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diff --git a/old/54836-8.txt b/old/54836-8.txt deleted file mode 100644 index ec86a2b..0000000 --- a/old/54836-8.txt +++ /dev/null @@ -1,5682 +0,0 @@ -The Project Gutenberg EBook of The Trial of Peter Zenger, by Various - -This eBook is for the use of anyone anywhere in the United States and most -other parts of the world at no cost and with almost no restrictions -whatsoever. You may copy it, give it away or re-use it under the terms of -the Project Gutenberg License included with this eBook or online at -www.gutenberg.org. If you are not located in the United States, you'll have -to check the laws of the country where you are located before using this ebook. - -Title: The Trial of Peter Zenger - -Author: Various - -Editor: Vincent Buranelli - -Release Date: June 3, 2017 [EBook #54836] - -Language: English - -Character set encoding: ISO-8859-1 - -*** START OF THIS PROJECT GUTENBERG EBOOK THE TRIAL OF PETER ZENGER *** - - - - -Produced by Stephen Hutcheson, MFR and the Online -Distributed Proofreading Team at http://www.pgdp.net - - - - - - - - - -_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. - ---Silently corrected a few typos in the text; retained typos in the - transcribed newpaper page. - ---Provided an original cover image, for free and unrestricted use with - this Project Gutenberg eBook. - ---In the text versions only, text in italics is delimited by - _underscores_. - - - - - - - -End of the Project Gutenberg EBook of The Trial of Peter Zenger, by Various - -*** END OF THIS PROJECT GUTENBERG EBOOK THE TRIAL OF PETER ZENGER *** - -***** This file should be named 54836-8.txt or 54836-8.zip ***** -This and all associated files of various formats will be found in: - http://www.gutenberg.org/5/4/8/3/54836/ - -Produced by Stephen Hutcheson, MFR and the Online -Distributed Proofreading Team at http://www.pgdp.net - -Updated editions will replace the previous one--the old editions will -be renamed. - -Creating the works from print editions not protected by U.S. copyright -law means that no one owns a United States copyright in these works, -so the Foundation (and you!) can copy and distribute it in the United -States without permission and without paying copyright -royalties. 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