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Title: The Trial of Peter Zenger
Author: Various
Language: English
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_The liberty of the press is a subject of the greatest importance, and
in which every individual is as much concerned as he is in any other
part of liberty._
_New York Weekly Journal_
November 12, 1733
THE TRIAL OF
Peter Zenger
EDITED AND WITH AN INTRODUCTION AND NOTES BY
Vincent Buranelli
[Illustration: Publisher Logo]
_Washington Square
New York University Press
1957_
© 1957 by New York University Press, Inc.
Library of Congress catalogue card number: 57-6370
Manufactured in the United States of America
[Illustration: Front page of New-York Weekly Journal]
Numb. XVI.
THE
New-York Weekly JOURNAL.
_Containing the freshest Advices, Foreign, and Domestick._
_MUNDAY_ February 18, 1733.
Mr. _Zenger_;
_I beg you will give the following Sentiments of_ CATO, _a Place in
your_ weekly Journal, _and you’ll oblige one of your Subscribers_.
Without Freedom of Thought, there can be no such Thing as Wisdom, and no
such Thing as public Liberty, without Freedom of Speech, which is the
Right of every Man, as far as by it he does not hurt or controul the
Right of another: And this is the only Check it ought to suffer, and the
only Bounds it ought to know.
This sacred Privilege is so essential to free Governnments, that the
Security of Property, and the Freedom of Speech always go together; and
in those wretched Countries where a Man cannot call his Tongue his own
he can scarce call any Thing else his own. Whoever would overthrow the
Liberty of a Nation must begin by subduing the Freeness of Speech; a
Thing terrible to publick Traytors.
This secret was so well known, to the Court of King _Charles_ the First,
that his wicked Ministry procured a Proclamation to forbid the People to
talk of Parliaments, which those Traytors had laid aside.
To assert the undoubted Right of the Subject, and defend his Majesty’s
legal Prerogative, was called Disaffection, and punished as Sedition.
That Men ought to speak well of their Governours, is true, while their
Governours deserve to be well Spoken of, but to do publick Mischief
without Hearing of it is only the Prerogative and Felicity of Tyranny a
free People will be shewing that they are so, by their Freedom of
Speech.
The Administration of Government, is nothing else but the Attendance of
the Trustees of the People upon the Interest, and Affairs of the People.
And it is the Part and Business of the People, for whose Sake alone all
publick Matters are or ought to be transacted, to see whether they be
well or ill transacted; so it is the Interest, and ought to be the
Ambition of all honest Magistrates, to have their Deeds openly examined
and publickly scanned.
Freedom of Speech is ever the Symptom as well as the Effect of good
Government. In old _Rome_ all was left to the Judgment and Pleasure of
the People, who examined the public Proceedings with such Discretion,
and censured those who administred them with such Equity and Mildness,
that in the Space of three Hundred Years, not five public Ministers
suffered unjustly. Indeed whenever the Commons proceeded to Violence,
the great ones had been the Agressors.
Guilt only dreads Liberty of Speech, which drags it out of its Lurking
Holes and exposes its Deformity and horror to to[sic] Day light; the
best Princes have ever incouraged and promoted freedom of Speech they
know that upright Measures would defend themselves and that all upright
Men would defend them. _Tacitus_ speaking of the Reign of good Princes
says with extasy; _A blessed Time, when you might think what you would,
and Speak what you Thought_.
I doubt not but old _Spencer_ and his Son who were the chief Ministers
and Betrayers of _Edward_ the Second would have been glad to have stopt
the Mouths of all the honest Men in _England_. They dreaded to be called
Traytors because they were Traytors. And I dare say Queen Elizabeths
Preface
In this book you will find the reasons for the fame of Peter Zenger and
Andrew Hamilton. You will also find the reason why James Alexander
deserves mention as the third member of a great trio. Zenger was the
central figure of a colorful and influential historical event—his trial
for seditious libel. Hamilton was the champion who won him his freedom.
The place of Alexander in all this is virtually unknown, and yet without
him Hamilton’s fame would be cut in half, while Zenger would not merit
even a footnote in the histories of America, of democracy, or of
journalism.
Alexander edited the _New York Weekly Journal_. That simple fact means
that he was the first American editor to practice freedom of the press
systematically and coherently, and the first to be justified legally.
The defense of Zenger’s person was a defense of Alexander’s philosophy
of journalism. The victory engineered by Hamilton was the result of a
courtroom campaign along lines laid down by Alexander.
Perhaps it would be too strong to say that the genius behind the
_Journal_ was our greatest editor, but it would be hard to name one of
equal importance. If we believe, as we do, that freedom of the press is
essential to our civilization, surely we ought to give due recognition
to the first American to say so and to act effectively. For this
Scottish immigrant of the eighteenth century taught his adopted land the
first law of sane journalism: that the news is to be reported on the
basis of factual accuracy, and that censorship by the authorities is to
be resisted as far as is consistent with national security and the
interests of society.
The introduction to the text of the trial is based on a series of
articles by the author, published in the following journals:
“Peter Zenger’s Editor,” _American Quarterly_, VII (1955), 174-81.
“Governor Cosby’s Hatchet-Man,” _New York History_, XXXVII (1956),
26-39.
“The Myth of Anna Zenger,” _William and Mary Quarterly_, XIII (1956),
157-68.
“The Meaning of the Zenger Case,” _Social Studies_, January, 1957.
“Governor Cosby and His Enemies,” _New York History_, XXXVII (1956),
365-87.
“The Architect of Our Free Press,” _Social Education_, XX (1956),
311-13.
For permission to use material from these articles, thanks are due to
the respective editors and to the following societies: American Studies
Association, New York State Historical Association, Institute of Early
American History and Culture, and National Council for the Social
Studies. The author also wishes to thank Mr. H. V. Kaltenborn, without
whose Fellowship the research would never have been undertaken, much
less published.
Foreword by H. V. Kaltenborn
My desk encyclopedia allots the subject of this book these two brief
sentences: “Zenger, John Peter (1697-1749), American journalist, born
Germany. His acquittal in libel trial helped further freedom of press in
America.”
That represents a very sober acknowledgment of the fact that the Zenger
case established highly important precedents and is a landmark in the
history of the free press among the English-speaking peoples of the
world. With all this it is something of an anomaly that Peter Zenger
never learned to write good English. He was not a newspaper editor, but
only a printer who published the writings of others in an effort to earn
an honest living. It was the incidental cause he served, rather than his
professional work, that brought him his enduring fame.
He began his career as a printer’s apprentice. He worked for William
Bradford, the only printer in New York. Zenger became Bradford’s
partner, but soon established a business of his own, and since Bradford
published the weekly newspaper that supported the British governor, it
was only natural that those prominent members of the colony who opposed
the governor should contract with Peter Zenger to print and publish a
weekly paper for the opposition. Governor Cosby, whose word was law in
the British colony of New York, was an arbitrary individual. As a
personal representative of the British king he ran things pretty much as
he pleased. His arbitrary acts helped create an opposition known as the
Popular Party. Zenger’s weekly became the organ for this party. Like
other colonial newspapers of that day, it printed foreign news, literary
essays, so called poetry, and a small amount of advertising. But its
most interesting contents were the political articles attacking Governor
Cosby and the actions of his administration. All these editorial
comments were written by prominent members of the opposition party, but
they were always signed with pen names.
Zenger’s was the only name associated with the new opposition journal.
Governor Cosby knew very well that Zenger was only the printer and had
nothing to do with the paper’s policy. He also knew that James
Alexander, a brilliant leader of the political opposition, wrote or
edited most of the articles that were critical of the Cosby
administration. But the law, then as now, places responsibility on those
who publish a libel—not upon those who write it. As a newspaper
reporter, I myself once profited by that distinction. The _Brooklyn
Daily Eagle_ had to defend a one hundred thousand dollar libel suit for
an article I had written. The leader of a religious sect that had its
headquarters in Brooklyn was selling what it called Miracle Wheat. I
exposed the one dollar a pound charge for this wheat as a fraud upon the
public. That gave me the interesting task of helping the _Eagle’s_
lawyers prove with the help of agricultural experts the truth of my
printed assertion. For today, as in the days since Peter Zenger’s trial,
the truth of the libelous allegations mitigates damages and justifies
the libel.
It was not until the trial of Peter Zenger that his extremely able
lawyer created the notable precedent that the truth must be accepted as
justification for a libel and in mitigation of whatever damages might
have been suffered by the plaintiff. In the _Brooklyn Eagle_ Miracle
Wheat case the libel was clear and the court so instructed the jury,
which promptly brought in a verdict of six cents for the plaintiff. This
justified the _Eagle_ and humiliated the sellers of Miracle Wheat.
The Peter Zenger trial established one other notable precedent for libel
cases. This was that the jury before which he was tried had the right
not only to pass upon the fact but also the law in the case. The logic
and eloquence of Zenger’s attorney persuaded the jury that it had the
right to determine how and to what extent the letter and spirit of the
law could and should be applied in the Zenger case.
It is an interesting fact that the entire preceding history of the
freedom of the press among English-speaking peoples played its part in
the Zenger trial. The writings of Milton, Locke, Swift, Steele, Addison,
and Defoe were all quoted to justify the freedom with which Zenger’s
newspaper voiced its criticism of Governor Cosby and the way he
governed.
This willful executive first attempted to have Zenger indicted by a
grand jury, but the jury refused to act. Then he ordered Zenger’s paper
to be burned by the public hangman, and it was duly burned, though not
by the hangman. Finally the Governor secured the issue of a warrant for
Zenger’s arrest and the printer was put in jail on a charge of seditious
libel. Zenger’s journal missed a single issue. Then, thanks to his wife,
it appeared every Monday while Zenger was in jail. Zenger’s wife, Anna
Catherine, took over the print shop and saw that the paper was
published. She didn’t write the contents any more than her husband, but
she never complained that the printer’s family was suffering for others.
Nowadays it is a Constitutional right that “Excessive bail shall not be
required,” but in Zenger’s day there was no such rule. His bail was so
high that neither he nor his friends could meet it. The fact that he was
put in jail also helped sway public opinion in Zenger’s favor.
The record of the Zenger trial as it is developed in this book is one of
the notable case histories of American jurisprudence. Andrew Hamilton,
Zenger’s able attorney, made such a case for his client that it
attracted attention not only in the colonies but in England. New York
voted him the freedom of the city.
Governor Cosby did not long survive the rebuke he suffered by Zenger’s
acquittal. And here is a curious fact worth recalling: Andrew Hamilton,
whose notable defense of Peter Zenger has become an imperishable part of
the history of our free press, was also the architect of Independence
Hall in Philadelphia. The Hall still stands and so does the decision in
the Zenger case, both symbolizing enduring monuments to freedom.
Contents
Preface iii
Foreword by H. V. Kaltenborn v
Part One. Introduction 1
1. The Causes of the Trial 3
i. Peter Zenger 3
ii. A Colonial Feud 5
iii. Governor Cosby 8
iv. The Governor and His Enemies 10
v. The Administration Newspaper 16
vi. An Opposition Newspaper 22
vii. Freedom of the Press 30
viii. A Newspaper War 32
ix. Zenger Goes to Jail 35
x. Van Dam’s Indictment of the Governor 40
xi. Morris on the London Front 44
xii. Cosby’s Defeat 47
xiii. Andrew Hamilton 49
2. The Meaning of the Trial 52
3. The Text 68
Part Two. The Trial 77
1. Dramatis Personae 79
2. Preliminaries 80
3. Pleading 93
4. Aftermath 133
Appendix I: _The New York Weekly Journal_ Covers an Election 135
Appendix II: Zenger’s Lawyers on the Behavior of His Judges 139
Appendix III: James Alexander on Freedom of the Press 141
Notes to the Introduction 144
Notes to the Text 145
Suggestions for Further Reading 147
Index 151
Part One. Introduction
1. The Causes of the Trial
I. Peter Zenger
Of all the personalities involved in the Zenger case, none eludes
investigation so much as the man who gave his name to it. There are
irritating lacunae in the biography of John Peter Zenger, and no artist
ever found him worthy of sketch or portrait (at least none has
survived), so that we do not even know his face. But this lack of
information is by no means crippling to the historian of the period. If
we would prefer to know more about Peter Zenger, the plain truth is that
half a dozen other men were of more consequence than he in the
establishment of a free press in New York. He was neither the editor of
his newspaper nor even a principal writer for it during its great days;
his function hardly went beyond that of the mere printer. He became
famous almost by accident, famous as a symbol rather than as a
motivating force. We can, therefore, “place” him with the less
difficulty, and the data to hand are sufficient for that.
He was a German immigrant, a native of the Rhenish Palatinate, where he
was born in 1697. His family brought him to the New World in 1710, and
that same year he was apprenticed to William Bradford, the only printer
then at work in New York, and one of the top men of his trade in the
Colonies. Bradford’s establishment was a good school for any apprentice,
for it graduated a whole series of printers who became famous in their
own right, the best remembered of whom was the master’s son, Andrew
Bradford, who competed with Benjamin Franklin for the publishing trade
in Philadelphia.
Peter Zenger’s indentures were for eight years, during which time he
toiled at the Bradford press, beginning at the bottom as a typical
ink-stained printer’s devil and working his way up in the profession
that Bradford liked to call “the art and mystery of printing.” Peter
never became a refined practitioner, for one reason because his grasp of
the English language remained defective, but he came out of his training
as skilled as many others in the field, and he was obeying a sound
instinct when, his indentures up, he decided to strike out for himself
as an independent.
During the years 1719-22 he wandered through the Colonies looking for a
place to set up a permanent business. He married Mary White of
Philadelphia, and had a son, John Zenger, who was a printer after him.
His most ambitious venture took him to Maryland, where he became a
citizen and was granted the right to publish the Colony’s laws,
proceedings, minutes, etc. What happened then is uncertain; perhaps it
was just that his plans did not work out; perhaps the death of his wife
was the crucial thing; for some reason he decided to abandon his
Maryland career and return to New York. There he married his second
wife, Anna Catherine Maulin, a native of Holland, and settled down for
good.
In 1725 he joined William Bradford in a brief partnership, so brief that
they published only one book jointly before splitting up, for what
reason we do not know. The next year Peter Zenger went into business for
himself, thus becoming the second printer in New York, and the first
rival of his former master.
There was room for two. Bradford, the official printer, worked for the
Governor, the Council, and the Assembly. He was an honest man, but
understandably reluctant to jeopardize his position by turning out
anything of which his patrons might disapprove. That was where Zenger
came in. Proprietor of a second-class printing shop, cut off from
government work, he could keep his head above water in only one way, by
taking the trade of New Yorkers who had some motive for avoiding the
official press, especially those who were dissatisfied with the
situation in either Church or State and wanted to say so. For six years
he supplemented his staple output (mainly religious tracts) with
critical pamphlets and open letters. Gradually the logic of his
predicament pushed him into the position of “official” printer to those
writers whose material Bradford could not, or would not, touch.
Such was Zenger’s status in the fall of 1732 when affairs in New York
began to boil up into a political crisis that first involved him as a
partisan in a duel of contending factions, and ultimately landed him in
jail.
II. A Colonial Feud
The powder train for the explosion had been laid during the previous
decade in the form of a savage feud between two of the most powerful
families in New York—the Morrises and the Delanceys, led by the
patriarchs Lewis Morris and Stephen Delancey. Fundamentally, the
conflict was the primordial one between landed gentry and business
tycoons, and the occasion produced two perfect representatives to act as
leaders.
Lewis Morris—territorial aristocrat, councillor, assemblyman, chief
justice of the Supreme Court—was the model of the wealthy, influential,
proud, and ambitious colonial magnate. He made his family great, and
handed on the tradition to his more famous grandsons, Gouverneur Morris
and the Lewis Morris who signed the Declaration of Independence. He was
a commanding figure in the politics of both New York and New Jersey,
headstrong in defense of himself, his family, and his class, and a power
for any governor to reckon with.
Stephen Delancey stood for the ever-increasing authority of money. He
was New York’s leading merchant prince, a self-made man who accumulated
a fortune in trade with Canada. French by birth, he was a Huguenot by
religion, with all the tenacious acquisitiveness and flinty Puritan
morality of his sect. In the Assembly he spoke for the powerful
mercantile clique, and that alone would have made him—hardly less than
Lewis Morris—a dangerous man to cross.
Now Morris crossed Delancey, and did it in two peculiarly galling ways.
First of all, from the floor of the Assembly he led an attack on the
trade in which the entrepreneur had made his money. Under this
commercial system, New York businessmen sent their wares directly to the
French in Canada, who used the manufactured articles they received to
carry on their fur trade with the Indians. The system was a very
profitable one for many New Yorkers, but Governor William Burnet was
anxious to end it because it strengthened the hand of the French with
the Indians, making the latter reliant on Quebec instead of Albany.
Morris acted as his manager in the Assembly during the furious
controversy that followed, while Stephen Delancey naturally commanded
the opposition. The struggle developed into a fierce personal rivalry
that continued to move with its own momentum long after Delancey had
triumphed over Morris in this case of the Canada trade.
Secondly, Morris seems to have instigated Governor Burnet to question
Delancey’s right to sit in the Assembly on the ground that he was a
foreigner, a purely personal attack of so little validity that the
Governor had to back down and apologize to the Chamber for usurping one
of its prerogatives, after which it put its seal of approval on Stephen
Delancey.
There is no need to explain at length how the old plutocrat reacted to
these insults. We simply note that the perspicacious Cadwallader Colden
terms Delancey “a man of strong and lasting resentments” and adds that
the Morris-Delancey clash gave rise to “violent party struggles.” Before
long New York was disturbed by hostile groups known from their chiefs as
the “Morris Interest” and the “Delancey Interest.” This is the
background to the Zenger case. Party alignment was obviously dictated in
many cases by motives other than personal allegiance—by political,
social, and economic factors—but for our purposes the fundamental thing
is the Morris-Delancey antithesis. During Burnet’s administration
(1720-28) these embittered Interests were engaged in a constant struggle
for power, with the Morrisites strong because they had the ear of the
Governor, and the Delanceyites because the Assembly swung over to their
side.
With the regime of Governor John Montgomerie (1728-31), the Delancey
Interest definitely became paramount in New York because this executive
made it the cornerstone of his policy to stay on good terms with the
Assembly. Montgomerie maintained an uneasy peace (partly because he was
himself a rather feckless individual), but the atmosphere in New York
did not thereby cease to be explosive, for the Morris Interest, although
temporarily checked, was still powerful, still ambitious, still hopeful,
and still watching for the pendulum to swing its way.
Thus the scene was set for a violent climax whenever a sufficient cause
should appear. It appeared on Montgomerie’s death in the person of the
new governor, Colonel William Cosby.
III. Governor Cosby
If you look into Burke’s _Landed Gentry of Great Britain and Ireland_,
you will find the following paragraph embedded in the genealogical
history of “Cosby of Stradbally”:
William, brigadier-general, col. of the royal Irish, governor of New
York and the Jersies, equerry to the Queen, and m. Grace, sister of
George Montague Earl of Halifax, K.B., and left by that lady (who d.
25 Dec. 1767) at his decease, 10 March 1736, the following issue,
William, an officer in the Army; Henry, R.N., d. 1753; Elizabeth, m.
to Lord Augustus Fitzroy, 2nd son of Charles, Duke of Grafton; Anne,
m. to —— Murray, Esq. of New York.
The entry enables us to form a pretty good idea of the background from
which Governor Cosby came and explains much of his behavior as chief
executive of New York. He was an Anglo-Irish aristocrat, sprung from the
notorious Ascendancy class that maintained its position through a whole
series of penal laws designed to keep the majority of Irishmen in
subjection. He had all the craving for place and pension, the
haughtiness, and the venal devotion to the _status quo_ that were common
in the worst section of his class, and these vices merely perverted a
strong will and a certain resourcefulness in meeting obstacles.
With intelligence and decency William Cosby might have been a man of
fair ability; instead he became a sycophant with his superiors, an
intriguer with his equals, and a petty tyrant with those beneath him. We
know from his correspondence that he could not abide opposition or even
criticism.
How much of a soldier he was remains doubtful since, although he rose to
the rank of general, it was a period in which office frequently enough
went with bribery, conniving, and influence rather than with ability.
William Cosby was in a position to resort to all of these because he
enjoyed powerful contacts in England, being a close friend of the Duke
of Newcastle, while his wife was a sister of the Earl of Halifax. These
noblemen may both have been instrumental in furthering his rise in the
army. His administrative career in the Colonies was certainly largely
due to Newcastle, who controlled the Board of Trade and was able to send
out whom he chose.
Cosby’s first governorship took him to the island of Minorca, where his
high-handedness and cupidity exasperated the Minorcans, and they
protested repeatedly to the Board of Trade. He committed one crime that
London could not overlook or minimize: while England and Spain were at
peace in 1718 Cosby ruthlessly seized the goods of a Spanish merchant,
ordered them sold at auction, and then manipulated the records to cover
his tracks. The whole thing was too flagrant. The Governor was ordered
to reimburse his victim and removed from his post in Minorca.
Notwithstanding the incident, Cosby was able to wangle other
appointments, of which the New York governorship was the most important.
The feeling of the Colonials when they learned of the Minorca affair was
expressed by Cadwallader Colden:
How such a man, after such a flagrant instance of tyranny and robbery,
came to be intrusted with the government of an English colony and to
be made Chancellor and keeper of the King’s conscience in that colony,
is not easy for a common understanding to conceive without
entertaining thoughts much to the disadvantage of the honor and
integrity of the King’s Ministers, otherwise than by thinking that the
Ministry believed that what he had suffered by the complaints made
against him from Minorca would make him for the future carefully avoid
giving any occasion of complaint from his new government.[1]
However, there was no local prejudice against the new Governor when he
arrived on August 1, 1732. His Minorca past was unknown. He had had the
shrewdness to ingratiate himself with New Yorkers, while he lingered in
England for over a year, by agitating against the pending sugar bill as
detrimental to Colonial commercial interests; he was unable to bring
news of success with him, but at least he was believed to have tried,
and this alone would have created an atmosphere favorable to him. He
had, moreover, personal attributes calculated to make him popular in
Colonial society—a smooth charm, good birth, high military rank,
familiar connections with the nobility at home, and a wife who was the
sister of an earl. He was fond of playing the host on a lavish scale,
and the parties and dances at the Governor’s mansion were soon noted as
among the gayest ever seen in New York City.
IV. The Governor and His Enemies
Given all this popularity and good will on his arrival, what was it that
went wrong? How did William Cosby’s become “one of the most disturbed
administrations in New York Colonial history”? The transition was very
rapid. Within three months of his arrival the new Governor wrote to the
Duke of Newcastle:
I am sorry to inform your Grace that the example and spirit of the
Boston people begin to spread amongst these colonies in a most
prodigious manner. I had more trouble to manage these people than I
could have imagined; however for this time I have done pretty well
with them; I wish I may come off as well with them of the Jersies.[2]
That old bugbear of Colonial governors, trouble with the Assembly, was
not in question. Unlike many men better than himself, Cosby got along
very well with his legislature, his differences with it being hardly
more than the inevitable friction created by two forces in contact and
working toward ends that did not always coincide. The harmony was
striking because he insulted the Assembly after it had voted him a
present for his opposition to the sugar bill: the sum did not satisfy
him, and he snarled to Lewis Morris, “Damn them, why did they not add
shillings and pence? Do they think that I came from England for money?
I’ll make them know better.”[3]
This was a gratuitous affront, and typical of the small-minded
avaricious man who offered it, but it did not raise any political issue
that could cause a quarrel.
The quarrel began within the Governor’s Council, among the men who were
supposed to be his close intimate advisers. The predisposing condition
already existed there in the form of the Morris-Delancey feud, on the
smoldering embers of which Cosby proceeded to pour oil. From the
Council, ripples of animosity spread through the Colony, dividing the
people into two factions—the Court party of the Governor (which absorbed
the Delancey Interest), and the Popular party (formerly the Morris
Interest) of his enemies. It happened like this.
During the year that Cosby stayed on in England after his appointment,
the leadership of New York devolved on the president of the Council, the
ranking member, who happened to be a veteran of the old New Amsterdam
days named Rip Van Dam. He was a hard-headed, tight-fisted, honest
Dutchman, not very able, but extremely devoted to his duties and his
rights. During his tenure of office he was voted, and drew, the stipend
attached to it.
When Cosby finally arrived on the scene, he produced a royal decree
ordering Van Dam to divide the sum with him. Van Dam’s answer was a
shrewd reprisal. Knowing that Cosby had received many emoluments of the
governorship while in England, he suggested a division that would
include these, and he calculated that on this basis the Governor
actually owed him a substantial amount. The dictatorial proconsul
rejected the proposal with all the anger and contempt he usually
displayed when thwarted. He decided to sue.
Determined to keep the case away from a jury because of local sentiment
that favored a Colonial against a crown official, and unable to proceed
in chancery since he would be presiding as chancellor over his own suit,
Cosby hit on the idea of letting the justices of the Supreme Court
handle it as Barons of the Exchequer. He therefore named the Supreme
Court a court of equity, after which he brought suit against Van Dam.
The defendant’s lawyers were James Alexander and William Smith, two of
the foremost members of the New York bar, who had been advising him
throughout. When the suit began in the new court of equity, Alexander
and Smith adopted the bold course of denying the validity of the court
itself, arguing in particular that it was illegal for the Governor to
establish it of his own free will and without the consent of the
Assembly. This plea was more than an attack on the jurisdiction of a
court: it was a direct accusation that the Governor had overstepped the
limits of his authority and had violated the law.
The three justices of the Supreme Court were divided on the merits of
the plea. Two of them, James Delancey and Frederick Philipse, rejected
it out of hand. They belonged to the Governor’s faction. But the Chief
Justice was of another mind, and that was the critical thing, for he was
Lewis Morris. (Notice the names. We are back in the familiar atmosphere
of the Morris-Delancey feud, James being the son of old Stephen
Delancey.) Morris had opposed obnoxious governors in the past, and he
would not back down before Governor Cosby. There was this added point
about Lewis Morris, that he had functioned in the New Jersey Council as
did Van Dam in New York’s, so his pocketbook stood in the same kind of
jeopardy if Van Dam should be condemned.
The Chief Justice therefore agreed with the counsel for the defense that
the court of equity was no true court, and he openly defied the Governor
with these words:
I take it the giving of a new jurisdiction in Equity by letters patent
to an old Court that never had such jurisdiction before, or erecting a
new Court of Equity by letters patent or ordinances of the Governor
and Council, without assent of the legislature, are equally unlawful,
and not a sufficient warrant to justify this Court to proceed in a
course of Equity. And therefore by the grace of God, I, as Chief
Justice of this Province, shall not pay any obedience to them in that
point.[4]
The Governor was away in New Jersey at the time but, hearing what had
happened, he wrote Morris a furious and insulting letter, and demanded a
copy of the remarks he had made in court. The Chief Justice complied, at
the same time publishing the remarks (through the Zenger press) as a
gesture of studied contempt for all the Colony to see. This was more
than Cosby was willing to stand. On May 3, 1733, he wrote to the Duke of
Newcastle:
Things are now gone that length that I must either discipline Morris
or suffer myself to be affronted, or, what is still worse, see the
King’s authority trampled on and disrespect and irreverence to it
taught from the Bench to the people by him who, by his oath and his
office, is obliged to support it. This is neither consistent with my
duty nor my inclination to bear, and therefore when I return to New
York I shall displace him and make Judge Delancey Chief Justice in his
room.[5]
In August, Cosby made good his threat. At one Council meeting, and
without notifying Morris in advance, he announced that henceforth
Delancey was chief justice of the Supreme Court of New York, with
Philipse advancing to the second place. Cadwallader Colden, who was
present in his capacity of councillor, tells us that he disapproved of
the Governor’s action, and that Cosby resented his saying so. Colden’s
account of the episode is so revealing of Cosby’s character that it is
worth quoting in full:
I had been sent for to town a few days before under pretense of some
affairs in my office of Surveyor General. When I came into the
Governor’s house he received me into his arms with, “My dear Colden, I
am glad to see you.” I was caressed for two or three days by every one
of the family. Just before I went to Council he took me upon the couch
and seemed to entertain me in the most friendly manner, but spoke not
one word of removing the Chief Justice and appointing another till we
were sitting in Council, when he said that he had removed Mr Morris
and appointed James Delancey in his room, and thought this the most
proper place to give the first notice of it. Upon which I said, “Then
Your Excellency only tells us what you have already done?” To which he
answered, “Yes.” I replied, “It is not what I would have advised.” And
he very briskly returned to it, “I do not ask your advice.” This put
his having the consent of the Council out of the question and defeated
the whole design he had been put upon of cajoling me (for I do not
think he was capable of forming any design himself that had any
reach). However he never forgave me.[6]
Morris soon learned what had taken place at the meeting, and in a letter
of protest he passed the information on to London:
I believe I am well informed that, on the delivery of the Commissions
to the Judges in Council, Doctor Colden asked the Governor whether the
Council was summoned to be advised on that head? If they were, he
would advise against it as being prejudicial to His Majesty’s service.
To which the Governor replied that he did not, nor ever intended to,
consult them about it; he thought fit to do it, and was not
accountable to them; or words to that effect.[7]
From this time on there was no mollifying Lewis Morris. Implacably
revengeful, he never lowered his sights from two main goals, to regain
the office of chief justice, and to get William Cosby removed from the
governorship of New York. He achieved neither of these, but he did
achieve the leadership of the antiadministration faction—the Popular
party—that gave Cosby no peace.
The Governor had really stirred up a hornets’ nest. Not only was New
York already disgusted with him as a man and an executive, his private
arrogance and public avarice being notorious, but he had openly adopted
the pattern of behavior that had made Colonial governors unpopular in
the past. Before he finished he had insulted the Assembly, tampered with
the courts, divided his Council into venomous cliques, frightened
property owners with his claims to land, and treated leading citizens
with cavalier disdain. He practiced nepotism, tried to rig elections,
and violated his instructions from London.
He committed a blunder as well as a crime when he alienated some of the
most powerful men in his Colony—especially Lewis Morris, Rip Van Dam,
and James Alexander, the last of whom became the mastermind of the
Popular party. Working with them were Colden, William Smith, Lewis
Morris, Junior, and many others down the scale into the anonymous mass
of the population. The opposition to Governor Cosby soon turned from a
matter of sporadic pinpricks into a concerted conspiracy bent on his
political destruction.
The Governor’s friends rallied around him, led by Chief Justice James
Delancey (the only man of real ability among them), but they suffered in
the contest for public opinion because they had to defend Cosby at a
time when New Yorkers generally had made up their minds that he was
indefensible. However, the Court party was strong in this, that it
possessed the governmental machinery that could be brought to bear at a
dozen different points of the battlefield, for example in the
magistracies and at the bar.
V. The Administration Newspaper
The Court party also possessed the only newspaper in the Colony, William
Bradford’s _New York Gazette_. Bradford himself was hardly a party man,
but (again as official printer) he was in no position to let his little
two-page publication be used against those in power. He could not refuse
to let them censor the _Gazette_. He could not even demur when Governor
Cosby decided to put one of his own men in charge of editorial policy.
That decision introduces us to the most entertaining rascal of the
Zenger case—Francis Harison, the dubious individual who functioned as
editor-by-appointment and flatterer-in-chief to His Excellency the
Governor. Since Harison was a censor in fact, if not in name, he merits
some attention in any explanation of how freedom of the press was
established for the first time on this side of the Atlantic. His career,
more than any except Governor Cosby’s, reveals why the Popular party of
New York determined to throw down the gauntlet in the form of an
opposition newspaper.
Francis Harison was notorious before Cosby was ever heard of in the
Colony. Arriving more than twenty years earlier, he soon carved out a
comfortable niche for himself. He had an enormous gift for wheedling
jobs of some importance, and he did very well for himself, becoming
among other things a member of the Governor’s Council, recorder for the
City of New York, and a judge of the admiralty. He served as one of the
commissioners in settling the boundary dispute with Connecticut. He must
have been a real genius at wangling, for on more than one occasion he
showed a dishonesty and a stupidity so startling as to rouse wonder that
anyone ever trusted him with responsibility.
Take the matter of the Connecticut boundary, when he stumbled on the
chance for his first really outrageous performance, an act as
characteristic of the man as anything you could ask for. Knowing that
50,000 acres were to be turned over to New York in one place (the famous
“Oblong”), he wrote clandestinely to friends in London, urging them to
snap up the land before local people could get their hands on it. At the
same time he maneuvered himself into the group of Colonials who were
applying for a patent, apparently with the intention of undermining his
trusting and unsuspecting colleagues, and of wresting control from them
as agent for the London syndicate.
If such duplicity was second nature to him, its outcome was no less
typical. The London patentees, after hurriedly obtaining a royal grant
according to the advice of their mentor in New York, discovered that he
(a boundary commissioner, be it remembered) had given them misplaced
lines on the map, and that their claim was already occupied. How they
felt about him after that may easily be surmised, also how the New
Yorkers reacted to his perfidy. From then on it was axiomatic that when
dealing with Francis Harison you had to use extreme caution and
circumspection.
If we judge by intent and motive rather than by accomplishment, he was
as consummate a scoundrel as the Colonies ever produced. His only saving
grace was a beguiling habit of being almost invariably hoist with his
own petard. Stupid criminality followed by exposure and humiliation—that
is the pattern; and wherever you find it on the banks of the Hudson
during the early 1730’s, you may justifiably look for the imprint of
Francis Harison’s fine Italian hand.
His big opportunity came with the arrival of Colonel Cosby. The two hit
it off from the start. They were two of a kind, complementaries: the one
found a willing tool, the other a powerful patron. Where the Governor
was perforce hemmed in to a certain extent by the nature of his office,
his lieutenant enjoyed a wide latitude where he could do almost as he
pleased.
In the Cosby scheme of things Harison was allotted the dirty work, the
low chicanery, and the brute force that the administration resorted to.
In particular, he was given control of the _Gazette_, to which he fed
weekly eulogies of the administration. His associates may have despised
him privately (we know that James Delancey did), but in the governor’s
mansion he received the appreciation due his special talents. Cosby,
like many another tyrant, had a place near the top for an unprincipled
adventurer. Francis Harison was his hatchetman.
They were so close that Cosby almost made Harison chief justice
following the dismissal of Lewis Morris. Delancey, who got the post, was
not at all happy about it, and Colden tells us:
Mr Delancey excused his accepting of the commission at the expense of
his predecessor by saying that the Governor could not be diverted from
removing Mr Morris, and that if he did not accept it the Governor was
resolved to put Mr Harison in the office, a man nowise acceptable to
anybody. If that had been done it would certainly have been of great
advantage to Mr Morris, for Mr Harison was of so bad a character, and
so odious to the people, that they certainly would have pulled him
from the Bench.[8]
Harison finally went too far in his shady deals and ruined himself.
William Truesdale, one of the small fry who worked for him, owed a debt
to a persistent creditor, Joseph Weldon of Boston. Somehow Harison got
hold of a dunning letter from Weldon to Truesdale. Just what he had in
mind is not clear—a pathetic lament that the historian has to make so
often in dealing with what passed for ratiocination in this particular
mind—but he caused a warrant to be sworn out against Truesdale in
Weldon’s name. If you think he simply had his minion arrested without
further ado, you do not know Francis Harison. His behavior is described
thus by Colden:
Mr Harison met Truesdale at an ale house where, pretending not to like
the beer, he invited Truesdale and his company to meet him two hours
afterwards at another house. When Truesdale came to the other house he
found the Under-Sheriff, who immediately arrested him. Truesdale sends
to Mr Harison, as his friend, to help him in his distress. As soon as
Mr Harison came, he, in a seeming great surprise, said to Truesdale,
“In the name of God, what is this? I hear you are arrested for such a
sum”—and blamed him for not informing of it that he might have kept
him out of the Sheriff’s way.[9]
New York’s archvillain must have been very pleased with himself as his
victim was carted off to jail. Did he whisper, “Honest Iago!” to
himself?
The roguery was there, but as usual there was no intelligence to back it
up and make it work. The intriguer had counted on a smooth explanation
to fend off the man in whose name he was practicing on Truesdale.
Instead, Joseph Weldon felt outraged when he learned what was going on,
rushed down from Boston, swore that he never gave anyone any authority
to act for him, and added that at the time he did not even know of
Harison’s existence.
After this scandal there was no place in New York for Francis Harison.
Even his protector in the governor’s mansion could not save him. A Grand
Jury indicted him for using Weldon’s name, whereupon he fled from the
Colony in May of 1735, made his way to England, and never came back.
From then on his story is virtually a blank, the last word on him being
that he was down-and-out when he died.
However, this melancholy denouement was in the future and unforeseen
when Cosby put Harison in charge of the _Gazette_ in 1732. The new
editor began to ride very high indeed, for he was in the enviable
position of one who could both flatter his own side and castigate its
critics with impunity since there was no rival newspaper to contradict
him. With Harison in command, the administration’s mouthpiece lavished
on William Cosby the adulation that he loved and could get only from a
trusted henchman, interspersing at the same time quick jabs at Morris,
Van Dam, Alexander, and the rest.
Here is the way the _Gazette_ covered one meeting between the Governor
and the Assembly:
The harmony and good understanding between the several branches of the
legislature—whereby nothing came to be demanded on the one side but
what was for the public general good and welfare of His Majesty’s
people, and everything done on the other which may recommend the
honorable House to His Majesty, to his representative and to their
constituents—will, we hope, continue to us all those blessings which
we enjoy under a government greatly envied, and too often disturbed by
such as, instead thereof, are struggling to introduce discord and
public confusion.[10]
The _Gazette_ resorted to verse to make its case:
Cosby the mild, the happy, good and great,
The strongest guard of our little state;
Let malcontents in crabbed language write,
And the D...h H...s belch, tho’ they cannot bite.
He unconcerned will let the wretches roar,
And govern just, as others did before.[11]
It went to Pope’s translation of the _Odyssey_ to find a suitable
description of the opposing faction:
Thersites only clamored in the throng,
Loquacious, loud, and turbulent of tongue,
And by no shame, by no respect controlled;
In scandal busy, in reproaches bold;
But chief, he gloried with licentious style,
To lash the great, and rulers to revile.[12]
These passages epitomize the problem facing the Popular party. In
fighting the Governor there was no hope of success unless he could be
met at every critical spot, and one of the most critical was precisely
that of journalism. Irregular pamphlets and open letters were of little
use against a systematic weekly dose of administration propaganda in the
_Gazette_. The passage of time only made the problem more acute.
Naturally we do not have minutes of the discussions that went on between
the anti-Cosby conspirators, but we do not need such information to see
the rationale of the strategy they worked out. Their behavior is most
eloquent on that score; it systematizes by practical example the
disjointed notes, memoranda, and other documents that have come down to
us.
First of all, they would do everything they could to sap the political
strength of their hated enemy: they would support opposing candidates at
elections, they would provide legal counsel for those whom he attacked
through the courts, they would found a newspaper to bring their side of
the controversy before the bar of public opinion. Secondly, they would
wage their war on another front, in London, sending to the Board of
Trade a steady barrage of propaganda designed to prove that William
Cosby was no more fit to govern New York than he had been to govern
Minorca. Eventually they would dispatch an emissary to make the
situation clear in personal talks with the authorities.
VI. An Opposition Newspaper
With the lines thus drawn up, the first blows were struck on October 29,
1733. On that day was held the election of an assemblyman for
Westchester, and the candidate of the Popular party was Lewis Morris.
Governor Cosby, desperately anxious to defeat this formidable
antagonist, threw everything he had to the support of his own man,
William Forster. The result was the famous poll on the green of St.
Paul’s Church, Eastchester.[1]
The two candidates, arriving with motley arrays of their followers
behind them, were like commanding generals bound for battle. The image
is not at all inexact, for Westchester was a stronghold of the
Delancey-Philipse element of the Court party, and both sides were able
to count on a disciplined mass of voters.
The sheriff presiding over the election was, like many officials, a
creature of the Governor. Cosby evidently had ordered him to make sure,
in one way or another, that the result went against Morris—in other
words, to rig the election if necessary. When it became clear that
Morris had a majority of the voters with him, the sheriff intervened and
tried to snatch a victory by disfranchising one whole body of the
population.
It had been customary to let Quakers vote without taking the oath, for
by their religion they were forbidden to “swear.” Instead they were
allowed to “affirm.” That custom gave Cosby’s sheriff a loophole. He
decreed that no one who would not take the oath should be allowed to
cast a ballot, and so he ruled the Friends out of the election, hoping
that this maneuver would change the result. In fact it did not, for even
without this group of his supporters Morris won a resounding victory.
The election was momentous beyond the fact that it returned to the
Assembly a veteran of rough-and-tumble politics who was sure to throw
his weight against the Governor wherever he could, and that it hardened
the Quakers against the regime. It revealed Cosby as completely
unscrupulous in dealing with his opponents, as a man who, occupying the
position of chief upholder of the law, had no hesitation in playing fast
and loose with it when he thought he could gain some advantage. Before
the election he had been guilty of many questionable things, such as the
legal attack on Van Dam and the removal of Lewis Morris from the Supreme
Court, but these were at least debatable, with something to be said for
him even if he could not be exculpated. Now his conduct was not
debatable. It was plainly unethical, if not technically illegal.
The Westchester election was, in more ways than one, a triumph for the
Popular party, which had impelled Cosby into a crime that was at once
manifest and useless, revealing him as stupid as well as criminal.
The furor had hardly begun to die away before there burst upon the
Governor the bombshell of an opposition newspaper. The _New York Weekly
Journal_, edited by James Alexander and printed by Peter Zenger, was the
first _political independent_ ever published on this continent. The men
behind it created a journalistic category new to American experience
when they deliberately decided to make a continuing open battle with
Governor Cosby the rationale of their editorial policy. They published a
specifically political newspaper, no arm of the authorities or toady to
headquarters, but the mouthpiece of those who were challenging the
representative of the king in their Colony. There was nothing hesitant
or sporadic about their undertaking. The paper came out every Monday,
always truculent and always propagandizing one point of view in
politics. The political issue was the only _raison d’être_ of
publication. Everything else—foreign news, essays, verses, squibs,
advertisements—was filler.
Here was something original for this side of the ocean, an experiment in
journalism as critical as ever was attempted by any members of our
fourth estate; and successful, for the _Journal_ lived and throve and
became the ancestor of the great American political organs of modern
times.
Now for all of this James Alexander was more responsible than any other
man. From his literary remains we know that he was in full possession of
the theory of a free press long before the occasion rose for him to
implement it as a working editor, and that, the occasion having risen,
he wrote much of the copy for the opposition newspaper and blue-penciled
virtually all the contributions bearing on the feud with the Governor.
This pivotal figure of American history was Scottish by birth, heir to
the title of Earl of Stirling (a title his son made illustrious in the
patriotic annals of the Revolution). He studied mathematics and science
in Edinburgh, but compromised his future there by joining the Jacobite
rising that attempted to place the Old Pretender on the British throne
in 1715. After the fiasco, Alexander, like so many of his class, found
Scotland too hot for him. He fled to America, studied law, went into
politics, and eventually entered the Councils of both New York and New
Jersey. Mathematician, scientist, lawyer, and politician, he was one of
the most extraordinary men of his generation, a gentleman and a scholar,
a charter member of Benjamin Franklin’s Philosophical Society, and the
trusted confidant of more than one Governor.
The idea of founding the _Journal_ was probably his. For one thing, he
was already something of a journalist, having published various items in
William Bradford’s _Gazette_ when it was the only newspaper in town.
Secondly, he was among the first overt opponents of Governor Cosby, the
collision between them being remarkably quick and remarkably bitter,
perhaps even more so than the Cosby-Morris and the Cosby-Van Dam
conflicts. Only a few months after arriving the Governor wrote to his
patron, the Duke of Newcastle:
There is one, James Alexander, whom I found here in both the New York
and the New Jersey Councils, although very unfit to sit in either, or
indeed to act in any other capacity where His Majesty’s honor and
interest are concerned. He is the only man that has given me any
uneasiness since my arrival.... In short, his known very bad character
would be too long to trouble Your Grace with particulars, and stuffed
with such tricks and oppressions too gross for Your Grace to hear. In
his room I desire the favor of Your Grace to appoint Joseph
Warrell.[13]
Many more letters of a similar content passed between the governor’s
mansion in New York and authoritative personages in England.
Alexander repaid the compliment in his own correspondence. To his old
friend, former Governor Robert Hunter, he confided:
Our Governor, who came here but last year, has long ago given more
distaste to the people than I believe any Governor that ever this
Province had during his whole government. He was so unhappy before he
came to have the character in England that he knew not the difference
between power and right; and he has, by many imprudent actions since
he came here, fully verified that character. It would be tedious to
give a detail of them. He has raised such a spirit in the people of
this Province that, if they cannot convince him, yet I believe they
will give the world reason to believe that they are not easily to be
made slaves of, nor to be governed by arbitrary power.... Nothing does
give a greater luster to your and Mr Burnet’s administrations here
than being succeeded by such a man.[14]
This letter is notable for giving Alexander’s own express statement
about the reason for publishing the brand new _Journal_:
Inclosed is also the first of a newspaper designed to be continued
weekly, chiefly to expose him [Cosby] and those ridiculous flatteries
with which Mr Harison loads our other newspaper, which our Governor
claims and has the privilege of suffering nothing to be in but what he
and Mr Harison approve of.
Mr Van Dam is resolved, and by far the greater part of the Province
openly approve his resolution, of not yielding to the Governor’s
demand. He has not as yet answered, nor will the Governor’s lawyers be
able for one while to compel him unless they break over all law and
persuade the new Judges [Delancey and Philipse] into a contradiction
of themselves. Which if they do, the world shall know it from the
press.[15]
The advent of the _Journal_ did nothing to lessen the bitterness of
Cosby’s condemnation of Alexander, for although it was known as
“Zenger’s paper” (since it bore only the printer’s name), the Governor
was in no doubt about who was the guiding genius of the enterprise. On
December 6, 1734, he writes to the Board of Trade:
Mr James Alexander is the person whom I have too much occasion to
mention.... No sooner did Van Dam and the late Chief Justice (the
latter especially) begin to treat my administration with rudeness and
ill-manners than I found Alexander to be at the head of a scheme to
give all imaginable uneasiness to the government by infusing into, and
making the worst impression on, the minds of the people. A press
supported by him and his party began to swarm with the most virulent
libels.[16]
Cosby realized further that Alexander was not the only one in New York
who was playing at the new kind of journalism, and he said of Morris:
His open and implacable malice against me has appeared weekly in
Zenger’s _Journal_. This man with the two others I have mentioned, Van
Dam and Alexander, are the only men from whom I am to look for any
opposition in the administration of the government, and they are so
implacable in their malice that I am to look for all the insolent,
false and scandalous aspersions that such bold and profligate wretches
can invent.[17]
Cosby’s cries of rage and anguish are understandable enough. From the
date of the _Journal_’s appearance (November 5, 1733) until his death
more than two years later it constituted itself his most alert censor,
critic, and judge. Every Monday the lash fell across his shoulders, the
attacks varying through the gamut from airy satire to thundering
condemnation. The opposition writers called him everything from an
“idiot” to a “Nero,” and pointedly suggested that his London superiors
should do something to alleviate the affliction they had imposed on
their Colony.
The first issue started the ball rolling with a brilliant and biting
story of the Westchester election and Morris’ victory in spite of the
sheriff’s heavy-handed machinations; and from then on there was no
letup. The fundamental idea being to convict Cosby of violating the
rules of his governorship, the _Journal_ never ceased to hammer at this
theme. The best example of the technique is in the issues of the last
two weeks of September, 1734, a continued essay that accuses Cosby of
voting as a member of the Council during its legislative sessions, of
demanding that bills from the Assembly be presented to him before the
Council saw them, and of adjourning the Assembly in his own name instead
of the king’s.
All three of these acts violated the rules by which the Governor was
bound, and when the _Journal_ carried the story to the Board of Trade,
Cosby was warned about them. He could not, of course, be condemned out
of hand on the basis of a newspaper story, but the significant thing is
that the Board should have found the story sufficient basis for
mentioning the subject.
Most of the _Journal_ writing is lost irretrievably behind a veil of
anonymity, which is not too important since whoever “Cato” and
“Philo-Patriae” and “Thomas Standby” may have been, they were acting in
concert. But every once in a while individual personality peeps or
glares through the writing, as in this reply to one argument for the
prudence of obeying the government, no matter what. The text of the
reply is saturated through and through with the pent-up gall and venom
on which Lewis Morris had been feeding for so long:
Let this wiseacre (whoever he is) go to any country wife and tell her
that the fox is a mischievous creature that can and does do her much
hurt, that it is difficult if not impracticable to catch him, and that
therefore she ought on any terms to keep in with him.
Why don’t we keep in with serpents and wolves on this foot? Animals
much more innocent and less mischievous to the public than some
Governors have proved.
A Governor turns rogue, does a thousand things for which a small rogue
would have deserved a halter; and because it is difficult if not
impracticable to obtain relief against him, therefore it is prudent to
keep in with him and join in the roguery; and that on the principle of
self-preservation. That is, a Governor does all he can to chain you,
and it being difficult to prevent him, it is prudent in you (in order
to preserve your liberty) to help him put them on and to rivet them
fast.
No people in the world have contended for liberty with more boldness
and greater success than the Dutch; are more tenacious in retaining
it; or more jealous of any attempts upon it; yet in their plantations
they seem to be lost to all the sense of it, and a fellow that is but
one degree removed from an idiot shall, with a full-mouthed
“Sacrament, Donder and Blixum!” govern as he pleases, dispose of them
and their properties at his discretion, and their magistrates will
keep in with him at any rate, and think his favor no mean purchase for
the loss of their liberty.
There have been Nicholsons, Cornburys, Coots, Barringtons, Edens,
Lowthers, Georges, Parks, Douglases, and many more, as very Bashaws as
ever were sent out from Constantinople; and there have not been
wanting under each of their administrations persons, the dregs and
scandals of human nature, who have kept in with them and used their
endeavors to enslave their fellow-subjects, and persuaded others to do
so.[18]
This was political independence with a vengeance. Never before had an
American newspaper dared to treat an officer of the crown so. Other
periodicals depended on official sanction to keep them going, or at
least never strayed too far from the line laid down for them. The
_Journal_ had no sanction and toed no line. It was, depending on one’s
political sympathies, either an outrageous innovation or else simply an
unfamiliar experiment. In either case it needed to be legitimized in the
eyes of its readers.
VII. Freedom of the Press
That was why Alexander, as editor, pushed the issue of freedom of the
press so hard. New Yorkers who had been unaware of that freedom would
come upon it every time they opened “Zenger’s paper.” Side by side they
would find stories about the misdemeanors of the Governor and essays
defending and defining a free press, an ingenious interplay of practice
and theory, a journalistic dialectic shifting between independent news
reporting and the theory that justifies such reporting. Under
Alexander’s editing hand the contributors both pilloried their enemy in
the executive mansion and claimed the right to do so.
Alexander did not, of course, invent the technique. It was already well
known in Britain, and he took it over for his own purposes, just as our
political philosophers such as Jefferson, Franklin, and Madison took
over ideas already current in Britain and France. Like all our Colonial
editors, he was dependent on classics such as Milton, Locke, Swift,
Steele, Addison, and Defoe. He used all of these at different times,
quoting them as authorities for unfettered journalism and free speech.
Most of all he used the celebrated _Cato’s Letters_ of Thomas Gordon and
John Trenchard. They furnished him with an ideal model. The letters had
appeared in the _London Journal_ and the _British Journal_ only a decade
before, when, signing themselves “Cato,” Gordon and Trenchard castigated
his majesty’s government, and particularly the men responsible for the
scandal of the South Sea Bubble. They also larded their attacks with
animadversions on freedom of the press, which they explicitly defended
as intrinsic to liberty itself. They caused so much embarrassment to the
Ministry that it was forced to counterattack: characteristically for the
eighteenth century, it solved the problem by buying out the _London
Journal_.
But that did not kill the argument, for _Cato’s Letters_ were published
in four volumes and enjoyed a tremendous popularity on both sides of the
Atlantic. It took James Alexander to show just how much might be done
with them over here. He manifestly had read and reread Gordon and
Trenchard, soaking up their ideas as avidly as a sponge soaks up water,
and, turning editor, he found in them a treasure trove of journalistic
philosophy and invective. His policy is theirs adapted to the situation
in Colonial New York.
He copied out extracts from the _Letters_ both for his own private
edification and guidance and for use in the _Journal_. There is extant
in his handwriting part of the letter headed “Of the restraints which
ought to be laid upon public rulers.” He thought it apropos of the Cosby
administration, so it appeared in the _Journal_ on May 27, 1734. Here
are a few others that he selected, or else approved, for reprinting:
“The right and capacity of the people to judge of government,” “Of
reverence true and false,” “Of freedom of speech: that the same is
inseparable from public liberty,” “Reflections upon libelling,”
“Cautions against the natural encroachments of power.”
To put his editorial credo in a nutshell, Alexander went to another
classical source, the _Craftsman_, and printed this maxim on November
12, 1733:
The liberty of the press is a subject of the greatest importance, and
in which every individual is as much concerned as he is in any other
part of liberty.
Under the aegis of his text he adroitly maneuvered the opposition
newspaper against all the power of the Governor—and against all the
defenses thrown up by Francis Harison as editor of the Governor’s
newspaper.
VIII. A Newspaper War
The _Journal_’s anti-Cosby campaign touched off the first of the many
newspaper wars that have raged on the banks of the Hudson. As often as
it attacked did the _Gazette_ rush to the rescue amid an acrimonious
exchange of accusations and insults. Thus, referring to the sentiments
of the people of New York toward their Governor:
The _Journal_. They think, as matters now stand, that their liberties
and properties are precarious, and that slavery is like to be entailed
on them and their posterity if some past things be not amended.[19]
The _Gazette_. Now give me leave to say what I have reason to believe
some of the people of this City and Province think in relation to that
paragraph in Zenger’s paper. They think it is an aggravated libel.[20]
In such a tone did New York’s two newspapers carry on their duel, one
which concedes nothing to the later age of yellow journalism in its
furious charges and countercharges of deceit, ignorance, calumny, and
slander. The above onset and riposte stand out because the passage from
the _Journal_ sounds like Alexander himself, while Governor Cosby agreed
with the _Gazette_ that it was “libelous” and made it part of the formal
indictment of Peter Zenger.
Both sides went at it hammer and tongs. In the _Journal_, where Cosby is
called a “Nero,” his kept journalist is his “spaniel.” The _Gazette_
retorts with epithets like “seditious rogues” and “disaffected
instigators of arson and riot,” and proposes that the name “Zenger” be
turned into a common-noun synonym for “liar.”
The men behind the opposition newspaper made a point of referring to
Harison obliquely in satirical mock “advertisements” like these:
A large spaniel of about five foot five inches high has lately strayed
from his kennel with his mouth full of fulsome panegyrics, and in his
ramble dropped them in the _New York Gazette_. When a puppy he was
marked thus (FH), and a cross in the middle of his forehead; but the
mark being worn out, he has taken upon him in a heathenish manner to
abuse mankind by imposing a great many gross falsehoods on them.
Whoever will strip the said panegyrics of their fulsomeness, and send
the beast back to his kennel, shall have the thanks of all honest men,
and all reasonable charges.[21]
The spaniel strayed away is of his own accord returned to his kennel,
from whence he begs leave to assure the public that all those fulsome
panegyrics were dropped in the _New York Gazette_ by the express
orders of his master; and that for the gross falsehoods he is charged
with imposing upon mankind, he is willing to undergo any punishment
the people will impose on him if they can make full proof in any Court
of Record that any one individual person in the Province (that knew
him) believed any of them.[22]
The writers of these squibs had measured their man perfectly. They could
become furious, caustic, ironic or insulting—that is, _serious_—with the
Governor and the rest of the men around him; but the proper approach to
Francis Harison was through satire. From the _Journal_ he received a
systematic dose of it.
For six months he absorbed the barbs of ridicule while maintaining an
air of indifference. Finally, able to stand the badgering no longer, he
whirled on his tormentors and attempted to repay them in their own coin:
Supposing another should turn the tables upon the authors of these
infamous and fictitious advertisements, how easily might it be done?
The real or imagined defects of the _Amsterdam Crane_, the
_Connecticut Mastiff_, _Phillip Baboon, Senior_, _Phillip Baboon,
Junior_, the _Scythian Unicorn_, and _Wild Peter from the Banks of the
Rhine_ might be enlarged upon, and placed in a most ludicrous
light.[23]
Since the crass and clumsy Harison was devoid of the slightest capacity
for satire, he inevitably suffered when he picked up the weapon that was
wielded so devastatingly by his enemies. The only interesting thing
about this paragraph is that it identifies the men of the Popular party
who contributed most to the _Journal_: Rip Van Dam, William Smith, Lewis
Morris, Senior, Lewis Morris, Junior, James Alexander, and Peter Zenger.
The honors of combat obviously went to “Zenger’s paper.” It was not
always fair, by a long shot—nor has any newspaper ever been when
fighting a war with a rival. But Cosby and Harison and the Court party
_in toto_ were too vulnerable for all the _Journal_’s broadsides to go
astray. The Governor was hit over and over again. So was his editor. So
were his other cronies.
They fought back in the _Gazette_, but they were always on the
defensive, always incapable of getting a real attack going. Finally
Cosby, boiling with rage, determined on something more practical than a
war of words.
IX. Zenger Goes to Jail
The Governor paused long enough to see what could be done through the
usual legal channels, with Chief Justice Delancey given the job of
extracting a grand jury indictment for libel. That this attempt failed
twice is indicative of the administration’s unpopularity. The jurors
manifestly had determined from the start that they would do nothing, and
though they were in no more doubt than Delancey about the identity of
the principal men who wrote for the _Journal_, they used the “anonymity”
of the affair as an excuse to avoid indicting anybody.
With the second grand jury failure, Cosby’s attention began to focus
more intently on the newspaper and its printer. His next move was to
order copies of the obnoxious periodical to be burned, which was done
even though the Assembly and the magistrates refused to participate.
Naturally the man in charge was the man maintained expressly for such
purposes. Harison was all the more eager to perform the duty in that,
besides the eternal ridicule the _Journal_ heaped on him, in one issue
it had run a letter from the freeholders of Orange County thanking their
assemblyman, Vincent Matthews, for making a vitriolic attack on him from
the floor of the legislature. A copy from that issue was one of four
earmarked for the flames.
The hatchetman’s first instinct was to adopt strong-arm methods. He
therefore went around to Peter Zenger’s establishment, disburdened
himself of some violent opinions (“more fit to be uttered by a drayman
than a gentleman,” says Peter), and threatened to cane him on the
street. That was why the printer took to wearing a sword whenever he
went out—the sword that gave an excuse for much heavy sarcasm in the
columns of the _Gazette_.
Harison did not overlook more indirect and devious methods of dealing
with his critics. He sent a couple of his creatures, John Alsop and
Edward Blagg, to Orange County to spread the story that the _Journal_
with the freeholders’ letter commending Matthews had been burned by the
common hangman, and that the signers were to be rounded up and thrown
into jail—a rumor that caused some trepidation among the solid citizens
of the county.
Unfortunately Harison, misjudging the situation in his usual fashion,
had jumped the gun a little too smartly. He counted on the hangman to do
the job because he himself, as recorder of New York City, was supposed
to persuade the magistrates to throw their authority behind the
ceremonial burning. But when he met with them, he found himself in an
atmosphere of chilly distrust, for they knew that Cosby was trying to
kill legitimate opposition. Harison started to argue that there were
sound British precedents for dealing thus with the _Journal_; was
quickly shown up as grossly ignorant on that score (he put up the
defense that he did not carry his lawbooks around with him); was roundly
snubbed; and departed in a spasm of fury. The magistrates then forbade
anyone within their authority, including the hangman, to have anything
to do with the affair.
The _Journal_ was burned on schedule, with Harison presiding, but he had
to bring in a slave to set the fire, and they were virtually alone in
front of the City Hall as the flames rose. It was the most dismal fiasco
of a career studded with fiascoes.
We can judge how heated the situation had become by reverting once more
to that most percipient of contemporary witnesses, Cadwallader Colden:
One might think, after such aversion to this prosecution appeared from
all sorts of people, that it would have been thought prudent to have
desisted from farther proceedings. But the violent resentment of many
in the administration who had been exposed in Zenger’s papers,
together with the advantage they thought of gaining by his papers
being found libels by a Jury, blinded their eyes so that they did not
see what any man of common understanding would here have seen, and did
see.[24]
Governor Cosby was indeed blind. He was blinded by a baffled fury that
had grown increasingly unreasoning as his hopes crumbled into
nothingness. Instead of bowing to his will, his enemies were causing him
grave embarrassment with his superiors, compelling him to a perpetual
defense of his right to remain in his office. And locally they had made
him a laughingstock. With cool impudence Morris and Alexander (these two
above any) tormented him from behind the safeguard of an “anonymity”
that fooled nobody, and was intended to fool nobody—least of all the
victim of their attacks, for the dagger was honed to a fine edge
precisely by Cosby’s awareness of who held it. The commanders of the
Popular party were all very much at large, hurling their invectives at
him and satirizing his attempts to retaliate.
The hunters had fenced in the tiger, and were baiting him from a safe
distance, prodding him into a frenzy—until with a single bound he leaped
on the one man who stood within reach.
Printer Peter Zenger had not even a specious “anonymity” between him and
the Governor. The _Journal_ was “his” newspaper. Accordingly a warrant
for his arrest went out from the Governor and the Council, and the
sheriff arrested Zenger on November 17, 1734, and held him for trial on
a charge of “seditious libel.” Harison, needless to say, was one of the
councillors who signed the warrant; in fact, he is the only person
mentioned by name as having done so in the well-known “apology” that
Zenger printed in his newspaper on November 25:
As you last week were disappointed of my _Journal_, I think it
incumbent on me to publish my apology, which is this. On the Lord’s
Day, the seventeenth, I was arrested, taken and imprisoned in the
common jail of this City by virtue of a warrant from the Governor, the
honorable Francis Harison, and others in the Council (of which, God
willing, you will have a copy); whereupon I was put under such
restraint that I had not the liberty of pen, ink or paper, or to see
or speak with people, until upon my complaint to the honorable Chief
Justice at my appearing before him upon my habeas corpus on the
Wednesday following. He discountenanced that proceeding, and therefore
I have had since that time the liberty of speaking thro’ the hole of
the door to my wife and servants. By which I doubt not you will think
me sufficiently excused for not sending my last week’s _Journal_, and
hope for the future, by the liberty of speaking to my servants thro’
the hole of the door of the prison, to entertain you with my weekly
_Journal_ as formerly.
During all the printer’s imprisonment the _Journal_ failed of but that
one issue. The credit for its punctual appearance every Monday
thereafter belongs to his wife, Anna Catherine Zenger, who stepped into
his shoes back at the shop. Anna Catherine has a real claim to fame for
standing by her husband, a loyalty by no means insignificant in a woman
with a family. She may have been emboldened by her ability to keep the
press going in his absence, but even so it would have been a crushing
blow if he had been given a harsh sentence as, for all she knew, might
have been the outcome. The little evidence there is indicates that she
never pressed him to give in and name the men who actually were
responsible for the _Journal_. She must have known that the New York
administration would gladly trade the printer for the editor, a
comparatively minor figure for the archenemy—that is, Peter Zenger for
James Alexander—but there is no record of her ever complaining that the
Zenger family was suffering for someone else.
The Court party’s editor used the occasion for a show of mock sympathy
with the Popular party’s printer. The _Gazette_ for December 9, 1734,
has a reference to
the pretended patriots of our days, the correspondents of John Peter
Zenger, who are every hour undermining the credit and authority of the
government by all the wicked methods and low artifices that can be
devised, and which they flatter themselves are consistent with their
own safety. I am sorry they are so tenacious of their own as to
neglect that of their poor printer.
Harison had a fine time thinking up jibes like this. It would have been
poetic justice if he had been around to suffer—with Governor Cosby and
the rest of the Court party—through the acquittal Peter Zenger won so
triumphantly on August 4, 1735. But by that time New York had become too
hot for this particular member of the faction, and he was on the other
side of the Atlantic.
The arrest of Peter Zenger was one of Cosby’s gross mistakes. No one in
the Colony could miss the fact that he was bent on revenge, for the
public bodies—Assembly, Common Council, grand juries—had all refused to
have anything to do with proceedings that they recognized as strictly
the Governor’s private affair. Nor could there be any doubt that his
purpose was to silence a critic who had been uttering unpalatable
truths. Popular feeling was exacerbated by the fact that Cosby’s
vindictive wrath fell, not upon the powerful men of the opposite
faction, but upon an insignificant German immigrant who plied the trade
of printer in the city.
The way the thing was done added to the animosity that Cosby provoked.
Zenger’s bail was placed at so high a figure that he could not meet it,
his lawyers were disbarred for protesting against the Governor’s
hand-picked court of Chief Justice James Delancey and Associate Justice
Frederick Philipse, the prisoner had to linger in his cell for nine
months before he was given his day in court, and Cosby tried for a
packed jury in so blatant a way that his own chief justice had to
disavow him. None of this could be kept secret; when the trial was
finally held local sentiment had turned against the Governor to the
point where he had only his closest friends with him.
X. Van Dam’s Indictment of the Governor
As the Zenger case developed step by step in New York, Cosby was being
forced to a more energetic defense on the London front, where Van Dam
was waging a pamphlet war against him, and where Morris was present in
person.
Months before the newspaper war began Van Dam had resolved to keep the
New York public and the London authorities informed of the way in which
the Cosby suit for half of his salary was going, and he began to publish
successive accounts, with Peter Zenger doing the printing for him just
as for the rest of the Popular party. Zenger’s business got better as
the political controversy got worse. In the summer of 1733 he turned out
for Alexander and Smith their arguments against the validity of the
equity court. Shortly afterward Van Dam gave him the job of handling two
protests in which the stubborn old Dutchman expressed his personal
indignation at the way he was being treated by the Governor.
These partial attacks on Cosby were followed by a general indictment, a
full bill of particulars drawn up to expose him point by point with the
most meticulous exactitude. Almost everything that could be alleged
against him with any degree of plausibility at all was set down in Van
Dam’s _Articles of Complaint_.
The apparent author was not the real one. Van Dam undoubtedly had a hand
in formulating the charges, but the writing must have been due to
someone else since Van Dam was not skillful with the pen. James
Alexander springs to mind as the obvious candidate for the role of ghost
writer, a suspicion that is strengthened by the accusations that Cosby
leveled at both him and Morris. Nevertheless, Van Dam was responsible
for the _Articles_, a fact on which he insisted with dogged
self-righteousness.
The indictment is composed of 34 separate counts. Not all of them are
watertight, for some descend into carping criticism about trivialities.
One, for instance, accuses Cosby of accepting a gift of French wines
from the commander at Louisbourg:
You received of the said Frenchman by way of present all of the said
brandy, claret and salad oil, which were carried into the fort and
lodged in your cellar; and this, I suppose, induced you to grant a
liberty to trade here, which you ought not to have done.[25]
Another charges that Cosby’s candidate in the Westchester election,
William Forster, was “a known Jacobite,” an astonishing grievance in
this context since James Alexander was himself a Jacobite, a veteran of
the rising of 1715.
These are mere debaters’ points (at the most charitable estimation), and
they prove that the leaders of the Popular party could be just as
unscrupulous as the Governor when they put their minds to it. They did
not disdain to use against him the weapons that he used against them.
Too often the struggle has been painted in stark tones of black and
white, when it was really a matter of degree, with neither side having a
monopoly of either vice or virtue—which is to say little more than that
we are dealing with the factional politics of real men rather than with
the stereotypes of melodrama.
Again, some of the _Articles_ are of doubtful validity, as when Cosby is
accused of destroying a deed given to the City of Albany by the Mohawks,
and of permitting the French to map and sound New York harbor on the
pretence of trading there. The Governor retorted that the deed was
unjust to begin with, and that to have kept it in force would have
driven the Indians into the arms of the French; and that trade with
Louisbourg was legitimate and humanitarian because the garrison was
close to famine.
But if a number of the _Articles_ have a dubious ring, others do make
fundamental points. They mention the dismissal of Morris from the
Supreme Court, the Van Dam lawsuit, and the attempt to rig the
Westchester election. Several are devoted to Cosby’s contemptuous
treatment of his Council:
You have, contrary to your instructions, displaced Judges, Justices of
the Peace, Sheriffs, etc., without the advice of Council.[26]
The Council being part of the legislature, as above, you have taken it
upon you (in order to influence their debates) to sit among them and
act as their President, though by your patent His Majesty has given
you a negative voice to prevent the passing of any law prejudicial to
His Majesty’s prerogative and the public good.[27]
Where the advice of the Council has been thought necessary you have
not given general summonses as usual, but have only summoned so small
a number as would constitute a quorum, in which you were sure of a
majority to carry such point as you thought proper, and by this method
seem to support your proceedings by the sanction of advice of
Council—when three makes a majority of such a quorum, and nine might
have been dissenting had they been summoned.[28]
You have taken it upon yourself to act as President of the Council in
receiving bills and messages from the General Assembly.[29]
By these methods you have rendered the Council useless in their
legislative capacity of being that check and balance in government
that His Majesty intended they should be.[30]
Van Dam’s _Articles of Complaint_ constituted a deadly blow at Governor
Cosby, what with his Minorca past added to his present troubles in New
York, nor was he slow to recognize the fact. We have already seen how he
was warned by the Board of Trade because of reports in the _Journal_.
Fearing the effect of the _Articles_ in London, he prompted his
confederates of the Council to draw up for the Duke of Newcastle a point
by point “refutation”—which does not, however, actually refute anything
fundamental, for if it deals validly enough with the trivialities, it
sedulously avoids, or else boldly denies, the facts about Cosby’s
maladministration and misdemeanors. At the same time the Cosby
councillors appended a note that gives the Court party’s version of the
New York situation:
We have been, while we traced Mr Van Dam through a labyrinth of
detestable falsehoods, very often at a loss how to believe that a man
of his years could forge so many and so notorious scandals, but we are
to inform your Grace that the resentment, malice and revenge of some
of the wickedest men are thrown to his assistance. No government or
administration can please these restless minds. Nothing will satisfy
them but the power which they joyfully would exercise to the
destruction or ruin of their fellow subjects. We beg Your Lordship to
be assured that we know, and daily are made more sensible of, our
happiness under His Excellency’s administration.[31]
XI. Morris on the London Front
During the year 1734 the quarrel between Governor Cosby and his enemies
went on, and then in December he learned that Lewis Morris had sailed
for England. Things were becoming more tense. The two factions had met
head-on in another election contest, that for the Common Council of New
York City, and again the Governor had suffered a humiliating defeat.
Smarting with resentment, and goaded by mounting fury, he had promptly
turned around and thrown himself on the one man who was vulnerable: he
had jailed Peter Zenger on the charge of “seditious libel.” If the
printer should be convicted, that alone would justify Cosby, and
compromise his opponents, in the eyes of the authorities. The leaders of
the Zenger faction might join their printer in the city prison. At best,
the opposition press would be muzzled, in which case the anti-Cosbyites
would have to go outside New York to have their pamphlets printed, while
their newspaper must be destroyed.
There was no time to lose. The plan to send a personal representative to
London should be implemented, Lewis Morris being a satisfactory choice
since he was already known in the British capital. Everything was done
as secretly as possible, and Morris embarked clandestinely to prevent
the Governor’s taking any countermeasures.
The strategy for him to follow had been worked out in consultations with
his colleagues. We know the generalities of the case he was to make
against the Cosby administration, and they are of special interest as
indicating how the Popular party thought London should be approached.
Here we find no trivialities such as those in the _Articles of
Complaint_. Morris was to adhere strictly to criticisms that told:
At a consultation between James Alexander, William Smith, and Lewis
Morris Jun., as to the matters to be entrusted to Col. M—, it was
determined that he should exert himself to procure among other things:
The removal of the Governor if possible—his own restoration [to the
Supreme Court]—the dissolution of the then existing Assembly—the
removal of Francis Harison and Daniel Horsmanden from the Council of
New York—instructions to Gov. Cosby to pass such laws as a new
Assembly should conceive conducive to the welfare of the people, and
particularly an act for an annual or triennial Assembly, and some
others of a special character—to allow the Council to sit without him,
and that their advice and consent should be required in conformity
with his instructions—that the Governor should also be instructed not
to set himself above the law—to grant new charters to the cities of
New York and Albany—and that only by adhering to these directions
could he hope to be retained in office.[32]
Morris followed his instructions as well, apparently, as he could during
almost two years in England. He was quickly disillusioned about the
possibility of getting what he wanted. Being of a choleric and impetuous
nature, he may have pressed his demands too warmly and eagerly; he may
have been too obviously the partisan. But one reason why the recall of
Cosby could not be achieved was that too many interests in London wanted
him to stay where he was. In a letter to Alexander, Morris wrote:
Everybody here agrees in a contemptible opinion of Cosby, and nobody
knows him better, or has a worse opinion of him, than the friends he
relies on; and it may be you will be surprised to hear that the most
nefarious crime a Governor can commit is not by some counted so bad as
the crime of complaining of it—the last is an arraigning of the
Ministry that advised the sending of him.[33]
In order to placate Morris, it was suggested to him that he withdraw his
indictment of Cosby in return for a promise that he himself should be
appointed the first governor of New Jersey under a separate
jurisdiction. He announced publicly his refusal of the offer (although
some murmuring about his candor was heard when he received that office
in 1738). On one point he was partially successful, that of his removal
from the Supreme Court: a royal decree declared the reasons for it
insufficient. But even so he was not reinstated. His mission to London
was not a success. Perhaps the authorities, not at all enthusiastic
about removing a governor to begin with, were swayed by Cosby’s
accusations against Morris, such as:
Cabals were formed against the government, and a meeting of their
factious men is still held several nights in the week at a private
lodging which I have discovered, Alexander always present, and Morris,
till he lately fled privately for England, in great fear as ’tis
publicly reported lest the printer of their seditious libels should
discover him.[34]
The Governor certainly had some success with his London defense. He was,
after all, the crown’s executive on the spot, and that alone would have
given his pronouncements an authority denied to the greatest magnates of
the Popular party. The burden of proof lay with them. That they thought
they could meet the test is proved by the commission given to Lewis
Morris. But, if the Board of Trade went so far as to censure Cosby, they
obviously felt inclined to accept his version of what was going on in
New York. To the Queen they reported:
Colonel Cosby acquaints us in his letter that the said Alexander and
his party have set up a printing press at New York, where the most
virulent libels and most abusive pamphlets published against the
Ministry and other persons of honor in England have been reprinted,
with such alterations as served to inflame the people against the
several branches of the legislature and the administration in that
Province.
That factious cabals are secretly held several times a week in New
York, at which Alexander is always present, as Morris was before his
coming privately to England....
Colonel Cosby further acquaints us that Rip Van Dam, Morris,
Alexander, and others of their party, appear by their behavior to be
disaffected to his Majesty’s government, and are daily exciting the
people to sedition and riot.[35]
This passage, written while Lewis Morris was there to agitate for the
contrary, comes close to a real endorsement of Governor Cosby.
XII. Cosby’s Defeat
Ironically, it was drawn up just a few weeks after the Governor had been
condemned in New York—condemned explicitly on the score of the printing
press about which he fulminated to the Board of Trade.
The trial of the printer was the critical moment for all concerned, the
leaders of both sides being as anxious about the outcome as was Peter
Zenger himself. Cosby had done everything he could to ensure a verdict
in his favor. The defense countered by bringing in the leading attorney
of Philadelphia, perhaps of the colonies, Andrew Hamilton. The common
people of the city thronged the galleries as the proceedings began.
What happened during that momentous August day is one of the moving,
triumphant pages of American history. We can still feel, in reading the
text of the trial, the emotional tremor that vibrated in the courtroom
at the clash of two powerful forces. We can still follow Andrew Hamilton
as he stalks his opponents like an implacable duelist with a rapier,
pinking now one and now the other as they venture to challenge him. We
can understand the hot befuddlement of Chief Justice Delancey and
Attorney General Bradley when they found their prepared defenses useless
against a kind of attack they never expected; we can understand their
moral disintegration when the verdict went against them, and they had to
think what to say when they reported to the governor’s mansion. How must
they have felt when the crowd began a delirious demonstration to show
its delight that Peter Zenger was a free man? How must they have felt, a
few hours later, when they heard that Andrew Hamilton was being treated
like a hero by the magistrates of the city?
Governor Cosby had suffered a crushing rebuke. His sword had turned into
a boomerang. Having confidently looked for an end to the obnoxious
newspaper, he found it justified in the most complete and unanswerable
way—by the judgment of a group of men typical of those he governed. No
longer was there any hope of silencing his critics, or of arguing with
any kind of plausibility that they were guilty of seditious libel. His
defense was shattered on both fronts, for New York was sure to have a
moral for London. The trial he forced with such demanding arrogance
undermined him, and a modest German printer became the symbol of his
catastrophe—something the great Lewis Morris had been unable to engineer
in face-to-face conferences with the British authorities.
The verdict seems to have broken Cosby’s will. Already a sick man,
suffering from pneumonia, he made no attempt to rouse himself for a
renewal of the battle that had gone on from the beginning of his
administration. He had never collected the salary from Van Dam, he had
lost the critical elections, Alexander was still unpunished, Peter
Zenger was beyond his reach, and a free press was definitely established
in New York. Cosby was defeated, and he knew it.
He did strike one last blow at the old enemy who had started the
trouble: he suspended Rip Van Dam from the Council. Characteristically,
the obstinate Dutchman refused to acknowledge the suspension, and
challenged George Clarke, the next ranking member of the Council (and a
Cosby man), for the executive power in New York.
William Cosby was, appropriately enough, the prime mover in the quarrel,
but this time he was not personally involved, for he died—a discredited
man, but still Governor of New York—on March 10, 1736.
XIII. Andrew Hamilton
The lawyer who won the acquittal for Peter Zenger was, like his friend
James Alexander, a Scot. The year of Andrew Hamilton’s birth is a matter
of some debate, an old story holding that he was in his eighties when he
appeared in the New York courtroom, while later evidence makes him
around 65 at that time. His life holds other mysteries. For one thing,
we do not know why he left Scotland. It has been said that he was forced
to flee after fighting a duel; again, the motive has been called
political, which prompts the surmise that he was implicated in the 1715
Jacobite rising—a pleasing theory in that it allows us to imagine him
and Alexander together on the same Scottish battlefield with no
presentiment that their place in history lay twenty years ahead and
three thousand miles away. We have too little evidence about this phase
of Hamilton’s life to speak authoritatively about it.
There is even some doubt that he belonged to the Hamilton clan. When he
arrived in America he went by the name of Trent. However, trouble back
home would account for the pseudonym, and before long he reverted to
Hamilton. Rivaling Alexander in the versatility of his talents, he rose
to power as soon as opportunity beckoned. He married an affluent widow,
founded a great landed estate in Maryland (“Henberry,” near
Chestertown), went back to England to study law as a member of Gray’s
Inn, and then entered Colonial politics to begin an illustrious career
crowned by his appointment to the Council and his election to the
Assembly of Pennsylvania.
From then on his name appears prominently in Pennsylvania business. He
handled legal cases for the Penn family and helped draw up addresses to
the crown. He gained a reputation for opposing arbitrary acts by the
Governor, especially with reference to the courts, which put him right
at home when he entered the Zenger trial.
Hamilton’s commanding personality had no little share in winning an
acquittal for Peter Zenger. Knowing that Chief Justice Delancey would
instruct the jury to leave the verdict to the court, Hamilton had to
maneuver them in such a way as to make them see that they ought to
ignore the instruction; and that required not only basic legal
argumentation, an assured manipulation of both fact and logic, but also
his own domination of the proceedings. His success was due to his
courtroom presence added to his maintenance of the initiative from
beginning to end. He could not afford to falter, nor did he.
By comparison, James Delancey looked like a tyro, which indeed he was—a
young man, just 32, who moreover had gained his office under dubious
circumstances, facing one whom he knew by reputation to be _the_ old
master of their common profession. Reading between the lines of the
trial we are compelled to infer that Delancey lost control partly
because of his own inadequacy, and partly because his hostility toward
Hamilton was tempered by a deferential respect due to superior
knowledge, experience, ability, and prestige. It is just as easy to see
how the spectacle of the Hamilton-Delancey duel swayed the jury,
prompting them to act on the advice of the defense attorney rather than
on the instruction of the chief justice.
Aside from this historic victory, Hamilton is memorable as the architect
of Independence Hall in Philadelphia. When the Pennsylvania Assembly
decided that it needed a new building, Hamilton was named as one of the
Commission to look into the problem. He submitted a plan for site and
structure, had it approved by the legislators, and then supervised the
work. The result was the State House in which the Assembly met for the
first time in 1736. It still stands, one of the most hallowed buildings
in America; now it is known from its place in the Revolution as
Independence Hall.
The Zenger verdict and Independence Hall—how many men in the history of
America have two comparable monuments to their memory? Andrew Hamilton
had done well the two major tasks entrusted to him when he died on
August 4, 1741, exactly six years to the day after the trial of Peter
Zenger.
2. The Meaning of the Trial
The trial of John Peter Zenger was one of the spectacular events of
American history, involving as it did powerful personalities, factional
intrigue, a newspaper war, and a splendid courtroom scene in which low
chicanery mingled with high rhetoric. It boasted a shining hero and a
glowering villain. It passed through the dramatic sequence of conflict,
climax, and denouement. It had a happy ending.
Offhand you might think that the Zenger case could be nothing more than
that—a scintillating drama with a story-book finish, a tale worth
telling without sequel or epilogue. Yet it was one of the most
significant things that ever happened on this side of the Atlantic. It
was a center from which forces—legal, political, social,
constitutional—radiated throughout America, and from one generation to
another down to our own time.
The historian and the dramatist may rejoice at the event as such, but
the real importance of that trial of August 4, 1735, lies in what came
out of it. When Peter Zenger returned to his home instead of to his
prison cell, that very fact made him forever a focal point in the
development and philosophy of American democracy. The implications for
the future were more fundamental, varied, and far-reaching than any of
the men concerned could have dreamed. It is the implications that lift
the Zenger case out of the class of ordinary political prosecutions and
give it a transcendent meaning.
The trial was the first, and the most important, step toward freedom of
the press in America. Peter Zenger was accused of seditious libel simply
because his press had turned out, and was still turning out as he stood
in the dock, a newspaper with the impudence to criticize the Governor
and his administration. The _New York Weekly Journal_ was an astonishing
spectacle in the Colonies—a periodical that preached freedom of the
press as a fundamental right, and practiced its doctrine by reporting
the news as it saw fit.
Other newspapers might clear their material with the authorities, or at
least hedge in saying anything that could cause unpleasant
repercussions. The _Journal_ displayed no such self-restraint. It dwelt
on the Governor’s misdemeanors, alleged his incompetence, laughed at his
mistakes, spotlighted his attempts to cover up his shady dealings, and
more than suggested that he should be removed from office.
The _Journal_ overtly and even clamorously threw off subservience to the
Colonial government. It followed the lead of the British papers that had
already begun the battle for a free press, and carried the fight into
the American arena. Many evil and stupid men had been sent to the New
World as representatives of the crown, but until the Zenger era they
were able to keep the press sufficiently in line. It was the misfortune
of Colonel William Cosby, one of the worst and stupidest, to collide
with a newspaper that would not give way.
In charging Peter Zenger with seditious libel Cosby was acting in
accordance with an old habit of the official mind. Until a few years
previously, Colonial governors had been specifically commissioned to
censor the press, and the tradition still held that journalists had no
right to print anything of which the local executive disapproved. His
discretion was the criterion, just as the king’s was in Britain. He
could set down as “libelous” any report that caused him any uneasiness,
and impugn it as tending to excite sedition among the governed.
Thus the question of truth was beside the point when printers,
publishers, editors, and writers were being prosecuted. Indeed, veracity
might only aggravate the charge, for obviously unrest is most likely to
follow from a story about stupidity or criminality in government if the
news happens to be true. This thought gave rise to a whole theory
epitomized in the legal tag, “The greater the truth, the greater the
libel.” The journalist was caught coming and going—guilty if his story
was false, even more guilty if it was true.
Such a theory of seditious libel may sound paradoxical at first, but in
fact it had behind it a strong logic based on history. When the British
monarchy emerged as absolute during the reign of the Tudors, the
relation of king and people was that of master and servants, a relation
accepted by the nation almost without demur. Therefore, criticism of the
king was illegitimate and _ipso facto_ criminal, and the truth of such
criticism was at best inconsequential, at worst an exacerbation
threatening to cause a breach of the peace. Hence: “The greater the
truth, the greater the libel.”
But the law could not stop there, for British politics went through a
profound revolution during which Parliament wrested control of the
government from the king, who slipped steadily downward into the role of
servant to, rather than master of, his subjects. Parallel with this
development went a progressive rise in the power of the popular will,
one result of which was that criticism of king, ministry, and Parliament
became transmuted into an integral part of the British system. Now the
distinction was no longer between criticism and no criticism, but
between valid criticism and invalid criticism; and one acid test was
exactly the question of truth in the charges made. By the end of the
eighteenth century the change was virtually complete.
The law lagged a little in rewriting its rules. At the time of the
Zenger trial (1735) the situation was ambiguous, a fact that comes out
clearly in the pleading. Peter Zenger’s acquittal helped to resolve the
ambiguity along the lines of greater freedom.
Governor Cosby stood for the Tudor principle. He might have coined the
phrase, “The greater the truth, the greater the libel,” so well did it
suit him. His regime would not bear scrutiny, for he riddled it with
dubious, unethical, and illegal acts of various kinds—ignoring the rules
laid down in his instructions from the Board of Trade in London,
interfering with the elections and with the courts, boldly appropriating
money and land, insulting the people and the Assembly of the
Province—and he did not want such things to be aired, least of all in
the columns of a weekly that allowed him no respite as it appeared every
Monday with its reports about him and his circle of confederates. He
failed in every other attempt to silence the _Journal_, and then brought
the printer into a court of law to answer the charge of seditious libel.
So far everything was in order. But as soon as the trial got under way
things began to go wrong. Andrew Hamilton had come from Philadelphia to
speak for the defense; and he, with all the eloquence for which he was
famous, propounded the novel theory (novel for America, at least) that
freedom of the press is a basic need of society. He insisted that the
people have a right to know what their government is doing. He noted
that they should be able to complain when they have a grievance against
the government, and that a sure, easy, and speedy method of doing this
is for them to make their opinions known in the newspapers. He pointed
out the converse, that nothing of this is possible as long as the censor
can blue-pencil what he chooses, since the censor is, by definition, the
administration’s man, and does its bidding.
Above all, he drew a sharp line between truth and falsity in reporting
the news. Admitting that no one has a right to lie in print any more
than in speech, he successfully inserted into the minds of the jurors
the notion that an editor should be allowed to plead the authenticity of
a story as his justification for publishing it. He got them to agree
that the word “false” should be operative and indispensable in the kind
of seditious libel of which Peter Zenger stood accused.
Even Hamilton could not see how titanic an issue was joined. He was
primarily interested in the problem at hand—to get his client
acquitted—but the fact is that in speaking for his own time he was
speaking for all time. He would have been a prophet as well as a
philosopher if he had seen fully the parting of the ways at which he
stood, with the old censorship extending backward into the past, and the
new freedom pointing toward the future. It was merit enough that he saw
farther than any other man of his period, and that he stated the
argument for the emerging principle better than anyone else.
The full import of his victory in court is not yet exhausted, and very
likely never will be. As time passes we understand more exactly just how
great a blow it would have been if Governor Cosby had been able to kill
the magnificent pioneering experiment in independent journalism that the
_Journal_ was. We appreciate better than our ancestors the overwhelming
significance of the trial of Peter Zenger, that for the first time an
American practitioner of unfettered news coverage had won a complete and
avowed vindication through the orderly official process of a trial by
jury.
Ever since, newsmen have looked back on the Zenger case as the origin of
their most primordial right. If that right was not promptly conquered
everywhere in the Colonies, Peter Zenger had lit the train for a whole
series of delayed reactions. The trial touched off discussions about the
meaning of libel, showed that existing definitions were defective rather
than axiomatic, compelled the authorities to take more account of public
opinion before launching lawsuits against their opponents of politics
and journalism, and thereby saved other editors and printers from
following the old path that led nowhere except to prison.
James Alexander’s _Brief Narrative of the Case and Tryal of John Peter
Zenger_ was widely reprinted after Zenger himself had turned out the
first edition, and the text became a classical precedent to which anyone
faced with censorship could point. Americans still point to it when
freedom of the press is under discussion.
Present-day newsmen have a more professional reason for being grateful
to this Colonial printer. Throughout his imprisonment and trial he
maintained a steadfast silence about the identity of the men who wrote
the contents of the newspaper that he ran through his press; and he
thereby gave an enormous impetus to the thesis that a journalist has a
right to keep secret the sources of his information. Other printers
before Zenger had refused to divulge the names of their contributors,
and some achieved the crown of the semimartyr in consequence, but none
had ever been given the unanswerable backing of the courts.
Always the formal conditions of Zenger’s acquittal must be borne in
mind, for his triumph was not just a personal thing, or the wresting of
a momentary privilege from an indolent or interested official. It was a
legal precedent.
The Zenger case necessarily reflected on American politics. The
acquittal of the Defendant involved the condemnation of the Plaintiff,
which meant that Governor Cosby’s administration was found guilty of the
things with which the _Journal_ charged it. One more stumbling block was
thrown in the path of tyranny, one more support removed from dishonesty
in high places.
Cosby had hand-picked his judge to insure control of the court, but
never would this kind of illegality be repeated with the same
lighthearted contempt for criticism. Never again would any Colonial
governor try quite so recklessly and arrogantly to rig elections or to
seize land or to play the politician with his Council in order to create
within it a faction that would rubber-stamp his whims. These
misdemeanors had been condemned (by implication) in a cold legal
decision—and the Colonies would not forget.
The behavior of courts handling libel cases changed. When the New York
jury came in with a verdict of “Not guilty,” it did something that was
rather startling for the 1730’s. According to the traditional theory of
law, the business of jurors was to determine the fact of publication,
and to leave the verdict to the court. In this case, the jury should
have confined itself to deciding by whom the _Journal_ had been printed
and at whom the contents were aimed, after which its function would have
been fulfilled. The setup was ideal for Governor Cosby since he had his
henchman on the bench, Chief Justice James Delancey, all prepared to
render a verdict of “Guilty” as soon as the jury had agreed on the
undeniable (and undenied) fact that Peter Zenger was actually printer of
the newspaper.
Andrew Hamilton scrambled the neat pattern that Cosby had laid out. He
made his appeal directly to the jury, ostentatiously bypassing the
judges on the bench, presenting past instances in which jurors had taken
upon themselves the responsibility of deciding the law—that is, of
giving the verdict, instead of merely identifying the printer of the
supposedly libelous material. He argued that juries are of little use if
they do not perform this function, since there is no reason for jurors
to participate in any trial except that as local citizens they are
supposed to be familiar with the facts pertinent to the case. He asked
the Zenger jurors simply to declare what they knew to be the truth, that
“Zenger’s paper” had correctly described the New York administration
under which they all lived and suffered. In other words, he appealed to
the twelve men in the jury box to take the decision away from a
governor-controlled court.
Hamilton got his wish. The jury followed his advice, ignored a warning
from Chief Justice Delancey that the verdict was none of their business
and should be left to the court, and brought in a finding of “Not
guilty.” The immediate effect was the acquittal of Peter Zenger. But the
long-range effect was a change in the mutual relations of judges and
juries. Just as the principle, “The greater the truth, the greater the
libel,” became more and more implausible as time passed, so did the
notion that the proper function of the jury is to determine the “fact,”
that of judges to hand down the “law.” Jurors, like newsmen, were voted
a charter of independence at the same time that Peter Zenger was set
free.
The Zenger case assisted the rise of public opinion as a factor in
American life. The feeling of the inhabitants was never, of course,
completely inconsequential, and more than one governor had found himself
with a rebellion on his hands when he made himself too obnoxious, but in
Peter Zenger’s time the people were becoming increasingly restive and
impatient under maladministration. He made the attitude vocal as it
never had been before. Dissidents had habitually issued critical
pamphlets about things they objected to. The _New York Weekly Journal_
changed criticism from intermittent to permanent. The newspaper appeared
regularly every week, always crammed with information about the
officials of New York, and drawing its material from dozens of plain
citizens as well as from a steady “staff” of anti-Cosbyites. Because of
the _Journal_’s popularity, a whole section of the people received a
constant diet of critical journalism that showed them how influential
their approval or disapproval was.
Before long popular sentiment constituted a real power in the Colonies.
Governors became more reluctant to coerce opposition. Grand juries were
emboldened to make freer decisions when called on to indict editors. A
witness to the increased importance of the common man is Cadwallader
Colden. He became lieutenant-governor of New York, and as such a
defender of the crown’s prerogative; but he was a veteran of the Zenger
controversy, and in the midst of an even greater crisis (that following
the Stamp Act) he gave it as his considered opinion that to prosecute
newspapermen for libel would be very dangerous in view of the feeling
among the people. Journalists became bolder in their criticism, more
sure of themselves when they had public opinion with them.
The _New York Weekly Journal_ set the classic example of marshaling the
citizenry in serried ranks to support one point of view in politics, nor
does it, in this, have to take a back seat to any other news organ in
the history of American journalism. Sam Adams’ _Boston Gazette_ but
followed in the path already marked out by “Zenger’s paper,” which was
then, and still remains, a model of the art of diverting popular
sympathy from individuals and parties by making them look ridiculous or
criminal or both.
The participation of ordinary men and women in political discussions,
debates, and quarrels caused a rise toward the level of true democracy.
The _Journal_ proved the close connection between political freedom and
freedom of the press half a century before Jefferson laid down his
famous axiom on the subject, and a century before de Tocqueville
perceived that modern democracy cannot exist without the public forum of
the newspapers. By creating political journalism in the true sense, the
_Journal_ did as much, perhaps, as any other single agent to create the
American way of life. If we find censorship stifling today, we owe that
phenomenon of our moral physiology in no small degree to the battle that
was fought and won by Peter Zenger.
On the constitutional side, the Zenger case helped snap the leading
strings that bound the American Colonies to the mother country.
It made resistance to governors more respectable. Governor Cosby’s
defeat, like Peter Zenger’s vindication, was a legal precedent. At no
time was there any question of violence or armed insurrection (although
Cosby affected to believe the contrary in his letters to London). The
thing was fought out strictly through the judicial machinery of the
Province, with each side struggling to win over judges and juries. Cosby
lost because he could not control the one jury at the critical moment.
The decision was unassailable in any legitimate fashion, and Cosby was
_ipso facto_ legitimately discredited.
The outcome touched off reactions throughout the other Colonies. The
published account of the trial was hailed as a notable addition to the
documentation of freedom—something to be referred to whenever the
liberties of the subject were endangered. No longer could anyone claim
with any kind of justice that resistance to crown officials was always
wrong, that it had no real basis in American legal development or
political experience: the _Brief Narrative of the Case and Tryal of John
Peter Zenger_ was always there to give the lie to the proposition. When
resistance became really outspoken in the time of Adams and Otis and
Hancock, its leaders could thank Peter Zenger as one of their
forerunners who helped generate the mental atmosphere in which
revolutionary ideas could grow, thrive, and spread.
Resistance to governors led directly to resistance to the crown. Until
the time of the Zenger case, it had been conventional to solve American
problems by British experience, to look to the common tradition for both
principles and their correct application. After 1735 that procedure was
no longer to be accepted without quibble. Speaking to the jury, Andrew
Hamilton based his argument on the common sense notion that British law,
as such, could not always apply to America, because conditions in the
New World were in many respects unique, that in such cases our law would
have to develop its own rules and regulations.
Hamilton referred only to legal development since he was defending a
client in a court of law; but from his premise a political conclusion
could be drawn, namely, that government might not necessarily be
directly transferable either: if the Hanoverian monarchy, however
successful in Britain, could not rule satisfactorily the Colonial
democracy that was developing on this side of the Atlantic, then perhaps
something else should be put in its place. In Hamilton’s time the crown
itself was not yet suspect; it remained inviolate, the _sanctum
sanctorum_ of allegiance and veneration, when its representatives over
here were attacked with unmitigated animosity. Hamilton himself remarked
that the king differed from his officials in kind rather than merely in
degree.
Once, however, the authority of the king had been challenged, then
Hamilton’s appeal from British precedent to Colonial experience became
very much to the point. His efforts in behalf of liberty for New York
helped pave the way for liberty for America, the rebels of the 1770’s
drawing from his legal premise the political conclusion that lay
implicit in it. He enabled them to argue cogently that independence was
not a scandalous novelty but a natural issue of the American situation
in the face of an authority three thousand miles away.
The men of the Revolution were well aware of their indebtedness.
Gouverneur Morris spoke for them all when he delivered his famous
judgment that “The trial of Zenger in 1735 was the morning star of that
liberty which subsequently revolutionized America.”
Britain herself did not go unaffected by what had happened in the City
Hall of her New York Colony. As far as it concerned freedom of the
press, the Zenger case fell into place in a transition that had long
been developing in the classical home of libertarian ideas. The account
of the trial was reprinted there, and cited as an ideal of what British
journalists were striving for. In 1738 a London correspondent wrote to
Benjamin Franklin’s _Pennsylvania Gazette_ to say that Andrew Hamilton’s
address to the jury was causing something of a furor in the coffeehouses
where the gentry and the intelligentsia met, as well as among the
professional lawyers. The correspondent quoted one leader of the British
bar as saying of Hamilton’s argument, “If it is not law, it is better
than law, it ought to be law, and will always be law wherever justice
prevails.”
The two great principles—that truth may be used as a defense in libel
cases, and that the jury has a right to decide on both the “fact” and
the “law”—did eventually become legal for both Britain and America. The
process of formal acceptance took time, and the mother country divided
with her former Colonies the primacy of writing them into the lawbooks.
Britain gave the jury its proper function as early as 1792, with the Fox
Libel Act, whereas America had to wait for the Sedition Act of 1798; but
we admitted that veracity might be alleged in the Sedition Act, a right
which the British were without until Lord Campbell’s Act was passed in
1843.
The struggle for the two principles on both sides of the Atlantic is a
monument to the sagacity of Andrew Hamilton. No one could have won their
vindication at a single stroke against the inertia of old tradition and
habitual usage. But he defended them at the critical moment when change
had become a real possibility, and did it so powerfully as to give them
a forward drive that could not be stopped. Their triumph was therefore
his—at the remove of half a century and more.
The current of ideas set in motion by the Zenger case continued
throughout the nineteenth century, and became an integral part of
journalism as we know it. Libel suits did not diminish; on the contrary,
they increased; but they did not follow the lines of the Zenger
prosecution. They were mainly suits against “false, scandalous, and
malicious” statements in the newspapers, the growing number of such
cases reflecting the widening latitude within which editors worked. The
word “false” retained the significance that Andrew Hamilton had
attributed to it back in 1735. If the threat of the libel action still
hung over the heads of journalists (as it rightly did and does), it was
not the “libel” that Chief Justice James Delancey had tried to pin on
Peter Zenger.
The name of the Colonial printer did not, however, gleam as brightly as
it should have in the age of Bennett and Greeley and Raymond and Dana.
He was, if not forgotten, at least overlooked or ignored to a surprising
extent. Naturally he found a place in the volumes on his art—in Isaiah
Thomas’ _History of Printing in America_, a masterpiece that appeared in
1810, and in Charles Hildeburn’s _Sketches of Printers and Printing in
Colonial New York_ at the other end of the century (1895). The
astonishing thing is that no major work on the Zenger case was written
for more than a hundred and fifty years after it.
The twentieth century redressed the balance with Livingston Rutherfurd’s
_John Peter Zenger, His Press, His Trial and a Bibliography of Zenger
Imprints_ (1904), which, with all its defects, remains the only attempt
to treat Peter Zenger and his newspaper extensively and completely. With
its full reprint of the trial, it is the standard work on the subject.
The past fifty years have produced a mass of periodical essays, learned
monographs, and printed documents on the Zenger case; and, of course, we
can interpret the event more intelligently through our added experience
of how the press fares under tyrannies so abominable that they leave
Governor Cosby looking like a rather mild specimen of the juvenile
delinquent.
The memory of Peter Zenger was given a fillip in 1933, the year of the
bicentennial of the founding of the _New York Weekly Journal_. In
October a distinguished group of newsmen gathered at St. Paul’s Church
in Eastchester to commemorate the first issue of “Zenger’s paper”—that
being the place where the Popular party won the election (in spite of
Cosby’s attempt to rig it) that was the feature story on November 5,
1733. The New York Public Library participated in the celebrations of
1933 by giving an exhibition of its Zenger material. In January of 1934
Senator Borah read into the _Congressional Record_ the words from a
tablet which the New York Bar Association set up to the memory of Andrew
Hamilton: the inscription mentions how Hamilton came from Philadelphia
to defend Peter Zenger:
and thus early in the history of the colony of New York, in connection
with the events out of which the accusation arose, contributed to the
foundation and the subsequent establishment in the American Colonies
and the United States of America of the now cherished principles of
constitutional liberty, freedom of the press, independence of the
judiciary, independence of the bar, freedom of elections and
independence of the jury.
These words Senator Borah considered of such moment to the American
people and their government that they ought to be permanently enshrined
in the proceedings of the national legislature—and so they are.
Fittingly enough, New York City paid the final tribute to one of her
great sons. In 1953 was established the John Peter Zenger Memorial Room.
Located in the old Sub-Treasury Building, which stands on the site of
the City Hall in which Zenger was first imprisoned and then tried, the
Memorial Room depicts various scenes from the life and career of the
German immigrant who looms so large in the history of our journalism and
of our free institutions.
This tribute does not take Peter Zenger out of living history to place
him in a museum. Rather does it emphasize the truth that his memory will
never die as long as American democracy survives. Interest in his trial
should never flag if only because freedom of the press is not something
that can be taken for granted. In our time the Communist and Fascist
challenges have compelled us to go back to our national origins to
justify our way of life. That way of life stands or falls with the right
of journalists to criticize the government. We cannot afford to ignore
or slur over the printer and his colleagues who first insisted on
independence in publishing the news, put their principle into practice,
produced a great newspaper that magnificently vindicated them, defended
their newspaper in the teeth of official condemnation and judicial
indictment, and were so obviously in the right that a jury of their
fellow citizens upheld them in spite of a hostile court. Peter Zenger
was never more of a portent and a precedent than he is today.
3. The Text
This edition of the trial is, like all others, based on _A Brief
Narrative of the Case and Tryal of John Peter Zenger, Printer of the New
York Weekly Journal_, which was edited by James Alexander and printed by
the Zenger press in 1736.
Alexander’s is the only authentic version, for he was the sole person
close to the affair who undertook to prepare a written text. He was in
this, as in so many other ways, the formal apologist for his side. A
rival edition would have been logical, and could easily have been
produced by the men of the prosecution, but they never saw fit to
attempt their own vindication.
Indeed, Attorney General Bradley declined even to participate in
publication, withholding his notes and his brief when the Zenger camp
asked to see them, refusing any kind of advice, comment, correction, or
even objection; obviously because, staggered and humiliated by the
acquittal, he was in no mood to help embalm his courtroom defeat in
print. It is a pity that he allowed his case to go by default. He could
not, of course, have changed the pleading as we find it set down, except
possibly for minor points of emphasis or phraseology, but he might have
made a more respectable showing than he does in the bare synopses to
which the _Brief Narrative_ is reduced from time to time. True, he might
have appeared in an even worse light; perhaps he was afraid that that
was exactly what his opponents had in mind. Nevertheless, at the very
least he would have allowed the public and posterity to view what
happened from his angle of vision. He deliberately chose not to do so.
The defense had no inhibitions about publishing a full account of the
trial. The cheering and shouting had scarcely died away before Alexander
was at work copying out the arguments, arranging notes, gathering
information from those who could fill in the gaps for him.
He was the obvious man for the job. Writer, journalist, and editor, he
had been schooled in the task of integrating written material and in
working up connecting links and explanatory passages as they were
needed. Again, not only did he stand near the head of the legal
profession, so that he was fully equipped to juggle the problem of
libel, the textbook citations, and the technicalities and philosophy of
the law (essentials in dealing with any such trial), but he had an
unparalleled position at the center of the Zenger turmoil.
No one in New York knew more than James Alexander about how and why
Peter Zenger came to be tried before the Supreme Court of the Colony.
How could it have been otherwise when the _New York Weekly Journal_ was
under fire, and Alexander was the _Journal_’s editor? He himself had
approved, and perhaps written, the “libelous” issues on which the
prosecution was based. He himself would have been in the dock as
defendant instead of the printer if only the attorney general had been
able to get him indicted.
Alexander had been a leader of the Popular party from the beginning of
its struggle with Governor Cosby. He had conspired against the Governor,
fought him in the Courts and through the press, and used every weapon to
hand in an all-out effort to ruin him politically. There was hardly a
dissident movement in New York with which Alexander was not allied as
adviser or mentor. It was only natural that he should have been one of
Zenger’s lawyers, for he understood as few others could just what the
administration attack amounted to, and how a counterattack should be
developed. It is not difficult to imagine the intelligence and the
alertness with which he noted every word that was spoken at the trial.
He must have been the perfect spectator if ever there was one.
And all this does not exhaust the depths of his familiarity with the
incident. Until his disbarment he had been one of the counsel for the
defense, which made it his duty to draw up a brief in preparation for
his plea. He fulfilled his duty so well that when he was summarily
removed by order of Chief Justice Delancey he was able to hand over to
Andrew Hamilton a whole plan of campaign, and Hamilton (brought in
unprepared and at the last moment) relied on it substantially throughout
the proceedings.
It takes nothing from Hamilton, whose performance remains one of the
classical things in the history of American law, that Alexander gave him
the lead which he followed with such stunning success—that is, the
decision to base Zenger’s defense on the truth of the _Journal_
articles, and on that basis to ask the jury to bring in a verdict of
“Not guilty.” Alexander already held that guiding thread in his hand
months before Hamilton appeared on the scene. (Not that he invented the
idea, but he saw that it was the gambit to play.)
Hamilton’s own record of the trial went into the _Brief Narrative_, as
is indicated by this passage from one of the letters that the
Philadelphia barrister wrote to his friend and colleague in New York:
I have at last sent you my draft of Mr. Zenger’s trial.... I have had
no time to read it over but once since it was finished. I wrote it by
half-sheets and copied it as fast as I wrote. The meaning of all this
is to beg you to alter and correct it agreeable to your own mind.[36]
Thus Alexander even edited the text submitted by the defense attorney,
and the latter’s acceptance of the result shows how faithfully it
reflected the spoken word. Alexander clearly has given us the events of
August 4, 1735, almost to the life.
His account had an enormous success in his own time. Lawyers,
journalists, and political philosophers felt the impact of the acquittal
as something new, either hopeful or foreboding, and there sprang up a
market for the text in both America and England. Other editions began to
appear to meet the demand, several of them published in London as early
as 1738. The eighteenth century, when the problems involved were still
fighting issues, was the golden age of Zenger republication. One of
these versions, that issued by J. Almon of London in 1765, is generally
available today in the form of a reprint prepared by the Work Projects
Administration and sponsored by the California State Library for its
series of “Occasional Papers” (1940).
The nineteenth century saw two particularly useful editions in T. B.
Howell’s _State Trials_ (1816) and in Peleg W. Chandler’s _American
Criminal Trials_ (1841), the first following Alexander almost word for
word, the second modified and abridged. With the turn of the century
Livingston Rutherfurd made available a literal reprint of the _Brief
Narrative_ in his _John Peter Zenger, His Press, His Trial and a
Bibliography of Zenger Imprints_ (1904). Fifty years later Frank Luther
Mott did the same for our generation in _Oldtime Comments on Journalism_
(1954).
The first edition of any text (putting aside the corrupt or otherwise
unreliable) always has a presumption in its favor. This is how the
author saw his own work; this is the form in which he cast his own
thoughts; this is the union of his own logic with his own rhetoric.
Nothing else can begin to approach the authority and authenticity of his
imprimatur. Consequently it is mandatory for later editors to justify
tampering with the text instead of simply reproducing it.
The justification for the version here presented of James Alexander’s _A
Brief Narrative of the Case and Tryal of John Peter Zenger, Printer of
the New York Weekly Journal_ is that his text of 1736, however fine an
achievement for his own time, is not quite so satisfactory after the
lapse of two hundred years. Literary conventions have changed too much
for so characteristic a piece of eighteenth-century writing to be
allowed to remain as it is when modern standards of readability are in
question. Moreover, in places it shows signs of haste, or possibly even
of another writer at work. An instance is the opening passage, which
falls far below Alexander’s best style, and may be by someone else,
perhaps Zenger himself. Lastly, there is too much technical law for the
lay reader. On all these counts the _Brief Narrative_ needs overhauling
for our purposes.
This does not imply any distortion: the bulk of Alexander’s text is here
just as it came from Zenger’s press. Most of the pamphlet is still
perfectly clear, and it would be pointless to change anything simply for
the sake of change. More than that, it is preferable to keep to the
original wherever possible in order to catch something of the
eighteenth-century atmosphere.
Clarity is the touchstone. Nothing has been allowed to stand that might
trouble readers who are not familiar with obsolete usages. The simplest
revision is in the spelling, where I use “trial” instead of “tryal,”
“jail” instead of “gaol,” “public” instead of “publick,” etc. More
important is the change in punctuation. Like most publications of its
time, the _Brief Narrative_ shows a plethora of commas, colons, and
semicolons, a type of punctuation that tends to produce long,
complicated, tedious sentences. There are too many capitals and italics,
which today not only irritate the eye but also lose their force by doing
too much duty. In certain places the grammar calls for the addition or
omission of words.
A comparison of the following passages, the first two from the original,
the second pair from my edition of the text, will show exactly what
changes these considerations have led to:
As There was but one Printer in the Province of _New-York_, that
printed a publick News Paper, I was in Hopes, if I undertook to
publish another, I might make it worth my while; and I soon found my
Hopes were not groundless: My first Paper was printed, _Nov. 5th_,
1733. and I continued printing and publishing of them, I thought to
the Satisfaction of every Body, till the _January_ following: when the
Chief Justice was pleased to animadvert upon the Doctrine of Libels,
in a long Charge given in that Term to the Grand Jury, and afterwards
on the third _Tuesday_ of _October_, 1734. was again pleased to charge
the Grand Jury in the following Words. “_Gentlemen_; I shall
conclude....”
Be it remembered, that _Richard Bradly_, Esq: Attorney General of Our
Sovereign Lord the King, for the Province of _New-York_, who for Our
said Lord the King in this Part prosecutes, in his own proper Person
comes here into the Court of our said Lord the King, and for our said
Lord the King gives the Court here to understand and be informed, That
_John Peter Zenger_, late of the City of _New-York_, Printer, (being a
seditious Person; and a frequent Printer and Publisher of false News
and seditious Libels, and wickedly and maliciously devising the
Government of Our said Lord the King of this His Majesty’s Province of
_New-York_, under the Administration of His Excellency _William
Cosby_, Esq; Captain General and Governour, in Chief of the said
Province, to traduce, scandalize and vilify, and His Excellency the
said Governour, and the Ministers and Officers of Our said Lord, the
King of and for the said Province to bring into Suspicion and the ill
Opinion of the Subjects of Our said Lord the King residing within the
Province) the Twenty eighth Day of _January_, in the seventh Year of
the Reign of Our Sovereign Lord _George_ the second, by the Grace of
God of _Great-Britain_, _France_ and _Ireland_, King Defender of the
Faith, &c. at the City of _New-York, did falsly, seditiously and
scandalously_ print and publish, and cause to be printed and
published, a certain _false, malicious, seditious scandalous_ Libel,
entitled _The New-York Weekly Journal, containing the freshest
Advices, foreign and domestick_;
In the present edition, these passages read as follows:
As there was but one printer in the Province of New York who printed a
public newspaper, I was in hopes that if I undertook to publish
another I might make it worth my while. I soon found my hopes were not
groundless. My first paper was printed on November 5, 1733; and I
continued printing and publishing them, I thought to the satisfaction
of everybody, till the January following, when the Chief Justice was
pleased to animadvert upon the doctrine of libels in a long “charge”
given in that term to the grand jury. Afterwards, on the third Tuesday
of October, 1734, he was again pleased to charge the grand jury in the
following words: “Gentlemen, I shall conclude....”
Be it remembered that Richard Bradley, Attorney General of the king
for the Province of New York, who prosecutes for the king in this
part, in his own proper person comes here into the Court of the king,
and for the king gives the Court here to understand and be informed:
That John Peter Zenger, of the City of New York, printer (being a
seditious person; and a frequent printer and publisher of false news
and seditious libels, both wickedly and maliciously devising the
administration of His Excellency William Cosby, Captain General and
Governor in Chief, to traduce, scandalize and vilify both His
Excellency the Governor and the ministers and officers of the king,
and to bring them into suspicion and the ill opinion of the subjects
of the king residing within the Province), on the twenty-eighth day of
January, in the seventh year of the reign of George the Second, at the
City of New York did falsely, seditiously and scandalously print and
publish, and cause to be printed and published, a certain false,
malicious, seditious, scandalous libel entitled _The New York Weekly
Journal_.
The major departure from Alexander’s text remains to be mentioned, since
it is not involved in these passages—namely, the excision of some parts
and the summarizing of others. Summaries are used when a faster pace
seems advisable, for example at the start, when the preliminary
maneuverings of the Governor are described. The excisions concern mainly
the technicalities of the law. The long quotations from dusty legal
tomes, the appeal to long-past precedents, can be of little interest to
any except those trained in the law, and so only those passages have
been retained that are necessary to the intelligibility of the
arguments. But that in itself means a solid core, enough to show the
dialectic of the lawyers moved, how the prosecution set up positions,
and how the defense knocked them over.
Four fifths of the _Brief Narrative_ are here—including all the
passages-at-arms between Andrew Hamilton on the one side, and Bradley
and Delancey on the other, and all of the defense attorney’s splendid
peroration on liberty that clinched the acquittal for Peter Zenger.
NOTE: Editorial summaries are enclosed within brackets. Other changes
are not indicated, and anyone interested in them should consult the
original. In particular, blank lines do not necessarily stand for the
deletion of material: they are there mainly for convenience in
following the case step by step.
Part Two. The Trial
1. Dramatis Personae
James Alexander, a lawyer for the Defendant
Richard Bradley, Attorney General
John Chambers, Counsel for the Defense
James Delancey, Chief Justice of the Supreme Court
Andrew Hamilton, Counsel for the Defense
Francis Harison, Recorder for the City of New York
Frederick Philipse, Associate Justice of the Supreme Court
William Smith, a lawyer for the Defendant
JOHN PETER ZENGER, the Defendant
2. Preliminaries
As there was but one printer in the Province of New York who printed a
public newspaper, I[2] was in hopes that if I undertook to publish
another I might make it worth my while. I soon found my hopes were not
groundless. My first paper was printed on November 5, 1733; and I
continued printing and publishing them, I thought to the satisfaction of
everybody, till the January following, when the Chief Justice was
pleased to animadvert upon the doctrine of libels in a long “charge”
given in that term to the grand jury. Afterwards, on the third Tuesday
of October, 1734, he was again pleased to charge the grand jury in the
following words:
“Gentlemen, I shall conclude with reading a paragraph or two out of the
same book concerning libels. They are arrived to that height that they
call loudly for your animadversion. It is high time to put a stop to
them. For at the rate things are now carried on, when all order and
government is endeavored to be trampled on, and reflections are cast
upon persons of all degrees, must not these things end in sedition, if
not timely prevented? Lenity you have seen will not avail. It becomes
you then to inquire after the offenders, that we may in a due course of
law be enabled to punish them. If you, gentlemen, do not interpose,
consider whether the ill consequences that may arise from any
disturbances of the public peace may not in part lie at your door?
“Hawkins,[1] in his chapter on libels, considers, first what shall be
said to be a libel, and secondly who are liable to be punished for it.
Under the first he says:
Nor can there be any doubt but that a writing which defames a private
person only is as much a libel as that which defames persons intrusted
in a public capacity, inasmuch as it manifestly tends to create ill
blood, and to cause a disturbance of the public peace. However, it is
certain that it is a very high aggravation of a libel that it tends to
scandalize the government, by reflecting on those who are intrusted
with the administration of public affairs; which does not only
endanger the public peace, as all other libels do, by stirring up the
parties immediately concerned in it to acts of revenge, but also has a
direct tendency to breed in the people a dislike of their governors,
and incline them to faction and sedition.
“As to the second point, he says:
It is certain that not only he who composes or procures another to
compose it but also that he who publishes, or procures another to
publish it, are in danger of being punished for it. And it is not
material whether he who dispersed a libel knew anything of the
contents or effects of it or not; for nothing could be more easy than
to publish the most virulent papers with the greatest security if
concealing the purport of them from an illiterate publisher would make
him safe in dispersing them.
“These, gentlemen, are some of the offenses which are to make part of
your inquiries. If any other should arise in the course of your
proceedings, in which you are at a loss or conceive any doubts, upon
your application here we will assist and direct you.”
The grand jury not indicting me as was expected, the gentlemen of the
Council proceeded to take my _Journals_ into consideration, and sent the
following message to the Assembly:
[_The message asked the Assembly to appoint a committee to act with
one from the Council. The committees met and decided that the wishes
of the Council should be reduced to writing, which was done in these
terms_]:
“Gentlemen, the matters we request your concurrence in are that Zenger’s
papers, Nos. 7, 47, 48, 49—which were read, and which we now deliver—be
burned by the hands of the common hangman, as containing in them many
things derogatory of the dignity of His Majesty’s government, reflecting
upon the legislature and upon the most considerable persons in the most
distinguished stations in the Province, and tending to raise seditions
and tumults among the people thereof.
“That you concur with us in addressing the Governor to issue his
proclamation with a promise of reward for the discovery of the authors
or writers of these seditious libels.
“That you concur with us in an order for prosecuting the printer
thereof.
“That you concur with us in an order to the magistrates to exert
themselves in the execution of their offices in order to preserve the
public peace of the Province.”
[_The Assembly flatly refused its concurrence, and the letter from the
Council was returned to it along with the copies of the_ Journal _that
were marked for burning_.]
On Tuesday, November 5, 1734, the Quarter Sessions for the City of New
York began, when the sheriff delivered to the Court an order which was
read in these words:
“_Whereas_ by an order of this Council some of John Peter Zenger’s
journals, entitled _The New York Weekly Journal_, Nos. 7, 47, 48, 49,
were ordered to be burned by the hands of the common hangman or whipper
near the pillory in this city on Wednesday the 6th between the hours of
11 and 12 in the forenoon, as containing in them many things tending to
sedition and faction, to bring His Majesty’s government into contempt,
and to disturb the peace thereof, and containing in them likewise not
only reflections upon His Excellency the Governor in particular, and the
legislature in general, but also upon the most considerable persons in
the most distinguished stations in this Province;
“_It is therefore ordered_ that the mayor and magistrates of this city
do attend at the burning of the several papers or journals aforesaid,
numbered as above mentioned.”
Upon reading of which order, the Court forbade the entering thereof in
their books at that time, and many of them declared that if it should be
entered they would have their protest entered against it.
On Wednesday, November 6, the sheriff of New York moved the Court of
Quarter Sessions to comply with the said order, upon which one of the
aldermen offered a protest which was read by the clerk and approved by
all the aldermen, either expressly or by not objecting to it, and is as
follows:
“_Whereas_ an order has been served on this Court;
“And _whereas_ this Court conceives that they are only to be commanded
by the king’s mandatory writs, authorized by law, to which they conceive
that they have the right of showing cause why they do not obey them if
they believe them improper to be obeyed; or by orders which have some
known laws to authorize them;
“And _whereas_ this Court conceives this order to be no mandatory writ
warranted by law, nor knows of no law that authorizes making the order
aforesaid, so they think themselves under no obligation to obey it.
Which obedience they think would be in them the opening of a door for
arbitrary commands, which, when once opened, they know not what
dangerous consequences may attend it;
“_Therefore_ this Court conceives itself bound in duty (for the
preservation of the rights of this Corporation, and, as much as they
can, of the liberty of the press and of the people of the Province,
since the Assembly of the Province and several grand juries have refused
to meddle with the papers when applied to by the Council) to protest
against the order aforesaid, and to forbid all the members of this
Corporation to pay any obedience to it until it be shown to this Court
that the same is authorized by some known law, which they neither know
nor believe that it is.”
Upon the reading of which it was required of the honorable Francis
Harison, recorder of this Corporation and one of the members of the
Council (who was present at the making of the said order), to show by
what law or authority the said order was made. Upon which he spoke in
support of it, and cited the case of Doctor Sacheverell’s sermon,[2]
which was by the House of Lords ordered to be burned by the hands of the
hangman, and that the mayor and aldermen of London should attend the
doing of it.
To which one of the aldermen answered to this purpose, that he conceived
the case was no ways parallel because Doctor Sacheverell and his sermon
were impeached by the House of Commons of England, which is the grand
jury of the nation and representative of the whole people of England.
That this, their impeachment, they prosecuted before the House of Lords,
the greatest court of justice of Britain, and which beyond the memory of
man has had cognizance of things of that nature. That Sacheverell had a
fair hearing in defense of himself and his sermon. And after that fair
hearing he and his sermon were justly, fairly, and legally condemned.
That he had read the case of Doctor Sacheverell, and thought he could
charge his memory that the judgment of the House of Lords in that case
was that only the mayor and sheriffs of London and Middlesex should
attend the burning of the sermon, and not the aldermen; and further he
remembered that the order upon that judgment was only directed to the
sheriffs of London, and not even to the mayor, who did not attend the
doing of it. And farther said that would Mr. Recorder show that the
Governor and Council had such authority as the House of Lords, and that
the papers ordered to be burned were in like manner legally prosecuted
and condemned, there the case of Doctor Sacheverell might be to the
purpose. But without showing that, it rather proved that a censure ought
not to be pronounced till a fair trial by a competent and legal
authority were first had.
Mr. Recorder was desired to produce the books from whence he cited his
authorities, that the court might judge of them themselves; and was told
that if he could produce sufficient authorities to warrant this order
they would readily obey it, but not otherwise. Upon which he said that
he did not carry his books around with him. To which it was answered
that he might send for them, or order a constable to fetch them. Upon
which he arose, and at the lower end of the table he mentioned that
Bishop Burnet’s pastoral letter was ordered by the House of Lords to be
burned by the high bailiff of Westminster.[3] Upon which he abruptly
went away without waiting for an answer or promising to bring his books,
and did not return.
After Mr. Recorder’s departure it was moved that the protest should be
entered. To which it was answered that the protest could not be entered
without entering also the order, and that it was not fit to take any
notice of it; and therefore it was proposed that no notice should be
taken in their books of either, which was unanimously agreed to by the
court.
The sheriff then moved that the court would direct their whipper to
perform the said order. To which it was answered that as he was an
official of the Corporation they would give no such order. Soon after
the court adjourned, and did not attend the burning of the papers.
Afterwards, about noon, the sheriff, after reading the numbers of the
several papers which were ordered to be burned, delivered them into the
hands of his own Negro and ordered him to put them into the fire, which
he did. Mr. Recorder and several of the officers of the garrison
attended.
On the Lord’s Day, November 17, 1734, I was taken and imprisoned by
virtue of a warrant in these words:
“At a Council held at Fort George in New York, November 2, 1734.
Present: His Excellency William Cosby, Captain General and Governor in
Chief, Mr. Clarke, Mr. Harison, Mr. Livingston, Mr. Kennedy, the Chief
Justice, Mr. Cortlandt, Mr. Lane, Mr. Horsmanden.
“It is ordered that the sheriff for the City of New York do forthwith
take and apprehend John Peter Zenger for printing and publishing several
seditious libels dispersed throughout his journals or newspapers,
entitled _The New York Weekly Journal_; as having in them many things
tending to raise factions and tumults among the people of this Province,
inflaming their minds with contempt of His Majesty’s government, and
greatly disturbing the peace thereof. And upon his taking the said John
Peter Zenger, to commit him to the prison or common jail of the said
city and county.”
And being by virtue of that warrant so imprisoned in the jail, I was for
several days denied the use of pen, ink and paper, and the liberty of
speech with any persons.
[_Zenger’s lawyers, James Alexander and William Smith, got a habeas
corpus, and then argued before the court that their client had a right
to reasonable bail. In support of their case they appealed to English
law and precedent._]
Sundry other authorities and arguments were produced and insisted on by
my counsel to prove my right to be admitted to moderate bail, and to
such bail as was in my power to give. Sundry parts of history they
produced to show how much the requiring of excessive bail had been
resented by Parliament. And in order to enable the court to judge what
surety was in my power to give, I made affidavit that (my debts paid) I
was not worth forty pounds (the tools of my trade and wearing apparel
excepted).
Some warm expressions (to say no worse of them) were dropped on this
occasion, sufficiently known and resented by the listeners, which for my
part I desire may be buried in oblivion. In the end it was ordered that
I might be admitted to bail, myself in 400 pounds with two sureties,
each in 200 pounds, and that I should be remanded till I gave it.
As this was ten times more than was in my power to countersecure any
person in giving bail for me, I conceived that I could not ask any to
become my bail on these terms; and therefore I returned to the jail,
where I lay until Tuesday, January 28, 1735, the last day of the court
term. Then, the grand jury having found nothing against me, I expected
to be discharged from my imprisonment. But my hopes proved vain, for the
attorney general then charged me by “information” for printing and
publishing parts of my _Journals_ Nos. 13 and 23 as being “false,
scandalous, malicious and seditious.”
[_When the Court reconvened, Alexander and Smith impugned the right of
the Chief Justice, James Delancey, and his colleague, Frederick
Philipse, to preside over the case. The lawyers took the position that
the commissions of Delancey and Philipse were defective because, among
other things, Governor Cosby had appointed the two judges without the
consent of his Council, and “at pleasure” instead of “during good
behavior.”_]
Mr. Alexander offered the above “exceptions” to the Court and prayed
that they might be filed. Upon this the Chief Justice said to Mr.
Alexander and Mr. Smith that they ought well to consider the
consequences of what they offered. To which both answered that they had
well considered what they offered, and all the consequences. Mr. Smith
added that he was so well satisfied of the right of the subject to take
an exception to the commission of a judge, if he thought such commission
illegal, that he durst venture his life upon that point. As to the
validity of the exceptions then offered, he said he took that to be a
second point, but was ready to argue them both, if Their Honors were
pleased to hear him. To which the Chief Justice replied that he would
consider the exceptions in the morning, and ordered the clerk to bring
them to him.
On Wednesday, April 16, 1735, the Chief Justice delivered one of the
exceptions to the clerk, and to Justice Philipse the other, upon which
Mr. Smith arose and asked the judges whether Their Honors would hear
him.
To which the Chief Justice said that they would neither hear nor allow
the exceptions. “For,” said he, “you thought to have gained a great deal
of applause and popularity by opposing this Court; but you have brought
it to that point that either we must go from the bench or you from the
bar. Therefore we exclude you and Mr. Alexander from the bar.” He
delivered a paper to the clerk and ordered it to be entered, which the
clerk entered accordingly, and returned the paper to the Chief Justice.
After which the Chief Justice ordered the clerk to read publicly what he
had written, an attested copy whereof follows:
“James Alexander and William Smith, attorneys of this Court, having
presumed (notwithstanding they were forewarned by the Court of their
displeasure if they should do it) to sign, and having actually signed
and put into Court, exceptions in the name of John Peter Zenger, thereby
denying the legality of the judges’ commissions (though in the usual
form) and the being of this Supreme Court;
“_It is therefore ordered_ that, for the said contempt, the said James
Alexander and William Smith be excluded from any farther practice in
this Court, and that their names be struck out of the roll of attorneys
of this Court.”
After the order of the Court was read, Mr. Alexander asked whether it
was the order of Mr. Justice Philipse as well as of the Chief Justice?
To which both answered that it was their order.
Mr. Alexander added that it was proper to ask the question that they
might know how to have their relief. He further observed to the Court,
upon reading of the order, that they were mistaken in their wording of
it because the exceptions were only to their commissions, and not to the
being of the Court, as is therein alleged; and prayed that the order
might be altered accordingly. The Chief Justice said they conceived the
exceptions were against the being of the Court. Both Mr. Alexander and
Mr. Smith denied that they were, and prayed the Chief Justice to point
to the place that contained such exception. They further added that the
Court might well exist although the commissions of all the judges were
void; which the Chief Justice confessed to be true. Therefore they
prayed again that the order in that point might be altered. But it was
denied.
[_At a meeting of the Court two days later Alexander and Smith asked
for a ruling on the extent to which they were affected by the Court
order._]
They both also mentioned that it was a doubt whether by the words of the
order they were debarred of their practice as counsel as well as
attorneys, whereas they practiced in both capacities. To which the Chief
Justice answered that the order was plain: That James Alexander and
William Smith were debarred and excluded from their whole practice at
this bar, and that the order was intended to bar their acting both as
counsel and as attorneys, and that it could not be construed otherwise.
It being asked Mr. Philipse whether he understood the order so, he
answered that he did.
Upon this exclusion of my counsel I petitioned the Court to order
counsel for my defense, who thereon appointed John Chambers; who pleaded
“Not guilty” for me. But as to the point whether my exceptions should be
part of the record as was moved by my former counsel, Mr. Chambers
thought not proper to speak to it. Mr. Chambers also moved that a
certain day in the next term might be appointed for my trial, and for a
struck jury. Whereupon my trial was ordered to be on Monday, August 4,
and the Court would consider till the first day of next term whether I
should have a struck jury or not, and ordered that the sheriff should in
the meantime, at my charge, return the Freeholders book.
On Tuesday, July 29, 1735, the Court opened. On the motion of Mr.
Chambers for a struck jury, pursuant to the rule of the preceding term,
the Court were of the opinion that I was entitled to have a struck jury.
That evening at five o’clock some of my friends attended the clerk for
striking the jury; when to their surprise the clerk, instead of
producing the Freeholders book, to strike the jury from it in their
presence as usual, produced a list of 48 persons whom he said he had
taken out of the Freeholders book.
My friends told him that a great number of these persons were not
freeholders; that others were persons holding commissions and offices at
the Governor’s pleasure; that others were of the late displaced
magistrates of this city, who must be supposed to have resentment
against me for what I had printed concerning them; that others were the
Governor’s baker, tailor, shoemaker, candlemaker, joiner, etc.; that as
to the few indifferent men that were upon that list, they had reason to
believe (as they had heard) that Mr. Attorney had a list of them, to
strike them out. And therefore they requested that he would either bring
the Freeholders book, and choose out of it 48 unexceptional men in their
presence as usual, or else that he would hear their objections
particularly to the list he offered, and that he would put impartial men
in the place of those against whom they could show just objections.
Notwithstanding this, the clerk refused to strike the jury out of the
Freeholders book, and refused to hear any objections to the persons on
the list; but told my friends that if they had any objections to any
persons, they might strike those persons out. To which they answered
that there would not remain a jury if they struck out all the
exceptional men, and according to the custom they had a right to strike
out only twelve.
Finding no arguments could prevail with the clerk to hear their
objections to his list, nor to strike the jury as usual, Mr. Chambers
told him that he must apply to the Court; which the next morning he did.
And the Court upon his motion ordered that the 48 should be struck out
of the Freeholders book as usual, in the presence of the parties, and
that the clerk should hear objections to persons proposed to be of the
48, and allow of such exceptions as were just. In pursuance of that
order a jury was that evening struck to the satisfaction of both
parties. My friends and counsel insisted on no objections but want of
freehold, although they did not insist that Mr. Attorney General should
show any particular cause against any persons he disliked, but
acquiesced that any person he disliked should be left out of the 48.
3. Pleading
Before James Delancey, Chief Justice of the Province of New York, and
Frederick Philipse, Associate Justice, my trial began on August 4, 1735,
upon an information for printing and publishing two newspapers which
were called libels against our Governor and his administration.
The defendant, John Peter Zenger, being called, appeared.
MR. CHAMBERS, _of counsel for the defense_. I humbly move, Your Honors,
that we may have justice done by the sheriff, and that he may return the
names of the jurors in the same order as they were struck.
MR. CHIEF JUSTICE. How is that? Are they not so returned?
MR. CHAMBERS. No they are not. For some of the names that were last set
down in the panel are now placed first.
MR. CHIEF JUSTICE. Make that out and you shall be righted.
MR. CHAMBERS. I have the copy of the panel in my hand as the jurors were
struck, and if the clerk will produce the original signed by Mr.
Attorney and myself, Your Honor will see that our complaint is just.
MR. CHIEF JUSTICE. Clerk, is it so? Look upon that copy. Is it a true
copy of the panel as it was struck?
CLERK. Yes, I believe it is.
MR. CHIEF JUSTICE. How came the names of the jurors to be misplaced in
the panel?
SHERIFF. I have returned the jurors in the same order in which the clerk
gave them to me.
MR. CHIEF JUSTICE. Let the names of the jurors be ranged in the order
they were struck, agreeable to the copy here in Court.
Which was done accordingly; and the jury, whose names were as follows,
were called and sworn: Thomas Hunt (Foreman), Harmanus Rutgers, Stanly
Holmes, Edward Man, John Bell, Samuel Weaver, Andries Marschalk, Egbert
van Borsom, Benjamin Hildreth, Abraham Keteltas, John Goelet, Hercules
Wendover.
Mr. Attorney General opened the information, which was as follows:
MR. ATTORNEY. May it please Your Honors and you, Gentlemen of the Jury.
The information now before the Court, and to which the defendant,
Zenger, has pleaded “Not guilty,” is an information for printing and
publishing a false, scandalous, and seditious libel in which His
Excellency, the Governor of this Province, who is the king’s immediate
representative here, is greatly and unjustly scandalized as a person
that has no regard to law or justice; with much more, as will appear
upon reading the information. Libeling has always been discouraged as a
thing that tends to create differences among men, ill blood among the
people, and oftentimes great bloodshed between the party libeling and
the party libeled. There can be no doubt but you, Gentlemen of the Jury,
will have the same ill opinion of such practices as judges have always
shown upon such occasions. But I shall say no more at this time, until
you hear the information, which is as follows:
Be it remembered that Richard Bradley, Attorney General of the king for
the Province of New York, who prosecutes for the king in this part, in
his own proper person comes here into the Court of the king, and for the
king gives the Court her to understand and be informed:
That John Peter Zenger, of the City of New York, printer (being a
seditious person; and a frequent printer and publisher of false news and
seditious libels, both wickedly and maliciously devising the
administration of His Excellency William Cosby, Captain General and
Governor in Chief, to traduce, scandalize, and vilify both His
Excellency the Governor and the ministers and officers of the king, and
to bring them into suspicion and the ill opinion of the subjects of the
king residing within the Province), on the twenty-eighth day of January,
in the seventh year of the reign of George the Second, at the City of
New York did falsely, seditiously, and scandalously print and publish,
and cause to be printed and published, a certain false, malicious,
seditious, scandalous libel entitled _The New York Weekly Journal_.
In which libel, among other things therein contained, are these words,
“Your appearance in print at last gives a pleasure to many, although
most wish you had come fairly into the open field, and not appeared
behind entrenchments made of the supposed laws against libeling, and of
what other men had said and done before. These entrenchments, gentlemen,
may soon be shown to you and to all men to be weak, and to have neither
law nor reason for their foundation, and so cannot long stand in your
stead. Therefore you had much better as yet leave them, and come to what
the people of this City and Province (_the City and Province of New York
meaning_) think are the points in question. They (_the people of the
City and Province of New York meaning_) think, as matters now stand,
that their liberties and properties are precarious, and that slavery is
like to be entailed on them and their posterity if some past things be
not amended, and this they collect from many past proceedings.”
(_Meaning many of the past proceedings of His Excellency, the Governor,
and of the ministers and officers of the king, of and for the said
Province._)
And the Attorney General likewise gives the Court here to understand and
be informed:
That the said John Peter Zenger afterwards, to wit on the eighth day of
April, did falsely, seditiously and scandalously print and publish
another false, malicious, seditious, and scandalous libel entitled _The
New York Weekly Journal_.
In which libel, among other things therein contained, are these words,
“One of our neighbors (_one of the inhabitants of New Jersey meaning_)
being in company and observing the strangers (_some of the inhabitants
of New York meaning_) full of complaints, endeavored to persuade them to
remove into Jersey. To which it was replied, that would be leaping out
of the frying pan into the fire; for, says he, we both are under the
same Governor (_His Excellency the said Governor meaning_), and your
Assembly have shown with a vengeance what is to be expected from them.
One that was then moving to Pennsylvania (_meaning one that was then
removing from New York with intent to reside at Pennsylvania_), to which
place it is reported that several considerable men are removing (_from
New York meaning_), expressed in terms very moving much concern for the
circumstances of New York (_the bad circumstances of the Province and
people of New York meaning_), and seemed to think them very much owing
to the influence that some men (whom he called tools) had in the
administration (_meaning the administration of government of the said
Province of New York_). He said he was now going from them, and was not
to be hurt by any measures they should take, but could not help having
some concern for the welfare of his countrymen, and should be glad to
hear that the Assembly (_meaning the General Assembly of the Province of
New York_) would exert themselves as became them by showing that they
have the interest of their country more at heart than the gratification
of any private view of any of their members, or being at all affected by
the smiles or frowns of a governor (_His Excellency the said Governor
meaning_); both of which ought equally to be despised when the interest
of their country is at stake.
“You, says he, complain of the lawyers, but I think the law itself is at
an end. We (_the people of the Province of New York meaning_) see men’s
deeds destroyed, judges arbitrarily displaced, new courts erected
without consent of the legislature (_within the Province of New York
meaning_) by which it seems to me trial by jury is taken away when a
governor pleases (_His Excellency the said Governor meaning_), and men
of known estates denied their votes contrary to the received practice,
the best expositor of any law. Who is there then in that Province
(_meaning the Province of New York_) that can call anything his own, or
enjoy any liberty, longer than those in the administration (_meaning the
administration of government of the said Province of New York_) will
condescend to let them do it? For which reason I have left it, as I
believe more will.”
These words are to the great disturbance of the peace of the said
Province of New York, to the great scandal of the king, of His
Excellency the Governor, and of all others concerned in the
administration of the government of the Province, and against the peace
of the king, his crown, and his dignity.
Whereupon the said Attorney General of the king prays the advisement of
the Court here, in the premises, and the due process of law against the
said John Peter Zenger.
To this information the defendant has pleaded “Not guilty,” but we are
ready to prove it.
Mr. Chambers has not been pleased to favor me with his notes, so I
cannot, for fear of doing him an injustice, pretend to set down his
argument. But here Mr. Chambers set forth very clearly the nature of a
libel, the great allowances that ought to be made for what men speak or
write, that in all libels there must be some particular persons so
clearly pointed out that no doubt must remain about who is meant, that
he was in hopes Mr. Attorney would fail in his proof as to this point.
And therefore desired that he would go on to examine his witnesses.
Then Mr. Hamilton, who at the request of some of my friends was so kind
as to come from Philadelphia to assist me at the trial, spoke.
MR. HAMILTON. May it please Your Honor, I am concerned in this cause on
the part of Mr. Zenger, the defendant. The information against my client
was sent me a few days before I left home, with some instructions to let
me know how far I might rely upon the truth of those parts of the papers
set forth in the information, and which are said to be libelous.
Although I am perfectly of the opinion with the gentleman who has just
now spoken on the same side with me, as to the common course of
proceedings—I mean in putting Mr. Attorney upon proving that my client
printed and published those papers mentioned in the information—yet I
cannot think it proper for me (without doing violence to my own
principles) to deny the publication of a complaint, which I think is the
right of every freeborn subject to make when the matters so published
can be supported with truth.
Therefore I shall save Mr. Attorney the trouble of examining his
witnesses to that point. I do (for my client) confess that he both
printed and published the two newspapers set forth in the
information—and I hope that in so doing he has committed no crime.
MR. ATTORNEY. Then if Your Honor pleases, since Mr. Hamilton has
confessed the fact, I think our witnesses may be discharged. We have no
further occasion for them.
MR. HAMILTON. If you brought them here only to prove the printing and
publishing of these newspapers, we have acknowledged that, and shall
abide by it.
Here my journeyman and two sons (with several others subpoenaed by Mr.
Attorney to give evidence against me) were discharged, and there was
silence in the Court for some time.
MR. CHIEF JUSTICE. Well, Mr. Attorney, will you proceed?
MR. ATTORNEY. Indeed, Sir, as Mr. Hamilton has confessed the printing
and publishing of these libels, I think the Jury must find a verdict for
the king. For supposing they were true, the law says that they are not
the less libelous for that. Nay, indeed the law says their being true is
an aggravation of the crime.
MR. HAMILTON. Not so neither, Mr. Attorney. There are two words to that
bargain. I hope it is not our bare printing and publishing a paper that
will make it a libel. You will have something more to do before you make
my client a libeler. For the words themselves must be libelous—that is,
_false_, _scandalous_, _and seditious_—or else we are not guilty.
As Mr. Attorney has not been pleased to favor us with his argument,
which he read, or with the notes of it, we cannot take upon us to set
down his words, but only to show the book cases he cited and the general
scope of the argument which he drew from those authorities.
He observed upon the excellency as well as the use of government, and
the great regard and reverence which had been constantly paid to it,
under both the law and the Gospels. That by government we were protected
in our lives, religion, and properties; and for these reasons great care
had always been taken to prevent everything that might tend to
scandalize magistrates and others concerned in the administration of the
government, especially the supreme magistrate. And that there were many
instances of very severe judgments, and of punishments, inflicted upon
such as had attempted to bring the government into contempt by
publishing false and scurrilous libels against it, or by speaking evil
and scandalous words of men in authority, to the great disturbance of
the public peace. And to support this he cited various legal texts.
From these books he insisted that a libel was a malicious defamation of
any person, expressed either in printing or writing, signs or pictures,
to asperse the reputation of one that is alive, or the memory of one
that is dead. If he is a private man, the libeler deserves a severe
punishment, but if it is against a magistrate or other public person, it
is a greater offense. For this concerns not only the breach of the peace
but the scandal of the government. What greater scandal of government
can there be than to have corrupt or wicked magistrates appointed by the
king to govern his subjects? A greater imputation to the state there
cannot be than to suffer such corrupt men to sit in the sacred seat of
justice, or to have any meddling in or concerning the administration of
justice.
From the same books Mr. Attorney insisted that whether the person
defamed is a private man or a magistrate, whether living or dead,
whether the libel is true or false, or if the party against whom it is
made is of good or evil fame, it is nevertheless a libel. For in a
settled state of government the party grieved ought to complain, for
every injury done him, in the ordinary course of the law. And as to its
publication, the law had taken so great care of men’s reputations that
if one maliciously repeats it, or sings it in the presence of another,
or delivers the libel or a copy of it over to scandalize the party, he
is to be punished as a publisher of a libel.
He said it was likewise evident that libeling was an offense against the
law of God. Acts 23:5: Then said Paul, “I wist not, brethren, that he
was the high priest; for it is written Thou shalt not speak evil of the
ruler of thy people.” II Peter 2:10: Despise government. Presumptuous
are they, selfwilled, they are not afraid to speak evil of dignities.
He then insisted that it was clear, by the laws of God and man, that it
was a very great offense to speak evil of, or to revile, those in
authority over us. And that Mr. Zenger had offended in a most notorious
and gross manner, in scandalizing His Excellency our governor, who is
the king’s immediate representative and the supreme magistrate of this
Province. For can there be anything more scandalous said of a governor
than what is published in those papers? Nay, not only the Governor but
both the Council and the Assembly are scandalized. For there it is
plainly said that “as matters now stand, their liberties and properties
are precarious, and that slavery is like to be entailed on them and
their posterity.” And then again Mr. Zenger says, “The Assembly ought to
despise the smiles or frowns of a governor; that he thinks the law is at
an end; that we see men’s deeds destroyed, judges arbitrarily displaced,
new courts erected without consent of the legislature; that it seems
that trials by jury are taken away when a governor pleases; and that
none can call anything his own longer than those in the administration
will condescend to let him do it.”
Mr. Attorney added that he did not know what could be said in defense of
a man that had so notoriously scandalized the Governor and the principal
magistrates and officers of the government by charging them with
depriving the people of their rights and liberties, taking away trial by
jury, and, in short, putting an end to the law itself. If this was not a
libel, he said, he did not know what was one. Such persons as will take
those liberties with governors and magistrates he thought ought to
suffer for stirring up sedition and discontent among the people.
He concluded by saying that the government had been very much traduced
and exposed by Mr. Zenger before he was taken notice of; that at last it
was the opinion of the Governor and the Council that he ought not to be
suffered to go on to disturb the peace of the government by publishing
such libels against the Governor and the chief persons in the
government; and therefore they had directed this prosecution to put a
stop to this scandalous and wicked practice of libeling and defaming His
Majesty’s government and disturbing His Majesty’s peace.
Mr. Chambers then summed up to the jury, observing with great strength
of reason on Mr. Attorney’s defect of proof that the papers in the
information were false, malicious, or seditious, which it was incumbent
on him to prove to the jury, and without which they could not on their
oaths say that they were so as charged.
MR. HAMILTON. May it please Your Honor, I agree with Mr. Attorney that
government is a sacred thing, but I differ widely from him when he would
insinuate that the just complaints of a number of men who suffer under a
bad administration is libeling that administration. Had I believed that
to be law, I should not have given the Court the trouble of hearing
anything that I could say in this cause.
I own that when I read the information I had not the art to find out
(without the help of Mr. Attorney’s _innuendos_) that the Governor was
the person meant in every period of that newspaper. I was inclined to
believe that they were written by some who (from an extraordinary zeal
for liberty) had misconstrued the conduct of some persons in authority
into crimes; and that Mr. Attorney (out of his too great zeal for power)
had exhibited this information to correct the indiscretion of my client,
and at the same time to show his superiors the great concern he had lest
they should be treated with any undue freedom.
But from what Mr. Attorney has just now said, to wit, that this
prosecution was directed by the Governor and the Council, and from the
extraordinary appearance of people of all conditions, which I observe in
Court upon this occasion, I have reason to think that those in the
administration have by this prosecution something more in view, and that
the people believe they have a good deal more at stake, than I
apprehended. Therefore, as it is become my duty to be both plain and
particular in this cause, I beg leave to bespeak the patience of the
Court.
I was in hopes—as that terrible Court where those dreadful judgments
were given, and that law established, which Mr. Attorney has produced
for authorities to support this cause, was long ago laid aside as the
most dangerous Court to the liberties of the people of England that ever
was known in that kingdom—that Mr. Attorney, knowing this, would not
have attempted to set up a star chamber here, nor to make their
judgments a precedent to us. For it is well known that what would have
been judged treason in those days for a man to speak, has since not only
been practiced as lawful, but the contrary doctrine has been held to be
law.
In Brewster’s case,[4] for printing that subjects might defend their
rights and liberties by arms in case the king should go about to destroy
them, he was told by the Chief Justice that it was a great mercy he was
not proceeded against for his life; for to say the king could be
resisted by arms in any case whatsoever was express treason. And yet we
see since that time that Doctor Sacheverell was sentenced in the highest
court in Great Britain for saying that such a resistance was not lawful.
Besides, as times have made very great changes in the laws of England,
so in my opinion there is good reason that places should do so too.
Is it not surprising to see a subject, upon receiving a commission from
the king to be a governor of a Colony in America, immediately imagining
himself to be vested with all the prerogatives belonging to the sacred
person of his prince? And, which is yet more astonishing, to see that a
people can be so wild as to allow of and acknowledge those prerogatives
and exemptions, even to their own destruction? Is it so hard a matter to
distinguish between the majesty of our sovereign and the power of a
governor of The Plantations? Is not this making very free with our
prince, to apply that regard, obedience, and allegiance to a subject,
which is due only to our sovereign?
And yet in all the cases which Mr. Attorney has cited to show the duty
and obedience we owe to the supreme magistrate, it is the king that is
there meant and understood, although Mr. Attorney is pleased to urge
them as authorities to prove the heinousness of Mr. Zenger’s offense
against the Governor of New York. The several Plantations are compared
to so many large corporations, and perhaps not improperly. Can anyone
give an instance that the head of a corporation ever put in a claim to
the sacred rights of majesty? Let us not (while we are pretending to pay
a great regard to our prince and his peace) make bold to transfer that
allegiance to a subject which we owe to our king only.
What strange doctrine is it to press everything for law here which is so
in England? I believe we should not think it a favor, at present at
least, to establish this practice. In England so great a regard and
reverence is had to the judges that if any man strikes another in
Westminster Hall while the judges are sitting, he shall lose his right
hand and forfeit his land and goods for so doing. Although the judges
here claim all the powers and authorities within this government that a
Court of King’s Bench has in England, yet I believe Mr. Attorney will
scarcely say that such a punishment could be legally inflicted on a man
for committing such an offense in the presence of the judges sitting in
any court within the Province of New York. The reason is obvious. A
quarrel or riot in New York cannot possibly be attended with those
dangerous consequences that it might in Westminster Hall; nor (I hope)
will it be alleged that any misbehavior to a governor in The Plantations
will, or ought to be, judged of or punished as a like undutifulness
would be to our sovereign.
From all of which, I hope Mr. Attorney will not think it proper to apply
his law cases (to support the cause of his governor) which have only
been judged where the king’s safety or honor was concerned.
It will not be denied that a freeholder in the Province of New York has
as good a right to the sole and separate use of his lands as a
freeholder in England, who has a right to bring an action of trespass
against his neighbor for suffering his horse or cow to come and feed
upon his land or eat his corn, whether enclosed or not. Yet I believe it
would be looked upon as a strange attempt for one man here to bring an
action against another whose cattle and horses feed upon his grounds
that are not enclosed, or indeed for eating and treading down his corn,
if that were not enclosed.
Numberless are the instances of this kind that might be given to show
that what is good law at one time and in one place is not so at another
time and in another place. So that I think the law seems to expect that
in these parts of the world men should take care, by a good fence, to
preserve their property from the injury of unruly beasts. And perhaps
there may be a good reason why men should take the same care to make an
honest and upright conduct a fence and security against the injury of
unruly tongues.
MR. ATTORNEY. I don’t know what the gentleman means by comparing cases
of freeholders in England with freeholders here. What has this case to
do with actions of trespass or men’s fencing their ground? The case
before the Court is whether Mr. Zenger is guilty of libeling His
Excellency the Governor of New York, and indeed the whole administration
of the government. Mr. Hamilton has confessed the printing and
publishing, and I think nothing is plainer than that the words in the
information are “scandalous, and tend to sedition, and to disquiet the
minds of the people of this Province.” If such papers are not libels, I
think it may be said that there can be no such thing as a libel.
MR. HAMILTON. May it please Your Honor, I cannot agree with Mr.
Attorney. For although I freely acknowledge that there are such things
as libels, yet I must insist at the same time that what my client is
charged with is not a libel. And I observed just now that Mr. Attorney,
in defining a libel, made use of the words “scandalous, seditious, and
tend to disquiet the people.” But (whether with design or not I will not
say) he omitted the word “false.”
MR. ATTORNEY. I think that I did not omit the word “false.” But it has
been said already that it may be a libel notwithstanding that it may be
true.
MR. HAMILTON. In this I must still differ with Mr. Attorney. For I
depend upon it that we are to be tried upon this information now before
the Court and the jury, and to which we have pleaded “Not guilty.” By it
we are charged with printing and publishing “a certain false, malicious,
seditious, and scandalous libel.” This word “false” must have some
meaning, or else how came it there? I hope Mr. Attorney will not say he
put it there by chance, and I am of the opinion that his information
would not be good without it.
But to show that it is the principal thing which, in my opinion, makes a
libel, suppose that the information had been for printing and publishing
a certain _true_ libel, would that be the same thing? Or could Mr.
Attorney support such an information by any precedent in the English
law? No, the falsehood makes the scandal, and both make the libel. And
to show the Court that I am in good earnest, and to save the Court’s
time and Mr. Attorney’s trouble, I will agree that if he can prove the
facts charged upon us to be _false_, I shall own them to be _scandalous,
seditious, and a libel_. So the work seems now to be pretty much
shortened, and Mr. Attorney has now only to prove the words _false_ in
order to make us guilty.
MR. ATTORNEY. We have nothing to prove. You have confessed the printing
and publishing. But if it were necessary (as I insist it is not), how
can we prove a negative? I hope some regard will be had to the
authorities that have been produced, and that supposing all the words to
be true, yet that will not help them. Chief Justice Holt,[5] in his
charge to the jury in the case of Tutchin,[6] made no distinction
whether Tutchin’s papers were true or false; and as Chief Justice Holt
has made no distinction in that case, so none ought to be made here; nor
can it be shown that, in all that case, there was any question made
about their being false or true.
MR. HAMILTON. I did expect to hear that a negative cannot be proved. But
everybody knows there are many exceptions to that general rule. For if a
man is charged with killing another, or stealing his neighbor’s horse,
if he is innocent in the one case he may prove the man said to be killed
to be really alive, and the horse said to be stolen never to have been
out of his master’s stable, etc. And this, I think, is proving a
negative.
But we will save Mr. Attorney the trouble of proving a negative, take
the _onus probandi_ on ourselves, and prove those very papers that are
called libels to be _true_.
MR. CHIEF JUSTICE. You cannot be admitted, Mr. Hamilton, to give the
truth of a libel in evidence. A libel is not to be justified; for it is
nevertheless a libel that it is _true_.
MR. HAMILTON. I am sorry the Court has so soon resolved upon that piece
of law. I expected first to have been heard to that point. I have not,
in all my reading, met with an authority that says we cannot be admitted
to give the truth in evidence upon an information for libel.
MR. CHIEF JUSTICE. The law is clear that you cannot justify a libel.
MR. HAMILTON. I own that, may it please Your Honor, to be so. But, with
submission, I understand the word “justify” there to be a justification
by plea, as it is in the case upon an indictment for murder or an
assault and battery. There the prisoner cannot justify, but pleads “Not
guilty.” Yet it will not be denied but he may be, and always is,
admitted to give the truth of the fact, or any other matter, in
evidence, which goes to his acquittal. As in murder he may prove that it
was in defense of his life, his house, etc.; and in assault and battery
he may give in evidence that the other party struck first; and in both
cases he will be acquitted. In this sense I understand the word
“justify” when applied to the case before the Court.
MR. CHIEF JUSTICE. I pray, show that you can give the truth of a libel
in evidence.
[_Here there was a discussion of the point, and Hamilton produced
precedents from English law to prove that in the past men accused of
libel had been allowed to defend themselves on the ground of the truth
of what they wrote._]
MR. HAMILTON. How shall it be known whether the words are libelous, that
is, _true_ or _false_, but by admitting us to prove them _true_, since
Mr. Attorney will not undertake to prove them _false_? Besides, is it
not against common sense that a man should be punished in the same
degree for a true libel (if any such thing could be) as for a false one?
I know it is said that truth makes a libel the more provoking, and
therefore the offense is greater, and consequently the judgment should
be the heavier. Well, suppose it were so, and let us agree for once that
_truth is a greater sin than falsehood_. Yet, as the offenses are not
equal, and as the punishment is arbitrary, that is, according as the
judges in their discretion shall direct to be inflicted, is it not
absolutely necessary that they should know whether the libel is true or
false, that they may by that means be able to proportion the punishment?
For would it not be a sad case if the judges, for want of a due
information, should chance to give as severe a judgment against a man
for writing or publishing a lie, as for writing or publishing a truth?
And yet this, with submission, as monstrous and ridiculous as it may
seem to be, is the natural consequence of Mr. Attorney’s doctrine that
_truth makes a worse libel than falsehood_, and must follow from his not
proving our papers to be _false_, or not suffering us to prove them to
be _true_.
In the case of Tutchin, which seems to be Mr. Attorney’s chief
authority, that case is against him; for Tutchin was, at his trial, put
upon showing the truth of his papers; but he did not. At least the
prisoner was asked by the king’s counsel whether he would say that they
were _true_. And as he never pretended that they were true, the Chief
Justice was not to say so.
But the point will be clearer on our side from Fuller’s case.[7] Here
you see is a scandalous and infamous charge against the late king; here
is a charge no less than high treason, against the men in public trust,
for receiving money of the French king, then in actual war with the
crown of Great Britain; and yet the Court were far from bearing him down
with that star chamber doctrine, to wit, that it was no matter whether
what he said was true or false. No, on the contrary, Lord Chief Justice
Holt asks Fuller, “Can you make it appear that they are true? Have you
any witnesses? You might have had subpoenas for your witnesses against
this day. If you take it upon you to write such things as you are
charged with, it lies upon you to prove them true, at your peril. If you
have any witnesses, I will hear them. How came you to write those books
which are not true? If you have any witnesses, produce them. If you can
offer any matter to prove what you wrote, let us hear it.” Thus said,
and thus did, that great man, Lord Chief Justice Holt, upon a trial of
the like kind with ours; and the rule laid down by him in this case is
_that he who will take upon him to write things, it lies upon him to
prove them, at his peril_. Now, sir, we have acknowledged the printing
and publishing of those papers set forth in the information, and (with
the leave of the Court) agreeable to the rule laid down by Chief Justice
Holt, we are ready to prove them to be true, at our peril.
MR. CHIEF JUSTICE. Let me see the book.
Here the Court had the case under consideration a considerable time, and
everyone was silent.
MR. CHIEF JUSTICE. Mr. Attorney, you have heard what Mr. Hamilton has
said, and the cases he has cited, for having his witnesses examined to
prove the truth of the several facts contained in the papers set forth
in the information. What do you say to it?
MR. ATTORNEY. The law, in my opinion, is very clear. They cannot be
admitted to justify a libel, for by the authorities I have already read
to the Court it is not the less a libel because it is true. I think I
need not trouble the Court over again. The thing seems to be very plain,
and I submit it to the Court.
MR. CHIEF JUSTICE. Mr. Hamilton, the Court is of the opinion that you
ought not to be permitted to prove the facts in the papers. These are
the words of the book, “It is far from being a justification of a libel
that the contents thereof are true, or that the person upon whom it is
made had a bad reputation, since the greater appearance there is of
truth in any malicious invective, so much the more provoking it is.”
MR. HAMILTON. These are star chamber cases, and I was in hopes that that
practice had been dead with the court.
MR. CHIEF JUSTICE. Mr. Hamilton, the Court have delivered their opinion,
and we expect that you will use us with good manners. You are not to be
permitted to argue against the opinion of the Court.
MR. HAMILTON. With submission, I have seen the practice in very great
courts, and never heard it deemed unmannerly to—
MR. CHIEF JUSTICE. After the Court have declared their opinion, it is
not good manners to insist upon a point in which you are overruled.
MR. HAMILTON. I will say no more at this time. The Court, I see, is
against us in this point—and that I hope I may be allowed to say.
MR. CHIEF JUSTICE. Use the Court with good manners and you shall be
allowed all the liberty you can reasonably desire.
MR. HAMILTON. I thank Your Honor. Then, Gentlemen of the Jury, it is to
you that we must now appeal for witnesses to the truth of the facts we
have offered, and are denied the liberty to prove. Let it not seem
strange that I apply myself to you in this manner. I am warranted by
both law and reason.
The law supposes you to be summoned out of the neighborhood where the
fact is alleged to be committed; and the reason of your being taken out
of the neighborhood is because you are supposed to have the best
knowledge of the fact that is to be tried. Were you to find a verdict
against my client, you must take it upon you to say that the papers
referred to in the information, and which we acknowledge we printed and
published, are _false, scandalous, and seditious_.
But of this I can have no apprehension. You are citizens of New York.
You are really what the law supposes you to be, honest and lawful men;
and according to my brief, the facts which we offer to prove were not
committed in a corner. They are notoriously known to be true. Therefore
in your justice lies our safety. And as we are denied the liberty of
giving evidence to prove the truth of what we have published, I will beg
leave to lay it down as a standing rule in such cases that the
suppressing of evidence ought always to be taken for the strongest
evidence; and I hope it will have that weight with you.
But since we are not admitted to examine our witnesses, I will endeavor
to shorten the dispute with Mr. Attorney, and to that end I desire he
would favor us with some standard definition of a libel by which it may
be certainly known whether a writing be a libel, yes or no.
MR. ATTORNEY. The books, I think, have given a very full definition of
libel.
MR. HAMILTON. Ay, Mr. Attorney, but what standard rule have the books
laid down by which we can certainly know whether the words or signs are
malicious? Whether they are defamatory? Whether they tend to the breach
of the peace, and are a sufficient ground to provoke a man, his family,
or his friends to acts of revenge: especially the ironical sort of
words? What rule have you to know when I write ironically? I think it
would be hard when I say, “Such a man is a very worthy honest gentleman,
and of fine understanding,” that therefore I mean, “He is a knave or a
fool.”
MR. ATTORNEY. I think the books are very full. It is said in Hawkins
just now read, “Such scandal as is expressed in a scoffing and ironical
manner makes a writing as properly a libel as that which is expressed in
direct terms.” I think nothing can be plainer or more full than these
words.
MR. HAMILTON. I agree the words are very plain, and I shall not scruple
to allow (when we are agreed that the words are false and scandalous,
and were spoken in an ironical and scoffing manner) that they are really
libelous. But here still occurs the uncertainty which makes the
difficulty to know what words are scandalous, and what are not. For you
say that they may be scandalous, whether true or false.
Besides, how shall we know whether the words were spoken in a scoffing
and ironical manner, or seriously? Or how can you know whether the man
did not think as he wrote? For by your rule, if he did, it is no irony,
and consequently no libel.
But under favor, Mr. Attorney, I think the same book, and under the same
section, will show us the only rule by which all these things are to be
known. The words are these, “which kind of writing is as well
_understood_ to mean only to upbraid the parties with the want of these
qualities as if they had directly and expressly done so.” Here it is
plain that the words are scandalous, scoffing, and ironical only as they
are _understood_. I know no rule laid down in the books but this, I
mean, as the words are _understood_.
MR. CHIEF JUSTICE. Mr. Hamilton, do you think it so hard to know when
words are ironical or spoken in a scoffing manner?
MR. HAMILTON. I own it may be known. But I insist that the only rule by
which to know is—as I do or can _understand_ them. I have no other rule
to go by but as I _understand_ them.
MR. CHIEF JUSTICE. That is certain. All words are libelous or not as
they are _understood_. Those who are to judge of the words must judge
whether they are scandalous, or ironical, or tend to the breach of the
peace, or are seditious. There can be no doubt of it.
MR. HAMILTON. I thank Your Honor. I am glad to find the Court of this
opinion. Then it follows that these twelve men must _understand_ the
words in the information to be scandalous—that is to say, false. For I
think it is not pretended they are of the _ironical_ sort. And when they
_understand_ the words to be so, they will say that we are guilty of
publishing a _false libel_, and not otherwise.
MR. CHIEF JUSTICE. No, Mr. Hamilton, the jury may find that Zenger
printed and published those papers, and leave it to the Court to judge
whether they are libelous. You know this is very common. It is in the
nature of a special verdict, where the jury leave the matter of the law
to the court.
MR. HAMILTON. I know, may it please Your Honor, the jury may do so. But
I do likewise know that they may do otherwise. I know that they have the
right beyond all dispute to determine both the law and the fact; and
where they do not doubt of the law, they ought to do so. Leaving it to
judgment of the court whether the words are libelous or not in effect
renders juries useless (to say no worse) in many cases. But this I shall
have occasion to speak to by and by.
Although I own it to be base and unworthy to scandalize any man, yet I
think it is even more villainous to scandalize a person of public
character. I will go so far into Mr. Attorney’s doctrine as to agree
that if the faults, mistakes, nay even the vices of such a person be
private and personal, and do not affect the peace of the public, or the
liberty or property of our neighbor, it is unmanly and unmannerly to
expose them either by word or writing. But when a ruler of a people
brings his personal failings, but much more his vices, into his
administration, and the people find themselves affected by them either
in their liberties or properties, that will alter the case mightily; and
all the things that are said in favor of rulers and of dignitaries, and
upon the side of power, will not be able to stop people’s mouths when
they feel themselves oppressed. I mean, in a free government.
MR. ATTORNEY. Pray, Mr. Hamilton, have a care what you say, don’t go too
far. I don’t like those liberties.
MR. HAMILTON. Surely, Mr. Attorney, you won’t make any applications. All
men agree that we are governed by the best of kings, and I cannot see
the meaning of Mr. Attorney’s caution. My well-known principles, and the
sense I have of the blessings we enjoy under His Majesty, make it
impossible for me to err, and I hope even to be suspected, in that point
of duty to my king.
May it please Your Honor, I was saying that notwithstanding all the duty
and reverence claimed by Mr. Attorney to men in authority, they are not
exempt from observing the rules of common justice either in their
private or public capacities. The laws of our mother country know no
exemptions. It is true that men in power are harder to be come at for
wrongs they do either to a private person or to the public, especially a
governor in The Plantations, where they insist upon an exemption from
answering complaints of any kind in their own government. We are indeed
told, and it is true, that they are obliged to answer a suit in the
king’s courts at Westminster for a wrong done to any person here. But do
we not know how impracticable this is to most men among us, to leave
their families (who depend upon their labor and care for their
livelihood) and carry evidence to Britain, and at a great, nay, a far
greater expense than almost any of us are able to bear, only to
prosecute a governor for an injury done here?
But when the oppression is general, there is no remedy even that way.
No, our Constitution has (blessed be God) given us an opportunity, if
not to have such wrongs redressed, yet by our prudence and resolution we
may in a great measure prevent the committing of such wrongs by making a
governor sensible that it is in his interest to be just to those under
his care. For such is the sense that men in general (I mean free men)
have of common justice, that when they come to know that a chief
magistrate abuses the power with which he is trusted for the good of the
people, and is attempting to turn that very power against the innocent,
whether of high or low degree, I say that mankind in general seldom fail
to interpose, and, as far as they can, prevent the destruction of their
fellow subjects.
And has it not often been seen (I hope it will always be seen) that when
the representatives of a free people are by just representations or
remonstrances made sensible of the sufferings of their fellow subjects,
by the abuse of power in the hands of a governor, that they have
declared (and loudly too) that they were not obliged by any law to
support a governor who goes about to destroy a Province or Colony, or
their privileges, which by His Majesty he was appointed, and by the law
he is bound, to protect and encourage? But I pray that it may be
considered—of what use is this mighty privilege if every man that
suffers is silent? And if a man must be taken up as a libeler for
telling his sufferings to his neighbor?
I know that it may be answered, “Have you not a legislature? Have you
not a House of Representatives to whom you may complain?” To this I
answer, we have. But what then? Is an Assembly to be troubled with every
injury done by a governor? Or are they to hear of nothing but what those
in the administration will please to tell them? And what sort of trial
must a man have? How is he to be remedied, especially if the case were,
as I have known to happen in America in my time, that a governor who has
places (I will not say pensions, for I believe they seldom give that to
another which they can take to themselves) to bestow can keep the same
Assembly (after he has modeled them so as to get a majority of the House
in his interest) for near twice seven years together? I pray, what
redress is to be expected for an honest man who makes his complaint
against a governor to an Assembly who may properly enough be said to be
made by the same governor against whom the complaint is made? The thing
answers itself.
No, it is natural, it is a privilege, I will go farther, it is a right,
which all free men claim, that they are entitled to complain when they
are hurt. They have a right publicly to remonstrate against the abuses
of power in the strongest terms, to put their neighbors upon their guard
against the craft or open violence of men in authority, and to assert
with courage the sense they have of the blessings of liberty, the value
they put upon it, and their resolution at all hazards to preserve it as
one of the greatest blessings heaven can bestow.
When a House of Assembly composed of honest freemen sees the general
bent of the people’s inclination, that is it which must and will (I am
sure it ought to) weigh with a legislature in spite of all the craft,
caressing, and cajoling made use of by a governor to divert them from
harkening to the voice of their country. As we all very well understand
the true reason why gentlemen take so much pains and make such great
interest to be appointed governors, so is the design of their
appointment not less manifest. We know His Majesty’s gracious intentions
toward his subjects. He desires no more than that his people in The
Plantations should be kept up to their duty and allegiance to the crown
of Great Britain, that peace may be preserved among them, and justice
impartially administered; so that we may be governed so as to render us
useful to our mother country by encouraging us to make and raise such
commodities as may be useful to Great Britain.
But will anyone say that all or any of these good ends are to be
effected by a governor’s setting his people together by the ears, and by
the assistance of one part of the people to plague and plunder the
other? The commission that governors bear while they execute the powers
given them according to the intent of the royal grantor requires and
deserves very great reverence and submission. But when a governor
departs from the duty enjoined on him by his sovereign, and acts as if
he were less accountable than the royal hand that gave him all that
power and honor that he is possessed of, this sets people upon examining
and inquiring into the power, authority, and duty of such a magistrate,
and to comparing those with his conduct. And just as far as they find he
exceeds the bounds of his authority, or falls short in doing impartial
justice to the people under his administration, so far they very often,
in return, come short in their duty to such a governor.
For power alone will not make a man beloved, and I have heard it
observed that the man who was neither good nor wise before his being
made a governor never mended upon his preferment, but has been generally
observed to be worse. For men who are not indued with wisdom and virtue
can only be kept in bounds by the law; and by how much the further they
think themselves out of the reach of the law, by so much the more wicked
and cruel men are. I wish there were no instances of the kind at this
day.
Wherever this happens to be the case of a governor, unhappy are the
people under his administration, and in the end he will find himself so
too, for the people will neither love him nor support him.
I make no doubt but there are those here who are zealously concerned for
the success of this prosecution, and yet I hope they are not many; and
even some of those, I am persuaded (when they consider to what lengths
such prosecutions may be carried, and how deeply the liberties of the
people may be affected by such means) will not all abide by their
present sentiments. I say “not all,” for the man who from an intimacy
and acquaintance with a governor has conceived a personal regard for
him, the man who has felt none of the strokes of his power, the man who
believes that a governor has a regard for him and confides in him—it is
natural for such men to wish well to the affairs of such a governor. And
as they may be men of honor and generosity, may, and no doubt will, wish
him success so far as the rights and privileges of their fellow citizens
are not affected. But as men of honor I can apprehend nothing from them.
They will never exceed that point.
There are others that are under stronger obligations, and those are such
as are in some sort engaged in support of the governor’s cause by their
own or their relations’ dependence on his favor for some post or
preferment. Such men have what is commonly called duty and gratitude to
influence their inclinations and oblige them to go his lengths. I know
men’s interests are very near to them, and they will do much rather than
forgo the favor of a governor and a livelihood at the same time. But I
can with very just grounds hope, even from those men (whom I will
suppose to be men of honor and conscience too), that when they see the
liberty of their country in danger, either by their concurrence or even
by their silence, they will like Englishmen, and like themselves, freely
make a sacrifice of any preferment or favor rather than be accessory to
destroying the liberties of their country and entailing slavery upon
their posterity.
There are indeed another set of men, of whom I have no hopes. I mean
such who lay aside all other considerations and are ready to join with
power in any shape, and with any man or sort of men by whose means or
interest they may be assisted to gratify their malice and envy against
those whom they have been pleased to hate; and that for no other reason
than because they are men of ability and integrity, or at least are
possessed of some valuable qualities far superior to their own. But as
envy is the sin of the Devil, and therefore very hard (if at all) to be
repented of, I will believe there are but few of this detestable and
worthless sort of men, nor will their opinions or inclinations have any
influence upon this trial.
But to proceed. I beg leave to insist that the right of complaining or
remonstrating is natural; that the restraint upon this natural right is
the law only; and that those restraints can only extend to what is
_false_. For as it is truth alone that can excuse or justify any man for
complaining of a bad administration, I as frankly agree that nothing
ought to excuse a man who raises a false charge or accusation even
against a private person, and that no manner of allowance ought to be
made to him who does so against a public magistrate.
_Truth_ ought to govern the whole affair of libels. And yet the party
accused runs risk enough even then; for if he fails in proving every
tittle of what he has written, and to the satisfaction of the court and
jury too, he may find to his cost that when the prosecution is set on
foot by men in power it seldom wants friends to favor it.
From thence (it is said) has arisen the great diversity of opinions
among judges about what words were or were not scandalous or libelous. I
believe it will be granted that there is not greater uncertainty in any
part of the law than about words of scandal. It would be misspending of
the Court’s time to mention the cases. They may be said to be
numberless. Therefore the utmost care ought to be taken in following
precedents; and the times when the judgments were given, which are
quoted for authorities in the case of libels, are much to be regarded.
I think it will be agreed that ever since the time of the Star Chamber,
where the most arbitrary judgments and opinions were given that ever an
Englishman heard of, at least in his own country; I say, prosecutions
for libel since the time of that arbitrary Court, and until the Glorious
Revolution, have generally been set on foot at the instance of the crown
or its ministers. And it is no small reproach to the law that these
prosecutions were too often and too much countenanced by the judges, who
held their places “at pleasure” (a disagreeable tenure to any officer,
but a dangerous one in the case of a judge). Yet I cannot think it
unwarrantable to show the unhappy influence that a sovereign has
sometimes had, not only upon judges, but even upon parliaments
themselves.
It has already been shown how the judges differed in their opinions
about the nature of a libel in the case of the Seven Bishops.[8] There
you see three judges of one opinion, that is, of a wrong opinion (in the
judgment of the best men in England), and one judge of a right opinion.
How unhappy might it have been for all of us at this day if that jury
had understood the words in that information as the Court did? Or if
they had left it to the Court to judge whether the petition of the
Bishops was or was not a libel? No, they took upon them (to their
immortal honor!) to determine both _law_ and _fact_, and to _understand_
the petition of the Bishops to be _no libel_, that is, to contain no
falsehood or sedition; and therefore found them not guilty.
If then upon the whole there is so great an uncertainty among judges
(learned and great men) in matters of this kind, if power has had so
great an influence on judges, how cautious ought we to be in determining
by their judgments, especially in The Plantations, and in the case of
libels?
There is heresy in law as well as in religion, and both have changed
very much. We well know that it is not two centuries ago that a man
would have been burned as a heretic for owning such opinions in matters
of religion as are publicly written and printed at this day. They were
fallible men, it seems, and we take the liberty not only to differ from
them in religious opinions, but to condemn them and their opinions too.
I must presume that in taking these freedoms in thinking and speaking
about matters of faith or religion, we are in the right; for although it
is said that there are very great liberties of this kind taken in New
York, yet I have heard of no information preferred by Mr. Attorney for
any offenses of this sort. From which I think it is pretty clear that in
New York a man may make very free with his God, but he must take a
special care what he says of his governor.
It is agreed upon by all men that this is a reign of liberty. While men
keep within the bounds of truth I hope they may with safety both speak
and write their sentiments of the conduct of men in power—I mean of that
part of their conduct only which affects the liberty or property of the
people under their administration. Were this to be denied, then the next
step may make them slaves; for what notions can be entertained of
slavery beyond that of suffering the greatest injuries and oppressions
without the liberty of complaining, or if they do, to be destroyed, body
and estate, for so doing?
It is said and insisted on by Mr. Attorney that government is a sacred
thing; that it is to be supported and reverenced; that it is government
that protects our persons and estates, prevents treasons, murders,
robberies, riots, and all the train of evils that overturns kingdoms and
states and ruins particular persons. And if those in the administration,
especially the supreme magistrate, must have all their conduct censured
by private men, government cannot subsist. This is called a
licentiousness not to be tolerated. It is said that it brings the rulers
of the people into contempt, and their authority not to be regarded, and
so in the end the laws cannot be put into execution.
These, I say, and such as these, are the general topics insisted upon by
men in power and their advocates. But I wish it might be considered at
the same time how often it has happened that the abuse of power has been
the primary cause of these evils, and that it was the injustice and
oppression of these great men that has commonly brought them into
contempt with the people. The craft and art of such men is great, and
who that is the least acquainted with history or law can be ignorant of
the specious pretences that have often been made use of by men in power
to introduce arbitrary rule, and to destroy the liberties of a free
people?
[_Here Hamilton went back to legal history to strengthen his position
on the right of a defendant to plead truth in libel cases, and on the
right of the jury to determine both the law and the fact—that is, to
deliver a verdict of guilty or not guilty of libel, instead of leaving
that culminating decision to the judges on the bench._]
This is the second information for libeling of a governor that I have
known in America. The first, although it may look like a romance, yet as
it is true I will beg leave to mention it.
Governor Nicholson,[9] who happened to be offended with one of his
clergy, met him one day upon the road; and as usual with him (under the
protection of his commission) used the poor parson with the worst of
language, and threatened to cut off his ears, slit his nose, and at last
to shoot him through the head. The parson, being a reverend man,
continued all this time uncovered in the heat of the sun, until he found
an opportunity to fly for it. Coming to a neighbor’s house, he felt
himself very ill of a fever, and immediately writes for a doctor. And
that his physician might the better judge of his distemper, he
acquainted him with the usage he had received; concluding that the
Governor was certainly mad, for that no man in his senses would have
behaved in that manner.
The doctor unhappily showed the parson’s letter. The Governor came to
hear of it. And so an information was preferred against the poor man for
saying he believed the Governor was mad. It was laid down in the
information to be false, scandalous, and wicked, and written with intent
to move sedition among the people, and to bring His Excellency into
contempt. But by an order from the late Queen Anne there was a stop put
to that prosecution, with sundry others set on foot by the same Governor
against gentlemen of the greatest worth and honor in that government.
And may not I be allowed, after all this, to say that by a little
countenance almost anything that a man writes may, with the help of that
useful term of art called an _innuendo_, be construed to be a libel,
according to Mr. Attorney’s definition of it—to wit, that whether the
words are spoken of a person of a public character or of a private man,
whether dead or living, good or bad, true or false, all make a libel.
For according to Mr. Attorney, after a man hears a writing read, or
reads and repeats it, or laughs at it, they are all punishable. It is
true that Mr. Attorney is so good as to allow it must be after the party
knows it to be a libel, but he is not so kind as to take the man’s word
for it.
Here were several cases put to show that although what a man writes of a
governor were true, proper, and necessary, yet according to the
foregoing doctrine it might be construed to be a libel. But Mr.
Hamilton, after the trial was over, being informed that some of the
cases he had put had really happened in this government, declared that
he had never heard of any such; and as he meant no personal reflections,
he was sorry he had mentioned them, and therefore they are omitted here.
MR. HAMILTON. If a libel is understood in the large and unlimited sense
urged by Mr. Attorney, there is scarce a writing I know that may not be
called a libel, or scarce a person safe from being called to an account
as a libeler. For Moses, meek as he was, libeled Cain; and who is it
that has not libeled the Devil?
For according to Mr. Attorney it is no justification to say that one has
a bad name. Echard has libeled our good King William;[10] Burnet has
libeled, among others, King Charles and King James; and Rapin has
libeled them all.[11] How must a man speak or write; or what must he
hear, read, or sing; or when must he laugh so as to be secure from being
taken up as a libeler?
I sincerely believe that were some persons to go through the streets of
New York nowadays and read a part of the Bible, if it was not known to
be such, Mr. Attorney (with the help of his _innuendos_) would easily
turn it into a libel. As for instance Isaiah 9:16: “The leaders of the
people cause them to err; and they that are led by them are destroyed.”
Should Mr. Attorney go about to make this a libel, he would read it
thus: The leaders of the people (_innuendo, the Governor and Council of
New York_) cause them (_innuendo, the people of this Province_) to err,
and they (_the people of this Province meaning_) that are led by them
(_the Governor and Council meaning_) are destroyed (_innuendo, are
deceived into the loss of their liberty_), which is the worst kind of
destruction.
Or if some person should publicly repeat, in a manner not pleasing to
his betters, the 10th and 11th verses of the 56th chapter of the same
book, there Mr. Attorney would have a large field to display his skill
in the artful application of his _innuendos_. The words are: “His
watchmen are blind, they are all ignorant,... Yea, they are greedy dogs
which can never have enough.” To make them a libel there is, according
to Mr. Attorney’s doctrine, no more wanting but the aid of his skill in
the right adapting of his _innuendos_. As for instance: His watchmen
(_innuendo, the Governor’s Council and his Assembly_) are blind, they
are all ignorant (_innuendo, will not see the dangerous designs of His
Excellency_). Yea, they (_the Governor and Council meaning_) are greedy
dogs which can never have enough (_innuendo, enough of riches and
power_).
Such an instance as this seems only fit to be laughed at; but I appeal
to Mr. Attorney himself whether these are not at least equally proper to
be applied to His Excellency and his ministers as some of the inferences
and _innuendos_ in his information against my client. Then if Mr.
Attorney is at liberty to come into court and file an information in the
king’s name, without leave, who is secure whom he is pleased to
prosecute as a libeler?
And give me leave to say that the mode of prosecuting by information
(when a grand jury will not find a true bill) is a national grievance,
and greatly inconsistent with that freedom that the subjects of England
enjoy in most other cases. But if we are so unhappy as not to be able to
ward off this stroke of power directly, yet let us take care not to be
cheated out of our liberties by forms and appearances. Let us always be
sure that the charge in the information is made out clearly even beyond
a doubt; for although matters in the information may be called _form_
upon trial, yet they may be, and often have been found to be, matters of
_substance_ upon giving judgment.
Gentlemen: The danger is great in proportion to the mischief that may
happen through our too great credulity. A proper confidence in a court
is commendable, but as the verdict (whatever it is) will be yours, you
ought to refer no part of your duty to the discretion of other persons.
If you should be of the opinion that there is no falsehood in Mr.
Zenger’s papers, you will, nay (pardon me for the expression) you ought,
to say so—because you do not know whether others (I mean the Court) may
be of that opinion. It is your right to do so, and there is much
depending upon your resolution as well as upon your integrity.
The loss of liberty, to a generous mind, is worse than death. And yet we
know that there have been those in all ages who, for the sake of
preferment, or some imaginary honor, have freely lent a helping hand to
oppress, nay to destroy, their country.
This brings to my mind that saying of the immortal Brutus[12] when he
looked upon the creatures of Caesar, who were very great men but by no
means good men. “You Romans,” said Brutus, “if yet I may call you so,
consider what you are doing. Remember that you are assisting Caesar to
forge those very chains that one day he will make you yourselves wear.”
This is what every man (who values freedom) ought to consider. He should
act by judgment and not by affection or self-interest; for where those
prevail, no ties of either country or kindred are regarded; as upon the
other hand, the man who loves his country prefers its liberty to all
other considerations, well knowing that without liberty life is a
misery.
A famous instance of this you will find in the history of another brave
Roman of the same name, I mean Lucius Junius Brutus,[13] whose story is
well known, and therefore I shall mention no more of it than only to
show the value he put upon the freedom of his country. After this great
man, with his fellow citizens whom he had engaged in the cause, had
banished Tarquin the Proud (the last king of Rome) from a throne that he
ascended by inhuman murders and possessed by the most dreadful tyranny
and proscriptions, and had by this means amassed incredible riches, even
sufficient to bribe to his interest many of the young nobility of Rome
to assist him in recovering the crown; the plot being discovered, the
principal conspirators were apprehended, among whom were two of the sons
of Junius Brutus. It was absolutely necessary that some should be made
examples of, to deter others from attempting the restoration of Tarquin
and destroying the liberty of Rome. To effect this it was that Lucius
Junius Brutus, one of the consuls of Rome, in the presence of the Roman
people, sat judge and condemned his own sons as traitors to their
country. And to give the last proof of his exalted virtue and his love
of liberty, he with a firmness of mind (only becoming so great a man)
caused their heads to be struck off in his own presence. When he
observed that his rigid virtue occasioned a sort of horror among the
people, it is observed that he said only, “My fellow citizens, do not
think that this proceeds from any want of natural affection. No, the
death of the sons of Brutus can affect Brutus only. But the loss of
liberty will affect my country.”
Thus highly was liberty esteemed in those days, that a father could
sacrifice his sons to save his country. But why do I go to heathen Rome
to bring instances of the love of liberty? The best blood in Britain has
been shed in the cause of liberty; and the freedom we enjoy at this day
may be said to be (in a great measure) owing to the glorious stand the
famous Hampden,[14] and others of our countrymen, made against the
arbitrary demands and illegal impositions of the times in which they
lived; who, rather than give up the rights of Englishmen and submit to
pay an illegal tax of no more, I think, than three shillings, resolved
to undergo, and for the liberty of their country did undergo, the
greatest extremities in that arbitrary and terrible Court of the Star
Chamber, to whose arbitrary proceedings (it being composed of the
principal men of the realm, and calculated to support arbitrary
government) no bounds or limits could be set, nor could any other hand
remove the evil but Parliament.
Power may justly be compared to a great river. While kept within its due
bounds it is both beautiful and useful. But when it overflows its banks,
it is then too impetuous to be stemmed; it bears down all before it, and
brings destruction and desolation wherever it comes. If, then, this is
the nature of power, let us at least do our duty, and like wise men (who
value freedom) use our utmost care to support liberty, the only bulwark
against lawless power, which in all ages has sacrificed to its wild lust
and boundless ambition the blood of the best men that ever lived.
I hope to be pardoned, Sir, for my zeal upon this occasion. It is an old
and wise caution that when our neighbor’s house is on fire we ought to
take care of our own. For though (blessed be God) I live in a government
where liberty is well understood and freely enjoyed, yet experience has
shown us all (I am sure it has to me) that a bad precedent in one
government is soon set up for an authority in another. And therefore I
cannot but think it my, and every honest man’s, duty that (while we pay
all due obedience to men in authority) we ought at the same time to be
upon our guard against power wherever we apprehend that it may affect
ourselves or our fellow subjects.
I am truly very unequal to such an undertaking on many accounts. You see
that I labor under the weight of many years, and am bowed down with
great infirmities of body. Yet, old and weak as I am, I should think it
my duty, if required, to go to the utmost part of the land where my
services could be of any use in assisting to quench the flame of
prosecutions upon informations, set on foot by the government to deprive
a people of the right of remonstrating (and complaining too) of the
arbitrary attempts of men in power.
Men who injure and oppress the people under their administration provoke
them to cry out and complain, and then make that very complaint the
foundation for new oppressions and prosecutions. I wish I could say that
there were no instances of this kind.
But to conclude. The question before the Court and you, Gentlemen of the
Jury, is not of small or private concern. It is not the cause of one
poor printer, nor of New York alone, which you are now trying. No! It
may in its consequence affect every free man that lives under a British
government on the main of America. It is the best cause. It is the cause
of liberty. And I make no doubt but your upright conduct this day will
not only entitle you to the love and esteem of your fellow citizens, but
every man who prefers freedom to a life of slavery will bless and honor
you as men who have baffled the attempt of tyranny, and by an impartial
and uncorrupt verdict have laid a noble foundation for securing to
ourselves, our posterity, and our neighbors, that to which nature and
the laws of our country have given us a right—the liberty of both
exposing and opposing arbitrary power (in these parts of the world at
least) by speaking and writing truth.
Here Mr. Attorney observed that Mr. Hamilton had gone very much out of
the way, and had made himself and the people very merry; but that he had
been citing cases not at all to the purpose. All that the jury had to
consider was Mr. Zenger’s printing and publishing two scandalous libels
that very highly reflected on His Excellency and the principal men
concerned in the administration of this government—which is confessed.
That is, the printing and publishing of the journals set forth in the
information is confessed. He concluded that as Mr. Hamilton had
confessed the printing, and there could be no doubt but they were
scandalous papers highly reflecting upon His Excellency and on the
principal magistrates in the Province—therefore he made no doubt but
that the jury would find the defendant guilty, and would refer to the
Court for their directions.
MR. CHIEF JUSTICE. Gentlemen of the Jury: The great pains Mr. Hamilton
has taken to show how little regard juries are to pay to the opinion of
judges, and his insisting so much upon the conduct of some judges in
trials of this kind, is done no doubt with a design that you should take
but very little notice of what I might say upon this occasion. I shall
therefore only observe to you that as the facts or words in the
information are confessed, the only thing that can come in question
before you is whether the words as set forth in the information make a
libel. And that is a matter of law, no doubt, and which you may leave to
the Court.
MR. HAMILTON. I humbly beg Your Honor’s pardon, I am very much
misapprehended if you suppose that what I said was so designed.
Sir, you know I made an apology for the freedom that I found myself
under a necessity of using upon this occasion. I said there was nothing
personal designed. It arose from the nature of our defense.
The jury withdrew, and returned in a small time. Being asked by the
clerk whether they were agreed on their verdict, and whether John Peter
Zenger was guilty of printing and publishing the libels in the
information mentioned, they answered by Thomas Hunt, their foreman, “Not
guilty.” Upon which there were three huzzas in the hall, which was
crowded with people; and the next day I was discharged from my
imprisonment.
4. Aftermath
At a Common Council held at the City Hall on Tuesday, September 16,
1735:
“_Ordered_, that Andrew Hamilton of Philadelphia, barrister-at-law, be
presented with the Freedom of this Corporation.”
At a Common Council held at the City Hall on Monday, September 29, 1735:
Paul Richards (Mayor), the Recorder, aldermen, and assistants of the
City of New York, convened in Common Council.
“To all to whom these presents shall come, greeting.
“_Whereas_ honor is the just reward of virtue, and public benefits
demand a public acknowledgment;
“_We therefore_, under a grateful sense of the remarkable service done
to the inhabitants of this City and Colony by Andrew Hamilton of
Pennsylvania, barrister-at-law—by his learned and generous defense of
the rights of mankind and the liberty of the press in the case of John
Peter Zenger, lately tried on an information exhibited in the Supreme
Court of this Colony—do by these presents bear to the said Andrew
Hamilton the public thanks of the Freemen of this Corporation for that
signal service which he cheerfully undertook under great indisposition
of body and generously performed, refusing any fee or reward;
“And in testimony of our great esteem for his person, and sense of his
merit, do hereby present him with the Freedom of this Corporation.
“These are therefore to certify and declare that the said Andrew
Hamilton is hereby admitted, received, and allowed a Freeman of the said
City; to have, hold, enjoy, and partake of all the benefits, liberties,
privileges, freedoms, and immunities whatsoever granted or belonging to
a Freeman and Citizen of the same City.
“In testimony whereof, the Common Council of the City, in Common Council
assembled, have caused the Seal of the City to be hereunto affixed this
twenty-ninth day of September, Anno Domini one thousand seven hundred
and thirty-five.”
Appendix I
_The New York Weekly Journal_ Covers an Election
The Westchester election in which Lewis Morris won his most satisfying
victory over Governor Cosby took place on the green of St. Paul’s
Church, Eastchester, on October 29, 1733. Whoever wrote the
_Journal’s_ story about the election was no mean hand at covering the
news, as the following extracts will show:
On this day Lewis Morris, late Chief Justice of this Province, was by a
great majority of voices elected a Representative for the County of
Westchester.
This being an election of great expectation, and wherein the court and
country’s interest was exerted (as is said) to the utmost, I shall give
my readers a particular account of it as I had it from a person that was
present at it.
Nicholas Cooper, high sheriff of the said county, having by papers
affixed to the church of Eastchester and other public places given
notice of the day and place of election, without mentioning any time of
the day when it was to be done, made the electors on the side of the
late judge very suspicious that some fraud was intended; to prevent
which about fifty of them kept watch upon and about the green at
Eastchester (the place of election) from 12 o’clock the night before
until the morning of that day.
The other electors beginning to move on Sunday afternoon and evening so
as to be at New Rochelle by midnight, their way lay through Harrison’s
Purchase, the inhabitants of which provided for their entertainment as
they passed, each house in their way having a table plentifully covered
for that purpose. About midnight they all met at the house of William
Lecount in New Rochelle, whose house not being large enough to entertain
so great a number, a large fire was made in the street, by which they
sat until daylight, at which time they began to move. They were joined
on the hill at the east end of the town by about seventy horse of the
electors of the lower part of the county, and then proceeded towards the
place of election in the following order.
First rode two trumpeters and three violins; next four of the principal
freeholders, one of whom carried a banner on one side of which was
affixed in gold capitals KING GEORGE, and on the other, in like golden
capitals, LIBERTY AND LAW; next followed the candidate, Lewis Morris,
late Chief Justice of this Province; then two colors; and at sunrise
they entered upon the green of Eastchester, the place of the election,
followed by about three hundred horse of the principal freeholders of
the county (a greater number than had ever appeared for one man since
the settlement of that county).
About eleven of the clock appeared the candidate of the other side,
William Forster, schoolmaster, appointed by the Society for Propagation
of the Gospel, and lately made by commission from His Excellency (the
present Governor) Clerk of the Peace and Common Pleas in that county;
which commission it is said he purchased for the valuable consideration
of one hundred pistoles given the Governor. Next to him came two ensigns
borne by two of the freeholders; then followed the Honorable James
Delancey, Chief Justice of the Province of New York, and the Honorable
Frederick Philipse, second judge of the said Province and Baron of the
Exchequer, attended by about one hundred seventy horse of the
freeholders and friends of the said Forster. The two judges entered the
green on the east side, and as they rode twice around it their greeting
was “No land tax!” as they passed. The second judge very civilly saluted
the late Chief Justice by taking off his hat, which the late judge
returned in the same manner.
About an hour after the high sheriff came to town finely mounted, the
housings and holster caps being scarlet richly laced with silver....
Upon his approach the electors on both sides went into the green where
they were to elect; and after having read His Majesty’s writ he bade the
electors to proceed to the choice, which they did. A great majority
appeared for Mr. Morris, upon which a poll was demanded, but by whom is
not known to the relator, though it was said by many to be done by the
sheriff himself. Morris, the candidate, several times asked the sheriff
upon whose side the majority appeared, but could get no other reply but
that a poll must be had.
Accordingly, after about two hours’ delay in getting benches, chairs,
and tables, they began to poll. Soon after one of those called Quakers,
a man of known worth and estate, came to give his vote for the late
judge. Upon this Forster and the two Fowlers, Moses and William, chosen
by him to be inspectors, questioned his having an estate, and required
of the sheriff to tender him the Book to swear in due form of law; which
he refused to do, but offered to take his solemn affirmation, which by
both the laws of England and the laws of this Province was indulged to
the people called Quakers, and had always been practiced from the first
election of Representatives in this Province to this time, and never
refused. But the sheriff was deaf to all that could be alleged on that
side; and notwithstanding that he was told by both the late Chief
Justice and James Alexander, one of His Majesty’s Council and
counsellor-at-law, and by William Smith, counsellor-at-law, that such a
procedure was contrary to law and a violent attempt on the liberties of
the people, he still persisted in refusing the said Quaker to vote; and
in like manner did refuse seven and thirty Quakers more, men of known
and visible estates. About eleven o’clock that night the poll was
closed, and it stood thus:
For the late Chief Justice 231
Quakers 38
In all 269
For William Forster 151
The difference 118
269
So that the late Chief Justice carried it by a great majority without
the Quakers.
The indentures being sealed, the whole body of electors waited on their
new Representative to his lodgings with trumpets sounding and violins
playing; and in a little time took their leave of him. Thus ended the
Westchester election, to the general satisfaction.
_New York, November 5._
On Wednesday the 31st of October the late Chief Justice, but new
Representative for the County of Westchester, landed in this city about
five o’clock in the evening at the ferry stairs. On his landing he was
saluted by a general fire of the guns from the merchant vessels lying in
the road; and was received by great numbers of the most considerable
merchants and inhabitants of this city, and by them, with loud
acclamations of the people as he walked the streets, conducted to the
Black Horse Tavern, where a handsome entertainment was prepared for him
at the charge of the gentlemen who received him. In the middle of one
side of the room was fixed a tabulet with golden capitals, _KING GEORGE,
LIBERTY AND LAW_.
Appendix II
Zenger’s Lawyers on the Behavior of His Judges
James Alexander and William Smith, disbarred for their exceptions to
the commissions of the two Justices of the Supreme Court, won
reinstatement in their practice after an appeal to the legislature.
Their appeal was printed by Peter Zenger under the title, _The
Complaint of James Alexander and William Smith to the Committee of the
General Assembly of the Colony of New York_ (1735). Here is the
centerpiece of their argument:
We conceived the innocence of our client no sufficient security while we
esteemed the Governor his prosecutor, who had the judges in his power.
We had too much reason for caution from the conduct of the Chief
Justice. We heard how His Honor had vented his displeasure against him
when he accidentally met him in the street on the Sunday before his
arrest. We had been witnesses to sundry warm charges and moving
addresses to several grand juries plainly leveled against Zenger, and
with intention to procure his country to indict him. And we saw his name
among that committee of the Council that conferred with a committee of
this House in order to procure a concurrence to condemn some of Zenger’s
_Journals_ without giving him an opportunity to defend them. We heard
that the Chief Justice was a principal manager at that conference and
spoke much on that occasion. We saw his name among those who issued that
order of the Council that commanded the magistrates of this city to
attend the burning of some of the _Journals_, and which sets forth that
they had been condemned by the Council to be burned by the hands of the
common hangman. We much doubted the legality of these extraordinary
proceedings of the Chief Justice and the rest of the Council. We saw the
Chief Justice’s name among those who issued that extraordinary warrant
by which our client was apprehended. We had seen his want of moderation
in demanding security in 800 pounds when Zenger was brought before him
on his habeas corpus, though the act required bail to be taken only
according to the quality of the prisoner and nature of the offense, and
though at the same time this poor man had made oath before him that he
was not worth 40 pounds, besides the tools of his trade and his apparel.
We had heard the Chief Justice declare, in the fullest court we had then
ever seen in that place, that if a jury found Zenger not guilty they
would be perjured, or words to that effect; and this even before any
information in form was lodged against him. As for Justice Philipse, we
had been told how vigorous and active he had been in the General
Assembly to procure the concurrence of that House with the Council in
the order for the burning of Zenger’s papers, even before they were
legally condemned, and in addressing the Governor to issue a
proclamation with a promise of reward for the discovery of the writers
of them, and in an order for prosecuting the poor printer.
We wish we had no occasion to repeat these things to show the motives of
our conduct. Had we not been obliged thereto in order to vindicate
ourselves, we had much rather that they had been buried in silence. But
under these many forewarnings what could we do, what ought we to do, for
our client? Surely everything that was lawful and likely to contribute
to his safety.
Appendix III
James Alexander on Freedom of the Press
In 1737 the verdict of the Zenger trial was severely criticized in two
anonymous letters to the _Barbados Gazette_, and these were reprinted
by Andrew Bradford of Philadelphia. Alexander wrote a reply in the
_Pennsylvania Gazette_. His essay is an important historical document,
although strangely overlooked by the historians of American democracy.
It presents him as the most important theorist of freedom of the press
this country has ever produced. These are some of the key passages:
Freedom of speech is a principal pillar in a free government. When this
support is taken away, the Constitution is dissolved, and tyranny is
erected on its ruins. Republics and limited monarchies derive their
strength and vigor from a popular examination into the actions of the
magistrates.
These abuses of the freedom of speech are the excrescences of liberty.
They ought to be suppressed; but to whom dare we commit the care of
doing it? An evil magistrate, entrusted with a power to punish words, is
armed with a weapon the most destructive and terrible. Under the
pretense of pruning off the exuberant branches, he frequently destroys
the tree.
Augustus Caesar, under the specious pretext of preserving the characters
of the Romans from defamation, introduced the law whereby libeling was
involved in the penalties of treason against the state. This established
his tyranny; and for one mischief it prevented, ten thousand evils,
horrible and tremendous, sprang up in the place.
Henry VIII, a prince mighty in politics, procured that act to be passed
whereby the jurisdiction of the Star Chamber was confirmed and
extended.... The subjects were terrified from uttering their griefs
while they saw the thunder of the Star Chamber pointing at their heads.
This caution, however, could not prevent several dangerous tumults and
insurrections. For when the tongues of the people are restrained, they
commonly discharge their resentments by a more dangerous organ, and
break out into open acts of violence.
But to resume the description of the reign of Charles II. The doctrine
of servitude was chiefly managed by Sir Roger Lestrange. He had great
advantages in the argument, being licenser for the press, and might have
carried all before him without contradiction if writings of the other
side of the question had not been printed by stealth. The authors were
prosecuted as seditious libelers.
In the two former papers the writer endeavored to prove by historical
facts the fatal dangers that necessarily attend a restraint on freedom
of speech and the liberty of the press: upon which the following
reflection naturally occurs, viz., THAT WHOEVER ATTEMPTS TO SUPPRESS
EITHER OF THOSE, OUR NATURAL RIGHTS, OUGHT TO BE REGARDED AS AN ENEMY TO
LIBERTY AND THE CONSTITUTION.
In civil actions an advocate should never appear but when he is
persuaded the merits of the cause lie on the side of his client. In
criminal actions it often happens that the defendant in strict justice
deserves punishment; yet a counsel may oppose it when a magistrate
cannot come at the offender without making a breach in the barriers of
liberty and opening a floodgate to arbitrary power. But when the
defendant is innocent and unjustly prosecuted, his counsel may, nay
ought to, take all advantages and use every stratagem that his skill,
art, and learning can furnish him with. This last was the case of Zenger
at New York, as appears by the printed trial and the verdict of the
jury. It was a popular cause. The liberty of the press in that Province
depended on it. On such occasions the dry rules of strict pleading are
never observed. The counsel for the defendant sometimes argues from the
known principles of law, then raises doubts and difficulties to confound
his antagonist, now applies himself to the affections, and chiefly
endeavors to raise the passions. Zenger’s defense is to be considered in
all those different lights.
Upon the whole: To suppress inquiries into the administration is good
policy in an arbitrary government. But a free Constitution and freedom
of speech have such a reciprocal dependence on each other that they
cannot subsist without consisting together.
Notes to the Introduction
[1]Cadwallader Colden, _History of William Cosby’s Administration as
Governor of the Province of New York, and of Lieutenant-Governor
George Clarke’s Administration through 1737_ (New York Historical
Society Collections, 1935), p. 286.
[2]_Documents Relative to the Colonial History of the State of New
York_, ed. E. B. O’Callaghan (Albany, 1853-87), V, 937.
[3]William Smith, _The History of the Late Province of New York, from
Its Discovery to the Appointment of Governor Colden in 1762_ (New
York, 1829-30), II, 3.
[4]Livingston Rutherfurd, _John Peter Zenger, His Press, His Trial and a
Bibliography of Zenger Imprints_ (New York, 1904), p. 15.
[5]_N.Y. Col. Docs._, V, 949.
[6]Colden, _op. cit._, p. 298.
[7]_N.Y. Col. Docs._, V, 955.
[8]Colden, _op. cit._, pp. 298-299.
[9]_Ibid._, p. 313.
[10]_New York Gazette_, November 5, 1733.
[11]_Ibid._, January 7, 1734.
[12]_Ibid._, March 18, 1734.
[13]_N.Y. Col. Docs._, V, 940.
[14]_Documents Relating to the Colonial History of the State of New
Jersey_, ed. William A. Whitehead (Newark, 1880-1928), V, 359.
[15]_Ibid._, V, 360.
[16]_N.Y. Col. Docs._, VI, 21.
[17]_Ibid._, VI, 5.
[18]_New York Weekly Journal_, January 21, 1734.
[19]_Ibid._, January 28, 1734.
[20]_New York Gazette_, February 4, 1734.
[21]_New York Weekly Journal_, November 26, 1733.
[22]_Ibid._, December 31, 1733.
[23]_New York Gazette_, April 1, 1734.
[24]Colden, _op. cit._, p. 323.
[25]_N.Y. Col. Docs._, V, 978.
[26]_Ibid._, V, 975.
[27]_Ibid._, V, 976.
[28]_Ibid._
[29]_Ibid._
[30]_Ibid._
[31]_Ibid._, V, 984.
[32]_The Papers of Lewis Morris, Governor of the Province of New Jersey
from 1738 to 1746_, ed. William A. Whitehead (New York, 1852), pp.
22-23.
[33]_Ibid._, pp. 24-25.
[34]_N.Y. Col. Docs._, VI, 21.
[35]_Ibid._, VI, 34-35.
[36]Rutherfurd, _op. cit._, pp. 127-128.
Notes to the Text
[1]William Hawkins was, during Zenger’s own period, probably the
outstanding author of legal textbooks. Delancey’s quotations are
from his _Treatise of the Pleas to the Crown_ (London, 1724), I,
192-193.
[2]Henry Sacheverell, a Tory divine, attacked the Whig Ministry for not
being Royalist or High Church enough. He was tried for seditious
libel and found guilty (1710), but his case was instrumental in the
decline of the Whigs and the rise of the Tories under Queen Anne.
See G. N. Clark, _The Later Stuarts_ (Oxford, 1940), pp. 216-217.
[3]Gilbert Burnet, Bishop of Salisbury, was the historian of his time as
well as one of its most controversial ecclesiastico-politicians. His
pastoral letter sounds innocuous enough now, but his enemies in
Parliament impugned it as too Royalist and too favorable to the
Dissenters (1693). See Macaulay’s _History of England_, “Fireside”
ed. (Boston and New York, 1910), IV, 464-466. Bishop Burnet was the
father of New York’s Governor William Burnet.
[4]Thomas Brewster, one of the many printers prosecuted during the reign
of Charles II, was convicted (1663) of violating the licensing laws
when he published _The Phoenix, or the Solemn League and Covenant_,
which defended the regicides who executed Charles I. For Chief
Justice Robert Hyde’s excoriating summing up, see J. W. Willis-Bund,
_A Selection of Cases from the State Trials_ (Cambridge, 1882), II,
415.
[5]Sir John Holt, one of the great chief justices in the history of
British law, handed down numerous important rulings on the subject
of libel. See Fredrick Seaton Siebert, _Freedom of the Press in
England, 1476-1776_ (Urbana, Ill., 1952), _passim_.
[6]John Tutchin, publisher of the _Observator_, made broad charges of
treason and corruption against the government, and was tried in a
court presided over by Chief Justice Holt (1704). See Siebert, _op.
cit._, p. 275.
[7]William Fuller was one of the notorious impostors who abounded in
England at the time of the Popish Plot. His grossly fictitious
account of a sinister scheme to restore the Stuarts was exposed by
the House of Commons (1692), and he was promptly arrested,
prosecuted, and convicted. Macaulay has a good description of the
Fuller incident, _op. cit._, pp. 280-289.
[8]These ecclesiastics, led by William Sancroft, Archbishop of
Canterbury, refused to promulgate from their pulpits the Declaration
of Indulgence by which James II would have granted freedom of
worship to his subjects. The Seven Bishops argued that he was
attempting to exercise a dispensing power that the crown did not
possess. They were prosecuted before Parliament, but acquitted
(1688). See Clark, _op. cit._, pp. 120-121.
[9]Francis Nicholson, a stormy petrel among colonial administrators, was
Governor of Virginia at the time of this episode (1704). His
intended victim was John Monroe, a clergyman of the Church of
England. The information against Monroe is in the _Executive
Journals of the Council of Virginia_ (Richmond, 1927), II, 451-452.
[10]Laurence Echard, Tory divine and historian, wrote the bitterly
anti-Williamite _History of the Revolution of 1688_. See Eugene
Lawrence, _Lives of the British Historians_ (New York, 1855), I,
312-315.
[11]Paul de Rapin de Thoyras, although a Frenchman, became the foremost
authority on English history. His _Histoire d’Angleterre_ appeared
in 1723, and long remained the standard work on the subject,
influencing a whole generation of British historians including Hume.
See Lawrence, _op. cit._, I, 226-229.
[12]Marcus Brutus, one of the assassins of Julius Caesar, is most
familiar to the English-speaking world as Shakespeare’s “noblest
Roman of them all.” Hamilton’s anecdote is based on the laudatory
picture of the man drawn in Plutarch’s _Lives_.
[13]Lucius Junius Brutus was the Roman patriot who, according to legend,
led the revolt that drove out Tarquin the Proud and put an end to
the Kings of Rome. The story of his execution of his sons is told
repeatedly by the Roman historians, the most familiar source being
Livy’s _History of Rome_, bk. I.
[14]John Hampden occupies a special niche in British history as the man
who refused to pay the Ship Money levied by Charles I for the
building of a fleet (1637). His defiance of the crown caught the
imagination of later generations as a major step toward the
development of parliamentary government in England. See George
Macaulay Trevelyan, _England Under the Stuarts_ (19th ed., London,
1947), p. 152.
Other Footnotes
[1]See Appendix I.
[2]Peter Zenger is the ostensible narrator throughout.
Suggestions for Further Reading
1. Editions of the Trial.
Chandler, Peleg W. _American Criminal Trials_ (New York, 1841).
Howell, T. B. _State Trials_ (London, 1816).
Mott, Frank Luther. _Oldtime Comments on Journalism_ (Columbia, Mo.,
1954).
Rutherfurd, Livingston. _John Peter Zenger, His Press, His Trial and a
Bibliography of Zenger Imprints_ (New York, 1904).
2. Source Material.
_Documents Relating to the Colonial History of the State of New Jersey_,
ed. William A. Whitehead (Newark, 1880-1928).
_Documents Relative to the Colonial History of the State of New York_,
ed. E. B. O’Callaghan (Albany, 1853-87).
_New York Gazette_, 1732-36.
_New York Weekly Journal_, 1732-36.
3. Histories of the Period.
Colden, Cadwallader. _History of William Cosby’s Administration as
Governor of the Province of New York, and of Lieutenant-Governor
George Clarke’s Administration through 1737_ (New York Historical
Society Collections, 1935).
Goodwin, Maud Wilder. _Dutch and English on the Hudson_ (New Haven,
Conn., 1919).
_History of the State of New York_, ed. A. C. Flick (New York, 1933).
Osgood, Herbert L. _The American Colonies in the Eighteenth Century_
(New York, 1924).
Smith, William. _The History of the Late Province of New York, from Its
Discovery to the Appointment of Governor Colden in 1762_ (New
York, 1829-30).
4. Peter Zenger.
Cobb, Sanford. _The Story of the Palatines_ (New York, 1897).
Hildeburn, Charles R. _Sketches of Printers and Printing in Colonial New
York_ (New York, 1895).
McMurtrie, Douglas. _A History of Printing in the United States_ (New
York, 1936).
Rutherfurd, Livingston. _Op. cit._
Thomas, Isaiah. _The History of Printing in America, with a Biography of
Printers and an Account of Newspapers_ (Worcester, Mass., 1810).
Wroth, Lawrence C. _A History of Printing in Colonial Maryland,
1686-1776_ (Baltimore, 1922).
5. The Zenger Case.
Bleyer, William Grosvenor. _Main Currents in the History of American
Journalism_ (Boston, 1927).
Cheslaw, Irving. _John Peter Zenger and His, “New York Weekly Journal”_
(New York, 1952).
Cook, Elizabeth Christine. _Literary Influences in Colonial Newspapers_
(New York, 1912).
Emery, Edwin, and William Ladd Smith. _The Press and America_ (New York,
1954).
Hudson, Frederic. _Journalism in the United States from 1690 to 1872_
(New York, 1873).
Jones, Robert W. _Journalism in the United States_ (New York, 1947).
Kobre, Sidney. _The Development of the Colonial Newspaper_ (Pittsburgh,
1944).
Lee, James Melvin. _History of American Journalism_ (Boston, 1917).
Morris, Richard B. _Fair Trial_ (New York, 1952).
Mott, Frank Luther. _American Journalism, a History of Newspapers in the
United States through 260 Years: 1690-1950_ (New York, 1950).
Payne, George Henry. _History of Journalism in the United States_ (New
York, 1920).
Rutherfurd, Livingston. _Op. cit._
6. Miscellaneous.
Akers, Dwight. _The High Crimes of Colonel Mathews_ (Goshen, N. Y.,
1954).
Chenery, William L. _Freedom of the Press_ (New York, 1955).
Goebel, Julius, Jr., and T. Raymond Naughton. _Law Enforcement in
Colonial New York_ (New York, 1944).
Hamlin, Paul. _Legal Education in Colonial New York_ (New York, 1939).
Keys, Alice. _Cadwallader Colden, a Representative Eighteenth Century
Official_ (New York, 1912).
Konkle, Burton Alva. _The Life of Andrew Hamilton, 1676-1741, “The
Day-Star of the American Revolution”_ (Philadelphia, 1941).
_The Papers of Lewis Morris, Governor of the Province of New Jersey from
1738 to 1746_, ed. William A. Whitehead (New York, 1852).
Siebert, Fredrick Seaton. _Freedom of the Press in England, 1476-1776_
(Urbana, Ill., 1952).
Swindler, William F. _Problems of Law in Journalism_ (New York, 1955).
Thayer, Frank. _Legal Control of the Press_ (Chicago, 1944).
7. Important Articles.
Crossman, Ralph L. “The Legal and Journalistic Significance of the Trial
of John Peter Zenger,” _Rocky Mountain Law Review_, X (1938),
258-268.
Paltsits, V. H. “Some Recent Manuscript Accessions,” _Bulletin of the
New York Public Library_, XLIV (1940), 523-526.
Price, Warren C. “Reflections on the Trial of John Peter Zenger,”
_Journalism Quarterly_, XXXII (1955), 161-168.
“Publications Relating to New York Affairs under Governor Cosby,”
_Bulletin of the New York Public Library_, II (1898), 249-255.
_INDEX_
A
_A Brief Narrative of the Case and Tryal of John Peter Zenger_,
72-75
Bradley declines to furnish data, 68-69
Edited by Alexander, 57, 68-71
Hamilton furnishes data, 70-71
Precedent, 57, 61-62
Printed by Zenger, 57, 68
Adams, Samuel, 60, 62
Alexander, James, _passim_
_Articles of Complaint_, possible author of, 41
_Brief Narrative_, edits, 57, 68-71
Cosby, conflict with, 25-26, 37, 46-47, 69-70
Disbarred by Delancey, 40, 70, 88-90, Appendix II
Early life, 25
Equity court, denies validity of, 12
Freedom of press, defends, 30-32, 141
Hamilton, provides court strategy for, 70
Morris, helps draw up strategy for, 45
_New York Weekly Journal_, edits, 24-26, 34, 69
Van Dam’s lawyer, 12
Westchester election, attends, Appendix I
Zenger’s lawyer, 40, 69-70, 79, 86-87, Appendix II
Alsop, John, 36
_Articles of Complaint_, 40-44
Assembly, 11, 35, 82
B
_Barbadoes Gazette_, Appendix III
Bennett, James Gordon, 65
Bible cited, 10, 125, 126-127
Blagg, Edward, 36
Board of Trade, 15, 27, 28, 55
Borah, William E., 65-66
_Boston Gazette_, 60
Bradford, Andrew, 4, Appendix III
Bradford, William, 3-5, 16
Bradley, Franklin, _passim_
Attorney General, 48, 79
_Brief Narrative_, declines to furnish data, 68-69
Prosecutes Zenger, 48, 68, 94-132
Westchester election, attends, Appendix I
Brewster, Thomas, 103-104
_British Journal_, 31
Brutus, Lucius Junius, 128-129
Burnet, Bishop, 85, 126
Burnet, William, 6-7
C
_Cato’s Letters_, 31-32
Censorship, 16, 55-57, 66-67
Chambers, John, 79, 90, 98, 102
Chandler, Peleg W., 71
Clarke, George, 49, 86
Colden, Cadwallader, _passim_
Cosby in Minorca, 9-10
Harison, Francis, 19
Morris, removal from Supreme Court, 14, 18-19
Morris-Delancey feud, 7
Newspapers, new importance of, 60
Zenger prosecution, 37
Cooper, Nicholas, 23, Appendix I
Cosby, William, 8-9, 26
Attacked by _Journal_, 28, 32
Burning of _Journal_, 35
Complaints to superiors, 10-11, 13-14, 25-26, 27, 46, 47
Court party and, 11, 16
Defended by _Gazette_, 20-21, 32
Equity court, 12-13
Governor of New York, 9-11
and Harison, Francis, 18-19
Misdemeanors, 11, 15, 28, 39-40, 55, 58
Morris, removes from Supreme Court, 14, 18-19, 23
Opponents, 11-12, 23, 25-26, 37-38, 40-47, 49, 55, 69-70
Council, 11, 43-44, 82-83, 86
Court party, 11, 16, 22, 39, 43
_Craftsman_, 32
D
Dana, Charles A., 65
Delancey, James, _passim_
Chief Justice, 14, 18-19, 79
Disbars Alexander and Smith, 40, 70, 88-90, Appendix II
Equity court, defends, 12-13
Hamilton, compared with, 51
Harison, Francis, 18
Westchester election, attends, Appendix I
and Zenger, Peter, 35, 40, 48, 51, 59, 80-81, 87
Zenger trial, presides over, 79, 93-132
Delancey, Stephen, 6-7
Delancey Interest, 7, 11
E
Echard, Laurence, 126
F
Forster, William, 22, Appendix I
Fox Libel Act, 64
Franklin, Benjamin, 4, 63
Fuller, William, 110
G
Gordon, Thomas, 31
Greeley, Horace, 65
H
Halifax, Earl of, 9
Hamilton, Andrew, _passim_
Alexander, follows court strategy of, 70
_Brief Narrative_, furnishes data, 70-71
British law and America, 62-63, 105-106
Career in Pennsylvania, 50-51
Counsel for the Defense, 48, 55-56, 59, 79, 98-132
Delancey, compared with, 51
Early life, 49-50
Freedom of press, 55-56
Influence, 62-64, 66
New York citizen, 133-134
On right of jury to decide verdict, 58-59, 99-132 _passim_
Truth a defense in libel cases, 56, 99-132
Hampden, John, 129
Hancock, John, 62
Harison, Francis, _passim_
Career in New York, 16-18
Cosby, henchman of, 18-20, 36, 45, 84-85
_Journal_ and, 33-34, 37, 86
_New York Gazette_, edits, 16, 20-21, 34
Recorder for New York City, 17, 79, 84
Hawkins, William, 80-81
Hildeburn, Charles R., 65
Holt, Sir John, 107, 110-111
Horsmanden, Daniel, 45, 86
Howell, T. B., 71
J
Jefferson, Thomas, 61
Jury, struck
Acquits Zenger, 48, 56, 58-59, 61, 132
Court party attempts to pack, 90-94
Members, 94
L
Libel
Meaning, 54-55, 63-64, 99-132 _passim_
Zenger and, 35, 48, 55, 61, 69, 81, 94-98, 131-132
_London Journal_, 31
Lord Campbell’s Act, 64
M
Magistrates of New York City, 35, 36, 83-85, 133-134
Matthews, Vincent, 35-36
Montgomerie, John, 7
Morris, Gouverneur, 6, 63
Morris, Lewis, _passim_
_Articles of Complaint_, possible author of, 41
Career in New York, 5-7
Cosby, conflict with, 14-15, 37, 44-47
Equity court, denies validity of, 13
_Journal_ and, 29-30, 34
Popular party, 15
Removed from Supreme Court, 14, 18-19, 23
Westchester election, wins, 22-24, Appendix I
Morris, Lewis (grandson of above), 6
Morris, Lewis, Jr., 16, 34, 45
Morris Interest, 7, 11
Mott, Frank Luther, 71
N
Newcastle, Duke of, 9, 10-11, 13-14, 25-26
New York Bar Association, 66
_New York Gazette_, 16
Defends Cosby, 20-21, 32
Harison and, 16, 34, 39
War with _Journal_, 32-35
New York Public Library, 65
_New York Weekly Journal_, _passim_
Alexander and, 24-25, 26, 69
_Boston Gazette_, forerunner of, 60
Burned, 37, 82-83, 86
Constitutional development, 61-63
Continuing importance, 65-67
Cosby and, 28, 32, 35, 55
Democracy, influence on, 59-66
Harison and, 33-34
Political independent, America’s first, 24, 53, 56
Printed by Zenger, 24, 38, 80, 82, 86, 95-99
War with _Gazette_, 32-35
Westchester election, 28, 135
Nicholson, Francis, 124
O
Otis, James, 62
P
_Pennsylvania Gazette_, 63, Appendix III
Philipse, Frederick, 12-13, 79, 89-90, 93
Popular party, 11, 15, 21-22, 24, 34, 39, 45, 65, 69
Press, freedom of, 30-32, 49, 55-56, 66, 61, 66, 99-132 _passim_,
133, Appendix III
Q
Quakers, 23, Appendix I
R
Rapin de Thoyras, Paul de, 126
Raymond, Henry J., 65
Rutherfurd, Livingston, 65, 71
S
Sacheverell, Henry, 84-85, 104
Sedition Act, 64
Seven Bishops, 122
Smith, William, _passim_
Disbarred by Delancey, 40, 88-90, 139
Equity court, denies validity of, 12
_Journal_ and, 34
Morris, helps draw up strategy for, 45
Van Dam’s lawyer, 12
Westchester election, attends, Appendix I
Zenger’s lawyer, 40, 79, 86-87, 139
Star Chamber, 103, 111, 121, 129-130
T
Thomas, Isaiah, 65
Tocqueville, Alexis de, 61
Trenchard, John, 31
Truesdale, William, 19-20
Tutchin, John, 107, 110
V
Van Dam, Rip, 34
Cosby, dispute with, 11-12, 23, 40-44, 47, 49
W
Westchester election, 22-24, 28, 65
White, Mary, 4
Z
Zenger, Anna Catherine, 4, 38-39
Zenger, John, 4
Zenger, John Peter, _passim_
Acquitted, 48, 56, 59, 132
Arrested, 38, 44, 86
Bradford and, 3-4
_Brief Narrative_, prints, 57, 68
Cosby and, 55
Delancey and, 35, 40, 48, 51, 59, 80-81, 87, Appendix II
Harison and, 36, 39
New York’s second printer, 4-5
_New York Weekly Journal_ and, 24, 34, 57
Prints opposition pamphlets, 4, 13, 40-41
Reputation, 64-66
Zenger trial, _passim_
Aftermath, 133-134
Causes, 3-51
Dramatis personae, 79
Meaning, 52-67
Pleading, 93-132
Preliminaries, 80-92
Text, 68-75
Transcriber’s Notes
—Retained publication information from the printed edition: this eBook
is public-domain in the country of publication.
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transcribed newpaper page.
—Provided an original cover image, for free and unrestricted use with
this LibraryBlog eBook.
—In the text versions only, text in italics is delimited by
_underscores_.
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