A Five Points Murder

Looking south from the intersection of Worth Street and Mission Place, 1859. Crown’s Grocery — the scene of John Leary’s murder that year — was a store run by 21 year old New Yorker James R. Crown and his 19 year old brother George. It is the wooden building in the right foreground with a woman standing in the doorway. NYPL DigID 430676.

by Carissa Brewster, Glucksman Ireland House, New York University

© Carissa Brewster, 2020.  All rights reserved.

The Shay [more commonly spelled Shea] family had lived in New York for less than a decade when their eldest son was arrested for murder. The family had endured much before arriving in America, including the horrors of famine and a long, cold passage across the Atlantic. For their eldest son, Mortimer, however, the City was not the fresh start the family had hoped for once his life intersected with the United States’ mid-nineteenth century criminal justice system.

The sustained popularity of crime reporting, which Benjamin Day and the New York Sun popularized in the mid-1830s,[1] ensured that when Mortimer Shay was arrested in 1859, the precipitating incident and subsequent trial were reported in detail by multiple New York newspapers.[2] On November  24, 1859, the New York Daily Tribune reported a “probable murder in the Five Points.”[3] Although the specifics of what actually happened on that day remain unclear, Shay and John Leary had a fight which resulted in a knife being lodged into Leary’s temple. According to initial reports, the incident occurred at “about 6 o’clock on Wednesday morning…on the corner occupied by that murder-breeding rum shop known as ‘Crown’s Grocery.’”[4] Reporters called it a probable murder, not out of any desire to preserve Shay’s innocence until proven guilty, but because the victim, John Leary, was not yet dead. After Shay was arrested, Leary “was conveyed to the City Hospital, where an examination of his wounds disclosed the fact that the blade of the knife had penetrated to the brain, and the physicians say there is no possibility of his recovery.”[5] John Leary was later listed in the 1860 United States Census as a person who died in the year ending June 1, 1860, with “fracture of head” as his cause of death.[6]

John Leary, like Shay, was an Irish immigrant and the proprietor of a “rum shop” at No. 127 Worth Street in the Five Points, about a block or so away from Crown’s Grocery.[7] Leary was only eighteen years old; none of the reports mention his parents, so it is likely that he was supporting the two younger brothers who testified for the prosecution. It was not uncommon for New York City children to forgo school in favor of work.[8] Leary’s shop was probably no more than a basement that sold cheap liquor, given the lack of regulation during this period. But, like peddling, it was an entry level path to entrepreneurship.[9] “Tavern proprietorship was…an important avenue of upward mobility for the immigrant Irish.”[10]

Mortimer Shay’s origins, on the other hand, can be traced with a degree of certainty, owing to his rather unusual first name (anglicized from the Irish Murtagh) and to his mother’s detailed 1861 entry in the test books of the Emigrant Industrial Savings Bank.[11] The Shay family story begins at the height of the Irish Famine in Bonane on the Iveragh Peninsula in Co. Kerry.  They were tenants on the Lansdowne estate, which “was home to 13,000 of the most impoverished residents of nineteenth-century Ireland.”[12] The Shays must have been one of the luckier tenants, as evidenced by the fact that they did not starve to death before Lord Lansdowne realized that it would be cheaper to finance their passage to America than to feed them.[13] The Shay family may have been doubly fortunate; not only did they make it to America, but they were among some of the first of 1,700 tenants sent there by Lansdowne in 1851.[14]

Hartford Daily Courant (Connecticut), March 17, 1851, p. 2.

The Shays arrived at the Port of New York on the Montezuma on St. Patrick’s Day, March 17, 1851. There were just over four hundred passengers on board the eight-year-old ship, which sailed from Liverpool under the command of William de Courcy.[15] The family of five included forty-year-old Mortimer “Murty” Shay and his thirty-four-year-old wife Honora Shay, and their children, twelve-year-old John “Mortimer” Shay, ten-year-old Mick Shay, and eight-month-old Elizabeth Shay.[16] The childbearing gap between Mick and Elizabeth suggests that other children may have been prematurely lost as a result of conditions during the Great Famine.[17]  Despite the fact that “Lansdowne’s agent had paid for the emigrants’ tickets, he did not supply his charges with the foodstuffs that the typical Irish emigrant brought on a transatlantic voyage.”[18] Thus, the family would have had no more than one pound of flour and thirteen ounces of water per person for each day for more than a month. Not only would they have been hungry the entire time; they would have been cold as well. Their passage across the Atlantic was during the middle of winter, and immigrant ships were not known for their warmth.[19]

Like many of the Lansdowne assisted immigrants, the Shay family settled in the Five Points, which, by 1855, was home to about 1,000 Lansdowne immigrants.[20] The 1855 New York State Census listed the Shays as residents of the Sixth Ward’s fourth electoral district. After four years in New York, they had welcomed a fourth child to their family, three month old Mary Shay. Additionally, “Mick” was listed as “Michael,” and Elizabeth as “Margaret.”[21] Five years later, in the 1860 United States Census, a fifth child was listed; Julia Shay was born in 1857. The Shays also listed a boarder in 1860 when they were living at No. 43 Baxter Street: forty-four-year-old Eugene Sullivan.[22] Sullivan was a common last name for the Lansdowne immigrants, as evidenced by the multitude of Sullivans on the 1851 passenger manifest of the Montezuma, so he may have been a relative.[23] Given the Lansdowne immigrants’ tendency to cluster, Eugene Sullivan was likely one of the 500 who followed the initial group to New York.[24] Unlike Leary, the Shay family was not yet moving up in society. Both father and eldest son were listed as laborers in the 1860 US Census. This is not surprising, given that the majority of New York City laborers were Irish, and that the majority of the Irish were laborers.[25] Like many other Five Points families, to supplement their income, Honora Shay took in boarders.[26]

The Shay family listed John/Mortimer on the 1860 census, despite the fact that he was imprisoned in the Tombs at the time the census was taken.[27] This indicates a degree of optimism on the part of the family; perhaps they were confident by June that their eldest would soon be returning home. This confidence may have originated in part from the abolition of the death penalty in April of that year, and in part from the efforts of Shay’s lawyer to have the verdict overturned on a writ of error.[28]

Mortimer Shay was held in the New York County jail (known as The Tombs, foreground) from November 1859 to December 1860; this building, on Centre Street just blocks from the Five Points, also was the location of his criminal court trial. Photo taken in 1894. NYPL DigID 5251874.

While awaiting trial, Shay was held in New York City’s Tombs Prison, which was built between 1835 and 1838 on top of the filled in Collect Pond.[29] The site chosen for the Tombs’ construction ensured that it began to deteriorate almost immediately upon completion. Moreover, despite its claim to fame as the nation’s largest jail until its demolition in 1897, it was severely overcrowded.[30]According to historian Timothy J. Gilfoyle, “by 1860, with less than 300 cells, the Tombs regularly incarcerated between 400 and 600 persons.”[31] While awaiting trial, Shay would have likely been incarcerated on the second tier of cells, along with others facing charges of murder, robbery, and other felonies. After his conviction, he would have been moved to “Murder’s Row” on the bottom tier.[32] This organization of tiers and the division of female and male prisoners was the extent of orderliness in the Tombs, however. With only fourteen keepers and one warden in the entire prison, rules were frequently bent, and better conditions were legally up for sale.[33] However, because Shay was from a poor immigrant family, he probably would not have been able to pay for such luxuries as “free movement throughout the prison,” “better food,”  “clean sheets,” or a single cell.[34] More likely, he would have been crammed into his eight foot by six foot cell with at least one other inmate, forced to rely on his family and friends to bring him food, and restricted from basic sanitary practices such as bathing and washing his clothes and sheets.[35] Given that he remained in the Tombs until his commitment to Sing Sing Prison on December 26, 1860, it would have been increasingly difficult to rely on his family for food and to tolerate sharing such a small space with other prisoners.[36]

According to historian Robert Ernst, “by 1855, more than one third of the city’s policemen were adopted citizens, and of these, three fourths were born in Ireland.”[37] These were known as the Municipals.  However, the police force Shay encountered in 1859 had only been established in 1857 by a Republican state legislature vying to enforce law and order with the City’s Democratic government. The state Metropolitan Police wore uniforms and some carried service revolvers.[38] By 1858, “the Irish accounted for 55% of all arrests in New York City” yet “only 5.5% of all convictions” in 1859, suggesting that the new force disproportionately targeted the Irish for arrest.[39] This may have been due to the poverty of the New York Irish. Historians Susan Olzak and Suzanne Shanahan posit that incarceration rates of foreign-born whites were significantly influenced by the degree to which the group, as a whole, was impoverished. In Shay’s case, it seems as though he was charged with murder rather than manslaughter because the judicial system profiled him, to some extent, based upon his national origin.[40]

Mortimer Shay was defended by the New York attorney Henry Lauren Clinton, who succeeded in reducing his sentence from murder to manslaughter in the first degree. NYPL DigID 1217282.

Shay was tried for murder before Judge Daniel P. Ingraham in New York’s Court of Oyer and Terminer.[41] His defense lawyer, Henry L. Clinton, subsequently became a prominent nineteenth century attorney. Clinton published a memoir in 1896 after almost half a century of active practice, during which time he represented clients in both criminal and civil cases, including numerous high profile murder cases and cases exposing the corruption of the Tammany Hall political machine.[42] It is probable that without Clinton’s legal assistance, Shay’s trial would have concluded quickly and unfavorably to him. Taking the case was beneficial for Clinton’s early legal career regardless of the outcome, simply because murder trials, due to their rarity, were highly publicized.[43] By gaining this kind of exposure, Clinton created a reputation for his persistent work on behalf of his clients. His reputation in turn earned him high profile cases and cemented his place in society.[44]

Although the Assistant District Attorney John Anthon attempted to begin the case on Monday, January 30, 1860, it was postponed, partially because the defense was missing a key witness and partially because of disorder in the courtroom.[45] The trial thus began on February 1, 1860. After twelve jurors were selected, Anthon called the first witness, seventeen-year-old Stephen Leary,[46] who was a brother of the deceased. Stephen testified:

 

I was in the store of my brother, No. 137 Worth street, on the morning of the 23rd November. My brother went to Crown’s grocery store that morning about half past five or quarter to six. There was a crowd in the street. Thomas Smith asked him what the crowd was there for. My brother replied that it was none of his (Smith’s) business. Smith asked him why he spoke so saucy, upon which my brother apologized. Smith then struck at him, and knocked him against the stove. This was in Crown’s store. My brother struck back, and Smith called to Shay (the prisoner) to help him. Shay ran towards them, and my brother retreated to the door.[47]

Neither the defense nor the prosecution called Thomas Smith to testify, even though Stephen’s testimony implied that Shay was acting in defense of Smith. Stephen’s testimony continued:

Shay had a closed knife in his hand. He made a rush at my brother and hit him on the back of the head with the hand the knife was in. My brother ran outside the store and the prisoner followed him about two feet from the door. The prisoner then attempted to open the knife, and while doing so my brother hit him on the forehead with his hand. My brother turned to run again. Prisoner opened the knife and made a cut at him, cutting him on the cheek under the left eye. The cut extended around and under the nose. My brother then got into the middle of the street. Prisoner followed, and when nearly up to my brother, a boy named Kirby ran between them and tried to keep the prisoner back. The latter shoved Kirby back, and made a cut with the knife at him.[48]

Again, Kirby was not called. Later, Clinton moved that the prosecution call Kirby, who had been detained in the House of Detention for three months. The prosecution, however, refused to do so, on the grounds that W.C. Kirby (alias William Johnson) was convicted of grand larceny and not a credible witness. Judge Ingraham therefore denied Clinton’s motion. Clinton later attempted to call Kirby himself, but Ingraham disqualified Kirby as a witness, again because of his conviction of grand larceny.[49] Stephen’s testimony continued:

He then jumped after my brother and stabbed him in the left temple. The prisoner then turned round to run away, after trying to pull the knife out of the wound two or three times. My brother ran after the prisoner, and got up to him near the end of the Mission School. He pulled the tail of the prisoner’s coat and fell. The prisoner ran, and I called, “Murder.” Mr. Sherlock and two or three more policemen ran down after him. Sherlock told prisoner to stand, but he kept on running till Sherlock threatened to fire the club at him. He then stopped. Sherlock took him around to the station house. I and some others took my brother there also, and afterwards to the hospital.[50]

Worth Street, which ran south into the Five Points, was home for the three Leary brothers. “In Worth Street, 1872,” NYPL DigID 809681

The next witness for the prosecution was James Leary, also a brother of the deceased. He is described by the New York Times as “a little boy,” although the New York Herald gave his age as fourteen.[51] Youth had no legal bearing on the legitimacy of his testimony, however; it was common in this period for children to testify in criminal cases.[52] James’s testimony served to corroborate Stephen’s.

The following witness was the arresting officer, Officer Sherlock. His testimony served to corroborate that of the Leary brothers. He also added that “blood was issuing from a cut behind the prisoner’s ear when he arrested him, and that his shirt collar was bloody. It was not very bloody, and appeared to have been produced by a stick or a stone. It might have been done by a knife; a blow from a fist could not have done it.”[53] This is important, because the crux of the disagreement between the defense and the prosecution was whether there had been two knives or one, and if there was only one, whether it belonged to the prisoner or the deceased. However, Officer Sherlock later recanted, saying that “there was no blood on the prisoner’s face,” and “there was no blow struck by deceased.”[54]

The final witness for the prosecution was Dr. Joseph J. Hull, the surgeon who examined the deceased upon his arrival at the hospital. Hull also performed the post-mortem examination and determined the cause of death. He testified:

I found a punctured wound in the left temporal region. It was large enough to admit a one-inch probe. There were also two slight wounds which might have been inflicted by a knife glancing…He lingered from the 23rd to the 26th. He fell into a state of coma, and convulsions occurred shortly before his death. I made a post mortem examination. I found the wound on the temple had passed through the skull…On the corresponding situation of the brain there was also a slight wound. On one of the membranes covering the brain, called the arachnoid, extending over nearly the whole of the left hemisphere of the brain, there was a clot of blood, about 2 ½ ounces in quantity. This produced compression of the brain, and was the cause of death.[55]

The prosecution then rested. Before the defense began to call witnesses, however, the prosecution moved “that the witnesses for the defense should be sent into another room and called to the stand separately, so that they could not hear each other’s evidence.” Clinton’s objection, “on the ground that the witnesses for the prosecution had been allowed to remain in Court during each other’s evidence,” was overruled by the judge.[56] The trial then continued, and the first witness for the defense, Thomas Spencer, who boarded with the Shay family and was an Army veteran, was called. He testified, “I saw the prisoner that morning. He had a cut behind the ear. He was bleeding. I gave him sticking plaster to put on it. His clothes were bloody. His shirt was saturated with blood, and the skirt of his coat was half torn off.”[57] This, and the majority of the testimony for the defense, served to show that Shay was injured as well, and may have been defending himself.

The following witness for the defense was Ellen Connolly, a domestic servant who boarded with Shay’s mother when she did not live with her employer. She testified:

I recollect when the difficulty occurred between Leary and Shay. I saw him in the Tombs. He was bleeding from a wound behind the right ear. It was a cut of a knife…His inside shirt was all covered with blood, and his coat was bloody. The wound bled for several days. I brought his clothes out of prison and washed them. They were covered with blood. He wore a black Kossuth hat. The hat you showed me was the hat. It has the cut of a knife in it.[58]

These two testimonies affirm that at some point, the prisoner was also cut with a knife, perhaps by Leary. The next witness for the defense was John Corbitt, a fellow Five Pointer except when working on canals in the summertime. He said:

They were cutting at each other with knives. Deceased’s knife was a pretty large one. I could not say what the color of the handle was. Shay ran up the street. Leary pursued him, and struck him in the back of the head with a knife. I followed and saw officer Sherlock come up and arrest the prisoner.[59]

A New York policeman delivering his arrest to the Tombs. Detail from “New York police courts–the Tombs, early morning–discharge of the watch, 1866,” NYPL DigID 801347. Officer Sherlock testified that “I had him by the neck and he resisted; I kept a very tight grasp upon him.” New York Herald, February 2, 1860.

This uncertainty about how many knives there were, who owned them, and who provoked the encounter continued to drive the case. A fourth witness for the defense, Daniel Tuomey, testified that he only saw one blow; he “saw John Leary strike Shay and the blood came from the latter’s nose and mouth.” The fifth witness for the defense, Jeremiah Shay, [60] who was no relation to the prisoner, declared, “I knew the deceased about five years. He was in the habit of carrying knives; sometimes he carried a spring dagger. I caught him in the act of killing my father once.”[61] However, upon cross examination, it was revealed that Jeremiah had a criminal record, casting doubt upon his testimony. Next, Rosanna Murphy testified that “Leary had a small-handled knife, and that he gave it to her, and that she afterwards gave it to Leary’s mother.”[62] However, upon cross examination, it was revealed that she was intoxicated at the time, and could not remember whether Leary gave her the knife before or after the incident. Ann Forsyth reportedly corroborated Murphy’s testimony, but it is unclear from the reports what parts of the testimony those were. Forsyth was the final witness for the defense. The final evidence presented was the defendant’s signed statement, which read, “He cut me first, and this is his own knife that he cut me with.”[63] The Court then adjourned until the next day.

The following day, District Attorney Nelson J. Waterbury “asked the jury for a verdict of murder or nothing.”  According to the New York Times, Waterbury said,

Do not temporize and find the prisoner guilty of manslaughter.  A verdict of manslaughter does more to barbarize us than anything else.  If he is not guilty of murder, acquit him altogether.  It is not your province to take the punishment of the accused into consideration, or to exercise mercy.  You must leave mercy to the Executive.  All that you can do, all that the Court can do, all that the prosecuting officer can do, is to carry out the law.[64]

The Jury reviewed the evidence for less than two hours and returned a verdict: guilty of murder.[65]  Shay, the Times reported, “evinced no feeling whatever at the rendition of the verdict.”[66] Clinton then moved for a new trial, causing sentencing to be deferred.[67] On February 25, 1860, Clinton accepted the proposal of the Court that he first allow his client to be sentenced, then pursue an appeal on writ of error. The judge thus sentenced Mortimer Shay to be hung on April 20, 1860, and recommended that he prepare for death rather than hope for his lawyer to save him. Ingraham declared:

Of your agency in taking the life of the deceased there can be no doubt; although a quarrel existed between him and Smith, you had no right to interfere, except for preserving the peace. Instead of doing so, you became a principal in the affray and when the deceased ran from you, you pursued him with an open knife, and struck a blow with such force as to drive the blade of the knife so firmly in his temple that you were unable to pull it out, and you then fled leaving the knife in the wound. The consequences that flow from these acts are only chargeable to yourself.  You frequented the place where this happened, for the purpose of drink, associating with the vilest portion of the community in a den of vice which should be suppressed, by the public authorities which have the power, and there your passions became aroused and you perpetrated the act for which you are now sentenced to suffer. [68]

It is highly probable that the judge was biased by the location of the crime during sentencing.[69] A report published in the New York Times two years later reveals that Crown’s Corner was a target of reformers and police, and was shut down and then torn down entirely by March 15, 1862.[70] Moreover, when Judge Ingraham was sentencing Shay, he pointedly referenced the location of the crime. During his sentencing speech, he stated that “During the present term of this Court three persons have been before me for murder committed on those premises… In fourteen cases of homicide which have been tried before me, the crimes may all be traced to the use of liquor and the frequenting of places for its sale.[71] Unfortunately for Shay, the judge failed to notice that both the initial reports of the crime and the testimony of witnesses put the incident at about 6 o’clock on a Wednesday morning, when the victim and the defendant were likely picking up groceries or looking for the latest news before going to work, not drinking liquor.[72]

After sentencing, Clinton appealed the case on a writ of error, as suggested by the court. Clinton moved for numerous errors to be recognized, with little luck. First, he moved for arrest of judgment on the grounds that there had been a clerical error in the indictment.[73] When that did not work, he argued for a writ of error before the Supreme Court of New York.[74] When that Court affirmed the conviction, he appealed it to the Court of Appeals.[75] On April 12, 1860, Shay’s execution was postponed due to Clinton’s ongoing efforts to appeal and because the Court of Appeals was not able to hear his argument until their next term.[76]

New York abolished capital punishment two days later, though it would be reinstated one year later.[77] For Shay, this was a another fortunate twist of fate. On December 24, 1860, the Commercial Advertiser reported:

Mr. Clinton, counsel for Shay, carried the case to the Court of Appeals under the new statute of 1860, and the judgment was affirmed at every point raised at the trial on exceptions, but reversed in consequence of the passage of the new law. Mr. Waterbury, District Attorney, consented that the prisoner should plead guilty to manslaughter in the first degree. The prisoner made his plea which was recorded.[78]

By “the new law,” the Advertiser meant the law abolishing capital punishment. It seems that with capital punishment off the table and an assurance that Clinton would take this case as far as possible, the District Attorney accepted his loss and consented to a plea deal. Thus, instead of being hung, Mortimer Shay was committed for life to Sing Sing on December 26, 1860.[79] He was then transferred upstate to Clinton Prison in Dannemora, New York on February 19, 1861.[80]  For the next thirteen years, Shay was most likely part of that prison’s iron mining and manufacturing workforce.

Mortimer Shay was transferred upstate New York to Clinton Prison. His admission record notes that he was 5’7″ tall and had tattoos on both arms. New York, Clinton Prison Admission Ledgers, February 19, 1861. Ancestry.com. The New York Herald described him as “a stout looking man, about twenty-three years of age.” “Another Five Points Homicide,” New York Herald, February 3, 1860.

The long hall at Clinton Prison photographed by Seneca Ray Stoddard in the 1850s. NYPL DigID G91F107_032ZF

The ore from which all the iron is made, is blasted and taken from the mine inside the prison-yard, by convict labor, and through all the different processes of manufacture through which it passes, until it is cut into rails, convict labor alone is employed.  The manufacture of the kegs, in which the nails are packed, is also by convict labor.  The question as to the feasibility of manufacturing iron, in all its various branches, by convict labor alone, is fully proved beyond any questions.[81]

Seventy percent of Clinton’s inmates were employed in the manufacture of iron in 1870.[82] Shay is probably among those assembled in the prison yard in an 1873 photograph.

Mortimer Shay was pardoned fifteen years after the murder of John Leary. New York, Executive Orders for Commutations, Pardons, Restorations and Respites, November 13, 1874. Ancestry.com

 

 

 

 

 

 

Mortimer Shay applied for but was denied a pardon in 1862, 1868 and 1869; finally, on November 13, 1874, he was pardoned toward the end of Governor John Adams Dix’s term in office and released.[83] His life thereafter remains a mystery.[84] Whether fifteen years of incarceration reformed Shay or hardened him, the majority of his adult life was spent very far away from New York City’s Five Points.

 

[1] Edwin G. Burrows and Mike Wallace, A History of New York City to 1898 (New York: Oxford University Press, 1999), 523-7.

[2] “Probable Murder in the Five Points,” New York Daily Tribune, November 24, 1859; “Law Reports. Murder Trials,” New York Times, February 2 & 3, 1860; “Law Reports. Oyer and Terminer,” New York Times, February 27, 1860; “The Case of Shay, Convicted of Murder,” National Police Gazette, March 3, 1860.

[3] “Probable Murder in the Five Points,” New York Daily Tribune, November 24, 1859.

[4] “Probable Murder in the Five Points,” New York Daily Tribune, November 24, 1859.

[5] “Probable Murder in the Five Points,” New York Daily Tribune, November 24, 1859.

[6] “John Leary, age 18, bartender,” Schedule 3, Persons who Died during the Year ending 1sr June 1860, New York County, U.S. Federal Census Mortality Schedules, 1850-1885, Ancestry.com.

[7] “Probable Murder in the Five Points,” New York Daily Tribune, November 24, 1859; “Law Reports. Murder Trials,” New York Times, February 2, 1860.  Unfortunately, Leary’s name is too common to facilitate a search for his Irish county of origin or date of arrival.

[8] Burrows and Wallace, A History of New York City to 1898, 501.

[9] Michael Kaplan, “New York City Tavern Violence and the Creation of a Working-Class Male Identity,” Journal of the Early Republic 15 no. 4 (1995), 600-1; Robert Ernst, Immigrant Life in New York City, 1825-1863 (New York: Syracuse University Press, 1994), 87.

[10] Kaplan, 599.

[11] “Honora Shea, Account No. 28196,” New York Emigrant Savings Bank, Ancestry.com

[12] Tyler Anbinder, “From Famine to Five Points: Lord Lansdowne’s Irish Tenants Encounter North America’s Most Notorious Slum,” The American Historical Review, Vol. 107, No. 2 (2002), 351.

[13] Tyler Anbinder, Five Points: The 19th Century New York City Neighborhood that Invented Tap Dance, Stole Elections, and Became the World’s Most Notorious Slum (New York: Free Press, 2001), 62.

[14] Anbinder, Five Points, 63-4.

[15] “Sp. Montezuma (924 tons), Black Ball Line,” Carl C. Cutler, Queens of the Western Ocean: The Story of America’s Mail and Passenger Sailing Lines (Annapolis, MD: United States Naval Institute, 1961), 377; “Montezuma, March 17, 1851,” New York, Passenger and Crew Lists (including Castle Garden and Ellis Island), 1820-1957, Ancestry.com

[16] “Murty Shea, Montezuma, March 17, 1851,” New York Irish Immigrant Arrival Records, 1846-1851, Ancestry.com.  In census and immigration records, Mortimer’s family lists his name as “John.” It was not uncommon for an Irish family to name the first-born son after his father but use another name to avoid confusion. Moreover, census and immigration records were not precise at this time. The court, however, would have used his legal name. I therefore consistently refer to this son as Mortimer or Shay and differentiate him from his father by explicitly referring to the father as “Shay’s father,” “Mortimer’s father,” or “the elder Mortimer Shay.”

[17] Phelim P. Boyle and Cormac O Grada. “Fertility Trends, Excess Mortality, and the Great Irish Famine,” Demography, Vol. 23, No. 4 (1986), 543-62.

[18]Anbinder, “From Famine to Five Points,” 352-3.

[19] Anbinder, “From Famine to Five Points,” 352-3.

[20] Anbinder, “From Famine to Five Points,” 368.

[21] “Mortimer Shay,” Ward 6, District 2, New York County, 1860 U.S. Federal Census, Ancestry.com.

[22] “Eugene Sullivan,” Ward 6, District 2, New York County, 1860 U.S. Federal Census, Ancestry.com; “Honora Shea for her daughter Margaret Shea,” Account No. 28196, September 5, 1861, Test Books, New York Emigrant Savings Bank, Ancestry.com.

[23]Montezuma, March 17, 1851,” New York Irish Immigrant Arrival Records, 1846-1851, Ancestry.com.

[24] Anbinder, Five Points, 77; Anbinder, “From Famine to Five Points,” 368.

[25] Kaplan, “New York City Tavern Violence,” 596; Robert Ernst, Immigrant Life in New York City 1825-1863, (New York: Kings Crown Press, 1949; reprint, New York: Octagon Books, 1979), 69.

[26] Anbinder, Five Points, 77; “Honora Shea for her daughter Margaret Shea,” Account No. 28196, September 5, 1861, Test Books, New York Emigrant Savings Bank, Ancestry.com.

[27] As recorded on June 14, 1860, “John Shay,” age 19, was living with his parents Mortimer and Hannah Shay.  Ward 6, District 2, New York Count, 1860 U.S. Federal Census, Ancestry.com.  But the census of the Tombs taken more than a month later, on July 30, 1860, lists “Mortimer Shay,” age 20, as a house painter, born in Ireland, imprisoned for murder. “New York City Prison, Male,” Ward 6, District 4, New York County, 1860 U.S. Federal Census, Ancestry.com.

[28] Marion R. Casey, “Capital Punishment and the New York Irish,” New York Irish History 12 (1998): 36; “Law Intelligence,” New York Daily Tribune, March 13, 1860; “Execution Delayed Indefinitely,” Commercial Advertiser, April 12, 1860; “Law Reports. Supreme Court. Oyer and Terminer,” Commercial Advertiser, December 24, 1860.

[29] “Mortimer Shay,” age 20, as a house painter, born in Ireland, imprisoned for murder. “New York City Prison, Male,” Ward 6, District 4, New York County, 1860 U.S. Federal Census, Ancestry.com; Charles Sutton, The New York Tombs: its Secrets and its Mysteries, (New York: United States Publishing Company, 1874; reprint, New Jersey: Patterson Smith, 1973), 31, 47-8.

[30] Timothy J. Gilfoyle, “America’s Greatest Criminal Barracks: The Tombs and the Experience of Criminal Justice in New York City, 1838-1897.” Journal of Urban History, Vol. 29, No. 5 (2004), 526.

[31] Gilfoyle, “America’s Greatest Criminal Barracks,” 526.

[32] Gilfoyle, “America’s Greatest Criminal Barracks,” 528.

[33] Gilfoyle, “America’s Greatest Criminal Barracks,” 532.

[34] Gilfoyle, “America’s Greatest Criminal Barracks,” 532.

[35] Gilfoyle, “America’s Greatest Criminal Barracks,” 528-534.

[36] “Mortimer Shay, age 26, 1860,” New York, Governor’s Registers of Commitments to Prisons, 1842-1908, Ancestry.com.

[37] Ernst, Immigrant Life in New York City, 163.

[38] Kenneth T. Jackson, The Encyclopedia of New York, 2nd ed., s.v. “Police,” (New Haven: Yale University Press, 2010), 1008.

[39] Casey, “Capital Punishment and the New York Irish,” 36-7; Tables 21-23, Ernst, pp. 202-204.

[40] As indeed did some of the initial newspaper accounts which described Shay as “a desperate character” and “one of the most desperate ruffians on the ‘Points,’ a thief by profession [who had been] frequently arrested.” New York Daily Tribune, November 24, 1859.

[41] “The Court of Oyer and Terminer consisted of a Supreme Court Justice and two or more judges of the Court of Common Pleas with jurisdiction to hear all felony cases including those punishable by life imprisonment or death.” Historical Society of the New York Courts; “Daniel P. Ingraham,” Historical Society of the New York Courts. https://history.nycourts.gov/

[42] Henry Lauren Clinton, Celebrated Trials (New York: Harper and Brothers Publishers, 1897); “Clinton’s Legal Reminscences, Extraordinary Cases,” New York Times, May 31, 1896.

[43] Anbinder, Five Points, 125.

[44] “Clinton’s Legal Reminscences, Extraordinary Cases,” New York Times, May 31, 1896.

[45] “Law Reports. Oyer and Terminer. Another Five Point Murder,” Commercial Advertiser, January 30, 1860; “Law Reports. Murder Trials. Court of Oyer and Terminer,” New York Times, February 2, 1860.

[46] Because two brothers of the victim testified, both with the last name “Leary,” I refer to each of them by their first name in order to differentiate them.

[47] “Law Reports. Murder Trials. Court of Oyer and Terminer,” New York Times, February 2, 1860; “Another Five Points Homicide,” New York Herald, February 2, 1860.

[48] “Law Reports. Murder Trials. Court of Oyer and Terminer,” New York Times, February 2, 1860. The local carpenter was Caleb Kirby, whose shop was at 9 Baxter Street but it is not clear how, if at all, the witness was related. Trow’s New York City Directory for 1859/1860, HathiTrust.org.  “Another Five Points Homicide,” New York Herald, February 2, 1860.

[49] “Law Reports. Murder Trials. Court of Oyer and Terminer,” New York Times, February 2, 1860.

[50] “Law Reports. Murder Trials. Court of Oyer and Terminer,” New York Times, February 2, 1860.

[51] “Law Reports. Murder Trials. Court of Oyer and Terminer,” New York Times, February 2, 1860; “Another Five Points Homicide,” New York Herald, February 2, 1860.

[52] David S. Tanenhaus, “Toward a History of Children as Witnesses,” Indiana Law Journal, Vol. 82 (2007), 1068.

[53] “Law Reports. Murder Trials. Court of Oyer and Terminer,” New York Times, February 2, 1860; “Another Five Points Homicide,” New York Herald, February 2, 1860.

[54] “Law Reports. Murder Trials. Court of Oyer and Terminer,” New York Times, February 2, 1860; “Another Five Points Homicide,” New York Herald, February 2, 1860.

[55] “Law Reports. Murder Trials. Court of Oyer and Terminer,” New York Times, February 2, 1860; “Another Five Points Homicide,” New York Herald, February 2, 1860.

[56] “Law Reports. Murder Trials. Court of Oyer and Terminer,” New York Times, February 2, 1860.

[57] “Law Reports. Murder Trials. Court of Oyer and Terminer,” New York Times, February 2, 1860; “Another Five Points Homicide,” New York Herald, February 2, 1860.

[58] “Law Reports. Murder Trials. Court of Oyer and Terminer,” New York Times, February 2, 1860; “Another Five Points Homicide,” New York Herald, February 2, 1860.

[59] “Law Reports. Murder Trials. Court of Oyer and Terminer,” New York Times, February 2, 1860; “Another Five Points Homicide,” New York Herald, February 2, 1860.

[60] “Another Five Points Homicide,” New York Herald, February 2, 1860. To prevent confusion, I refer to this witness as “Jeremiah,” and the prisoner as “Shay.”

[61] “Law Reports. Murder Trials. Court of Oyer and Terminer,” New York Times, February 2, 1860; “Another Five Points Homicide,” New York Herald, February 2, 1860.

[62] “Law Reports. Murder Trials. Court of Oyer and Terminer,” New York Times, February 2, 1860; “Another Five Points Homicide,” New York Herald, February 2, 1860.

[63] “Law Reports. Murder Trials. Court of Oyer and Terminer,” New York Times, February 2, 1860; “Another Five Points Homicide,” New York Herald, February 2, 1860.

[64] “Law Reports. Murder Trials. Court of Oyer and Terminer,” New York Times, February 3, 1860; “Law Reports. Court of Oyer and Terminer. Before Judge Ingraham,” New York Herald, February 3, 1860.

[65] “Law Reports. Murder Trials. Court of Oyer and Terminer,” New York Times, February 3, 1860; “Law Reports. Court of Oyer and Terminer. Before Judge Ingraham,” New York Herald, February 3, 1860.

[66] “Law Reports. Murder Trials. Court of Oyer and Terminer,” New York Times, February 3, 1860.

[67] “Case of Mortimer Shay,” New York Times, February 4, 1860; “Law Reports. Court of Oyer and Terminer,” Commercial Advertiser, February 4, 1860.

[68] “Law Reports. Court of Oyer and Terminer. Before Judge Ingraham,” New York Herald, February 25, 1860;  “Law Reports. Oyer and Terminer,” New York Times, February 27, 1860; Law Reports. Court of Oyer and Terminer,” Commercial Advertiser, February 4, 1860.

[69] “Law Reports. Murder Trials. Court of Oyer and Terminer,” New York Times, February 2, 1860.

[70] “City Items. Crown’s Corner,” New York Times, March 15, 1862.

[71] “Law Reports. Oyer and Terminer,” New York Times, February 27, 1860. Emphasis added.

[72] “Law Reports. Oyer and Terminer. Another Five Point Murder,” Commercial Advertiser, January 30, 1860; “Law Reports. Murder Trials. Court of Oyer and Terminer,” New York Times, February 2, 1860. Their purpose in Crown’s Grocery is inferred both from the time and the fact that Leary owned his own rum shop, and would not need to buy liquor from another rum shop.  Anbinder, Five Points, 192-193, 472 n. 40.

[73] “The City Expositer. The Case of Shay, convicted of murder,” National Police Gazette, March 3, 1860.

[74] “Intelligence.  Supreme Court.  General Term,” New York Daily Tribune, March 5, 1860.

[75] “Law Intelligence. Supreme Court – General Term,” New York Daily Tribune, March 13, 1860.

[76] “Execution Delayed Indefinitely,” Commercial Advertiser, April 12, 1860.

[77] The New York State legislature passed “Chapter 410” on April 14, 1860. “The New Capital Punishment Law,” Albany Evening Journal (New York), April 21, 1860; Casey, “Capital Punishment,” 36; “When New York Had No Death Penalty,” New York Times, January 21, 1912.

[78] “Law Reports. Supreme Court – Oyer and Terminer,” Commercial Advertiser, December 24, 1860. Emphasis added.  Clinton’s account of the Shay case appears in Chapter 24 of his book Extraordinary Cases (New York: Harper, 1896), 252-262.

[79] “Shay, Mortimer, December 26, 1860,” New York, Governor’s Registers of Commitments to Prisons, 1842-1908, Ancestry.com.  During his time in the Tombs, Mortimer Shay became the confident of Ellias W. Hicks, a condemned murderer who was executed on Bedloe’s Island in July 1860. “Execution of Hicks, The Pirate. Twelve Thousand People at Bedloe’s Island,” Daily MIssouri Democrat (St. Louis, Missouri), July 18, 1860.  He surely pondered the legislative quirk  that had spared him the same fate; the same Catholic priest, Fr. Duranquet, who counseled Hicks later wrote a letter in support of Shay’s pardon. “Mortimer Shay, Executive Clemency Application, May 10, 1874,” New York, Executive Orders for Commutations, Pardons, Restorations, Clemency and Respites, 1845-1931, Ancestry.com. Fr. Duranquet was one of the early priests associated with St. Francis College on West 16th Street.  Remigius Lafort, S.T.D., Censor, The Catholic Church in the United States of America: Undertaken to Celebrate the Golden Jubilee of His Holiness, Pope Pius X. Volume 3: The Province of Baltimore and the Province of New York, Section 1: Comprising the Archdiocese of New York and the Diocese of Brooklyn, Buffalo and Ogdensburg Together with some Supplementary Articles on Religious Communities of Women (New York City: The Catholic Editing Company, 1914), 327.

[80] “Mortimer Shay, February 19, 1861,” New York, Clinton Prison Admission Ledgers, 1851-1866, 1926-1939, Ancestry.com.

[81] Clinton had 48 machines to make nails by 1861. “Clinton Prison, Agent and Warden’s Report, November 1861,” Fourteenth Annual Report of the Inspectors of State Prisons of the State of New York (Albany, NY: Charles van Benthuysen, 1862), 250; Gordon C. Pollard, “Images of the 19th Century Adirondack Bloom Iron Industry” in Martin Pickands, ed., Iron in New York  (Albany, NY: New York State Museum, 2018), 17; W. David Lewis, “Fiasco in the Adirondacks: The Early History of Clinton Prison at Dannemora, 1844-1861,” New York History, Vol. 49, No. 3 (1968), 304-305.

[82] “Clinton Prison, Clerk’s Report, October 1, 1870,” Twenty-third Annual Report of the Inspectors of State Prisons of the State of New York (Albany, NY: The Argus Company, 1871), 268

[83] “Convicts Pardoned and Restored to Citizenship by Gov. Dix,” New York Tribune, November 16, 1874; “Pardon for Mortimer Shay, November 13, 1874,New York, Executive Orders for Commutations, Pardons, Restorations and Respites, 1845-1931, Ancestry.com.

[84] His mother, Honora Shea, continued to live on Baxter Street, an enclave for Lansdowne emigrants.  In September 1861 she opened a savings bank account for her daughter, Margaret.  The bank recorded that Honora was a “washer,” meaning she took in laundry, and the “X” between her first and last names indicated that she could not write and probably could not read. “Honora Shea, Account No. 28196,” New York Emigrant Savings Bank, Ancestry.com