof, the existence of such a state of facts as justified the act, devolves upon the defendant. Before reviewing the evidence upon this point, I desire to advert to the sense in which the tei"m " necessity" is to be accepted and understood by you, when you come lo weigh and apply the testimony. The learned counsel, on the opposite side, who has just addressed you, has, throughout his argument, constantly employed the expression " absolute necessity," and has laid great stress upon the force of the adjective ; insisting, ap- parently, that mere necessity w"ould not be sufficient to justify the destruction of the buildings, and that to attain, that point, it must reach the degree of " absolute" necessity. He has not undertaken to explain his precise meaning in the use of this expression, or to define the limits which separate apparent from absolute necessity ; but I gather, from the course of his argument, that he intends to assert it is not sufficient that at the time, it was to all appearance, and as far as a cautious judgment could be formed, necessary to de- stroy the buildings ; but that, in fact, and absolutely, the necessity did exist, so that if, after the destruction of the buildings, there were circumstances tending to show that, by reason of a change, or lull of the wind, or other unfore- seen cause, the fire might have been stayed long enough to have allowed time to remove the goods, the defendant is 201 liable. Such, gfintlemen, is not my undevstaiiding of the law. Such an interpretation would make it necessary, in every instance, to wait until the peril had actually occurred ; O for until then, by some providential interposition, it might be averted. Such a rule would be an absurdity. The ad- ministration of justice, as a practical science, ought to be characterized by common sense, and adapted to the ordinary exigencies and conditions of human affairs. If, according to all appearances at the time, in the judgment of reasonable and ordinarily cautious men, a great calamity to life or pro- perty cannot be averted, unless by the sacrifice of some por- tion of that which is involved in the common peril, the ne- cessity which, by the common law, justifies the act of de- struction, then exists. A judgment must necessarily be formed, and depend upon the appearances at the time, and from the inferences reasonably to be apprehended from them. The act of sacrifice must necessarily precede the happening of the danger intended to be avoided. The possibility of the interposition of some sudden event, which could not ration- ally be anticipated, exists in, all cases ; but it would be im- practicable to exact, as a condition to the exercise of the right of self-preservation, that the persons exposed should suspend all action until the necessity liad become "absolute," in the sense in which that word is sought to be employed. It is enough, that there was reasonable ground for apprehend- ing the occurrence of the peril. Gentlemen, in a storm at sea, when the apparently fated ship is assailed by tempests, and menaced with destruction, involving not property merely, but life, a sacred duty is im- posed upon the mariners to interpose for their general safety. They are then justified in throwing overboard, or otherwise 26 202 destroying the property of others, to any extent that in their judgment is necessary, in order to avoid greater threatened evils. Under these circumstances, our sense of riglit has never yet been shocked by the successful result of an action of trespass, brought to recover damages for the value of goods thus purposely sacrificed. And what is the necessity which in such cases confers the right 1 Is it true, that although the storm may be raging, and the vessel fast settling, and the peril apparently so imminent, that hope expires, and instinct points to relieving the ship by jettison of cargo, if suddenly afterwards the wind lulls and the tumult of the foaming waves subsides, the occurrence of this unforeseen and im- probable event entitles the owner of the goods to treat the master and crew as trespassers and WTong doers ? No, gen- tlemen, the law is not so irrational. It does not exact that human judgment should be infallible, or presume that weak and erring mortals are endowed with supernatural powers, to see through and beyond the actual conflict of hostile ele- ments, and make them responsible for a sudden change not indicated by existing appearances. When my learned friend, therefore, speaks of " absolute" necessity, he must be understood to mean that state of cir- cumstances, which, in the cautious judgment of discreet and reasonable men, demands some extraordinary remedy in or- der to prevent and overcome apjiarently overwhelming danger. Any other principle would be unsound in morals, and untrue in law. I repeat — in the practical afl"airs of life, you must apply practical rules of common sense adapted to the require- ments of daily action. When a citizen, and especially a public officer, is called upon to exert his right or his authority, in order to prevent the spreading of disease, to pull down 203 infected buildings, or to stay a confiagraticn by similar means — it is enougli, that the act appear to be necessary accord- ing to the best judgment of discreet men ; although after events show, that by the will of a higher power, the disease or the fire would have been extinguished without resort to any extraordinary remedies. Then, gentlemen, look at the circumstances, as they were presented to Mr. Lawrence, on that memorable night. What were they 't A fire unexampled in its character and fierceness, raging during a night when the elements seemed to have con- spired in a war of extermination against our devoted city ! The weather was marked by an intensity of cold, unusual even in the very deptli of the winter — a night so inclement as to mock and deride all the efforts of man to make head against the ungovernable flames ; — the earth overladen with deep and icy snow, made more intolerable by the freezing of the water that had been scattered upon it ! It was a night, gentlemen, when the wind, driving in a resistless gale, carried terror and dismay to every he^irt. The fire commenced in a street so small and narrow, and obstructed, that the efforts of the Fire Department to reach and grapple with it, were baffled. It was a confined and miserable lane, of twenty feet in width, hemmed in on every side hy tall warehouses, of four or more stories in height. The firemen had been worn out by the toils of the two previous nights ; and by whicli the sup- ply of water, at all times scanty, had been almost entirely exhausted. The flames fled, gentlemen, before the wind. The fire reached and crossed Pearl-street, with incredible rapidity. It spread in all directions. It darted Ihrougli thick walls, as if they were pasteboard. Mr. Anderson well said, he never saw frame buildings burn as rapidly as those of brick on 26* 204 that night. Gentlemen, it sped its way across the streets like an incarnate being, fraught with life, as if the great enemy of mankind were there in person, directing and cheering on his flaming emissaries. It threatened the vessels at the wharves ; but being arrested by the river, rushed off in a southerly direction. By twelve o'clock, the whole Department was paralyzed ! Cries were heard, "Water! water!" — ^but what little there was, had been frozen. Oh ! gentlemen, it ■was pitiable, on that dreadful night, to hear the lamentations of the ruined ! to witness the despair of old and young ! to see the acquirements of years of patient and hopeful toil, con- sumed in the twinkling of an eye I It was a night of deep despair; the cry of lamentation was heard on every side. It was at that time, and under such fearful circumstances, that some of our most distinguished citizens (many of whom are well known to you, but who are now sneered at by the learned counsel on the other side, as men " entirely above carrying a bucket of water," and as being influenced by no higher motive than that of making themselves conspicuous as the heroes of the night,) assembled around my client, who was then chief magistrate, in order to consult, and adopt measures for the public safety. Who were those citizens, that, in that hour of danger, assembled, in order to ascertain what human efforts could be made to subdue this raging enemy ? The gentlemen who thus met to deliberate and act, were amongst the most eminent of our community. The time had arrived when something must be attempted, or the city be abandoned to the flames. The Fire Department was paralyzed ; it had no means of action. Its hose had been burned by the flames, or lay unmanageable, in frozen links ; or, if any portion of it was still flexible, there was not a drop 205 of water to be obtained. Gentlemen, in that fearful hour, the prospects of saving the city appeared to be desperate. The graphic language of the -witnesses, after seventeen years have passed away, and the horrors of the night, have, to a great extent, faded from their memories, is most impressive. Mr. Charles King says, " I looked on with exceeding terror. I never saw anything so formidable. I found the Mayor, with a crowd of terrified citizens around hiin. The church was on fire." General Swift remarks, "A more extensive dismay in the public mind never existed." Says Mr. Swart- wout, "This fire was very appalling. God knows, it was a terrible night." Gentlemen, it was my sad fortune to have been present. It was, indeed, an awful night ! I saw the old Garden-street church on fire. I saw its venerable steeple, which had combated the storms and tempests of more than a century, "tottering, and staggering, and reeling, like a mighty giant straggling in his last extremity. I heard the old church bell toll its requiem — that bell which had so constantly invited, under the consecrated roof beneath it, the old and the young, the prosperous and the broken-hearted, the powerful and the friendless, to commune with that beneficent Power in whose sight all are equal, — that same old hell, gentlemen, which had seen generations come and pass away, which so often had merrily tolled its peals on the marriage day, and for so long a time hud murmured its solemn dirges over the de- parted dead ! I stood and looked at the yielding steeple. Its last hour had come ; and, as it swayed, and rocked, and fell, I heard its last knell strike, and saw it disappear for ever with the moss-covered church, whose constant com- panion it had been for so many eventful years. But yet we 206 aro now told, tlial llui dcfciuliint and liis advisorji were [ioh- scsseil by insane fear, so as to have been under llie inliiacnce of temporary insanity ! Oh, jvenllenicn, if you }iad seen the vast piles of goods burning" in the streets and in the clmrch- yarti, and the buildings on the opposite side of the street in flames, and the fire working with fearful rapidity towards Broad-street, which was lined by great warehouses, filled with combuslible materials, such as the furniture and cabinet ware establishment of Meeks's ; the large paint store of Warner ; and the street, filled with goods, piled on the west side as high as the second story windows, and extending to the centre of the street ! — if you had been eye witnesses of these things, you would wonder still more to have heard the learned counsel stigmatize the dismay then prevaiUng, as the offspring of unmanly fear ! In this hopeless and despairing condition, it was the gene- ral opinion that the only expedient left, was a resort to gun- powder. How- and where was it to be obtained ? On that inclement night, Mr. Charles King and Colonel Temple, then a Lieutenant in the Service, volunteered to go in open boats to the Navy Yard and Governor's Island, in search of it. Mr. King went alone, from Fulton Market to ttic Navy Yard, in an open boat, with a single oarsman, in a gale of wind, the river obstructed hy ice, and exposed to the most excessive cold ; Colonel Temple found a small and crazy boat at Wliitehall, in wliich he went, at tlu; peril of his life, to Governor's Ishind. You Iiave h(!urd thdir itilereHling accoUTitH. The gallant men «tatii)ni;il at the Navy Yard immediately, and with the utmost alarrity, volunteered their servieeK. One of your own fellow -citi/.i-ns, ( l.icnl. |)e Cam)),) accompanied tln' powdcri, in an ojn'n Ijiirgc. and hindcd sniiii'- 207 where short of the destined point, in consequence of the extremity of the cold, and the intense suffering which he and his men had endured. These gallant sailors, always ready, in the moment of danger or of difficulty, to expose themselves for the relief of others, carried the powder from the foot of Catharine-street to the corner of Wall and Nassau streets, and there halted, in readiness for orders. By this time, our citizens had become impatient for action ; time was pressing, and the fire was advancing. Where now was Mr. Lawrence ? He, with Colonel Hamilton, was going from grocery to grocery, collecting and scraping together all the small portions of powder that could be found. He had de- tailed others to the Arsenal, for the purpose of tearing open the cartridges, and procuring in that way the contents. Under these circumstances of unavoidable delay, the fire had reached nearly to Coenties Slip, on the one side, and nearly to Broad-street on the other. According to the best judgment of the most experienced men, if it had gained Broad-street, it would have spread in all directions ; and in all probability, if it had crossed Coenties Slip, the south end of the city could not have escaped. Keeping these facts in view, what is the evidence before you as to the degree of necessity which then existed to destroy those buildings which were likely to communicate the fire to others ? Besides the convictions of such gentlemen as Mr. Lawrence himself and of Alderman Benson and Alderman Taylor, of Alderman Smith, and of Mr. Munroe, at that time, I think, also a mem- ber of the Common Council, of Mr. King, Mr. Gouverneur, Mr. Swart wout, and Mr. Wetmore ; you have had the testimony of men most experienced in such emergencies, such as Cornelius V. Anderson, who, for twelve years, stood 203 at the head of the Fire Department of the city — a man of cool judgment, of great discretion, and of tried courage ; of Mr. Wilhs, one of the most reliable men of the city, and who, for many years — I think, seventeen — had been an active member of the Fire Department ; of Mr. Wenman, who had long; been the Chief Engineer, a man whose life has been devoted to the subject of fires, and the best mode of ex- tinguishing- them, and whose experience and skill cannot be surpassed. You have the evidence of Mr. John Cox, than whom a worthier citizen, and one more esteemed by all his neiglibors, does not exist ; you have the judgment of General Swift, distinguished since the w*ar of 1812, as one of the most eminent engineers of this country, and of the most extensive practical experience. You have the evidence of Mr. De Camp, as gallant an oIEcer as adorns the Service, and as little liable to be operated upon by unmanly fear as the learned counsel on the other side ; Colonel Temple and General Sandford, testify to the same purport. You have the concurrent testimony, gentlemen, of all these distinguished citizens. You liave heard the clear and satisfactory account of Mr. John Meeks, who stood watching the advances of the conflagration, his property threatened ; and whose expression, if I recollect right, was, "We were praying;" — yes, gentle- men, "praying for gunpowder, as our only salvation." You have also heard the testimony of Mr. Joseph Meeks, to the same effect. With one single exception, that judgment, other- wise unanimous, has never been questioned or denied. What is there, on the other side, to counteract this host of apparently irresistible eye witnesses ? In the first place, they have examined Mr. Griswold. Has he uttered a word of dissent upon the question of the necessity of blowing up 209 these buildings ? Not one, that has reached my ears. Did they venture to put the question to Mr. Stone, whose goods were destroyed by the explosion of No. 48, whether any- thing less or short of that remedy, could have extinguished the fire 1 Did they venture to inquire of Mr. Bacon, who was present, and deeply interested, whether there was any need for the destruction of these buildings ? Did they ad- dress a word to Mr. Elhott, on that subject? No, geiitiemen, they decline to examine those who had most reason and op- portunity to observe ; and call Mr. Titus, for the purpose of ascertaining his judgment upon the question, w^hether at the time there was a necessity for blowing up No. 52 and No. 48. And I thuik that Mr. Titus did allow himself to express an opinion on this subject, although he was absent from the scene at the time, having no means of forming an opinion, except that he had been present at other fires. When it is considered that Mr. Titus, whose judgment is invoked, was not present at the tune, it is a little remarkable, they should have allowed those of their witnesses, wdio were present, to leave the stand without asking their opinion, and that they should have taken the trouble to bring Mr. Titus, from New- York, he not having been at the time on the ground. He had gone home before, and returned afiei- the explosion. He left at an hour so early, that the Garden-street Clmrch had not then taken fire. The plaintiffs have called Mr. Marsh, but he has expressed no opinion as to the necessity for using gunpowder; indeed, he left the store early, and w-ent near the vicinity of the Bowling Green, where he was at the time of the explosion. For some motive, inexplicable to me, they have also called Colonel James A. Hamilton ! And what does he say ? 27 210 Why, tliat the necessity was most urgent — most extreme — and pressing. " I told the Mayor," said he, " the thing must he done ; and wc went together for the purpose of collecting powder. Wc went from grocery to grocery. I took my watch out of my pocket, and said to Mr. Lawrence, it is past five o'clock ; time is pressing ; there has been great and un])ardonable delay in this matter." The delay was oc- casioned by the absence of gunpowder ; they were collecting from street to street ; from corner to corner — by the ounce and by thr pistol load. What made Colonel Hamilton so impatient ? Because, gentlemen, the necessity was so urgent. When the intelligent witnesses on both sides thus concur, what becomes of the question of necessity, as a matter of fact ? The counsel for the plaintiffs have also examined Mr. Brooks, who, after assisting one friend to remove his goods, until expelled by the beat and flames, went to the store of Edwin Lord &. Co. and worked manfully in saving what he could from theii- store. WTiat does he testify ? Said he, " The fire was coming towards us, with tremendous fury." Let me read to you, gentlemen, without detaining you long, his expressions, as I have them on my notes, be- cause, being a witness selected by the other side, you may again hear how fully he sustains us : "I recommended," said he, "the removing of the goods, because the fire was coming with such tremendous violence, in all directions, against the wind, that we could not tell where it would stop. It crept along, against the wind, with tremendous rapidity ; and (said he) nothing w^as to be done to stop it. I concurred in the judgment — that nothing could he done to relieve Ibo city, l»ut by the application of gunpowder." 211 Mr. Haswell is the only exception amongst ail tlie witnesses present, dnring tlie whole scene. He testifies, that he was present at the consultations, and took a leading part with Mr. Wenman, in effecting the explosion. He states, that he went into the cellar of No. 52 ; and. intimates, that he and Mr. Wenman were the leading actors in preparing and laying the trains. He admits, that at the time, he thought it was necessary to blow up the building ; but that he has since changed his opinion, and concluded, after the conflagration had been extinguished, that No. 52 might have been saved. He now thinks, if No. 48 had not been blown up, by the time the fire had reached No. 50, it might have been "fought out," by scraping the fi.re with sticks, and covering it with clothing ! ! Brush out such a fire w-ith sticks ! ! ! He now thinks, it was a very great mistake to have blown up No. 48. He thinks, if the citizens had only had the same energy before the explosion, as was infused into them after it, the fire might have been extinguished before reaching No. 52. "When day-light came," he says, "there was more energy." True ; and what was it that gave this fresh impulse to departed hope'? When did the terrified crowd, who had stood round the Mayor in helpless despair, first take courage 1 During the dead of the night, when the lurid spectacle of an appalling illumination struck terror into the hearts of so many helpless victims, when it was known that the Fire Depart- ment was paralyzed, and without a drop of w^ater, or any means of resistance, where was Mr. Haswell then ? and what expedients did he then, in the hour of need, suggest? After the flames had been subdued, and the terror had sub- sided, the timid took courage, and their energies returned. It is always true, that when the crisis is surmounted, there 27-^- 212 is no lack of men who are most valiant in action, and wise in council ; and it is also true, that when the night has passed, and the morning come, and her golden gates are opened, the cheerful rays of the rising sun bring genial warmth to the palsied heart, restoring lost hope, and melting frozen fear. And when the morning broke upon that scene of desolation, and disclosed the success of the expedient that had been adopted by Mr. Lawrence — when it was seen that the con- flagration was arrested, and was under the control and mastery of human efforts, then it was that Mr. Haswell changed his mind, and concluded, that it had been a very great mistake to blow up the buildings. I have, gentlemen, some little doubt upon the evidence, whether Mr. Haswell did take so active, controlling, and important a part on that occasion as, after the lapse of seventeen years, he believes that he did take. I think, he overrates the part he actually performed ; because his memory is not so tenacious of some of the impressive facts and circumstances as "that of one of the pron\inent agents would have been. For example, his recollection is, that he was present when the powder came ; and yet he is quite ignorant by whom, or how, it was brought there. If he had been present, and actually engaged with Mr. Wenman and Mr. Cox, would he not have recollected so remarkable and striking a fact, as seeing his two comrades coming through the smoke and rain of sparks and cinders, carrying between them a ricketty, condemned lime cask, which they had picked up in the street ? It was, I think, an extraordinary spectacle, not readily to be forgotten, to have seen powder carried in such a way by his two immediate associates ; and yet he an eye witness, is not able to recollect who brought the powder ; nor in what, 213 nor how it came. When asked what the powder was covered with ? he answered, with tarpauhn. But, gentlemen, the cask was covered with a blanket ; and with nothing bearing any re- semblance to tarpaulin. When asked what kind of barrel he saw in the cellar 1 lie explains, that it was too dark to see ! Then, how could he distinguish tarpaulin, when it was too dark to see the cask ? How could it have been dark in a cellar opening upon the street, with the doors wide open, and a mighty conflagration raging and shedding its terrible glare, not only over the doomed city, but over the country, far and near ; so that on your hill-tops here, you could have discerned to read ordinary type palpable and clear ? With these cel- lar doors open, and the Old Church burning in front, and houses in flames all round, more brilliant than ten thousand torches, — could it have been too dark to distinguish a lime cask containing gunpowder, to which, and from which, he was laying the train ? When asked, what he did with the barrel of gunpowder ? he said, that he knocked in its head with the heel of his boot ! It would have been a queer operation to perform on that lime cask, with nothing but the bottom in ! That boot should have been preserved as a family relic ! typical of some of the events of that memorable night. It is clear to me, gentlemen, that the memory of this witness in respect to striking features of that night, is too un- certain and imperfect, to believe that he was in as decided and prominent a position upon that occasion, as he now thinks. My learned friends on the other side, however, judging from a question which they proposed to put to Mr. Haswell, but which the learned court ruled out, proposed to promote him, during the fire, to the office of Chief Engineer ! They were just about to transfer the Marshal's baton from Mr. 214 Gulick to him, and lo devolve upon him the official command of the whole matter. V/lien I perceived this anxiety to make Mr. Haswell an important personage, an old anecdote, which I remembered to have read somew"here, a good many years ago, flashed across me. It was this : The celebrated actor, Garrick, happening to be in a public place, was addressed, with the utmost famiUarity, by a person, who exclaimed, " Garrick, my dear fellow, how are you ? I am delighted to see you." The great actor hesitatingly observed, " You have the advantage of me, Sir ; I cannot recall the time when I last saw you." " Oh !" said the other, " Don't you remem- ber when w"e played together in Drury Lane, in Hamlet ? " " Hamlet ! " said Garrick, " No, I have not the slightest re- collection of it. Pray, what part did you play in Hamlet?" "Why," replied the other, " don't you recollect that scene in Hamlet, where the ghost comes in, and is frightened oiFby a cock that is crowmg ?" " Yes," said Garrick, " there is such a scene — " "Well," said the other, "when you played Hamlet, I played the cock — I was the man who did the crowing." >So it strikes me, that in this piece, Haswell was the man who did the crowing ! I uow proceed, gentlemen, to examine with more particu- larity, the facts relating to the blowing up of the stores No, 48 and No. 52 Exchange Place, and will consider them separately, in due order of time. The first one of them destroyed, was No. 48. General Swift had, at a compara- tively early hour, gone with Colonel Hamilton through the burning district, by order of the Mayor, in order to ascertain where w'ere the most dangerous points. They found that the fire, which had originally threatened to cross Wall-street, near the Bank of America, had taken another direction, and 215 was working, wilh great force and great rapidity, towards Garden-street, and menaced Broad-street ; which, as well as the churchyard, was filled with goods. In the emergency, they selected No. 48, as being the most judicious point to encounter the enemy ; and when the powder was brought in the lime cask, it was immediately carried into the cellar. This building was at an important point, because at that distance from Broad-street, which made it the proper position where a stand could be made, and a sufficient breach eifected to cut ofF the flames. Mr. Brooks says, that from time to time he "put his head out of the window, and was astonished at the amazing rapic^ity of the flames — the fire coming to windward at that time. No. 44 — the next but one to it — w^as entirely consumed by fire." He also testifies that No. 46, the next door building to No. 48, was then on fire ; so that, gentlemen, with the houses to the eastward of it on fire, and Garden-street, on the north side, in flames, No. 48 was in immediate proximity to, and directly alongside of, this terrible scourge. No. 48 itself was at this time actually on fire. Alderman Benson states, that when the powder was applied to No. 48, he remarked at the time, that it was on fire. Mr. Willis, to whom I have already alluded, and who was one of the firm of Hicks, Lawrence & Co. also observed at the time that No. 48 was on fire ; and called the attention of Alderman Benson to the fact. Mr. Wenman swears, that it was then on fire ; that he observed the smoke, that he went in the doorway, and that the sparks were falling through the hatchway ; that the fire had broken out about the eaves of the roof, and under the roof. General Swift swears posi- tively, that No. 46 was on fire ; and he adds, that accord- ing to his best recollection and belief, No. 48 was also on 216 fire. Mr, John Cox state's, that while he and his men were removing goods from No. 48, for the benefit of Stone, Swan & Co. they came to him, and reported that the fire had attacked No. 48, and that it was no longer safe to remain in it. Mr. Cox, to use his own expression, then ordered them "to back out." As they came out, he was addre.ssed by Alderman Smith, who inquired whetlicr he would assist him in blowing up that building? his answer was, that he knew nothing about such matters ; but what there was of him, belonged to the public, and was at his disposal, What good services he rendered, and what gallant conduct he displayed throughout that remarkable night, I need not further refer to. The evidence opposed to that which proves that No. 48 was on fire, is extremely slight and un satisfactory. Mr. Has- well says, that he will not swear it was not ; and will not say that it was. Mr. Stone, the occupant of the store, and who of all others, was the most interested, in answer to the ques- tion at w'hat time that store took fire ? is unable to give any light. Mr. Marsh, who was also there, assisting in removing goods, is also unable to state as to the fact. We have proved that they had broken off work in No. 48, because the fire had assailed it ; and we have proved by others outside who saw it, that it was on fire, and the sparks falling. Such then, was the condition of No. 48, at the time the match was applied. This brings us to the question, W^hether the explosion of No. 48 having failed to arrest the fire, it was necessary to destroy No. 52 ? In the first place, it becomes necessary to ascertain the condition of the adjoining building, No. 50. Some of the plaintiffs' witnesses say, that it was entirely battered down. One of them, Mr. Brooks, says, he does not recollect if it was 217 on fire, but remembers it was shattered ; and thinks it was down, but is certain no flames issued from it. But Mr. Has- well says, that No. 50 fell, and formed a large pile of com- bustible materials something like fifteen feet high ; which be- came at once a mass of flames, and burned violently and rapidly. It is remarkable, that my learned friends on the other side cannot bring two witnesses to the stand, without each staring the other in the face, and directly opposing him. Here is Mr. Brooks, whom my learned friend, (Mr. Penning- ton,) characterizes as second only in importance to Mr. Has- well, who states there were no flames and only smoke issuing from No. 50 ; while Mr. Haswell says nothing of smoke, but that there was an immense quantity of flame. Mr. Griswold says No. 50, was partially injured by the explosion ; but whether it was on fire, he did not say. Gen. Swift says, the effect of blowing up No. 48 was to injure No. 50, it cracked and shattered it. It is probable, I think,- that No. 50 was injured and on fire, before the determination was adopted to blow up No, 52. Colonel Hamilton says, the effect of the explosion was to bring down No. 48, that it did not prostrate No. 50 ; and that the fire had communicated to it. Mr. Wenman slated, that the walls of No. 50 were cracked, so that he could see through them. He went into the build- ing. Mr Cox undoubtedly entered this building, and went through it ; and he swears, that it was on fire. He came down from an upper story ; stood in the street, looked up, and saw thick smoke, indicative of fire, coming out from the eaves of the roof, and through the upper story. It is not pretended that No. 50 ought to have been blown up, rather than No. 52. No. 52 was a very large building, extending to a great depth, and butted on the rear gable against the com- 2S 218 bustible establislimeiit of the Meeks'. Two slight dwelhiig houses adjoined it, on the "w esterly side ; and were the only barriers between it and the grocery store on the corner of Broad-street. The large paint establishment of Warner was opposite ; and next to the grocery store, were warehouses, filled with cotton. Adjoining Meeks', southerly, were also extensive warehouses, filled with cotton. Broad-street, which was"here eighty feet wide, gradually diminished ; so that, at Beaver-street, it did not exceed fifty or sixty feet in width. Such was the situation of matters after they had blown up No. 48, and had failed to subdue the conflagration. No. 50 was on fire. No. 52, as I shall show in a moment, was also on fire ; and, i f the flames had extended to the corner of Broad- street, they woukl have rushed in one sweep down Broad- street, on the one side, and towards Wall-street, on the other. If the fire had got away from them there, and had crossed Broad-street, vthere would the ruin have ceased? Then, gentlemen, was the time for action ; and at that moment, it was announced, that the powder from the Navy Yard had arrived. Charles King reported the fact, in his manly tones, to the Mayor, who was near the church ; and, being over- heard by others, was in this way probably made known to Mr. Griswold. They were then about to explode No. 48. Mr. King saw the powder carried into the cellar, at the time he left, by request of Mr. Lawrence, to give directions to the Navy officers to come to the ground. He w'alked from that point, not at a slow, but rather an accelerated pace, and had just reached the corner of Wall and Nassau streets, when he heard the explosion of No. 48 ; so that you will perceive the powder brought from the Navy Yard, by Lieut. De Camp, must have reached the ground, at the corner of Wall-street, 219 almost immediately before the blowing up of No. 48, by the powder which had been deposited in the Ume cask. At this stage of the fire, just previous to its explosion, what was the condition of No. 52? Cox says, that he was in No. 52, and it was then on fire. As there may possibly be some misunderstanding, as to the precise time when Mr. Griswold delivered the keys of this store to Mr. Lawrence, I will refer to a circumstance, which goes far to fix it. He says, that when he heard the cry, that the powder had come, which was about the time that Mr. Charles King had proclaimed the fact^ he came out of his store, locked it, and took the keys to Mr. Lawrence, whom he saw standing on the sidewalk; and he adds, that at that time, or about that time, he saw iii the street, what he took to be kegs of powder, covered with tar- paulin. This corresponds with the testimony of Mr. King ; who says, that he returned from Wall-street with the officers of the Navy and their party, w'ith the kegs of powder, covered with tarpaulin. They stopped at the corner of Broad- street, and as he supposed, went into Garden-street. The powder from the Navy Yard therefore came into the street, at, or about the time, that Mr. Griswold locked his store. According to the testimony of Cox, Benson, Wilhs, and General Swift, No. 52 was at this time on fire ; and in this respect, they are supported by the evidence of Mr. John Meeks, who was watching the progress of the flames, praying that the powder might come ; he at that time, saw No. 52 on fire under and on the roof. He adds, that while standing on his rear building, the explosion of No. 5S took place, and a portion of the brick wall fell on his roof ; and in the effort to remove it, in order to protect his premises from fire, his cart- man had both of his hands severely burned ; and one of his, 2S* 9 220 (Mr. Meeks',) was also badly burned by the bricks which had thus fallen from No. 52. They were so exceedingly heated, that he was obliged to resort to pieces of board or other means wherewith to scrape and shove them from his roof. They were hot enough to excoriate the hand when touched ; and they actually communicated the lire to the roof of this building. Mr. Joseph Meeks relates the same facts. There can be no doubt, therefore, that before its explosion. No. 52 was actually on fire. Opposed to all the evidence thus satis- factorily corroborated, there is nothing but the negative tes- timony of Mr. Brooks, Mr. Elliott, and Haswell, who merely state, that they did not discover that No. 52 was on fire at the time the powder was applied to it. This, of course, weighs but little against circumstantial and positive affirmative proof to the contrary. The question then recurs, was it necessary, No. 50 being actually burning, and No. 52 also on fire, and ad- joining valuable and dangerous buildings in Broad-street, to blow up No. 52, without further delay ? Alderman Benson and General Swift, Mr. Willis, and numerous others, declare that the immediate destruction of that building was indispensible to the safety of the city. Mr. Anderson testifies, that there were no other means to be resorted to. Col. Hamilton states, that, at the time they exploded No. 48, he thought the fire would stop at Broad-street. General Swift says, if No. 52 had not been exploded, the fire would have gained Broad- street ; and then he believes, it would have extended in every direction, and would have destroyed the whole southern part of the city. The judgment of Mr. Wenman, and of Mr. Cox, is the same. Indeed, with the single exception of Mr. Haswell, all the witnesses have concurred that the fire, if 221 not arrested by powder, would have reached Broad-street ; and, if not checked there, it "was impossible to foresee its end. But the learned gentlemen on the other side insist, that instead of blowing up No. 52, it ought to have been attacked, on Haswell's ])lan, with sticks and cloths ! It would be about as reasonable, to propose to carry Gibraltar with a pocket pistol ! Does my learned friend hope to convince you, that a conflagration like that, was a matter to be handled with sticks and woollens ? It is also insisted, that the fire at No. 52 might have been arrested by the use of hooks and ladders! Gentlemen, No. 52 was then standing, and just beginning to burn ; and, of course, to be of any avail, action could not be delayed. The idea of resorting to hooks and ladders assumes, that the fire might have been dealt with by ordinary means, and with the usual deliberation and delay. The idea strikes me as being preposterous. Not one of the witnesses has ventured to suggest, that such means could have been of any efficacy. This theory has escaped Mr. Hasw-el], and every individual who had spoken on this sub- ject. The only mention that has been made of hooks and ladders, was by Col. Hamilton, in reference to another build- ing, at another time, and at a different conjuncture. It appears, that on the east side of No. 50, there were burning timbers or rafters ; and the opinion was expressed by him, that if hooks and ladders had been applied to those rafters, before the fire had got round them, it might have been stopped there. Another answer to this suggestion is, that there were no hooks and ladders, fit for use, upon the ground. The Fire Department, and not Mr. Lawrence, had the custody and control of them. Mr. Lawrence is not to be made responsible, in an action of trespass for blowing up 222 these buildings, when a necessity for so doing had actually arrived, because this necessity might have been averted, if the Fire Department had not been paralyzed, — or upon any suggestion, that more energetic efforts, at an earlier period of the night, by the firemen, or by the citizens, or by the use of hooks and ladders, might have subdued the flames. The question is, had the necessity occurred, no matter by what causes produced. It is idle to go back to earlier stages of the fire, and point out a mistake here and an error there. It would be trifling with the occasion, if, when the vessel is about to founder, the attempt to relieve her, by throwing overboard the cargo, should be unjustifiable, upon the fanciful notion, that but for some error in navigation, the ship might have been at a different point of the voyage, and, perhaps, beyond the reach of the storm which was then about to en- gulf her. But it is contended by the plaintiffs, tliat if, after No. 48 had been blown up, water had been employed, the fire would have been extinguished without destroying No, 52. I admit, gentlemen, it is highly probable, if there had been a supply"" of water, witli even a single engine in a working condition, the further progress of the flames towEirds Broad-street, might then have been checked. But, where was the water ? Where was the sujiply to come from ? Where was the hose ? Where were the means ? With accomplished fire- men, such as Wenman, Anderson, WiUis, and a host of others, and effective appliances with which to have acted, it is my belief, that the explosion of No. 48 alone, would have saved the city in that direction ; but, unfortunately, they were destitute of engines and water; and hence the necessity of creating a still larger breach, by razing No, 52 to the ground. 223 An argument is atteinpled to be deduced from the fact, that Mr. Meeks extinguished the fire on his rear building. But it must be borne in mind, that this occurred after No. 52 had been blown down, and the conflagration had been con- trolled. His roof was but slightly on fire, and was easily extinguished by water from the well on his own premises. The learned counsel for the plaintiffs, who has just ad- dressed you, in the earlier portions of his argument, insisted that the interval between destroying No. 48 and No. 52 was very long, exceeding an hour ; and that there was also a very long space between the time when Griswold was notified that the powder had arrived, and the timie when the latter store was actually blown up ; and it is insisted, that during this delay, there was ample opportunity to have removed all, or, at any rate, the greater portion of the goods ; and that, consequently, the necessity for the immediate destruction of the building, without giving time to extricate the property, is disproved. A careful examination of the testimony will, I think, satisfactorily di.spose of this objection. In the first place, it is insisted, that No. 48 ought to have been sooner destroyed, and that after Mr. Lawrence had resolved upon adopting that mesure, there was great and unnecessary delay in carrying it into execution. There was, unquestion- ably, a long delay between the determination and its ac- complishment ; but it was unavoidable. Where was the powder with wh'ich to effect the explosion ? What efforts, what exposure, what personal sufferings were spared, in order to obtain it ? Expeditions to the Navy Yard, to Governor's Island, and to the Arsenal, were immediately set on foot. The first adequate quantity was the result of the laborious efforts of Mr. Lawrence and Colonel Hamilton, 2?4 who were quite as impatient of delay, and as alive to its consequences, as my learned opponent now seems to be. At what moment of time, prior to the scraping together of inconsiderable quantities, in various little shojis, did the means exist to execute their plans ? As soon as sufficient was thus procured, was there any delay in bringing it to the ground ? Wenman and Cox carried it, at the hazard of their lives J and, as soon as it reached the point, the lime cask was deposited in the cellar, the train laid, and the match applied, with extraordinary judgment and despatch. This ground of complaint, therefore, wholly fails. Besides, were not the plaintiffs, during all the interval and alleged delay, busily occupied in extricating their goods, and removing them to a place of security ? Did not the delay enure to their manifest benefit, and enable them to save, what by an earlier explosion would have been destroyed ? Mr. Griswold has proved that they continued to remove goods until the powder, brought from the Navy Yard, had arrived ; and, con- sequently, all the delay, until this time, operated to their im- mediate advantage. But, however that may be, the alleged delay was beyond the control of Mr. Lawrence. As Ihave alreadyremarked, the explosion of No. 48 occurred within a very brief space after the powder reached the scene of action. General Swift states, that " the interval was from ten to fifteen minutes." Alderman Benson says, that " it occupied about fifteen minutes." Col. James Monroe states, " it took from ten to fifteen — not exceeding fifteen minutes." Mr. Cox says, "he can give no exact idea of time, for he was at work ; but that it was done as quick as it could be — it was done very quick." Haswell says, on his first examina- tion : " It was done in twenty minutes, but can give no state- 225 ment as lo the lime, as a matter of exact accuracy." He afterwards withdrew his estimate of twenty minutes, and substitutes thirty minutes. Colonel Hamilton states, that, from the time the powder was brought upon the ground until the explosion was over, did not exceed from fifteen to twenty minutes ; and he says, that, from the time that he applied the match until the explosion took i)lace, did not exceed five minutes. Mr. Griswold alone estimates it at an hour. He thinks, it was an hour from the time that he came out of his store, and saw the powder covered with tarpaulin, till No. 48 was blown up. But the powder covered with tarpaulin that he saw, was that whicli the sailors had brought, and that did not reach the ground until after 48 was exploded. There was no oilier powder covered with tarpaulin mentioned by any of the witnesses ; and all the evidence concurs in proving that this was the same powder that was announced by Mr. King to the Mayor. By directions of the latter, Mr. King ordered the detachment from the Navy Yard to advance ; and by this time, the explosion of No. 48 had occurred. It was after this, that the sailors carried the kegs covered with tarpaulin opposite to No. 52. It is evident, therefore, that Mr. Griswold has fallen into an error. But, assuming that the powder he saw, was that which Wenman and Cox were carrying, he is equally inaccurate in his conjecture as to time ; because, as I have shown, all the witnesses concur in saying, that the interval which elap.sed between the arrival of this powder and its explosion, did not exceed ten to fifteen or twenty minutes, with the exception of Haswell, who finally settled down upon thirty minutes. Mr. King furnishes us with the most reliable data upon which to form an accurate, or at least a satisfactory judgment. Vague estimates of time 29 226 or distances, when witnesses speak without the guide of a watch, or of some ascertained admeasurement, are always unreliable ; they differ in their ideas, according to their dis- positions, experience, and the circumstances in which they are placed. It may appear long to the expectant and im- patient bridegroom; and painfully brief, to the "wretch condemned with life to part." It is, therefore, always desirable to fasten upon facts which may afford a criterion. Mr. King left Garden-street at the time Wenman and Cox were carrying the cask of powder into the same street. He walked to Wall-street ; and when he had reached the corner of Wall-street and Nassau-street, he heard the explosion. Instead of an Itour, makiag all reasonable allowances for in- terruptions, the time could not have exceeded many minutes. The next inquiry is, How long did it take from the time that No. 48 was blown up, until No. 52 was exploded ? The powder came, as you well remember, from Mr. King's and Licuteniiiit De Camp's statements, shortly after the destruction of the former. From that time, until the train was fired, General Swift says, was from ten to fifteen minutes. Mr. Cox says, when he found the ofhcers of the Navy had charge of the operation, he looked on as a spectator ; his curiosity was excited, to see if men ex- perienced in the use of powder, w^ould perform it quicker and better than green hands. He says : " I stayed there, and looked at it, and saw them do it ; it was done very quickly. I saw the Navy officer, after he had appHed ^the match, stroll off with his hands in his pockets — and that was the only difference that I saw between the green hands and experienced men." Mr. Benson says, it was done immedi- ately. Col. Temple states, it was not over fifteen minutes. 227 Mr. Brooks, in the first instance, Ihouglit that, between the blowing up of No. 48 and of No. 52, they might Jiave saved some more goods, and regretted extremely, that they had been called away from the latter store so early. This gen- tleman appears to be in some confusion, in reference to this matter. He could not Iiave left the store of Edwin Lord & Co. from any idea that they were about to apply powder to it ; because he has testified that he was not aware of any in- tention, at this time, to destroy that building. He did not abandon the store, therefore, with any reference to the time of its explosion, but because he heard that they were about to apply powder to No. 48 ; and he, probably, was unwilling to remain in the neighborhood of an experiment, the eifect of which was so entirely unlcnown, and the resulls of which might extend far beyond its immetUate vicinity. You will perceive, therefore, that he never was " called away" from No. 53, but left it for another and different reason, and from sensible and prudential motives. Conceding, therefore, that there had been a considerable interval between the destruc- tion of the two stores, it affords no ground of just complaint against Mr. Lawrence, that Mr. Brooks was neither so fool- hardy nor so reckless, as to have continued at work removing goods from No. 52, while No. 48 was about to bo blown into the air. He stales with great caution, that it is very dilficult to say how mucli time elapsed after he left the store, before No. 48 was blown up ; but says, " it was perhaps thirty or forty minutes, and perhaps an hour." This estimate is of course, exceedingly loose and vague; and furnishes, like all other fanciful conjectures, no rule by which we can be guided. But whatever may have been the interval, whether 29* 228 ten minutes, or sixty, it refers exclusively to No. 48 ; and if Mr. Brooks had desired to continue his efforts to remove goods from No. 52, why did he not indulge his inclinations ? Mr. Lawrence certainly did not interfere to prevent him ; nor, as far as Mr. Brooks understands, did any other person interpose any objections or obstacle ; for he never under- stood that any order was issued in respect to it. Indeed, there is no evidence that Mr. Lawrence ever did, at any time, order the occupants of this building to abandon it. On the contrary, Mr. GrlswoM testified, that the Mayor stated, that they could continue to remove their property, until he, (not others,) should give them notice to quit. It appears, they were unwilling to tarry so long ; and at the first cry of powder, without waiting to receive official notice from Mr. Lawrence, they vacated their premises. If they did so prematurely, it is unjust to endeavor to cast upon him the responsibility and consequences of their ow^n precipitancy. But I presume, the learned court will instruct you, that if the occupants of No. 52 were induced to abandon it in conse- quence of the cry of powder uttered, as a warning or notice to quit, by individuals other than Mr. Lawrence, or persons authorized by him, he is not liable for any loss of goods that might have been removed between the time of receiving and acting upon such unauthorized notice, and the time when there was, in fact, an actual necessity for ceasing all further attempts to save. But, after all, is this claim of being prematurely interfered with, founded upon any substantial grounds 1 Could any goods have been removed from No. 52, after the powder intended for No. 48 had arrived, or between the explosion of that store and the former ? Imagine, gentlemen, the excite- 229 ment, the apprehension of the unknown consequences of such an operation ; the vast conconrse of people that obstructed the street, at a short distance from the appalling spectacle about to be exhibited ; the intense heat of the street in the immediate vichiity of the burning church, and other buildings ; — call to mind, all the extraordinary circumstances of the occasion, and then let rae ask. Whether it is probable that any man would have continued to carry goods from the store, and into and through the streets, at such a conjuncture ? No, gentlemen ; self-preservation alone, would have been sufficient to have deterred them. The testimony upon this point is very positive. Mr. Willis says, " I was there, and the goods could not be removed." " I was there," says Cox» ''and we w^ere obliged to abandon No. 48." Wenman says, it could not have been done. More of the goods were sacri- ficed in the streets than in the stores. But it is contended, that it was the duty of Mr. Lawrence to have removed the goods from No. 52, before he destroyed it. This argument brings us back to the question. Whether there was or not a necessity for the immediate destruction of the building, without waiting to remove the goods ? I have already sufficiently discussed the evidence upon this point. You will keep in mind, that the explosion of No. 48 had failed to avert the flames ; they continued with unabated and unrelenting fury. No. 50 was shattered, and its beams and rafters were on fire ; the roof of No. 52 had also taken. The flames, approaching to Broad-street, and threatening still more fatal consequences, were rapidly and steadily advancing. Was this the moment to have suspended action, until the balance of the l>road cloths were removed ? How much time would have been necessary? At least three hours, according 230 to the rate at whicli the goods saved, had taken to be removed. They commenced at two o'clock ; the explosion occurred at five or six o'clock ; and during this interval, out of ®68,000 worth of goods, belonging to the plaintiffs, on the premises, it is said that only about S3,000 had been removed ! And the fire at the time, Mr. Brooks says, "came tremen- dously towards us, against the wind. It came running along the eaves of the stores, with tremendous rapidity." As an example of the fury of the flames, you will remember that No. 44 took fire on the roof ; and in fifteen or twenty minutes, those at work in the cellar saving goods were driven out. No. 40 was consumed, from cellar to roof, in the like time. Would not Mr. Lawrence have justly exposed himself to pubhc indignation, if, at this crisis, he had disregarded the urgent remonstrances of General Swift, Colonel Hamilton, and of his fellow citizens, and had refused to act until the store was emptied of its contents ? He would have exhibited a criminal indifference to his high trust, to the vast interests then dependant upon him for protection ; and' would have shown himself not only unequal to the emergency, but unworthy of the station to which the partiality of his fellow citizens had elevated him. It was argued, that the wind blew from the northwest, and that consequently, buildings to the windward of the fire, were not in extreme peril. Gentlemen, it was one of the phenomena of this remark- able conflagration, as you have heard from General Swift, Colonel Hamilton, Mr. Do Camp, Colonel Temple, Mr. Gouverneur, Mr. Anderson, and indeed from all the witnesses, that it burst out and .spread in all directions ; it knew no rules ; it set all winds at defiance ; it created draughts, and 231 counter currents ; its fierceness rarified the atmosphere, and produced strife and confusion in the air. The eccentricities and peculiarities of its progress will live in history. It moved with a rapidity that was marvellous, and which bafHcd fore- sight. Goods which were carried to places supposed to be beyond the reach of danger, were suddenly pursued and over- taken, and destroyed. Many instances have been testified to, as illusti-ative of the singular voracity of the flames, of property that was carried from place to place, and which was as often overtaken. Amongst other instances, Mr. Gouver- neur removed the valuables of the Post Office to the centre of the Exchange ; here they were speedily assailed. From thence they were transferred to the Bank of America ; they were soon driven from this refuge ; they sought another shelter, and finally found it in the Custom House, between Pine and Nassau streets. The circumstance, therefore, that the store No. 53 was to the windward of the fire, is entitled to no consideration. It has been suggested, that instead of selecting a large store filled with valuable goods for the sacrifice, it was the duty of Mr. Lawrence to have offered up some humbler tribute, some smaller building with contents less valuable. I agree it would have been more satisfactory to my client, and less responsible to have done so ; but, gentlemen, the fire was advancing in separate columns, and the place of attack had to be chosen with reference to them. In an emergency which required prompt decision, and forbade delay, there was no time to in- vestigate and determine the relative values of different build- ings, and of the various stocks of goods in them. The fire was not an accommodating or obsequious friend, which would stay its ravages, until it was convenient and economical to act 232 against it. It was not a play thing to be dallied witli, but an insatiable demon waging a war of extermination. This argument, and many others of no more substance, which have been pressed upon you, do not seem to me to be aimed to satisfy the judgments, or to convince the under- standings, of an intelligent jury of Essex County. They might do for some other place, and for some other tribunal ; but I am much mistaken in my estimate of those who form this jury, and wlio have been selected from the freeholders and substantial men of this county, if such reasoning and such arguments are calculated to embaiTass or confound their understanding, or their appreciation of the case. Akin to such arguments is a further suggestion, that has been much insisted upon by the learned counsel for the plaintiffs. They urge upon you, that it was the duty of Mr. Lawrence, who, as Mayor, was at the head of all the police force of the city, to have detailed a large body of them, with orders to empty the store No. 52 before applying powder. They for- get that Mr. Lawrence is sued in his individual character ; and that, as Mayor, his justification, under the statute, is utterly repudiated by them as being irrelevant and in- sufficient. But, aside from tliis consideration, What police force would have been required to have removed the con- tents of the store, and how much time would it have de- manded ? The plaintiffs have afforded no evidence, from which we can draw any just conclusion. But when it is borne in mind that the number of men attached to the esta- blisliment was small ; tliat the fire had laid waste many acres of buildings, whose rich and valuable contents were scattered in piles through many streets, exposed to pillage and depre- dations, requiring the constant watch of all the officers who 233 were fit for duty after a long night of exhausting toil ; and, when you keep in mind, that, independently of the want of police men who would have been employed for the purpose, it was the unanimous judgment of all, that immediate action, admitting of no delay, was demanded by the emergency ; you will readily perceive, that Mr. Lawrence would have justly exposed himself to general condemnation, if he had refused to act until the police force had had time to remove the goods. My client has also been censured by my learned opponents, with a view, probably, to influence your prejudices, for not" having prevented the Fire Department from becoming para- lyzed, and, in a measure, disorganized, on that memorable night ! What control had Mr. Lawrence over it ? What preA'entives ought he to have applied? Could he mode- rate the weather, or convert solid ice into running waters ? Could he subdue and lull the fierce wind which carried the fiery element with resistless violence through apparently imjienetrable barriers ? Could he supply new life, and strength, and vigor, to the exhausted firemen, worn out by the toils of two previous nights, and by the extraordinary incidents which were then occurring ? Instead of seeking ingenious and far fetched pretexts for imputing to Mr. Law- rence an accountability for the condition of the Fire Depart- ment, I submit that, if he fulfilled the duties, and came up to the responsibilities which belonged to his own station, on that unparalleled night, he is entitled to your respect and admiration, and to be honored by all right minded men. Another criticism is offered upon the necessity of blowing up No. 52. It is argued, that the conflagration hy this time had subsided, and was dying out ; and, consequently, no ne- 30 234 cessity existed for tlie destruction of any more buildings. I will not, gentlemen, abuse your patience, by again reitera- ting the evidence, proving that the explosion of No. 48 had failed of accomplishing its desirtjd object. It is sufficient to repeat, that the combined testimony of all llie witnesses, ex- cept the one who became wise after the event, establishes, beyond dispute, the necessity of suppressing No. 52, and thereby interposing a sufficient space between the fire and the unscathed buildings. But, gentlemen, I will refrain from any further review of fallacies, which only serve to charac- terize the weakness of this action. The case is now with you, under the instructions of the learned Judge, who has presided with so much ability and kind forbearance. I am a stranger in this court, and cannot judge of the suc- cess which the eloquent appeals to your sympathies on be- half of the plaintiffs, a corporation of your slate, or to your prejudices in tlieir favor against Mr. Lawrence, who is also a stranger, and supposed to be indemnified by the Corporation of the City of New-York, may have produced. My learned adversary knows you well, and can better judge from his ex- perience, whether these appeals are likely to effect his ob- ject. But, gentlemen, I trust I may be pardoned tlie remark, that if, upon this evidence, so convincing and overwlielming, the Mayor of New- York, acting under the sanction of law, and by its command, justified by the unanimous and hearty con- currrence of tlie most eminent of his fellow citizens ; — who, subsequently received the undivided suffrages of the voters of that city — the most authentic evidence of the general sense of the community in which he lives — should be con- demned by you for this very act, which constitutes his glory 235 and just pride, tlie result can only be the offspring of those prejudices and partialities upon which my learned opponent has with so much boldness relied. Although personally unacquainted with you, gentlemen, I know the race from wliich you have sprung. History re- cords that, whenever tested, the men of Jersey have been found true to their love of country, their fidelity to the laws, and to all the duties of good citizens. That race must have degenerated much from the one which stands thus honorably on the records of the past, if twelve of the picked men of Essex County can be swayed and led astray by appeals, that insult good sense and common intelligence ! The blood of this worthy race is hereditary, and is therefore not extinct in you ; and I have no misgivings, when I rely upon its integ- rity and firmness, for an acquittal of the gentleman, whom it is not merely my duty, but ray pride to defend. For seventeen long years, this and similar prosecutions have weighed upon, and almost broken his courage. It has kept present before him the threat of an impending danger, through the agency of parties, who, sharpened by the chances of speculation and profit, were always on his track, and, like the spirits of evil, cast their sinister shadows around him. They intercepted the otherwise quiet path of his declining years. He has never been at liberty to leave the limits of his State, without encountering the hazard of being pursued and arrested in another jurisdiction. During these many years, he has continually felt the influence of the evil eye upon him. In the meanwhile, the witnesses of his noble bearing on that eventful night were fast being gathered to their fathers ; and he saw and apprehended the danger of being exposed to the judgment, and perhaps caprice, of a jury 30* 236 of strangers, whose prejudices and sympathies, through popular and able advocates, might easily be aroused against him. For seventeen long years, this respected citizen has declined to enter into any engagements involving the pledge of his credit. He has scrupulously, and as a point of good faith, during all this time, abstained from business obliga- tions ; for he knew not at what hour, or under what circum- stances, he might, in some State remote from or beyond his own, be arraigned before a foreign court, and, by the evidence of men whose opinions coincided with his when the perils were before them, be condemned in a sum which would sweep away liis means, and exhaust his substance, to satisfy. He has also constantly had present to his mind, gentlemen, that in the ordinary course of events, he too, as well as his witnesses, would be consigned to the tomb ; and the recollec- tion that he would leave behind those threatened claims, that might be fatal to the comfort and support of those who were near and dear to him, has been a source of unspeakable anxiety. When he shall be taken from amongst us, and the history of his intrepid conduct on the memorable occasion now under examination, shall be faithfully recorded, future generations will exclaim, " In him, the elements were so mixed, " That nature might stand up, and " Say to all the world — this teas a man." Gentlemen, the particulars of tliis mighty conflagration, will descend to the remotest time ; and impartial history will record, that it was overcome and extinguished by the intrepidity and moral courage of the distinguished citizen 237 who was then thfi Chief Magistrate of a sorely punished city ; and who, while he foresaw the dangers and responsibilities which exclusively rested upon his fame and future, resolutely assumed the risk, and nobly achieved his duty, undeterred by considerations of personal hazard and safety. The last scene of this eventful catastrophe is now about to terminate, — the closing sheets of this important drama will recount the final proceedings of this interesting trial ; and it remains to be known, whether conduct that has been appre- ciated and applauded by the general voice of his grateful fellow citizens, will be rebuked and condemned by a special jury of the solid men of Essex County. — No! Gentlemen ; I can predict with confidence, that no eye will ever rest upon a sentence reversing the settled judgment of eye witnesses, and of all right minded and honorable men. The State of New Jersey will never have the mortification of having it recorded, as a part of this history, that it was left for one of its juries, against the sense of the general world, to condemn the stranger within its gates, for acts, which at home had confirmed in his favor the respect and gratitude of his fellow citizens. It only remains for me to tender to you, and the learned Judge, my grateful acknowledgment for the kind attention he and you have bestowed upon me, a stranger in your Court. 338 The summing up on behalf of the plaintiffs, was concluded by the Hon. SamI'el Jones ; and the cause was tlicreupon submitted to the Jury, under the followina; charge, by Judge Potts : — I congratulate you, gentlemen of the jury, that we are at tlie termination of this case, to which you have given so patient attention. We are now, the court and jury, separated from the parties, and the influences which surround them. We have listened to the arguments which counsel have addressed to us, and to which you have paid close attention. I shall rely upon your recollection of the testimony, without going into a particular examination of it. This is an action of trespass, brought by The American Print Works against Cornelius W. Lawrence, for the destruc- tion of certain merchandize of the plaintiff's, in the City of New- York, on the 17lh December, 1835, by the defendant, by blowing them up with gunpowder, &;c. ; and the damages are laid at $200,000. There is soine evidence that, at the time in question. The American Print Works liad 25 bales of brown drilling, in the store. No. 48 Exchange Place, of the value of $1,866.61, less 5 per cent. cash. There is, also, some evidence that, at the same time, they were the owners of merchandize, to tlie value of $61,725.50, cash, in store No. 52 Exchange Place. The amount claimed is very large ; and it would have been much more satisfac- tory, if the books of Messrs. Lord & Co. the factors, had been produced, or the books of the plaintiffs ; or that some good reason why they are not here should have been shown ; or that Mr. Lord's absence should have been accounted for. 239 As it is, however, you have the evidence of Mr. Bacon, who, with the aid of papers to which he is referred, speaks with confidence as to the amount of the plaintiffs' property de- stroyed in No. 52 ; and that of Mr. Stone, as to the property in No. 48. And it is in evidence, thai tkcse goods, whatever their value might have been, were, on the morning of the 17th December, 1835, blown up, burned, and destroyed, with the buildings in which they were, by the orders of the drfetidant. And for this act, he is undoubtedly a trespasser ; and must be held responsible, unless he has shown a \av/k\\ justifccntion. This the defendant has attempted to do. Whether suc- cessfully or not, it will be for you to say. He has put in tlwee pleas ; but the principal defences relied on, are those contained in the two last of these. 1 . He pleads, by way of justification for destroying the plaintiffs' goods, among othej things, that he was, at the time, Mayor of the City of New- York ; tliat, by a law of the State of New- York, the Mayor was autho- rized, when any buildings in the city should be on jSre, with the concurrence of any two aldermen of the city, &c. to direct and order the scone, or ani/ other buildings which they should " dcei?i" hazardous, and likely to take fire, or to convey the fire to other build- ings, to be pulled down or destroyed that, at the time he committed the act complained of, a fire was raging ; that he did deem these buildings hazardous, &c. ; and that tioo aldermen consented and concurred with him, &c. And the plea further says, that these buildings were lihcly to take fire ; would inevitably, in a few moments, have taken fire ; and would h;ivo com- 940 municated the fire to otlier stores and buildings ; and that he (the defendant) was also a resident citizen and property holder, and present at the fire ; and that, to prevent the further spreading of the fire, the inune- diate destruction of these buildings, ivithoul waiting to remove the goods, was absolutely necessary; and therefore he did cause them to be destroyed, doing as little injury as possible ; and that the goods being in the buildings, and no time to remove them, they were also of necessity destroyed by the same act. 2. He pleads, in justification, the existence of the fire ; and that, being a resident citizeti and propei'ty holder^ and present, &c. and the necessity existing, &Lc, he advised, caused, and procured the destruction of the buildings ; and the goods being in the building, and no time to save them, they were also necessarily destroyed by the same act. To these two picas, the plaintifis put in a direct denial. 1 . That the defendant did not act as Mayor, with the con- currence of two aldermen, and in pursuance of the act. 2. That the immediate destruction of the buildings, without waiting to remove the goods, was not necessary to stop the fire. And here, the issues are taken ; and these two affirmations and denials, are what you are to try. They present these two questions of fact : 1. In desli-oying the buildings, did the defendant act according to the law of New-York ? or did he exceed his authority ? 241 2. Was the destruction of the buildings, without removing the goods, an act of necessity, or was it not 1 I. As to the first question. — We must look to the law of New-York, existing at the time, and see what the Mayor was authorized to do, in cases of fire. Its lan- guage is : " That when any building or buildings, in the City of New-York, shall be on fire, it shall be lawful for the Mayor, or, in his absence, the Recorder of the city, with the consent and concurrence of any two of the Aldermen thereof, or of any three of the Aldermen, to direct and order the same, [that is, the building or buildings on fire,] or any other building which they inay deem hazardous, and likely to take fire, or to convey the fire to other buildings, to be pulled down or destroyed." Now, there is no dispute but that Mr. Lawrence was the Mayor of New- York at the time of the alleged trespass, and that a fire was raging. Tliere is some evidence, to say the least, that Nos.48 and 52 were successively on fire; and whether they were or not, there is evidence enough that, when they were destroyed, it was at a moment when they might reasonably have been deemed by the Mayor hazardous, and likely to take fire, or to convey the fire to other buildings, and to negative any idea or imputation of improper motives on his part. You perceive, here was a discretion vested in the Mayor, (two Aldermen concurring with him.) If a building (5 on fire, it shall be lawful for him to destroy it ; and though not on fire, if he shall deem — that is, believe, 31 242 consider, entertain the opinion — that it is, under the circum- stances, hazardous, and Hkely, &c. it shall be lawful for him to destroy it. Now, wherever the law vests in a public officer, a discre- tionary power, it justifies him in its exercise, according to his best judgment, if he acts in good faith. And there is no where, I think, in all this evidence, to be found a word, a breath of suspicion even, against the purity of the motives, and the honest conscientiousness of the de- fendant, in his conduct on the trying occasion which is the subject of this suit. That he did deem the buildings destroyed hazardous, and likely to take fire, or to convey the fire to other buildings — that he was governed by a high and honor- able sense of duty — that he did honestly believe the act necessary to save the city, no witness has even suggested the shadow of a doubt. The act of destroying these huildings, then, was a lawful act, if the defendant had the consent and concurrence of two Aldermen of the city in that act. That he had, you have uncontradicted evidence of the most unequivocal character. But this action is brought for the destruction of the goods of the plaintifTs, in the buildings, at the time and by the same act, and not for the destruction of the huildings; and the highest court of this State has decided, that this statute of New- York, though a valid defence in every case when build- ings or property is destroyed, in accordance with its provi- sions, and for which it makes compensation, is unconstitu- tional, invalid, and cannot be pleaded as a defence, in an ac- tion for the destruction of goods, for which it provides no compensation. 243 That decision, to this extent, stands unreversed ; and sit- ting here at the circuit, I am bound by it, and bound to in- struct you, that such is the law of this case. The substantial issue, therefore, taken upon the record, as ■ well as the third plea, is, " that the immediate destruction of the stores, Nos. 48 and 52, without waiting to remove the goods, was not absolutely necessary to prevent the further spreading of the said conflagration, and the destruction of a large portion of the city, and the buildings and property therein." And my instruction to you is, that this is really the ques- tion you are to try; and it is, you perceive, not a question between the plaintiffs and the Mayor of New-York, or the City of New-York, or the State of New- York, but between the plaintiffs and Mr. C. W. Lawrence, a resident and citizen, and property holder of that city, at the time of the fire, and who was at the fire. If a trespass was committed, it was committed by him in his individual character ; and, as such, he, and he only, is responsible. That he was Mayor at the time — that he acted by and with the advice of two Aldermen, and in pursuance of the act, in destroying these buildings, are all, undoubtedly, facts in evidence in the cause ; but they are not, either singly or all together, z justification or har to the action for destroying the goods. They are entitled to all the consideration you think they deserve — so far as they go to show the circumstances under which the buildings containing the goods were destroyed. They form a part of those circumstances — and we shall see hereafter, in what aspect alone they can have any bearing upon the issue. 31* 344 But, I repeat, the great question in the cause — that upon which the whole case turns — is, 2, Was the destruction of the buildings, without removing the goods of the plaintiffs, an act of necessity, or not. The defendant has put his defence substantially on the plea of necessity — and he n:iust prove it, or fail. Here, no purity of motive can save him, if he erred. Though millions may applaud the act, and generations present and to come honor the man who did it — if the law condemns it, let it be condemned. Better that cities should be desolated, than that Courts and Juries should disregard the law; or the hum- blest suitor within the halls of a judicial tribunal, should fail of justice. Did the necessity that, in the eye of the law justifies the act of destroying the goods, exist at the moment the act was committed ? For, the commission of the act, the destruction of the goods, by the defendant's procurement, is established, if you believe the evidence — and also that the goods were, at the time, the property of the plaintifTs. You must then consider, in the first place, the circum- stances under which the act was done — and then sec, if they make out such a case as the law deems a justification of the act, on the ground of necessity. Let us look at the circumstances, as they have been de- tailed by the witnesses for the parties. I will not weary you by going into the evidence in detail, after the very full and able discussion it has received at the bar. But here, in the outset, it may be useful and proper to call your attention to a few leading principles which should govern you, in your search through the mass of testi- mony before you, for the truth and right of the case. 945 I. No question as to who these parties are — whether of New Jersey, or New- York, or elsewhere — or who may be ultimately responsible for the consequences of your verdict, or benefitted by it one way or the other, be- longs to the case now committed to your hands. You and the Court have a simple duty to perform, and that duty is to deal with the cause before us according to the law and the evidence — as a simple matter in difference between A and B. II. My second remark is, that whether the destruction of the property in question was justifiable on the ground of necessity, or not, must depend very much upon the facts and circumstances which existed at the time the act was done ; and not upon the state of things which existed before or after it was done. The question is, did the necessity exist at tlie time ? III. My third remark is, that in all cases like the present, where there is more or less conflicting testimony as to the facts and circumstances, you are bound, other things being equal, to place most reliance upon the statements of those witnesses whose attention was most particularly drawn to what occurred, and what was done, at the lime ; as, for instaiKie, those who con- sulted with the defendant ; those who aided in carry- ing his decisions into effect; and who, having been to a greater or less extent, participators and actors in the transaction, may reasonably be supposed to have been more close and accurate observers, and had all its incidents more deeply impressed upon their memories, than any of the hundreds who were casual or accidental spectators of the scene. 246 IV. And, again, it is a safe rule, that what a credible witness testifies to having seen, is of more weight than the inference or opinions of a dozen witnesses who did not believe because they did not see the thing, the existence of which is in question. For instance, if one witness swears he saw a house on fire, and a dozen witnesses testify they did not see it, — the affirmative testimony is generally more likely to be true as to the existence of the fact, than the negative : because it may readily be believed, that what all the thirteen witnesses say is equally true. These will be proper rules for you to adopt, particu- larly in a case of this kind, where so long a period has elapsed, and the transactions, which are the sub- jects of the inquiry, occurred amid so much of terror, dismay, and confusion, as appears to have existed among all the spectators, on the memorable and dis- astrous night in question. V. Then, there is another important fact, you will bear in mind : We are not trying the question whether any necessity could exist which would authorize or justify the defendant in destroying these goods. The plead- ings admit, that if the necessity, in your opinion, did exist, it is a justification. Self-protection is a law of our common nature ; it belongs to communities as well as to men. Property, and life itself, may be sacrificed, to avert a common calamity. Such is the rule of law ; and a rule of more binding and universal authority, because it is not the creature, but the creator of the law. The law grew out of the rule, as its antecedent, and not the rule out of the law. 247 But the question will come back, What circumstances constitute — make up — this necessity ? Or, to make the ques- tion a practical one at once, What circumstances were, alone, sufficient to justify Cornelius W. Lawrence, the de- fendant, in destroying this property ? There is a principle of vital importance to the community, involved in the settlement of this question. Two dangers are to be guarded against : I. The rule is for the protection, and not the destruction, of private property. ■ If you lay the principle down too broadly, you may give license to a reckless and un- necessary, even a wanton destruction of the pro- perty of a citizen. II. If you lay it down too narrowly, you may paralyze the only power, in a community, that could save it from ruin. The plain, common sense principle is this — if the circum stances were such as that, in your best judgment you believe that there was, at the moment the buildings were blown up, imminent iinpending danger, that the fire would ex- tend itself, and a far greater loss of property ensue, if some such measure w^as not resorted to ; and that the blowing up was the only present means of stopping it ; and thai there was no time to remove the goods, then, undoubtedly, the defendant stands justified upon the plea of necessity. I use Ihe phrase " imminent impending danger" in contradistinction to " absolute certainty." The last cannot be predicated of any future event dependant at all upon contingencies. We say with certainty, the sun will set to day and rise to-morrow — that the law of gravitation which exists to-day will e.\ist 248 to-morrow; — but no sucli certainty can be predicated of the progress of a conflagration or the duration of a storm : in reference to these, men must reason from ap}Dearances and probabiHties. If one presents a pistol to your breast, with the declared intention of taking your life — if you can see no other way of escape, you must take his life, to save your own. The imminent peril is an available justification ; and if after you have killed him, it turns out his pistol was unloaded — and in fact you was in no peril at all, yet the necessity — the legal justification — is stiU complete ; because you could only judge of the existence of the necessity, by the circumstances present at the moment — and had a right to judge as you did. And, First, Was there this imminent danger ? This brings us to the evidence. And here we have some facts that are not controvertedj which bear upon the question. 1. The night was extremely cold. The coldest night, says one witness, ever remembered in New-York. A deep snow obstructed the streets ; and at the time of the act, and for hours before, the whole Fire Department of the city was completely paralyzed — the engines and hose frozen up — the supply of water, as well as the means of using it had failed, and the firemen were engaged in saving goods, instead of putting out the flames. 2. You may consider the fact, that the fire itself was one of uncommon magnitude. That it had raged from about 9 o'clock in the evening, or earlier, up to the time these buildings were blown up. That from the time it broke out until twelve o'clock at night, about forty houses were destroyed ; and that from that hour until six in the 249 morning, six hundred buildings in all were laid in ruins, ■with their contents, making the loss of property from 15 to 20,000,000 of dollars. That this fire was ex- tending its ravages up to the time of the blowing up ; and that, as one witness describes it — every man seemed appalled. It was a general, universal agony. General Swift says, that when he reached the fire at twelve o'clock, it was raging furiously and in great ex- tent. The night was severely cold, and there was great despondency among the people, and a fear that the fire could not be checked ; the water which had been thrown by the engines had come down like hail. Alderman Benson says, there was no means or effort to stop the fire. None could be made. The water was all frozen up ; the men worn out. Lieut. De Camp, who reached the scene with the -powder, (close upon the time of the act, probably about five o'clock,) says, the fire was burning with great fury, and fire was blown in every direction by force of the wind, and showered about the buildings and streets. There was no safety in the streets ; this was caused by the rushing in of the wind upon the flames. He found burnt pieces of goods afterwards . on Long Island, which had been whirled over. The clothes of himself and company were so burned as to be unfit for use. Col. Temple, who reached the fire a little after eleven, says, it had spread a good deal, and was raging with great violence ; it was the coldest night ever known in New- York. The hose was frozen, every one alarmed, and no way to check the flames. The firemen were doing nothing at that time ; the department was paralyzed: 250 the fire had increased and extended in spite of the firemen. While going' to Governor's Island for pow- der, after two o'clock, the gale was so high, that he was in danger of being swamped repeatedly. The fire, he says, went in all directions, and against all rules; it jumped about everywhere. Mr. Gouverneur, the postmaster of the city, described to you the diffi- culty of saving anything from the flames. He says, the streets were so obstructed, they had to carry the bags of letters on their backs. They were obstructed by crowds, engines, and snow, which was all pretty much ice. There was no means of getting help. The fire department w^as totally idle. Firemen had been obliged to drink to keep from freezing ; no active ef- forts were going on or could go on to stop the flames. Col. Monroe says, that from twelve o'clock, the fire de- partment was reduced to inefficiency. Even the chief engineer of the department was doing nothing; the wind seemed that night to have lost all control over the fire ; the fire went every way. Mr. Swartwout reached the fire at a quarter past ten. The exchange, he says, took fire about twelve. After he arrived, it was very appalling ; the flames were extensive, and the heat intense. By eleven, the engine he was at, could not work, so intense was the cold. At that time, there seemed to be a panic among all the firemen. Not an engine could deliver a gallon of water when the Exchange took fire. After they had ceased to play, he had an interview with the chief engineer, and asked him w^hat was to become of them ? and if they were all to stand still and see the city burnt down. 251 Then he sought for the mayor, and told him the state of the fire department, and that nothing but an act of God could stoiJ the fire, unless something besides water was used. These, and numerous other highly respectable and intelligent witnesses, have detailed before you the general scenes of that appalling night. And it is an important fact, in tliis cause, that it was toward the end of such a night, and amid a people, and in a com- munity thus woni down, terrijied, and paruJyzed, with- out water, engines, hose — that the resort was had by this defendant to the act which is here alleged to be a trespass : The blowing up of buildings, Nos. 48 and 52, in which these goods were, in Garden-street. 3. It belongs especially to the consideration of lliis ques- tion, to inquire into the position of^these stores at the time they w^ere blown up. I mean in relation to the fire. It is in evidence, that, on the side of Garden- street opposite these buildings, llie fire had already reached the church, leaping over a wide grave-yard, or open space ; that it had progressed up Lord's block, and tliat No. 46, adjoining No. 48, was in flames. There is evidence, that, immediately after the blowing up of No. 48, No. 50 was found to be on fire. There is some testimony of a very positive kind, that both No. 48 and No. 52 were owfire when the powder was applied, while several witnesses testify they were not. All this is evidence for you to weigli ; and so far as it is contradictory, to reconcile, if you can. 4. Then, again, the opinion of experts, sucli as firemen, as to the nccessitij arising from the imminency of the 32* 252 danger, that the stores should be destroyed, is im- portant evidence. It is the testimony of experienced men, who were acquainted with the art of stopping fires, and who were present and witnessed the scene at the time. Several witnesses have testified upon this point, as you will recollect, without my stopping to recur to their testimony ; and the weight of this evidence is, I think, greatly in favor of the existence of the necessity. 5. And again — ^What was the situation of the neighboring property — the houses and stores in Broad-street and in Wall-street ; were they in great danger from their contiguity — ^their character — the materials they con- tained, of taking fire from these buildings, and con- ducting it on to other parts of the city ? All this is evidence to be carefully weighed, as it bears directly upon the question whether, at the time, there was that imminent impending danger, which amounts to a legal necessity for doing the act that was done, to stop the confla- gration. And then, in connection with the state of things, whatever you may believe them to be, you "may consider the very peculiar situation in which the defendant stood at the moment . If he believed the necessity existed — that the destruction of these buildings immediately was the way, and the only way, to stop the progress of the conflagration, and two Aldermen advised and consented to it, as they did, he was bound by the law — that law which was to him his rule of conduct — to de- stroy these buildings. You may consider this fact, I say, so far as it goes, to show the opinion on the question of neces- sity, entertained at the moment hy those to whose judgment the 253 law hail confided the determination of the question, whether or not the necessity existed. In this case, there is this difference between the act of Mr. LawTence, being the Mayor, and the act of a jirivate citizen, which you may rightfully consider : the one decides and acts under the obligations of official sta- tion, and the solemnities of an official oath ; the other, upon his mere momentary, perhaps impulsive, opinion. You may consider whether, in one case, it is not more probable, that the act was the result of a more deliberate and cautiously formed judgment, than it would have been in the other. Then, if you believe there was a legal necessity for the destruction of these buildings at the moment, the next ques- tion is — Could the goods have been saved ? These goods were m Nos. 48 and 52, at the time they were destroyed, and w"ere of course blown up, and destroyed with the buildings. The necessity of destroying the buildings at the moment they were destroyed, involved, of course, the necessity of destroying their contents. The only question, then, that would seem to remain on this part of the case, is tins : Did the defendant unnecessarily, and before the time of blowing up, compel the agents of the plaintiffs to abandon the stores, and thus prevent the removal of the goods, or any part of them ? Upon this question, you have the evidence of Mr. Gris- wcld, who was a clerk in the store of Lee, Savage & Co. a firm that occupied part of the building. No. 52. He says, " Mr. Lawrence and several other persons came into the store, and said to him. We are the Mayor and Aldermen of the City of New- York ; we are about sending to Brooklyn, for powder 254 lo blow up this building. He said, We could go on rnnnving the goods till the jjowder arrived, and he gave us notice-" And he furlliei' says, — We went on, till they came and cried ■powder; — somebody came, he did not knoiv who; and then he cried " powder" lo those up stairs ; and jhey came down, and all left the store. Mr. Stone testifies, theit he left No. 4.8 without any order, because they brought powder there. If there is any evidence in this case that shows that the defendant actually gave or authorized any one else to give any body in either Nos. 52 or 48, orders to leave these stores, or cease removing goods at any time that night, it has escaped my attention. I believe, it is not pretended that there is any such proof. The occupants of these stores were, as far as I can see by the evidence, at perfect Hberty, up to the moment the powder was brought to No. 48 by Wenman and Cox, to have gone on and removed goods. If they were induced lo leave, by a false alarm, long be- fore the powder came, Mr. Lawrence is certainly no more responsible for that than you or I. When the powder did come — if you believe the testimony of those who brought it, and of those who used it — it was used promptly, in a very few minutes ; and as far as appears by the evidence, when it came and was about to be applied, there was 7iohody in either store to be sewed with notice. The conduct of Mr. Lawrence, if you believe the evidence, seems to have been mai"ked throughout the whole of this dis- astrous night with prudence, judgment, and fidelity to his duty, as an officer and as a man. He was at his post, so far as we can gather from tlio evidence, all night ; at least, 255 is always found when sought. He did not consent to the destruction of property, until he had been informed that the Fire Department was utterly paralyzed and useless ; even then, the evidence is, that he hesitated — he seemed reluctant to adopt what those about him thought was the only means left to stop the conflagration. Witness after witness testifies to the impatience they felt at his seeming delay — which he doubtless felt — as every body felt that night the terrific and appalling calamity that was pressing and progressing on every hand. He probably felt also, as the eloquent counsel now feel, the sacredness of private property, and the danger that he might, even with the best intention, overstep that line where the law holds up its shield, and make himself a trespasser — a wrong-doer It appears, iu evidence, that when he did proceed to act, he proceeded cautiously ; lie sent for the best aids he could procure, and they were, probably, equal to any that could have been found, and put the business in their hands. His position that night, and on the occasion we liave been considermg, is perhaps one of the best illustrations of the re- mark I suggested to you a little while ago, that I could give you — that the rule of law which justifies the destruction of private property, to stop a conflagration, in cases of neces- sity, is a rule for the protection, and not the destmction of property ; and that, if it is laid down too narroiohj, its very end and purpose would be defeated. Let me ask tlie question now, — If, on that night of the 16th December, 1835, these stores, Nos. 48 and 52, had not been blown up by the orders of this defendant, w^hat would have been the consequences ? Can any hody trll me 1 Men may speculate altout it ; but would tiir fire have stopped 256 where it did or at Broad-strccl., or at Wall-street, or whei-e ? S20,Q00,000 had already been destroyed. Can any hodij say, $20,000,000 more would not have been destroyed '! Now, if we adjudge in our courts, that in such an emer- gency as this, when all the natural and usual means of resisting such a conflagration, water, hose, engines, firemen, with their energy and skill, have been exhausted, and para- lyzed and powerless. When men, owners of property, have ceased all efforts to save their buildings, and are hoping and struggling only to save Iheir goods, which was the case with the very occupants of these buildings. If, I say, in our courts, we solemnly adjudge that such a crisis is not one of sufficient peril to justify the use of powder in blowing up buildings in order to stop the conflagration ; and that any man who does it, will be held responsible to the owner, in damages, as a trespasser, tvho will, hereafter, take the risk upon himself in any extreinity ? But I have done. I have said to you, what it seemed to me it was my duty to say, as a Judge. I leave the decision of the case, where it properly belongs, to you — the jury selected for the purpose — with but a few" additional remarks. 1. I am asked to charge you, that if you believe the de- fendant guilty, your verdict should be for the amount of goods proved to have been the property of the American Print Works, and to have been destroyed in the two stores, with interest, from the 16th Decem- ber, 1835, to the 2d November next, at seven per cent ; — and I do so charge you, 2. I am asked to charge you, that no recovery which may have -been had from Insurance Companies, or by the 257 consignees, of any part of the value of these goods, is in evidence, or to be allowed by you in estimating the amount of damages, if you find the defendant guilty ; — and I do so charge. 3. I am asked to charge, that a defendant who seeks to justify the destruction of private property, under the plea of necessity, must take all suitable and proper precaution, and must not do any unnecessary act of injury, or any act which he was bound to foresee would be mischievous. In answer to this, I give you the general instruc- tion, that the plea of necessity can only extend to the acts done of necessity ; and that, a party so destroy- ing private property, is bound .to do as little injury as possible, under the circumstances of the case. 4. I am asked to charge, that a defendant cannot justify the destruction of property greater in value, to save other property oiless value. As an abstract proposition, I think such an act of destruction would be unwarrantable, and could not be justified. But I am not to be understood, as ad- mitting that I see it has any application to this case. The jury retired ; and, after about two hours' deliberation, rendered a verdict for the Defenuant. The following is the entry of the postea: — And the jurors of the jury, wliereof mention is w ithin made, being summoned, also came, who, to speak the truth of the 33 358 matters within contained, being duly elected, tried and sworn, say, upon their oath, that the said Cornelius Lawrence is not guilty of the trespass above laid to his charge, in manner and form as the said plaintiffs hath above thereof complained against him. And the jurors aforesaid, upon their oaths aforesaid, do further say, that the said Cornelius W, Lawrence did, as Mayor of the said city of New- York, with the consent and concurrence of Edward Taylor and Egbert Benson, as Aldermen of the said city of New- York, in pursuance of the said act of the Legislature of the State of New-York, in the plea of said Cornelius W. Lawrence, by him secondly above pleaded, mentioned, cause and procure the said stores or buildings, Nos. 48 and 52, in Exchange Place, in the said city, in the said place mentioned, to be blown up by gunpowder and destroyed ; and that the immediate de- struction of the said stores or buildings, without waiting to remove thereout, the said the American Print Works, goods, wares, and merchandizes, then being therein, was absolutely necessary, to prevent the further spreading of the said conflagration in the said place mentioned, and the de- struction of a large portion of the said city, and of the build- ings and property therein, as aforesaid. And the jurors aforesaid, upon their oath aforesaid, do further say, that the said Cornelius W. Lawrence, being a resident citizen of the city of New- York, and causing or procuring the stores or buildings, Nos. 48 and 52, in Ex- change Place, in said city of New- York, in the plea of said Cornelius W. Lawrence, by him thirdly above pleaded, mentioned, to be blown up by gunpowder and destroyed, the immediate destruction of the said stores or buildings. 269 Nos. 48 and 52, in Exchange Place, in the said city, without waiting to remove thereout tlie goods, wares, and merchan- dizes of the said the American Print Works, then being therein, was absolutely necessary, to prevent the further spreading of the said conflagration in said plea mentioned, and the destruction of a large portion of the aforesaid city, and of the buildings and property therein, as aforesaid. STACY G. POTTS, J. A true copy of the postea, on file in my office. Wm. Force, Clk. Sup. Ct. 33* i261 APPENDIX. It is deemed necessary to present an intelligent history of the Fire Cases in the Courts of the State of New-Jersey, that the decisions of the Courts of that State, anterior to the preceding trial, should be published in connection with it. In March, 1847, thirty-three suits were commenced against Mr. Lawrence, in that State, claiming damages against him for goods destroyed by the use of gunpowder, at the fire of December, X835, to about the sum of $800,000. The declarations in all the causes were similar to that in the case of the American Print Works. Two of these suits were by plaintitls resident in New-Jersey, and the remain- ing thirty-one by plaintilTs not resident in that State. In all of these causes, the defendant pleaded the general issue, and a special plea of necessity, as follows : And the said defendant, by Benjamin Williamson, his at- torney, comes and defends the force and injury, when, &c. And as to blowing up by gunpowder, burning and destroying the said five hundred pongee liandkerchiefs, five Imndred boys' pongee handkerchiefs, five hundred pieces Bengal stripes, one thousand pieces striped drillings, one thousand pieces printed vestings, five thousand cotton pongee hand- kerchiefs, two thousand Britannia handkerchiefs, one thou- 262 sand cotton shawls, five hundred pieces vestings, and other dry goods, and merchandizes, in the said declaration men- tioned, says, that the said plaintiff his action aforesaid, ought not to have and maintain against him, the said defendant, because, he says, that al the time of the committing the said supposed trespasses in the said plaintiff's declaration men- tioned by him, the said defendant, to wit, on the seventeenth day of December, in the year one thousand eight hundred and thirty-five, the citizens of the City of New-York, in the State of New-York, were, and for a long time previous thereto, to wit, from the year sixteen hundred and eighty- six, had been a body politic and corporate, by the name and style of "The Mayor. Aldermen and Commonalty of the City of New-York," and from thence hitherto have continued and remained, and still continue and remain such body politic and corporate as aforesaid, by the name and style aforesaid. And the said defendant further says, that heretofore, to wit, on the seventh day of April, in the year 1830, the peo- ple of the State of New- York, represented in Senate and As- sembly, did pass a public act, entitled, An Act to amend the Charter of the City of New-York," which said act was afterwards, to wit, on the day and year last aforesaid, signed and approved, to wit, by William L. Marcy, the then Gover- nor of the Slate of New- York, duly elected, qualified and acting as such Governor. And the said defendant further says, that the aforesaid act, among other things, provided as follows, viz. " The annual election for charter officers shall commence on the second Tuesday in April, and the officers elected shall be sworn into office on the second Tuesday in May thereafter." " The first election for charter officers after the passage of this law, 263 shall take place on the second Tuesday in April, one thou- sand eight hundred and thirty-one." And the said defendant further says, that certain officers in and for said city, to wit, a Mayor and Aldermen, were provided for, by, to wit, three several charters granted to said city, heretofore, to wit, one by Thomas Dongan, then being Lieutenant Governor and Vice-Admiral of said City of New- York and its dependencies, under and by the authority of James the SeconcI, then King of England, Scotland and Ireland, to wil, on the twenty- second day of April, in the year 1686, in which said Charter so as aforesaid made, it was, amongst other things, by the authority of the said King granted, " that for the better go- vernment of the said city, liberties and precincts thereof, there shall be for ever hereafter, within the said city, a Mayor and six Aldermen, and six Assistants from the making of whiclx,said Charter so aforesaid, up to the time of the com- mencement of this suit, the aforesaid grant has remained in full force and effect, and in no wise abrogated or annulled ; during all whicli time, there have been in said city, certam charter officers, called Mayor and Aldermen. And the said defendant further says, that under and by virtue of the aforesaid act of the Legislature, so as aforesaid passed on the day and year aforesaid, afterwards, to wit, on the second Tuesday of April, in the year 1836, a Mayor, being a " charter officer," and divers, to vat, sixteen Alder- men, being " charter officers," were elected by the qualified electors of the said city, for the term of one year from and after the second Tuesday of May thereafter. And after- wards, to wit, at an election held in said city, for Mayor and Aldermen, and other officers, to wit, on the second Tuesday of April, in the year 1835 ; the said act still being 264 in full force and unrepealed, the said defendant received a majority of the voles given of the quahfied voters of the said city of New- York, over any other person, and was duly elected Mayor of said city, for the term of one year, from and after the second Tuesday of May then next ensuing, to wit, until the second Tuesday of May, in the year 1836. And the said defendant was sworn into his said office of Mayor, and entered upon the duties thereof, to wit, on the said second Tuesday of May, in the year 1835, and continued in such office, and performed tlie duties thereof, for and during the aforesaid term for which he was elected ; during all which time he continued to be, and was the Mayor of said city. And the said defendant further says, that heretofore, to wit, on t)ie day and year aforesaid, one Edward Taylor, a citizen of .^aid city, then residing in a certain portion thereof, called and known as the Second Ward, received a majority of all the votes given in said ward, by the qualified electors thereof, for Alderman thereof, at an election then held in said city, for Mayor and Aldermen, and was duly elected Alder- mtyi thereof, for the term of one year from the second Tues- day of May next ensuing ; and afterwards, to wit, on the second Tuesday of May, in the year 1835, aforesaid, he, the said Edward Taylor, was sworn into office as Alderman in and from, and of the said city, from the second ward of and in said city ; and afterwards, to wit, on the day and year last aforesaid, he, the said Edward Taylor, entered upon the duties of his said office, and exercised and continued to exer- cise the same, for and during the full term of one year there- after, to wit, to llie second Tuesday of May, in the year 1836 ; during all which time, he continued to be and was 265 such Alderman as aforesaid, of and from the second ward of and in said city. And the said defendant further says, that heretofore, to wit, on the second Tuesday of April, in the year 1835, one Egbert Benson, a citizen of said city, residing in a certain portion thereof, called and known as the Third Ward, re- ceived a majority of all the votes given by the qualified voters thereof, at an election then and there held for Mayor and Aldermen of said city, for Alderman of said ward, and was duly elected such Alderman, as aforesaid. And after- wards, to wit, on the second Tuesday of May thereafter, he, the said Egbert Benson, was sworn into office as Alderman from the ward last aforesaid, of and in said city. And afterwards, to wit, on the day and year last aforesaid, he, the said Egbert Benson, entered upon the duties of his said office, and exercised and continued to exercise the same, for and during the full term of one year thereafter, to wit, to the second Tuesday of May, in the year 1836, during all which time he continued to be, and w^as an Alderman in and of the City aforesaid. And the said defendant further says, that heretofore, to wit, on the 9th day of April, in the year 1813, the People of the State of New-York, represented in Senate and Assembly, did pass an act entitled " An Act to reduce several Laws re- lating particularly to the City of New- York, into one Act," in which said act it was among other things, provided and enacted as follows, viz. " That when any building or build- ings in the City of New- York shall be on fire, it shall be lawful for the Mayor, or in his absence, the Recorder of the City, with the consent and concurrence of any two of the Aldermen thereof, or for any three of the Aldermen, to 34 266 direct and order the same, or any other building which they may deem hazardous and hkely to take fire, or to convey the fire to other buildings, to be pulled down or destroyed." And afterwards, to wit, on the day of said in the last year aforesaid, the act aforesaid so as aforesaid passed, was presented to the Council in said State duly elected, chosen, anti appointed to revise and consider all bills which were passed by the Senate and Assembly of the State of New- York aforesaid, which said Council was under and by virtue of the Constitution of the said State charged with the revision and consideration of all laws passed as aforesaid ; and the act aforesaid passed as aforesaid, was by the said Council considered and approved, to wit, on the day and year last aforesaid, and then and there became and was a law. And the said defendant further says, that the provision of the aforesaid act as above stated, from thence hitherto has remained, and still remains in full force and effect and unrepealed. And the said defendant further says, that heretofore, to wit, on the seventeenth day of December, in the year 1835, at the city and county aforesaid, certain buildings were on fire, to wit, numbers forty-four and forty-six, in a street called Exchange Place, in the aforesaid City of New- York. And the defendant further says, that near to the said build- ing, so as aforesaid on fire, at the place and on the day and year aforesaid, was a certain other building, commonly called a store. And the said defendant further says, that he, the said defendant, then being Mayor, as aforesaid, and the said Edward Taylor and Egbert Benson, then still being Alder- men of and in the said city, as aforesaid, were present when the buildings aforesaid were on fire, as aforesaid ; and then 267 and there llie aforesaid building, commonly called a store, was, hy the said defendant, then still being Mayor of the said City of New- York, and said Edward Taylor and Egbert Benson, then still being Aldermen of and in the said city, and by each of them deemed and believed hazardous, and likely to take fire. And he, the said defendant, did, with the full consent and concurrence and approbation of each and. both the aforesaid Aldermen, cause and procure the aforesaid building, commonly called a store, to be blown up and de- stroyed. And the said defendant says, that the said fi ve hundred pongee handkerchiefs, five hundred boys' pongee handkerchiefs, five hundred pieces Bengal stripes, one thou- sand pieces striped drillings, one thousand pieces printed Testings, five thousand cotton pongee handkerchiefs, two thousand Britannia handkerchiefs, one thousand cotton shawls, five hundred pieces vestings, and other dry goods, wares and merchandizes of the said plaintiff, as in said de- claration mentioned, were in the aforesaid building, commonly called a store, at the time when he, the said defendant, as Mayor, as aforesaid, with the consent, approbation and con- currence of each and both the aforesaid Aldermen, of, in and for the city aforesaid, caused the said building to be blown up with gunpowder, and destroyed, to wit, on the day and year aforesaid, at the City, County and State of New-York, and within the jurisdiction of the State of New- York ; and for tiie reason aforesaid, the aforesaid goods, wares and mer- chandizes in said plaintiff's declaration mentioned, were blown up by gunpowder, burned up, and destroyed by said defendant, as it was lawful for him to do, as Mayor of the City of New- York, as aforesaid; which are the same sup- 34* 368 posed trespasses in the introductory part of this plea men- tioned. And this he, the said defendant, is ready to verify ; where- fore he prays judgment, if the said plaintiff ought to have and maintain his aforesaid action against him, the said de- fendant. This plea was sustained by the Supreme Court of New- Jersey, and the following opinion was delivered : Green, C. J. — This is one of thirty-three actions, com- menced by diiferent plaintiffs, for damages sustained by the loss of property, destroyed on the 17th of December, 1835, by ordei" of the Mayor and two Aldermen of the city of New-York, to arrest the spread of a conflagration in that city. The plaintiffs complain, that the defendant, on the 17th day of December, 1835, at the city of New-York, blew up by gunpowder, burnt and destroyed, divers goods, wares and merchandize of the plaintiffs, of the value of $200,000. The defendant pleads in justification, that by a Statute of the State of New- York, passed on the 9th day of April, 1813, it was, among other things, enacted as follows, to wit, " That, when any building or buildings in the city of New-York shall be on fire, it shall be lawful for the Mayor, or in his absence, the Recorder of the city, with the consent and concurrence of any two of the Aldermen thereof, or for any three of the Aldermen, to direct and order the same, or any other build- ing which they may deem hazardous, and likely to take fire, or to convey the fire to other buildings, to be pulled down and destroyed." That on the 17th of December, 1835, the aforesaid pro- vision of the said Act remaining in full force and unrepealed, certain buildings, to wit, Nos. 44 and 46 Exchange Place, I 269 in the city of New- York, were on fire. That the defendant, then being Mayor of the said city of New- York, and Edward Taylor and Egbert Benson, then being two of the Aldermen of said city, were present at the fire. That near to the said buildings so on fire, was a store, which was by the said Mayor and Aldermen, and by each of them, deemed and be- lieved hazardous, and likely to take fire; and that the de- fendant, with the full consent, concurrence and approbation of the said Aldermen, caused and procured the said store to be blown up and destroyed. That the goods of the plaintiffs were in the said building at the time it was so blown up and destroyed; and for the reason aforesaid, the aforesaid goods, wares 'and merchandize in the plaintiffs' declaration men- tioned, were blown up by gunpowder, burned up and de- stroyed by the defendant, as it was lawful for him to do, &c. To this plea, there is a general demurrer, and joinder in demurrer. The only question presented by the pleadings, and dis- cussed upon the argument of this cause is, whether the Statute of the State of New- York, pleaded by the defendant, is a sufficient justification of the alleged trespass. It is insisted, on behalf of the plaintiffs, that no statute can be constitutionally passed which authorizes the destruc- tion of private property, without compensation. That pri- vate property cannot be taken, by virtue of an act of the Legislature, without indemnity. That such taking is a viola- tion of that clause of the Constitution, which provides, that private property shall not be taken for public use without just compensation. It is conceded, that while the statute has made provision for indemnifying all persons having an interest in the build- 370 ings destroyed in pursuance of the Act, the owners of per- sonal property destroyed by the same instrumentality, having no interest in the building, are left without compensation. Nor is it denied that the destruction of private property for public use, is a taking of it within the meaning of the Con- stitution. If the statute authorizes the destruction of private property for public use, within the meaning of the Constitutional pro- vision, then clearly the Act is unconstitutional, and cannot avail the defendant as a justification. But, is property destroyed to arrest the progress of a con- flagration, taken for public use, within the constitutional sense of the term ? The right to take private property for public use, is an attribute of sovereignty — it is inseparable from the sovereign power. It is the right of eminent domain, of sovereign or transcendental property in the goods of the subject. It is a right founded on the nature and end of sovereignty, growing out of the nature of the social compact, by virtue of which, every member of society holds his property upon condition that it is subject to be taken for the use of the State, when- ever the public good requires it. It is justified on the ground of State necessity. It is founded on the same principle as the right of raising taxes and subsidies for the support of government, and the right of regulating the use of private property, by sumptuary laws. (2 Burlera, 145, c. 5, ^ 6 ; ib. 159, c. 5, ^ 24-29; 12 Coke, 13. Case of the Prerog- ative, &c. But the right to destroy property, to prevent the spread of a conflagration, rests upon other and very different grounds. It appertains to individuals, not to the State. It has no 271 necessary connection with, or dependence upon the sovereign power. It is a natural right, existing independently of civil government. It is both anterior and superior to the rights derived from the social compact. It springs not from any right of pro- perty, claimed or exercised by the agent of destruction, in the property destroyed, but from the law of necessity. The principle, as it is usually found stated in the books is, that " If a house in a street be on fire, the adjoining houses may be pulled down to save the city." But this is obviously in- tended as an example of the principle rather than as a pre- cise definition of its limits. The principle applies as well to personal, as to real estate ; to goods, as to houses ; to life, as to property ; — in solitude, as in a crowded city ; in a state of nature, as in civil society. It is referred by moralists and by jurists, to the same great principle which justifies the ex- clusive appropriation of a plank in a shipwTcck, though the life of another be sacrificed ; with the throwing overboard of goods in a tempest, for tl^e safety of the vessel ; with the taking of food, to satisfy the instant demands of hunger ; with trespassing upon the land of another, to escape death from an enemy. It rests upon the maxim, " Necesitas in- duciz pnvilegium quoad jura privata." (Bacon's Elem. Reg. 5; Noy's Maxims, Max, 25, (Herrings ed. p. 30;) Puffen, lib. 2, c. 6, sec. 8; Witherspoon's Mor. Phil. 136, sec. 16 ; 2 Kent's Com. 2d ed. sec. 338 ; Stone et al, v. The Mayor et al, 25 Wend. 173.) And the common law adopts the principle of the natural law, and places the justification of an act otherwise tortious, precisely upon the same ground of necessity. It must be so pleaded in justification. Hence the plea in 372 such case is not the public good — the eminent domain, the sovereign power — but necessity. Com. Dig. PI. 3 M. 30; 3 Chit. 1118. It is true, that by many writers of high authority, the ground of justification of an act done for the public good, and of an act committed through necessity, are not accu- rately distinguished. They are both spoken of as grounded on necessity, and they doubtless are so. But the one is a State, the other an individual necessity, though oft times re- sulting in a public or general good. The one is a civil, the other a natural right. The one is founded on property, and is an exercise of sovereignty. The other has no connection with, or dependence upon the one or the other. Nor can property destroyed to prevent the spread of a conflagration, be said, in any appropriate sense, to be destroyed for the public good. It may be destroyed for the benefit of one, of a few, or of many ; but it is not destroyed for the benefit of the state ; nor is it taken in aid of any of those public ob- jects, which it is the pecuhar and .appropriate duty of every State to foster and promote. I am of opinion, therefore, that the destruction of buildings to prevent the spread of a con- flagration, is not the taking of property for public use within the meaning of the Constitution. Nor is the principle altered by the fact that the destruc- tion, in the present instance, w"as committed under legisla- tive sanction. The right of destruction existed prior to the enactment. The statute created no new power. It con- ferred no new right. It merely converted a right of neces- sity into a legal right. It regulated the mode in which a previously existing power should be exercised. The statute does not authorize the destruction. It could 273 not do so. It would be an attempt to take private property for public use. Nor did the statute deprive any citizen of his natural right to destroy buildings to prevent the spread of a fire in a case of necessity. Every citizen may, notwith- standing the statute, still exercise that right at the peril of being held responsible for an error of judgment as to the existence of the necessity. But the statute vested the power of judging of the existence of the necessity in the discretion of certain officers, designated by the statute, and made their judgment conclusive of the existence of that necessity. In so doing, I do not perceive that the Legislature acted un- constitutionally. The pohcy of the statute, and whether upon principles of equity, provision should have been made to indemnify those whose property has been sacrificed for the safety of the city, are points upon which a-difTerence of opinion may exist, but with which this court has no concern. It is further objected, that the act is unconstitutional, upon the ground tliat the party whose property is injured, is de- prived of tin; right of trial by jury. Tlie objection is not well founded. The party is not, in point of fact, deprived of a trial by jury. The evidence necessary to sustain the defence,- is changed. Even if the parly were deprived of a trial by jury, the statute is not therefore necessarily unconstitutional. (Bonaparte v. The Camden and Amboy R. R. Co. Baldw. 220 ; Scudder v. The Trenton Del. Falls Co. Saxton, 687 ; Beekman v. The Sara, and Sch. R. R. Co. 3 Paige, 75.) The only remaining ground of objection to the validity of the plea is, that the statute on which the defendant relies for justification, does not in terms authorize the destruction of personal property, but only of buildings deemed hazardous 36 274 That the l^cgislature liave left the right to destroy personal property as it stood at common law, undisturbed by the pro- visions of the statute. It may be suggested, moreover, that the necessity of destroying the goods did not result neces- sarily from the necessity of destroying the building. That though the destruction of the building may have been neces- sary, yet by a brief delay, the goods of the plaintiff might have been saved. That the justification, therefore, may be perfect as to the building, but fail as to the goods. The act, however, which constitutes the Mayor and Alder- men judges of the necessity of destroying the buildings, mast, of consequence, make them judges also of the time at which the act of destruction becomes necessary. It must be assumed, therefore, upon the pleadings, that the building was destroyed at the time, and in the manner, demanded by the imminency of the danger. It must further be assumed, that the destruction of the building necessarily involved the destruction of the goods. The defendant, then, in this action, is attempted to be made responsible for the consequences of an act, which, by the statute, he was especially authorized to perform, for the performance of a duty which, as a public officer, he was bound to execute. He was acting for no private emolument, but in the discharge of a public duty. The act was not done for his individual benefit. He derived from it no advan- tage not shared in common with his fellow citizens. In the performance of his duty, he acted, it must be assumed, with due skill and caution. There is no allegation or pre- tence to the contrary. Under these circumstances, I deem it clear that the defendant is not liable for the destruction of 275 the plaintiffs' goods, or for any otlicr inevitable consequence of the destruction of a building. It is a well settled principle, that where a ]jerson in dis- charge of a public duty, not acting for private emolument, unwittingly injures another in the performance of the act, ■while acting with due skiil and caution, he is not answerable for damages. (The Governor, &e. v. Meredith, 4 T. R. 794 ; Sutton V. Clark, 6 Taunt. 29 ; Am. Law Mag. (April, 1843,) p. 53 ; Sinnickson v. Johnson, 2 Harr. 129, 150 ; Ten Eyck V. The Del. and Rar. Canal Co. 2 Harr. 200.) The demurrer must be overruled.) From this judgment of the Supreme Court, the plaintiffs appealed to the Court of Errors and Appeals of New-Jersey, who reversed the judgment of the Supreme Court, sustain- ing this plea of justification ; and the following reasons of that Court were assigned for overruling that plea : Nevius, J.— Before examining the important questions in- volved in this cause, I will advert briefly to the suggestions of the defendant's counsel, that the cause of action arose in New-York ; that the defendant resides in New- York ; and that this cause, or others of like character, and arising out of the same transaction, have already been adjudicated in the courts of that State ; and that the law of the case, as settled by such adjudication, should govern this court. The answer to the first of these suggestions is, that the action is trans- itory trespass to personal goods, and may be prosecuted wherever the defendant may be found, and brought within the jurisdiction of a court having cognizance of such actions ; that the defendant has filed no plea to the jurisdiction ; and by pleading in bar to the action, has admitted the jurisdiction of the court. And as to the second suggestion, if it were in- 35* 376 deed true, that the questions here involved had been settled by the tribunals of New- York in other like cases, it would not constitute an exception to this jurisdiction, however important their bearing might be upon our final judgment. While the courts of New-Jersey will abstain from jurisdic- tion, where it is not clearly conferred by law, and whilst they ■will extend ail proper courtesy to foreign courts and their decisions, they will not feel themselves at liberty to deny process and jurisdiction merely from considerations of courtesy to such courts, or from motives of convenience to themselves or suitors. I find nothing in these suggestions, therefore, which should deter this court from examining and adjudi- cating upon the main questions w"hich have been raised by this plea and demurrer, and have been so ably discussed before us. I proceed to such examination. . The first point or position taken by the plaintiffs in error is : " That the statute pleaded in bar or justification by the defendant, was an exercise of eminent domain, delegating to the defendant a discretionary power depending upon expedi- ency, not necessity, to be exercised as occasion might require for the common benefit of the city ; the power conferred being co-extensive with the provision for compensation. And that the authority to destroy did not extend to personal pro- perty." The position assumed and contended for by the defendant is : "That the statute conferred no new power, but only regu- lated the exercise of a natural right inherent in the citizen, substituting the discretion of certain public officers to determine the necessity of the act done in place of the verdict of a jury." The first step in the progress to a decision of this case is, to determine w'hich of the foregoing positions is sound and 277 true, and sustained by the law of the land. And in order to this, it will be proper to define with precision, what is this power of eminent domain, as laid down by elementary writers, as well as to ascertain, with like certainty, what is this natural right which is said to arise on occasions of abso- lute, or overwhelming', or extreme necessity, and constitutes a justification for an act, which in itself is a trespass? The right of eminent domain is a branch or part, or a necessary and inseperable attribute of sovereign power, and it vests in the legislature of every civil and independent government the control of private property for public uses, and for public uses only ; (2 Kent, 275.) This right of con- trol over private property extends not only to its appropria- tion to public necessities, but also to public good, interest and convenience, yet it is not an unlimited and unrestrained right. The Constitution of the United States, the Constitu- tion of the State of New- York, and of other States, have at- tached a condition to its exercise, and declare, "That private property shall not be taken for public use without just com- pensation." And any law which permits the taking of the property of an individual for public use, without providing by its own terms for compensation, is unconstitutional and void, unless compensation is provided by some other law, either general or special. Whether or not a law authorizing the destruction of private property for public benefit or safety, is to be esteemed a taking of it for public use, (as has been held by the Supreme Court of New- York, 13 Wend. 272,) such a law is nevertheless an exercise of the right of eminent do- main; and if it makes no provision for compensation to the owner, the law is either unconstitutional and its execution may he judicially restrained by virtue of the paramount pro- 278 vision of llie constiliitiou iiiilil compensation he made, or if the destruction takes place before such restraint can be ob- tained, the right of the owner to compensation is still com- plete upon principles of natural equity, though the remedy may be imperfect, resting only in an appeal to tlie justice of the legislature. The right lo take or destroy private property by an indi- vidual in self defence, or for the protection of life, liberty, or property, (if it can be esteemed a legal right at all,) is one of a different character; it does not appertain to sovereignty, but to individuals considered as individuals ; it is a natural right, of which government cannot deprive the citizen ; and founded upon necessity, and not expediency. It may be exercised by a single individual, for his own personal safely or security, or for the preservation of his own property ; or by a community of individuals in defence of their common safety, or in the protection of their common rights. It is essentially a private, and not a pubhc or official right. It is a right not susceptible of any very precise definition ; for the mode and manner and extent of its exercise must depend upon the nature and degree of necessity that calls it into action ; and this cannot be determined until the necessity is made to appear. Ld. Hale calls it the lex temporis et loci, and one of the counsel has aptly termed it the lex instantis, lawless but not responsible. It is rather a riglit to justify an act done, than a lawful right to do an act of violence to the person or property of another ; for such other has an equal ri^ht to defend his person or property from violence. A few instances will suffice to illustrate this right. A man may justify taking the life of his advcrsery, where it is necessarv to save his own ; or destroying his neighbor's 279 property in some cases, for the preservation of his own. So the people of a neighborhood may justify a trespass on another's grounds, to destroy noxious animals ; and in a densely populated town, all may unite in destroying a build- ing, to stop a conflagration which threatens destruction to the rest. But in all these cases, the act done, is in the in- dividual capacity of him who does it, and it is done upon his own responsibility, and at his own peril. The law es- teems all private property sacred from the violent interference of others; and he who takes, injures or destroys it, will be held a trespasser until he shows a justification. A necessity, extreme, imperative or ovei-whelming, will constitute such a justification, but mere expediency, or public good, or utility, will not answer. The public interest or welfare is not left in the keeping of private individuals. This justification, therefore, under a plea of necessity, is always a question of fact, to be tried by a jury, and settled by their verdict, un- less the sovereign authority shall have constitutionally pro- vided some other mode. With this brief exposition of what is meant by this right of eminent domain, and what is this natural right resulting from necessity, I proceed to the examination of the statute which has been pleaded in bar to this action, and inquire whether it confers upon the Mayor and two Aldermen of the city of New- York, a right of eminent domain, or is a mere regulation of the right of necessity, already and before existing in the defendant or in others, the citizens of New- York as a community of individuals, or in the corporation of that city as a body corporate. The statute pleaded, was enacted in April, 1813, and is entitled, " An Act to reduce several laws particularly relating 280 to the City of New- York, into one act." The 81st section of this Act makes it lawful for the Mayor, with the consent and concurrence of two Aldermen, to order and direct any building which shall be on fire in the city of New- York, or whicli they may deem hazardous, and Hkely to take fire, or to convey the fire to other buildings, to be pulled down and destroyed. And it prescribes the mode of assessing the damages which " the owners of such buildings, and all per- sons having an estate or interest therein, have sustained, by the pulling down or destroying thereof — and this models the same as that provided in the same act, in relation to ground taken for public purposes. And upon such assessment being made, it further enacts that the payment of such assessment by the corporation of the city, to the persons in whose favor such assessments shall be made, shall be in full satisfaction of all " demands of such persons, by reason of the destruction of said building." And the 83d section of the same act pro- vides, that the sum assessed for any building so destroyed, shall be borne and defrayed by the corporation. This is the substance of the act pleaded in justification of the trespass complained of. Does it confer upon the defend- ant and the two Aldermen a new and independent power, which did not exist in them before ? or is it the mere regula- tion of an already existing natural right in them, which they might exercise, independent of the statute ? Before I refer to the extent of the power conferred by the Legislature in this statute, I seek to ascertain its natural character, arid whether it is a power of eminent domain, or an increase or adjunct to the right of self-protection, natural and inherent, in the officers designated in the act? And this question seems of easy solution. Does the statute confer any right? 281 If it does, it is clearly not a natural right, for snch right existed before; and if it did not, the. Legislature could not grant it. Such a right is antecedent, and paramount to any civil right in the power of the Legislature to grant. Beyond all doubt, the statute contains a grant of a right, an authority that did not before exist in the Chief Magistrate of the city of New- York, and his subordinate officers, as such. It may be, that in their individual capacity, before the passage of the act, they might have justified the act complained of, upon the ground of inevitable necessity ; but they could not, before the statute, have justified the act on the ground of their own discretion, either in their private or public capacity. As in- dividuals, or as inhabitants in the district which was threat- ened with this destruction, they may have had a natural right to destroy either the building or goods which were de- stroyed ; if they did so, they would have been bound to establish, to the satisfaction of a Jury, that it was a case of inevitable necessity, or that the plaintiffs sustained no injury beyond what would otherwise have been occasioned by the fire, before the law would have acquitted them of the tres- pass. And as public officers, they had not, without the statute, the power to destroy either the building or the goods; and much less the power to destroy them at their mere discretion, without legal responsibility. As individuals, their right of self-protection did not extend beyond that object, except at the instance of him whose life or property was placed in jeopardy. Men cannot constitute themselves Judges, except in cases of extreme necessity, and volunteer to set all things right, according to their own estimation of right, and determine the necessity of an act which does not affect their own individual rights or interests. As a magis- 36 282 trate or public officer, the defendant had no irresponsible and discretionary authority to destroy the plaintiffs' property, unless it was granted to him by the Legislature. The de- fendant, then, without the provisions of this statute, had neither a natural discretionary and irresponsible power, nor an official discretionary and irresponsible power to do the act, which, by his plea, he admits he did do. But he says, the statute conferred that power upon him, and he exercised it pursuant to the statute. It will, then, follow, that the statute pleaded in bar, was a new grant of power, not before existing in the defendant, either in his individual or in his official capacity; and, in my opinion, it was a grant of emi- nent domain. First. Because the statute made it lawful for the Mayor and Aldermen to pull down and destroy the building of another, under certain circumstances ; and the act of doing so, therefore, is no trespass. The statute is an absolute bar to an action against them for destroying a building, and not a mere justification or excuse for the act, as would be the plea of necessity, in case it was destroyed under pretence of absolute necessity, and by virtue of natural right. Second. Because the statute imposes upon the Corpora- tion of the city of New-York, the duty of making compensa- tion to the owner of a building so destroyed; when, if destroyed in consequence of an overwhelming necessity, he would not be entitled to such compensation, nor would the city be bound to make it. And this provision for compensation, in the mode prescribed, clearly implies, that the power granted was to be exercised for the public good and common welfare of the city, as the compensation was to be paid out of the city treasury, or levied upon the whole people of the city. 283 Third. Because the statute provides the same mode of as- certaining the damage, and making the assessment for build- ings so destroyed, as is provided in cases where land is taken for public purposes, the taking of which is clearly an exercise of the right of eminent domain. Lastly. The grant of this discretionary power, to destroy buildings in cases of fire, was made at the instance of the Corporation, and conferred upon the defendant and Aldermen in their public and official capacity, and for the public safety and public welfare : it was not confined to any particular locality, but was co-extensive with the limits of the Corpora- tion. For these reasons, I can view this grant in no other light than as a grant of eminent domain, to be exercised by such public officers as the inhabitants of the city might from time to time elect, and in whose discretion they entrusted the exercise of this power, for which they themselves, as a body corporate, were to respond. And having arrived at this con- clusion, I proceed to inquire into the extent of the power granted by this act. The language of the act is, " that it shall be lawful for them to direct and order certain buildings to be pulled down or destroyed ; and that the damages which the owners of such buildings, and others having an estate or interest therein, had respectively sustained by such destruction, shall be assessed by a jury ; and that the amount so assessed, shall be paid by the Corporation to the person in whose favor such assessment shall be made, in full satisfaction of all demands of such persons, respectively, by reason of such destruction." Under this statute, the act permitted to be done, is the pulling down or destroying a building ; the persons to be 36* 284 compensated are the owners, and such persons as have an estate or interest therein ; that is, such building, as tenant or occupant, owner in fee, remainder man, or reversioner, or mortgagee, or, in fine, any body who may have a property, in possession or expectancy, in the building so destroyed. And the satisfaction of all demands, by fair, logical, and leg"al construction, applies to demands arising from the loss of the building, and not the loss of the goods that it may contain when destroyed. The act makes no mention of personal goods — it makes no reference to personal goods ; it provides no compensation for the destruction of personal goods ; it confers no power, by express terms, to destroy personal goods, but the right to destroy buildings, and buildings only. I know that the Courts of New- York, in their construction of this statute, have extended its relief to the tenant or owner of the building, by allowing him compensation for the loss of goods belonging to himself, which were in the building at the time of its destruction ; and even by allowing him com- pensation for advancements made by him on goods held in such building under consignment, whilst they have refused to extend the like relief to the owner of other goods in the same building, involved in the same destruction by the same act, because he had no estate or interest in the building itself. With all proper respect for the Courts which have so con- strued this statute, I cannot yield my assent to such con- struction ; and feel the more warranted in withholding it, ■when I find learned and eminent judges of the same State likewise holding a different opinion, and maintaining that opinion by arguments more satisfactory to my own mind. I cannot think that the construction given to this statute by the Courts of New-York, correspond either with the true 285 intent of the Legislature, or any intent apparent on the face of the statute. I cannot but consider such construction as unequal and unfair, in its principle and operation ; for it is granting to the citizen what it withholds from the stranger ; and to the trustee, who was present to save and protect his own property, a compensation for his own loss, while it denies to the absent, cestui que tmst, a like indemnity for a like loss incurred by the same act. I do not find in this statute, any express authority conferred upon the Mayor and Aldermen to destroy goods and merchandize at their discre- tion ; nor do I find that it allows any compensation for the destruction of merchandize, either to the owner of the build- ing, or to anybody else whose goods may be destroyed by the act of pulhng down or destroying the building. But it is contended, that the destruction of the plaintiff's goods in this case, as well as the goods of others in like cases, is implied in the grant ; in other words, that the de- struction of the goods necessarily and unavoidably resulted from the exercise of the power granted. J cannot think so. I cannot think that the Legislature of New-York, when they enacted this statute, contemplated either the necessity or the expediency of destroying personal goods to stop a conflagra- tion, which would not otherwise be destroyed by the confla- gration itself; or that they intended to invest those officers with a discretionary power to destroy personal goods, or to provide a justification for such a destruction. Had such been their intent, or had they contemplated that such would or might be a necessary consequence of the exerccise of the power granted, while they were providing an indemnity to the owner of the building, is it not due to their sense of jus- tice to say, they would also have provided an indemnity to 5286 the owner of tlie meixhandize so necessarily destroyed ? I speak now of a direct and certain, and not a mere incidental, consequential or uncertain destruction of goods, such as could not be foreseen, as a necessary result of the destruction of a building, and of course could not be provided against. There is nothing in the terms of the statute, or in its object and design, or in the circumstance under which the power con- ferred was to be exercised, or in the nature of personal pro- perty, to warrant the inference that the Legislature intended to invest the defendant and his associates either with a direct and absolute, or with an incidental and implied power to de- stroy such property. The very effort and force required to destroy personal property, which could be saved from con- flagration by any possibility, would be suiEcient to remove it and save it from destruction ; but if it were beyond the pos- sibility of escape or preservation, its destruction by the act of these officers could work no injury, which would not other- wise have occurred ; and in that case, such a defence, if pro- perly pleaded and proved, would avail them. I will not say, that, if in the destruction of a building by gunpowder, some consequential injury or loss should result to the personal property of another, which could not be foreseen or provided against by ordinary prudence, that these officers would have been liable to an action in their individual capacity for such loss or injury, or that they might not plead this statute m bar of such action ; but I don't hesitate to say, that I find no warrant in the statute for the dir-ect and immediate destruc- tion of personal property by a direct act of force and violence. This is an action of trespass, for a direct and forcible de- struction of the plaintiff's goods ; the form of the action is not objected to, nor does the defendant, by his plea, deny 287 the trespass, but sets up the statute in justification of the act complained of. Nor could he object to the style of action ; for the act, by which the building was destroyed, destroyed also the goods. And it might as well be said, that the de- struction of the building was the consequence of blowing up the goods, as to say that the loss of the goods was the con sequence of blowing up the building ; both were destroyed by the same agent, and by the same direct and forcible act. From the view I have taken of the case thus far, I have arrived at the conclusion, that this statute contains no au- thority, either in express terms or by necessary implication, to destroy the plaintiff's property, and that the plea consti- tutes no justification. But if I am wrong in this, and if it were, in fact, true, that the destruction of this property was in pursuance of the fair import of the statute ; yet it is equally true, that the Legisla- ture have made no provision for compensation to the owner. Such has been the decision in all the Courts of New- York where the question lias been raised. Or, at least, it has been again and again decided, in those Courts, that this statute has made no provision to compensate the owner of goods de- stroyed, unless he has some estate or interest in the building ; and it is clear, that compensation has been provided by no other statute. If we admit, then, that the statute made it lawful for the defendant to destroy the plaintiff's goods ; and if we yield to the decisions of the Courts of New- York, that there is no compensation allowed for the loss, the question is then presented, is the statute constitutional ? The Chief Justice, in giving his opinion in this case, says : " That if the statute authorizes the destruction of private property for public use, within the meaning of the Constitu- 288 lional provision, then it is clearly unconstitutional, and can- not avail the defendant as a justification." But he denies, that this was taking private property for public use. I ad- mit, that if these goods were destroyed by the defendant, acting in his private and individual capacity, and by virtue of his natural right, in extreme necessity, to secure his own personal safety or the safety of liis own property, they could not be said to be taken for the public use ; nor would the plaintiff be ,entitled to compensation, unless the defendant has failed to satisfy a jury of the existence of such necessity. But the defendant has not pleaded that he committed the act complained of, in his individual capacity, and in consequence of any such necessity ; but he pleads, that he committed it in his public and official capacity, and in pursuance of the au- thority vested in him by the statute. If the authority con- ferred on him by the statute, then, is a power of eminent domain, as I think I have shown, the act which conferred it is unconstitutional, and is no defence here; as it has not pro- vided for compensation, unless it can be demonstrated that these goods were not taken for public use. Let us see, if they were not taken or destroyed for the public use, in the constitutional sense of the phrase. Had the statute con- ferred upon the Mayor and Aldermen the right, at their dis- cretion, to take these goods and appropriate them to some public purpose, in which the citizens of New- York had an interest ; can it be doubted, but that it would be done in the exercise of sovereign power, and that it would be a grant of eminent domain ; and that if the right of compensation did not accompany the right of appropriation, the act would have been unconstitutional and void ? Does the riglit, then, to destroy personal or real estate, goods or houses, when done 289 for the public use or the common benefit of all the people of an incorporatetl city, differ in principle or effect, so far as re- gards the owner, from the right to use such property. Is not the taking- and destroying private property for llie public use and benefit, the same as appropriating it to such use and benefit ? Can the Legislature grant to an individual, or the chief magistrate of a tovm, or to a corporation, the right to destroy a private dwelling to make room for a street or public wharf, without compensation to the owner, while Ihcy are constitutionally bound to make compensation for the land occupied by such improvements ? I will not multiply cases. The same principle applies whether private property is used for public benefit, or destroyed for public benefit ; to wit, that there shall be no violation of private right, or no deprivation of private property by the sovereign power, W'ithout just compensation. And any other construc- tion of this constitutional provision seems as inconsistent with natural justice, as with sound law and sound sense. But, again, it is said, that the destruction of this store and its contents was not for the public use or benefit. If this was not done under the authority of the statute, but by the de- fendant, by virtue of his natural right, and in defence of his own or his neighbor's property, or by a number of individuals to prevent a common calamity that threatened a particular street or district, the position would be true. But this is not the case. The defendant, by his plea, says, it w^as done under the authority of the act ; and the authority was con- ferred by thg act, for the common benefit of the whole city, and not for any particular portion of it. It was conferred upon the chief magistrate and Jiis associates, chosen by the citizens of New- York, for its discretionary exercise, in all 37 290 cases of fire, and for the public welfare, and public safety, and it extended everywhere throughout the limits of the corporation. To constitute a public use or benefit, it is not necessary that every citizen should have a direct interest in such use or benefit ; it is sufficient, if every citizen may have such an interest, or an indirect and remote interest. Lands taken for streets, wharves, or other public improvements in the city of New-York, are taken for public use, yet the great mass of the people may derive no benefit from such use. The destruction of a building or a cargo of merchandize to stop a fire, or prevent a contagion, may be for the public benefit, yet nine-tenths of the people of the State may have no particular interest in such destruction. I repeat, then, that if the statute pleaded in bar in this case, gave to the defendant the right to destroy the goods in question, and if he did destroy them under and by virtue of that right (which his plea alleges,) then it was done, for the public use and benefit, and it was the destruction of private property for public use ; and, as the statute has provided no compensation, it is, according to the language of the Chief Justice, "unconstitutional, and cannot avail the defendant as a justification." For these reasons, I am of opinion, that the judgment of the Supreme. Court should be reversed, and the cause remanded, to be proceeded in according to law. In the foregoing opinion, I have not referred to all the decisions in the courts of New-York, made iu these commonly called fire cases ; but, upon careful examination of them, I have not been able to find that the main question involved in this case has ever undergone the solemn adjudication of any of those courts. I feel, therefore, the less reluctance in pro- 291 houncing this opinion, as I cannot come in conflict with them upon this question. In the thirty-one suits, in wliich the plaintiffs were non- residents of the State of New-Jersey, the defendant, in ad- dition to the above special plea, also pleaded another special plea of the statute of limitations. This latter plea was also sustained by the Supreme Court ; and their judgment on this plea was affirmed by the Court of Errors and Appeals. In the two suits, in which the plaintiffs were residents of the State of New Jersey, and in which the statute of limitations was not pleaded, the defendant put in the amended pleas, set forth in the preceding case, and which were sustained by the Supreme Court of New Jersey. The opinion of the court upon these amended pleas, is as follows : Green, Ch. J. — The question presented by the demurrer in this cause is not without embarrassment, arising, perhaps, not so much from the intrinsic difficulty of the question itself, as from the decisions which have been already made affect- ing it. It is the undoubted duty of this court to give effect to the decision made in this cause by the Court of Errors. It is a duty equally clear, not to come in conffict with the decisions of a court of a sister State, on a question arising upon the construction of their own laws, and the effect and operation of their own constitution. The plea heretofore pleaded in this case, and which was adjudged by the Court of Errors to be defective in substance, or any other plea presenting substantially the same defence, cannot be sustained by this court. The repHcation demurred to, is unquestionably defective. The only question is, Whe- 37* 392 ther the plea now pleaded does present, substantially, the same defence with that already overruled by the Court of Errors, or a defence inconsistent with the principles adopted by that couit ? If, by the decision of the Court of Errors, the statute of the State of New- York, upon which the defendant relies in his plea, was adjudged null and void, as a violation of the constitution of that State, then, unquestionably, these pleas are bad, and must be overruled; but this clearly was not the view of the learned Judge, by whom the opinion of that court was pronounced. He held, in opposition to the opinion of the court below, and to what was understood to be the de- cisions of the courts of New-York, that llie statute contained a grant of power that the property destroyed by authority of the statute, was destroyed for public use ; and that if it authorized the destruction of any property without providing compensation, it authorized the taking of private property for pubhc use without compensation, and would therefore be imconstitutional and void. But he expressly held, tliat the statute did not authorize a destruction of goods, but only the destruction of buildings, for which compensation had been provided by the statute. The statute, therefore, was not regarded as unconstitutional. If a difference of opinion waj entertained by any member of the court — if it was considered that the statute did authorize a destruction of goods without compensation, and conse- quently was so far void, tlie objection could affect the statute only pro tanto : so far as it provides compensation for pro- perty taken, the statute was constitutional and valid. The defendant, therefore, in the destruction of the build- ings, (which in its consequences involved the destruction of 293 the plaintiffs' goods,) acted under tlie authority of a consti- tutional and valid law. The real ground of complaint is, that he exceeded the authority conferred by the statute, and thereby became a trespasser ; that he not only destroyed buildings which he might lawfully do, but also the plaintiffs' goods which were in the building, and which the statute gave him no authority to destroy. The plea, under consideration of the Court of Errors, and which was adjudged defective, did not aver that there was any necessity for the destruction of the goods. For all that appeared upon the plea, they migbt have been removed be- fore the building was destroyed. The utmost that could be assumed, was, that such necessity might be inferred. The veiy effort and force (said the learned Judge, in delivering the opinion,) required to destroy personal property, which could be .saved by conflagration by any possibility, would he sufficient to remove it, and save it from destruction. This defect, the pleader has now attempted to remedy, and has averred, that to prevent the spread of the conflagration, and the destruction of a large portion of the city, it was necessary to destroy the buildings without waiting to remove the plain- tiffs' goods, and that the goods were thereby necessarily de- stroyed. He relies, obviously, for his justification, not upon the common law right of necessity, but upon a necessity cre- ated by the exigency of tlie statute, and growing out of his performance of his duty as a public officer. The counsel for the plaintiff insists, that the statute not only constitutes, in itself, no justification for the act of the defendant, but that it can in no wise contribute to his de- fence ; that although he acted in the discharge of hi's duty as 294 a public officer, in good faith, upon a sudden and alarming emergency, under the sanction of a constitutional and valid law, and in the execution of that law, all this is irrelevant and immaterial to his defence. He insists, that the defend- ant is thrown back, for his justification, exclusively upon the common law doctrine of necessity ; that he must show, in justification, that it was absolutely necessary to destroy the plaintiffs' goods, to prevent the spread of the conflagration ; and that the progress of the flames could not by possibility have been otherwise arrested. By his argument, he carries the doctrine much further, and insists, that even this neces- sity will not avail the defendant, unless he shows that the act was done to protect his own property, and not the property of others alone from destruction. This position is most clearly erroneous. There is no such limitation of the common law right of necessity. If there be, and such is announced as the rule of law, there would be an end to all efficient effiDrts to arrest the progress of any conflagration. No man but those whose property was immediately in peril, and that the most imminent, would incur the hazard of an effort to check the flames. The position of the counsel of the defence, as disclosed by his pleading, is, that the statute of the State of New- York, under which the defendant acted, was a constitutional and valid law ; that it enforced upon the defendant an unques- tionable right to destroy the buildings to arrest the progress of the flames ; that for this purpose, these buildings were de- stroyed by the defendant in the discharge of his duty as a public officer ; that in the discharge of that duty, the exi- gency arose which rendered the destruction of the plaintiffs' goods inevitable, in order to arrest the progress of the con- flagration. 295 I incline to think the defendiint is right in his construction of the law. It is certainly not without its difficulties ; but it is the only view which will enable us, at once, to give effect to the judgment of the superior tribunal, and at the same time prevent our coming in direct conflict with the express and repeated adjudications of the courts of a sister State, upon the construction of their own statute. This result can- not be too strongly deprecated ; aside from all considerations of courtesy, its evil influences upon the administration of justice, and the rights of parties litigant, are apparent. I am of opinion, that the demurrer be sustained ; and the plaintiff's replication be overruled, with costs. The same order must be made in the case of Hale vs. Lawrence, upon the like pleadings. The following dissenting opinion was delivered : Nevins, J. — These causes involve the same questions, and may be considered and treated as one and the same ; for the judgment of the court must be the same in each. They have, on a former occasion, been presented to us on demurrers to the defendant's pleas, which demurrers were overruled here ; but in writs of error, the judgment of this court was reversed, and the demurrers sustained by the court of last resort. The records being remitted to this court, the defendants obtained liberty to file new pleas ; to which the plaintiff has filed his replication. To these replications, there are demur- rers and joinders. The counsel for the respective parties have presented their arguments in printed briefs, by which it appears, that the defendants have been driven to defend the legal validity of their pleas, on the principle, that on demur- rer, the judgment of the court must be against the parly who files the first pica defective in substance. 296 In the examination of this case, (for I speak of lliem as one,) it will be proper to inquire what was the former pleas filed in the cause, and what points or principles were stated by the Court of Errors, on the demurrer to that plea. The statement of these will aid us in the decision we are now called to make. The action is in trespass, and charges lliat the defendant, on the 17th of December, 1833, at, &:c. with force did blow up with gundowder, a large quantity of goods and merchan- dize of the plaintiffs, of the value, &c. whereby, &c. - To this decoration, the defendant pleaded, by way of justification for the act complained of, in substance, as fol- lows : That he was Mayor of the City of New- York at the time of the alleged trespass — that New- York was a political corporation. Tliat by a law of the state, he, as Mayor, with the consent of two Aldermen, was authorized, under certain circumstances, (mentioned in the plea,) to pull down and de- stroy such buildings as he might deem hazardous and like to take fire, and convey the fire to other buildings. That in the lawful exercise of this authority, he caused and procured certain buildings to be blown up and destroyed. That the goods and merchandize of the plaintiffs, said to be blown up and destroyed, were in said buildings at the time, and for that reason they were blown up and destroyed by him, as it was lawful for him to do. I state only the substance of this plea. It will be found in form and in full, in 1st Zab. R. 248. The validity of this plea as a legal justification of the tres- pass, came directly before the Court of Errors of this State, on a general demurrer; and that Court adjudged the plea bad, and no lawful defence to tlie action. The reasons and grounds upon which this judgment was based, are to be found 297 in the opinion expressed by thai Court, at the time the same was rendered. But one opinion in support of that judgment was read, whicli will be found at length in the -volume above cited, page 727, and in that opinion a majority of the Court concurred. We are, therefore, to resort to that opinion, to ascertain the prmciples and doctrines held and declared by that Court, so far as the same are applicable to the questions now before us. The principles clearly expressed by or fairly doducilile from that opinion, are : 1st. That the law of New-York, whicit the defendant pleaded in justification of the trespass charged, was a grant of eminent domain, authorizing him as Mayor, in certaui cases, and at his discretion, with the consent of two Alder- men, to pull down and destroy certain buildings, which in case of fire, he might deem hazardous and like to take fire, and extend the fire to other buildings. 2d. That the law was not a mere regulation of a pre-exist- ing natural right, but a grant of new power, to take or destroy private property for public use or public safety. 3d. That it was a constitutional law, so far as it extended to the destruction of buildings, providing compensation to the owners thereof. 4th. That it did not extend to, nor authorize the destruc- tion of personal goods, or if it could be so construed, it was so far unconstitutional and void, as it made no provision to compensate the owners of goods so destroyed. 5th. That to a charge for blowing up and destroying per- sonal goods by a direct act of violence and force, the defend- ant could not plead this act in justification. 6tli. That the lawful destruction of the building by the 38 ■Z9S authority ot this act, was no justification for the destruction of the goods, where both were destroyed by one and the same forcible act of trespass. 7th. That the Statute confers no authority, either in ex- press terms, or by necessary implication to destroy goods ; and therefore could not be pleaded in justification. These are as many of the principles settled by the Court of Errors as it is necessary for our present purpose to refer to. The reasons assigned in support of them, will be found in the report of the case, {1 Zab. R. 727.) We will now examine the present plea, and see wherein it differs from the former, and how far it is or can be sustained by the judgment and opinion of the Court of Errors, as above mentioned. The plea now under consideration alleges, that at the time of the supposed trespass, to wit, the 17th of December, 1835, the City of New- York was a municipal corporation, and had certain ofllicers, such as Mayor, &c. invested with judicial and executive powers. It then sets forth the same Statute of the State of New- York, as was set forth in the former plea, investing the Mayor, &c. with discretionary power to destroy buddings in case of fire. It further alleges, that at the time of the trespass, New-York w^as a populous city. That the defendant was Mayor, and owner of a large number of buildings in it. That there was a fire raging in said city, threatening destruction to a large portion of it. That the defendant was present, and had reason to believe, and did believe, that certain buildings were hazardous and likely to take fire, and convey the fire to other buildings, unless im- mediately blown up. That to slop the fire and prevent the des;truction of a large portion of the citv, the immediate de- 299 struction of these Imildings, without waiting to remove the goods therefrom, was absolutely necessary. That two Al- dermen were also present at the fire, and they also deemed said buildings hazardous and likely to take fire, and with their consent, the defendant advised and procured said build- ings to be blown up ; that the plaintiffs' goods were in said buildings, and could not have been removed and saved before said buildings would have taken fire and communicated the flames, &c. wherefore, &c. This plea is substantially the same as the former plea ; its substance is not changed by the different language in which it is clothed, nor by the words "necessary," "abso- lutely necessary," that the goods could not be removed and saved, &c. It is not a plea of justification by virtue of the natural right ensuing from the common law right of inev- itable and overwlielming necessity. It is a plea of justifi- cation, by virtue of the statute ; and, as that plea has already been overruled, I cannot but think it somewhat presumptu- ous in the defendant to put it again on the files of this court. I say it is, to all intents, a plea of justification under the statute, unless we reject the whole introductory part of it as immaterial and mere surplusage. He alleges that he was Mayor of the city. Suppose he was ; as Mayor, he had no more authority, without the aid of the statute, to blow up a building, than any private citizen had. He alleges that he deemed and believed certain Imildings to be hazardous, and therefore blew them up. Suppose this true, but for the au- thority of the statute, his ow"n discretion could not be substi- tuted in the place of proof of such necessity for the trespass, even if the suit had been brought for the destruction of the building. He alleges that the two Aldermen entertained the 3S* same belief, and concurred in the act of blowing up the build- ings. Of what avail is their belief or concurrence in the act, unless made available by the terms of the statute ? It may- be true, that the defendant and his Aldermen believed the buildings hazardous, and their immediate destruction neces- sary to stop the fire ; and yet the fact may have been far different. Had he pleaded common law necessity as a de- fence, it would not have done for him to allege that he deemed and believed it necessary to destroy the buildings or the goods ; the law" would have required a direct averment that it was necessary. His belief, in that case, would be no answer to the charge. But it may be said, that there is a direct averment in this plea. "That to stop the fire, the immediate destruction of the buildings, without waiting to remove the goods, was absolutely necessary." This aver- ment must be taken in connection with the former, and then it becomes qualified to an averment, that in the defendant's belief, the immediate destruction of the buildings, without waiting to remove the goods, w"as absolutely necessary, — and that is no legal answer to the charge in this declaration. And the same remark will apply to the last averment in the plea, to wit, "that the plaintiffs' goods were in said build- ings, and could not have been removed and saved before said buildings would have taken fire, and communicated the flames, &c." As there is no averment of the absolute neces- sity for blowing up the buildings, but only the belief of the defendant of such necessity, the last averment touching the destruction of the goods, must be taken in the same qualified sense. I repeat, therefore, that this plea is the same in substance as the one already overruled ; and the Court of Errors have 301 decliired lliaL sucli pleii is liad. Tlioy liuvc adjudged lliat, to a charge for blowing up and destroying goods by a direct act of violence, the defendant cannot plead, as a justification, the statute which authorized him, as a public officer, lo blow up and destroy a building. That the lawful destruction of a building, by the authority of the statute, was no justification for destroying personal property in it, if both were destroyed by the same act of violence. For these reasons, I think this plea no answer to liie, decla- ration — no defence lo the action, and is a direct contraven- tion of the decision of the Court of Errors ; and should have been stricken out, on motion, if such motion had been made. But if we are at liberty to consider the whole intvoductoiy part of the plea as immaterial, and arc at liberty to reject it as sui-plusage, then its true meaning is, '"' That the defendant lawfully destroyed a building, (whether by the authority of the statute or the law of necessity, matters not,) which con- tained the plaintiffs' goods; and 'that there was not time to remove tlie goods ; and that, therefore, they were destroyed." The plaintiff does not complain of a consequential loss of his goods, arising from the destruction of a building ; but he charges tlie defendant with a direct act of trespass, com- mitted upon the goods themselves. This allegation ought to have been admitted or denied by the plea. The defendant has done neither, in express terms ; but he answers, that in blowing up a building, which he had a lawful right to blow up, the goods being in such building, and not removeablc in time to stop a fire, were necessarily blown up. This is no answer to the charge. If he blew up the goods, which he does not deny, and meant to justify such destruction on the ground of necessity, he should have so distinctly averred. 302 Suppose an action of trespass had been ijrought against him for blowing up the building, it would have been a lame and insufficient answer for him to say, that in the exercise of a lawful right to blow up and destroy the goods it contained, to stop a fire or a pestilence, he necessarily and unavoidably destroyed the building ; and yet such plea would be equally defensible with this. But it is unnecessary to dwell longer on this part of the case. I consider the plea bad in sub- stance, as well upon the rules of practice as upon the de- cision of the Court of Errors ; and that judgment on this demurrer, ought to be rendered for the plaintiff. But if the plea could be treated and considered as a piea of justification, under the common law right of inevitable necessity, and I am free to admit, that such- a necessity might exist for the destruction not only of buildings, but of personal goods, then I am of opinion that the replication is a good answer to the plea. In that case, we must strip the plea of all those parts which is set forth as inducement to or excuse for the act complained of, and reject it as mere surplusage. Then, to the charge of trespass, in blow^ing up the goods, the plea will be, " That the goods were in a certain building, the immediate destruction of which was necessary to stop a conflagration in a populous city ; that the goods could not be removed in time to effect that object. That the defendant, compelled by such necessity, destroyed the building ; and that the goods were consequently and un- avoidably destroyed." If the facts so averred, constitute a legal defence to the charge of trespass, and the plaintiffs mean to controvert them, what reply ought he to make ^ I apprehend, the very one he has made, and no other. 303 In hisreplicEitioii, he alleges, "That the immediate ikst ruc- tion of the goods was not absolutely necessary to slop ihc con- flagration, nor would it have been impossible to arrest the fire without such immediate destruction of the goods." Here, he replied that the immediate destruction of the building was not necessary to arrest the fire ; — it would have heen a de- parture in pleading, and tendered an immaterial issue, for the defendant is not charged with a trespass in blowing up the building ; nor would it have been an answer to the plea, for that does not aver, " That it was necessary to blow up the building, but only that the defendant deemed and be- lieved it necessary, which the plaintiff could not deny. Again, the destruction of the house may have been lawful, and the destruction of the goods unlawful, and a trespass. The real point in the plea, is, that there was no time to re- move the goods, or that the goods could not be removed in time to stop the fire, and were therefore blown up. To this point, the replication gives a direct denial; and puts in issue the very part on which the defendant relies in justification of the trespass, and which the plaintiff means and has a right to controvert, and very properly concludes to the country. It is now even argued against this replication, that it avers facts, the contrary of which is not affirmed in the plea. Such as " that the plaintiff had no estate in the building blown up," and "that the immediate destruction of the goods was not absolutely necessary." As to the first of these averments, it is entirely immate- rial, and therefore, not a cause of demurrer : (Step, on Plead- ings, 467.) And tlie plaintiff may well be excused from alleging it, when we look at the anomalous character of the plea, reciting so much of a public statute in justification of 304 the trespass, as may avail }iim, and omitlluij that part which provides compensation to all persons having an estate or" interest in the building destroyed. In regard to the second, I remark, if the plea did not sub- stantially aver the necessity of destroying llie goods to arrest a conflagration, then it is no answer to the declaration. If it did contain .substantially such averment, then it is fairly met by the replication; and in either case, .the judgment on this demurrer should be for the plaintiff. Another cause of demurrer assigned to this replication, is, lliat it is multifarious and double in meaning. 1st. Because it avers, tliat the plaintiff had no interest in the building de.stroyed. (The averment is, that lie liad no estate or interest in the building.) 2d. Because it avers, that the ■'immediate destruction of tlie goods was not necessary." 3d. "That it would not liave been impossible, witliout such destruction, to Imvc arrested the fu'c." The answer to this, is plain. The fir.st of these averments is as immaterial as the averment hi the plea, that the defend- ant owned many buildings in the city of New- York. The third averment is only a corrollary to the second, and they are to be taken togetlier, making in fact, but one material allegation; there is no multifariousness here. Another cause of demurrer assigned is, that the replication is argumentative in this, "That instead of denying tlie neces- sity of destroying the building, it denies the necessity of de- stroying the goods." This objection, I think, has already been sufficienty answered ; but I may add here, that it illy becomes the defendant to make it, after signing his own plea, where, to a charge for destroying goods, he pleads, that he 305 was justified in destroying a building in which the goods were. If the repUcation is hable to this objection, the plea is equally so. There is no other cause of demurrer assigned that calls for further notice ; and what I have said in regard of the first special plea, and the replication thereto, will apply to the second special plea and its replication. I think the judgment should be for the plaintiffs. From this judgment of the Supreme Court, the plaintiffs appealed to the Court of Errors and Appeals, and the causes were argued in that court at the April terra, 1851, by Governor Vroom and Mr. Van Wagenen, for the plaintiffs ; and by Mr. B. Williamson and Mr. H. E. Davies, for the defendant. The judgment of the Supreme Court was affirmed by that Court, at the November term, 1851 ; and the following opinions were then delivered : Carpenter, J. — These causes are now, for the second time, before this court. Upon a former occasion, they came up upon demurrer to a plea of the defendant, who set up, as a justification of the act charged to be a trespass, that it was done by him, as Mayor of the City of New-York, under the authority and in pursuance of a statute of the State of New- York, by which certain duties were imposed upon him as such officer. He pleaded, in justification, that the act was done by him, in the performance of the duties imposed upon liim by the statute, and by virtue of the authority so given, as he alleged it was lawful for him to do. Tliis plea of justification rested upon the statute ; and the defence so set up was sustained by the Supreme Court of this State, upon the authority of decisions in the courts of 39 306 New- York, in a series of cases arising out of the very act here charged to be a trespass. But this court reversed the decision of the Supreme Court, and overruled the plea, because it rested upon the statute alone ; which the court held, so far as it attempted to confer any power over personal property, for which it made no compensation, to be uncon- stitutional and void. Dissenting from the view taken by the courts of New- York, this court held, that the statute was not a mere regu- lation of a pre-existing natural right, but a grant of a new power to take or destroy private property, for public use or public safety ; and takmg this view of the statute, that it was constitutional only so far as it provided compensation for the property destroyed. The judgment of this court, perhaps, in strictness, went no farther, looking only at the point necessarily involved in the decision, though the opinion delivered may have assumed some other and additional principles. By that decision, this court held the statute of the State of New- York to be so far unconstitutional, notwithstanding that the constitution of the State of New-York was not before us by pleading ; of which, therefore, we could not properly take judicial cognizance, and notwithstanding that the statute had there been sustained as valid, in every respect in which it had been presented for consideration. I say, notwithstand- ing that it had been held by the courts of New-York to be a constitutional and valid law, it was here held to be uncon- stitutional and void ; and to afford no justification to a public officer, acting under its provisions, and in strict obedience to its mandates, I have before expressed my earnest dissent from that decision, not because I would give a different con- 307 struction to the statute, were its primary construction the proper subject of our consideration. As I then intimated, I should be disposed to treat a similar statute of this State, were any such to be enacted, as a grant of power. But I could not unite in a decision, placing a construction upon a statute of the State of New-York, different from that adopted by the courts of New- York. I could not hold the statute to be unconstitutional and void, when it had never been so declared by the courts of the State to which its interpretation primarily belonged; but, on the other hand, had been expressly held to be constitutional, in a cause arising entirely within that State, and which, I thought, ought to be regulated strictly by the lex loci. Upon what authority or principle, could we assume the exercise of such a power ? It has been decided by the Supreme Court of the United States, that court refusing to declare an act of a State Legislature void, because of its conflict with the constitution of the State. — Jackson vs. Laniphire, 3 Pet. 280 ; Watson and others vs. Mercer, 8 Pet. 88, (109.) The question, Whether a State law is constitutional or not, on the ground of repugnancy to a State constitution ? is not cognizable by the Supreme Court of the United States. It is exclusively confined to the Stiite courts, and obviously to the courts of the State, by whom the act was passed ; at any rate, in regard to all causes of action arising within such State. Indeed, the Supreme Court of the United States, (as I have already, on a previous occasion, remarked,) in all controversies arising under the statutes of the respective States, conforms to the decisions of the courts of those States, in regard to the construction of their own statutes, so far as they comport with tiie constitution of the United States. In 39* 303 cases depending upon the laws of a particular State, it uni- formly adopts the construction which the courts of the State have given to those laws. " This course," says Chief Justice Marshall, "is founded on the principle supposed to be uni- versally recognized, that the judicial department of govern- ment, where such department exists, is the appropriate organ for construing the legislative acts of that government. Thus, no court in the universe, which professed to be governed by principle, would, we presume, undertake to say, that the courts of Great Britain or France, or of any other nation, had misunderstood their own statutes, and therefore erect itself into a tribunal which should correct such misunderstanding. Wereceive the construction given by the courts of the nation, as the true sense of the law; and feel ourselves no more at liberty to depart from that construction, than to depart from the words of the statute." (Elmendorf vs. Taylor, 10 "Wheat. 152.) This doctrine, so forcibly and justly expressed, and so important to the proper working of our system of associated State governments, under different laws, administered by different judicial tribunals, is to be found in almost any Tolume of the reports of that high tribunal, where it is acted upon as a settled rule. ' Some additional authorities to the point are collected in a recent decision of the District Court of Virginia. (See Prentice vs. Zane, 11 Boston haw. Re- porter, 208.) This Court, and it is the first court so far as I know, has departed from this principle, and adopted some other rule. We have not received the construction of the statute given by the courts of the State of New- York, as the true sense of a law of their own State, but have taken the liberty to de- part from that construction. We have undertaken to say, 309 that the courts of New- York misunderstood one of their own statutes, and vce have assumed the power to correct such misunderstanding ; and in all this, according to my judg- ment, we have most erroneously departed from a principle, supposed by the eminent judge whose words I have cited, to be universally recognized; to W'it, that the judicial depart- ment of each government is the appropriate organ for con- struing the legislative acts of that government. Sitting in this court of last resort, I regard it as my duty, with all respect to those w"ho may differ from me, to reiterate my views of the principles by which we ought to be guided in the examination of the statute laws of other States. I re- gard them as first principles, which cannot be shaken by the erroneous decision of any court, whatever may be the effect of such decision upon a particular cause. But passing the propriety of that decision, the case as now presented, (I treat them as one,) offers quite another ques- tion. There are two special pleas, the validity of which is now the subject of discussion. These pleas are not de- murred to, hut the plaintiff has filed replications, to which the defendant has demurred. It may be proper here to re- mark, that the defendant has demurred specially to the repli- cations filed by the plaintiff ; and of course this brings up for consideration every exception taken, even to the form of these rephcatious. But as the plaintiff has pleaded over, no exception to the pleas is open to him, but for error in sub- stance, and such as would be available on general demurrer. The first special plea sets up the statute of New- York, and the duty imposed by that statute upon the Mayor of the city of New- York, in order to stop the progress of any confla- gration, with the consent and concurrence of two Aldermen, 310 lo direct any buildings likely to take fire and convey fire to others, to be pulled down and destroyed. That the defend- ant, as Mayor, acting under such advice and concurrence, did destroy certain buildings for tliat purpose, which were peculiarly exposed to the fire, and but for his action would have been immediately burned up with their contents, and would have communicated the flames to adjoining buildings, unless instantly demolished. That the immediate destruc- tion of these buildings was necessary, without waiting to remove the goods, in order to prevent the spread of the conflagration ; and that at the time of the blowing up and destruction of the buildings, the goods could not have been removed or saved, before the buildings would have taken fire, and communicated the flames to other buildings, and thereby endangered a great and valuable portion of the city, &c. wherefore, the defendant says, he did, necessarily, in order to prevent, — and blow up and destroy certain buildings, and in so doing did necessarily and unavoidably blow up and destroy certain goods, in the plaintiffs' declaration men- tioned, as it was lawful and necessary for him to do. This plea, to which I have referred in a general way only, justifies not on the ground of a common law necessity, but of a necessity so to speak, arising out of a statute. It sets up, lliat the Mayor destroyed the buildings for the purpose of stopping the conflagration, under the advice and with the consent of two Aldermen, in the performance of a duty im- posed upon him by the statute. It sets up the duty, imposed upon him by the statute, of destroying the buildings in which the goods were stored, and alleges that the goods could not have been removed and saved before the said buildings would have taken fire and endangered and communicated the flames 311 to other buildings ; and that the said goods were therefore necessarily and unavoidably destroyed. Now, if the statute under which the buildings were destroyed, was a constitu- tional and valid law in respect to the destruction of the buildings ; and if the officer, in the discharge of a public duty, lawfully performed the act, by which the buildings were destroyed, and the goods were necessarily and una- voidably destroyed in the performance of that duty, it seems to me, that the plea sets up a good defence. If, under the exigencies of the imminent peril, which, at the time of the great fire, threatened the City of New- York, it was the duty of the Mayor to order the immediate destruction of the build- ings, as necessary for the preservation of the city, the neces- sity and authority of instantly blowing up the buildings, in- volved the authority and necessity of blowing up their con- tents with them, if ihey could not be removed. Whatever may have been the view heretofore taken of the New-York Statute by this Court, as to the authority thereby conferred to destroy goods, it has not been held either here or elsewhere, that it is not a constitutional law so far as re- gards the destruction of the buildings and to the extent to which provision has been made for compensation. The statute, as far as I understand the prior decision of this court, has only been held void pro Umto, where it au- thorized destruction without providing compensation. In the destruction of the buildings, then, the defendants acted under a valid and constitutional law. Adopting the language of the court below, the real ground of complaint is, that the defendant exceeded the authority conferred by the statute, and thereby became a trespasser ; because he destroyed not only the buildings, which he might lawfully destroy, but also 312 the ply-inlifTs' goods which were in the buildings, and which the statute, it is alleged, gave him no authority to destroy. Now, for doing the lawful act of destroying the buildings, in order to arrest the conflagration — an act which, in the exigency of the case, was not only lawful, but the impera- tive duty of the defendant, as a public officer, to do, if the goods were unavoidably and necessarily destroyed, it not being possible to remove them but with the hazard of losing all the benefit to result from the act, the defendant ought not to, and cannot be held liable. A public officer, acting in good faith, upon a sudden and alarming emergency, under the sanction of a constitutional and valid law, in a matter of public duty, is not to be held responsible for the unavoidable and necessary result of such act of duty. An injured party may have a right to resort to the public for satisfaction ; but the law has ever held, that the officer himself, not exceeding his power, and not guilty of oppression or bad faith, is not personally liable. The Governor & Company, &c. vs. Mer- edith, 4 T. R. 794 ; Sutton vs. Clark, 6 Taunt. 29 ; Boulton vs. Crowther, 2 B. & C. 703; Nevius, J. in Sinnickson vs. Johnson, 2 Har. 150 ; Nevius, J. in Ten Eyck vs. Del. & Rar. Canal Co. 3 Har. 203 ; Wilson vs. the Mayor, &c. of New- York, 1 Denio, 595 ; the Executors of RatclifT vs. the Mayor, &:c. of Brooklyn, lately decided in the Court of Appeals of New- York, and not yet regularly reported. In the case in New-York, last cited, Chief Justice Bron- son, who delivered the opinion of the court, remarked, that it would be absurd to say that public officers may be liable to an action for what they have done under lawful authority and in a proper manner. "When the State," said Justice Nevius, in another case, " authorizes an act to be done ex- 313 clusivcly for ihe public interest, Euid appoints an agent to execute that act, and such agent shall act within the scope of his authority, he cannot be personally responsible to indi- viduals for the consequences of executing his commission. Should private property be necessarily and unavoidably in- jured, taken away or destroyed by the execution of such trust, without any compensation provided in the act itself, the remedy can only be, by contesting tlie constitutionality of the law, or appealii^ to the magnanimity of the Legis- lature." Sinnickson vs. Johnson, 2 Har. 150. In Ten Eyck vs. The Del. & Rar. Canal Co. 3 Har. 203, the same judge expressed hke views, and held, that in case of public agents the remedy cannot be against them, but only by an appeal to the justice of the Legislature that directed the act. This doctrine, even to this extent, is not without the support of other high authority. Chancellor Kent said, That it is not to be understood that a statute assuming private property for public purposes, without compensation, is absolutely void, so as to render all persons acting in execution of it, tres- passers. Some of the judicial dicta seem to go that length, but others do not. But he thought the reasonable and prac- ticable construction to be, that the statute would be prima facie good and binding, and sufficient to justify acts done under it, until a party was restrained by judicial process, founded on the paramount authority of the constitution ; 2 Kent, 340, note, (5th ed.) Without expressing my opinion as to the extent or weight of this doctrine, though it seems to be highly reasonable, it is enough for the decision of this case, that we recognize the well settled principle, that public officers, acting without private emolument, in a matter of public concern, shall not be personally liable for the conse- 40 314 quential injuries arising out of an act done by them under lawful authority and in a proper manner. Under the New- York Statute, the defendant, as Mayor, was bound by duty to do what, according to the advice of two Aldermen, was necessary to prevent the spread of the conflagration. The act which constituted them judges of the necessity of destroying the buildings, made them judges of the time at which the act of destruction became necessary. The plea avers that the buildings were destroyed at the time and in the manner which the imminency of the danger de- manded, and that the destruction of the buildings necessarily involved the destruction of the goods. The buildings being destroyed in the performance of a duty, wliich as a public officer, the defendant was bound to undertake. The de- struction of the goods was the unavoidable consequence of the destruction of the buildings. I deemjt clear that the de- fendant ought not to be held personally responsible for the consequence of such act of duty, and that the plea sets up a sufficient defence. The second special plea is so framed as to set up a justi- fication arising out of the common law doctrine of necessity, and it seeks no aid from the statute. It sets out that there was a fire raging in the City of New- York, which threatened destruction to a large portion of the city ; that certain build- ings were peculiarly exposed and likely to take fire, and communicate fire to other buildings, and but for the acts of the defendant, would have taken fire and communicated, &c. ; that to prevent the spread of the conflagration, and the de- struction of a large portion of tlie city, the immediate de- struction of the said buildings was necessary, without waiting to remove the goods therein ; and that for this purpose the 315 defendant, a resident citizen, and owner of valuable buildings in the city, caused the said buildings to be blown up, and did thereby necessarily and unavoidably destroy the goods, &:c. The plea does not in terms aver, that the goods were the cause of alarm and danger, and, therefore, the immediate object of destruction ; but that necessity required the imme- diate destruction of the buildings, without waiting to remove the goods ; which unavoidably involved the destruction of the goods. The plea sets up, that the buildings and the goods were so connected, that the necessity of destroying the former, necessarily involved the destruction of the latter ; and the justification is made to rest upon the ground, that the right to destroy the buildings must, therefore, include the right to destroy the goods. If, which I do not in the least doubt, there can be an imperious, overwhelming necessity of instantly destroying buildings, witliout waiting to remove the goods stored therein, in order to prevent the spread of fire, I suppose this to be the mode in which that necessity must be pleaded, the goods themselves not being the cause of alarm or danger. The plea, therefore, does not seem to be obnoxious to the objection of argumentativeness. It is proper, however, to remark, that, even if the plea were argumentative, it is an obiection in point of form only, which cannot be raised by general demuiTer. It would not be available, therefore, to the plaintiff in the present instance, all objections to mere form having been waived by pleading over. (Gould's Plead, pp. 467, '8, sec. 18.) But the leading objection taken to this plea is, that it does not show any individual or personal interest in the defendant, nor any immediate overwhelming danger to him or his pro- 40* 316 perty. It is urged, lhat,-to make a valid plea, setting up the exercise of the right of necessity, the defendant must show that his own property was in imminent danger, and that the destruction was for the purpose of preserving it. That it is not enough that this defendant was a resident citizen of New- York, owning property, and having a general interest in the safety and welfare of the city, but that he could only so interpose when the act became absolutely necessary, to pre- serve his own property from immediate destruction. I do not so understand the doctrine, as applied to that branch of the law of necessity now in question. Such limited view was certainly not taken by this court, on the former review; on the contrary, the language used in the leading opinion would seem to lead to a very different conclusion. The right to take or destroy private property by an individual in self-defence, or for the protection of life, liberty, or property, was said to be a private, and not a public or official right. It was said, that it might be exercised by a single individual, for his own personal safety or security, or for the preservation of his own property ; or by a com- munity of individuals, in the defence of their common safety, or in the protection of their common rights. (1 Trab. 729.) Again, in reply to the argument, that the destruction of the store and its contents, for which suit was brought, was not for the public use and benefit, in the sense in which those terms were used in the passage referred to ; and, therefore, that the doctrine of eminent domain was not applicable — it was said, the position would be true, if not done under the authority of the statute, but by the defendant by virtue of his natural right, and in defence of his own or of his neigh- bor's property, or by a number of individuals, to prevent a 317 common calamity, that tlireatened a particular street or dis- trict, (lb. 738.) The force of the argument here depends upon the doctrine impUed, if not directly expressed, that an individual may, in the exercise of the common law right of necessity, take and destroy private property, not only in de- fence of his own, but of his neighbor's property ; and that individuals, in a comniunity, may so act to prevent a general calamity to that community, and in protection of their com- mon rights. If it be asked, " who is my neighbor V for whose benefit this right of charity and kindness, as well as of necessity, may be exercised, let the necessity itself, for which it is intended to provide, be the answer. But the passages I have cited, have been referred to, not so much to establish the view which it seems to me may reasonably be adduced therefrom, as to show that this court is now not committed, even by dicta, to the more Ihnilod rule contended for by the plaintiff in error. The common law doctrine of necessity, is one that is now too firmly established to be drawn in question ; and yet, per- haps, necessarily from its very character, it seems somewhat undefined as to its application ami extent. It may, by the way, be remarked, that it is not less unquestionable as an established doctrine, because its origin, so far as regards a justification at the common law, is only to be found in the illustrative arguments of the older authorities, and not in any direct adjudication. Its exercise must depend upon the na- ture and degree of necessity that calls the right into action, and which cannot be determined until the necessity is made to appear. The necessity must be immediate, imperative, and in some cases, extreme and overwhelming. Mere expe- diency or utility will not suffice. The doctrine seems to ar- 318 range itself under different heads, to which somewhat differ- ent rules will be applicable. The conservation of life is one of the occasions which will call it into exercise, of which the necessity of self preserva- tion is one of the marked and striking instances. Self preser- vation is one of the great rules of our being, implanted in us by our Creator, and recognized under this doctrine by the common law. The right to destroy property, or even life, when necessary for self preservation, is an admitted right. Thus, as an instance frequently referred to, if two men he on one plank, insufficient to save both, and one he thrust off and drowned, the homicide is excusahle ; indeed justifiable through unavoidable necessity, upon the great universal principle of self preservation, which prompts every man to save his own life in preference to that of another, when one must inevi- tably perish. NoJ^. Max. 25, p. 22. The taking of viands to satisfy urgent hunger, the necessity being made to appear, this is no felony or larceny. So a jail being on fire by casu- alty, and the prisoners are enabled to get out, this is no escape, nor breaking of the prison. 15 Vin. 534. Again, there is a necessity arising out of the act of God, or of strangers, as of public enemies; and in regard to this, it is said, one. man may justify committing the private injury for the public good. Instances are thus put in an old authority. In time of war, a man may justify making forti- fications on another's land without license ; also a man may justify pulling down a house on fire, for the safety of the neighboring houses ; for these are cases of the common weal. Malwerer vs. Spinke, Dyer, 36 v. See also the Saltpetre Case, 12 Co. 13; Monsislase, 12 ib. 63, &c. The ground on which this necessity rests, it is seen, is placed on the 319 principle, not of mere individual necessity, but of the public good. The right may, as in the former class, be a private and not a public or official right ; it may be one that apper- tains to individuals, and not to the State. But still, the older authorities to which I have referred, and which are generally cited for the doctrine, place it, in these instances, not on the ground of the individual advantage of the actor, but of the common Weal — in order to save the city. The case of pulling down a house in time of fire, is given as an act done for the public good. That branch of the doctrine to which I now refer, is of course to be distinguished from that mere appropriation for public utility under a general state necessity, and which comes within the doctrine of the eminent domain. They are both spoken of soiuetimes as grounded on necessity, and they doubtless are so. But the latter stands strongly dis- tinguished from that urgent necessity which for immediate preservation, imperatively demands immediate action. This case, who should throw up trenches on his neighbor's land, for the protection of a town from an immediate hostile attack, as regards his justification, would certainly stand on a very different footing from one who, under the authority of law, should do the same act in order to guard the town from pro- spective and merely possible future harm. The one might be a private and unofficial act, to protect the community of which he was a part, from urgent danger ; an act whicK might be justified under the doctrine of necessity, which for the com- mon weal every man may do without an action. It is not necessary for my purpose to intimate any opinion as to whether in the last case, the individual would or would not be personally responsible, but certainly the sufferer would 320 come witliin the conslitulional provision. The distinction between the cases, when the act was done under the pres- sure of threatening danger which it was necessary to avert, and when taken for the benefit of the public under a grant of power, was well put by Chief Justice Nelson, in one of the New- York fire cases, arising under the statute so frequently referred to. "The one," (he says,*) "presents a question of responsibility by a citizen acting under the influence of an overruling necessity solely for the public good; the decision turning not so much upon the want of merit in the claim for redress, as upon the injustice of making the defendant liable, who had thus acted for the benefit of the public. The other, the case upon the statute, is a question between the sufferer and the city, for whose benefit his property has been sacri- ficed, when the authorities of the city are empowered to de- termine at discretion, when Eind under what circumstances, it shall be thus sacrificed," — The Mayor of New- York vs. Lord, 17 Wend. 290, 291. "1 entertain no doubt," (says justice Bronson, in the same case,) "that in a case of neces- sity, to prevent the spreading of a fire, magistrates or indi- viduals may destroy private property without subjecting themselves to an action for damages. This is only one of many cases where the maxim applies — Salus pojmli suprema lex.'" 17 ib. 297. Chancellor Kent places the rule on the same ground ; and says, it is lawful to raze houses to the ground in order to prevent the spread of a conflagration; be- * cause it is a case of urgent necessity, in wliich the rights of property must be made subservient to the jmhUc welfare. 2 Kent, 338, I have cited these authorities to show, that a distinction must be made between the difl"erent branches of the law of 321 necessity. The distinction must now be apparent between that overwhelming necessity which will justify one in the destruction of the person and property of another and when the right is solely for the advantage of the actor ; and that necessity which arises from the danger of conflagration in a great city or other analagous instances, and which rests for its exercise upon the subservience of private rights to the public good. It may well be that a person shall not justify the destruction of another, in order to save a stranger. An assault is only justifiable when committed in the defence of one's self, or of those who stand in some near and dear rela- tion to the actor. The necessity of self preservation, which is for the advantage of the actor, can have no wider founda- tion. The right being a personal one, it is reasonable to suppose that it can be exercised only by the party in danger for his own benefit ; or, as would seem to be a reasonable con- clusion, for the safety of husband or wife, parent or child. But can the same rule apply to the efforts which must so fre- quently be made to save a city from fire, and which rests upon a less restricted principle ? There can certainly be no such limitation of the right as is inconsistent with the reason of the law and the object to be obtained by its exercise. In vain would the call be made on firemen and others to stay the progress of the flames, if the imminent danger of one's own property could be the only justification of any necessary act of destruction in order to effect that object. If a man's own property must first be in imminent peril, there would be an end to all efficient efforts to stay the progress of a confla- gration. I have no doabt the rule is otherwise. I think the second special plea is a good plea. The replications I consider to be clearly bad. To both 41 322 pleas they set up new facts ; and in both cases they tender a traverse upon facts not set up or denied by the pleas. Look- ing, however, at the main point, w^hich, it is iirged, is pre- sented by these replications — that the immediate destruction of the goods was not necessary — such defence is not set up in the pleas. The pleas are, in the one, that the buildings were lawfully, and in the other, that they were necessarily destroyed, in order to stop the progress of a conflagration ; and that the destruction of the goods was the unavoidable and inevitable consequence, there not being time to remove them. The lawfulness or the necesshy to destroy the build- ings, should have been denied by a special traverse of some material fact, upon which he relied to show that the buildings were so destroyed ; or by setting up in the rephcation, that the goods might have been removed. An issue upon either of these points, if decided in favor of the plaintiff, would be fatal to the defence. If the pleas are good, which I take them to be, the replications are bad. I am of the opinion, that the judgment below should be affirmed. Rakdolph, J. — In the various suits in the State of New- York, growing out of the great fire of 1835, the Courts of that State have determined that the statute, directing the Mayor and two Aldermen to determine when a building should be destroyed to prevent the spread of conflagration, was constitutional, and intended merely to define and regu- late the common law power of necessity, without giving any new power ; — that property destroyed in pursuance of the act was not taken under the right of eminent domain for public use, but was destroyed under the right of necessity to prevent a great calamity — and that consequently the corpo- 323 ration of New-York were only liable to the extent of the statute, viz. for damages in destroying the buildings and the goods of such as had an interest in the buildings, and not liable for goods destroyed belonging to the persons. 17 Wend. 235 ; 18 do. 136 ; 20 do. 139 ; 25 do. 157 ; 2 Denio, 461 ; and opinions of Oakley, J. in the Superior Court, and of Bronsoii, J. in the Supreme Court, in the case of Law- rence vs. The Mayor, &c. of New- York. No action seems to have been brought against the defendant personally, in the State of New- York, for any act which he performed or directed during the fire ; but after the various opinions which had been given in the Corporation cases, the plaintiffs in these suits, (for there are a number of them depending on this one,) thought proper to seek a foreign jurisdiction, not, it is presumed, because they sought to reverse the judg- ments of a State Court upon its own statutes, by the judiciary of another State, but simply because these actions being transitory in their nature, they preferred to have thcni brought here. To tlie declaration, charging the defendants with destroy- ing the plaintiffs' goods by gunpow^der, the defendant pleads simply in bar the statute of the State of New-York, directing the Mayor, &c. and two Aldermen to destroy buildings, to prevent the spread of conflagration, and that the goods were in one of the buildings so destroyed. Three Justices of the Supreme Court, sitting in bank, decided unanimously that the plea was good. The cases were brought to this Court, by writ of error ; and of the eight judges, who heard the cause, five determined that the plea was bad, and three that it was good ; the last decision settled the case, although it presented the strange anomaly of being the decision of five 41'^ 394 members of the Court of Errors, against the opinions of six members. The cases having been remanded, new pleas were filed, viz. 1. Not guilty; 2. Justification under the statute for destroying the building in which the goods were, and in doing so, the unavoidable necessity of destroying the goods therein, &;c. ; 3. The common law plea of necessity. On the first plea, issue is joined ; to the second and third, replications are put in, to which there are demurrers and joinders. These replications are not supported by the plaintiffs' counsel, but are given up as defective — they are argumenta- tive double ; they neither deny the allegations of the pleas, confess and avoid them, or set up new matter with a traverse, and they are bad for nearly or quite all the causes assigned. These replications being thus disposed of, the next question is, are the pleas good 1 The third is the com- mon law plea of necessity : Com. Dig. 3 m. 20 and 30 ; 3 Chit. 1118. That it was necessary to destroy the stores to prevent the spread of the conflagration, and the goods now in controversy could not be removed or saved before the buildings would have taken fire, and that the defendant did, necessarily and unavoidably, blow up, by gunpowder, burn and destroy, the said goods ;" this plea is, unquestionably, good, and the plaintiffs should have talcen issue thereon. It even avers, in accordance \vith the opinion delivered in this court, that the defendant was at the time a resident and owner of property in the city of New-York, which must be considered altogether unnecessary, and was doubtless so considered at the time by the distinguished gentleman who drew these pleas ; for, when trying the case in the Essex Circuit, formerly alluded to, against Captain Williamson, for 325 blowing up a building in the city of Newark, to prevent tbe spread of fire, the plea of necessity was held by him a good justification of the defendant, although he was at the time a mere visitor in the place ; — a contrary doctrine would make every fireman, captain of a ship, or sailor, a trespasser, for acts done in extreme necessity, or prevent all action in the severest calamities, except by persons immediately interested. The law knows no such distinction — it looks to the act, not to the actor — to the necessity of the transaction, not to the character or interest of him who performs the deed. On this plea, certainly, the defendant is entitled to judg- ment. There is more difficulty in llie second plea, which arises principally from the former decision of this court. It is con- ceded by defendant's counsel, that if the plea is the same in substance as that formerly overruled, it cannot be sustained. This, no doubt, is correct ; the decisions of this court, the highest in the State, constitute the law on the subject, until altered or reversed by the same court, or changed by the Legislature. The plea which this court overruled was simply a plea of justification under the New- York statute, that the defendant and two Aldermen, in order to prevent the spread of conflagration, caused to be destroyed, pursuant to this statute, certain buildings in the city, in which were the goods in controversy, without anything farther. The objection taken was, that, although the statute autho- rized the destruction of the building, it did not give license to destroy the goods ; or, if it did, as it provided no compen- sation therefor, the statute, so far, was unconstitutional. Upon one or both of these points, the court held the plea bad ; but it was never intimated by any member of the court, 326 that, so far as regards tlic blowing" up of the building, the statute was unconstitutional, and the act illegal ; nor was it pretended, that if consequential loss or injury arose thereby, which could not have been foreseen or prevented, that de- fendant would be liable to an action therefor. The complaint was, that this plea destroyed the right of trial by jury on a question of necessity or no necessity, by making the judg- ment of the Mayor and two Aldermen conclusive on that point, even in a case for the destruction of goods, the pay- ment for which was not provided for by statute. That it took away tlie common law right of trying the question of necessity ; and, if found fur the plaintiff, of obtaining pay for the goods in that way, whilst it provided no satisfaction in any other way. The counsel, in his argument before this court, says, (1 Trab. 719,) " The plea does not set up any act of imperative necessity, and then aver, that the conse- quence was involuntary." " The evidence of necessity, was the judgment of officers charged with the duty ;" and the learned judge who dehvered the opinion of this court, says, (1 Trab. 735-6,) " The very effort and force required to destroy personal property, which could be saved from confla- gration by any possibility, would be sufficient to remove it, and save it from destruction ; but if it were beyond the pos- sibility of escape or preservation, its destruction, by the act of these officers, could work no injury which would not otherwise have occurred ; and in that case, such a defence, if properly pleaded and proved, would avail them." Again : " I will not say, that if, in the destruction of a building by gunpowder, some consequential injury or loss sliould result to the personal property of another, which could not be fore- seen or provided against by ordinary prudence, that these 327 officers would have been liable to an action, in their individual capacity, for such loss or injury ; or that they might not have pleaded this statute, in bar of such action." But the judge finds no warrant in the statute for the destruction of personal property, by direct force and violence. Now, it does seem to me, that the plea now before us was drawn with great care and skill, to meet the very difficulties and case suggested by counsel and couii ; imd that it, in fact, does meet them all. In the dis.senting opinion of the Supreme Court, on the pleas now before us, which was given by the same judge who delivered the opinion of this court on the former plea, it is stated, as delivered on that occasion, " that it (the New-York law) was a constitutional law, so far as it extended to the destruction of buildings, providing compensation to the owners thereof." The plea before us, then sets out by way of preamble, that by virtue of this constitutional law, he being Mayor of New- York City, and Taylor and Benson Aldermen, at the time of the fire, and they concurring, that to prevent the further spread of conflagration, and the destruction of property, the immediate destruction of the buildings wherein the goods in question were, was absolutely necessary, without waiting to remove the same ; and that, without such immediate de- struction of said buildings, the fire could not have been ar- rested, but would have extended and destroyed a large part of the city. Wherefore, for such cause, the defendant did, necessarily, (doing as little damage or injury as it was pos- sible for him to do,) blow up and destroy the said buildings ; and in so doing, did necessarily and unavoidably blow up and destroy the said goods. This plea is, certainly, very different from that formerly overruled by this court ; for 328 that, if good, was a complete bar lo the acLioii — it admitted of no answer and no issue to the county ; it said nothing about the necessity for doing the act ; it entirely absorbed that question, and substituted the opinion of the Mayor and Aldermen for the verdict of a jury ; under that plea, the plaintiff could, by no possibility, under any aspect of his case, obtain payment for his goods destroyed. Whereas, the present plea merely places the defendant where the law and the constitution, and the decision of this court placed him, that is, in the doing as a public officer of- a lawful and constitutional act, viz. destroying a building to prevent the spread of a conflagration ; and then alleges, that being thus placed as a public officer, and required by law to act promptly, he was compelled, from absolute necessity, in or- der to effect the object desired, to destroy this building before the goods could, bo removed therefrom — it thus tenders the issue of necessity to the plaintiff, and he may take issue thereon to the country, and have a trial by Jury; and if it appear that such necessity did not exist, be may recover the full value of the goods. This plea is then different both in form and substance from that overruled, and ought to be sustained. 1. It sets up the proceedings of a public officer, in the lawful discharge of his duty ; and, if in doing this, he has un- intentionally and necessarily injured the plaintiff, he is not answerable therefor. 4T. R. 794; 2 Han. 150; 1 Denio, 595; Executors of Radcliffi, vs. the Mayor of Brooklyn, not yet reported, except in pamphlet form. This must be con- sidered an unavoidable consequence springing from the direct lawful act of the defendant in blowing up the building. The distinction which governs actions of trespass (for 329 direct force,) and on Ihe case (for consequpnccs,) does not apply for trespass alone, if any action would lie for any in- jury whatever arising from the original cause, all injuries must be caused by the direct force and violence of the blow- ing up ; andj according to the doctrine of the celebrated squib case, trespass and not case would lie. The true distinction is, between the direct act, intended and done accordingly, viz. the destruction of the building, and the unintentional and un- avoidable consequence, growing out of that act, viz. the de- struction of the goods — the first is justified by the statute ac- cording to the decision of this court, the second by the law of necessity, if the plea be true. Suppose, instead of an action for goods, this suit was for an assault and battery, would not this plea, if true, be a complete justification ? Nay, if the defence set forth in this plea were offered in a case of homicide, with a trifling variation as to the position of the person, would this defence be overruled, and the de- fendant convicted for murder or manslaughter, on the ground that the homicide, though unintentional, was committed in the performance of an unlawful act, 2. This whole proceeding occurred in another State, and arose under the statutes of that State ; and, in all the actions which have there been brought, the conduct of the defendant has been sustained, the constitutionality of their law vindi- cated, and its application to the case in hand maintained. Trespass is a transitory action, it is true, but why should this State be made the arena for judicial conflict ; are we to sit in judgment upon the decisions of the highest courts of the State of New- York, made upon the construction of their own statutes? and, instead of adopting the invariable rule of the United States Courts, which hold the decisions of Stale 42 330 Courts upon their own laws, to be paramount ; are we to say cooUy, to the jiuhciary of our sister States, yoa do not under- stand your own laws, your decisions are worthless, and we will overrule them ; declare your law unconstitutional, and mulct in damages for their violation, your citizens and officers ? If such should become the general course of deci- sions in this country, it would require no great skill to esti- mate the duration, or " calcidatcthe valiie of the Union." After all the suits against the Corporation have failed, in regard to the goods which were destroyed by the blowing up of the buildings, these actions are brought against the de- fendant, individually, to compel him, personally, to pay the damages growing out of a lawful act, which a statute of the State of New- York required him to perform, and to do which, his plea alleges it was " absolutely necessary" to destroy the goods — may he not plead and prove that 1 Why, if there were no statute, any man could do that at common law. Does the statute, or any jmnciple, prevent the defendant from doingso; and, at the sametime,of availing himself of the position where the law and his duty placed him ? In this suit, we only know the defendant ; and if damages be re- covered, they will be against him personally, and we know of no legal obligation in the city of New- York to relieve him ; this, it is true, would be of no consequence in a clear case against the defendant, but in a case hke the present it is worthy of consideration. 3. I think the destruction of the property in question, does not come under the right of eminent domain, but under the right of necessity of self preservation. The right of eminent domain is a public right ; it arises from the laws of society, and is vested in the State or its grantee, acting under the 331 right and power of the State, and is the right to take or de- stroy private property for the use or benefit of the State, or of those acting nndcr and for it. The right of necessity arises under the law of nature ; is older than the laws of society, or society itself. It is the right of self defence, of self preservation, whether apphed to persons or to property. It is a private right, vested in every individual, and with which the rights of the State, or State necessity, has nothing to do. Of the right of eminent domain, constitutions take cognizance, and say, that "private property shall not be taken without jnst compensation," because it is a public right belonging to the vState ; but of the right of necessity, consti- tutions take no further notice, than they do with any other private right, all being left under the regulation of the law and the legislature. A statute is passed, to take the land or building or property of an individual for a fortification, a light- house, or a rail road. This comes under the right of eminent domain, and the constitution steps in, and requires payment. A right of self defence, of self preservation, without regard to the lives or property of others, exists, by necessity, in every indiTldual, placed in certain situations at sea or on land, in the country or in a city. And the Legislature think proper to pass a statute to regulate a portion of that right in a particular city ; and, instead of leaving its exercise to the blind action of all, make it the duty of certain officers to do the act. Does this convert what w^as before a mere right of necessity in individuals, into a public right of eminent do- main ? If it does, I am at an utter loss to understand the transmutation ; and, notwithstanding opinions to the con- trary, I do not believe that the statute of New- York under consideration has anything to do with the right of eminent 332 domain ; nor have I ascertained that, in any particular, it is unconstitutional. In conclusion, I am of opinion that, taking the decision of this Court on the former occasion as our guide, the plea in question is good ; and whether we consider that decision as in force or reversed, I also consider the plea good, and that it should be sustained. For offiiiYiance : — Justices Corneilson, Valentine, Wills, Randolph, Carpenter, Risley, Porter. For reversal : — The Chancellor, Justice Schenck.