diff options
| -rw-r--r-- | .gitattributes | 4 | ||||
| -rw-r--r-- | LICENSE.txt | 11 | ||||
| -rw-r--r-- | README.md | 2 | ||||
| -rw-r--r-- | old/54836-0.txt | 5682 | ||||
| -rw-r--r-- | old/54836-0.zip | bin | 110046 -> 0 bytes | |||
| -rw-r--r-- | old/54836-8.txt | 5682 | ||||
| -rw-r--r-- | old/54836-8.zip | bin | 109776 -> 0 bytes | |||
| -rw-r--r-- | old/54836-h.zip | bin | 356786 -> 0 bytes | |||
| -rw-r--r-- | old/54836-h/54836-h.htm | 6008 | ||||
| -rw-r--r-- | old/54836-h/images/cover.jpg | bin | 65012 -> 0 bytes | |||
| -rw-r--r-- | old/54836-h/images/p2.jpg | bin | 10896 -> 0 bytes | |||
| -rw-r--r-- | old/54836-h/images/p3.jpg | bin | 177067 -> 0 bytes |
12 files changed, 17 insertions, 17372 deletions
diff --git a/.gitattributes b/.gitattributes new file mode 100644 index 0000000..d7b82bc --- /dev/null +++ b/.gitattributes @@ -0,0 +1,4 @@ +*.txt text eol=lf +*.htm text eol=lf +*.html text eol=lf +*.md text eol=lf diff --git a/LICENSE.txt b/LICENSE.txt new file mode 100644 index 0000000..6312041 --- /dev/null +++ b/LICENSE.txt @@ -0,0 +1,11 @@ +This eBook, including all associated images, markup, improvements, +metadata, and any other content or labor, has been confirmed to be +in the PUBLIC DOMAIN IN THE UNITED STATES. + +Procedures for determining public domain status are described in +the "Copyright How-To" at https://www.gutenberg.org. + +No investigation has been made concerning possible copyrights in +jurisdictions other than the United States. Anyone seeking to utilize +this eBook outside of the United States should confirm copyright +status under the laws that apply to them. diff --git a/README.md b/README.md new file mode 100644 index 0000000..f15dc7a --- /dev/null +++ b/README.md @@ -0,0 +1,2 @@ +Project Gutenberg (https://www.gutenberg.org) public repository for +eBook #54836 (https://www.gutenberg.org/ebooks/54836) diff --git a/old/54836-0.txt b/old/54836-0.txt deleted file mode 100644 index a3e7c05..0000000 --- a/old/54836-0.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: UTF-8 - -*** 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 54836-0.txt or 54836-0.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. Special rules, set forth in the General Terms of Use part -of this license, apply to copying and distributing Project -Gutenberg-tm electronic works to protect the PROJECT GUTENBERG-tm -concept and trademark. Project Gutenberg is a registered trademark, -and may not be used if you charge for the eBooks, unless you receive -specific permission. If you do not charge anything for copies of this -eBook, complying with the rules is very easy. You may use this eBook -for nearly any purpose such as creation of derivative works, reports, -performances and research. They may be modified and printed and given -away--you may do practically ANYTHING in the United States with eBooks -not protected by U.S. copyright law. Redistribution is subject to the -trademark license, especially commercial redistribution. - -START: FULL LICENSE - -THE FULL PROJECT GUTENBERG LICENSE -PLEASE READ THIS BEFORE YOU DISTRIBUTE OR USE THIS WORK - -To protect the Project Gutenberg-tm mission of promoting the free -distribution of electronic works, by using or distributing this work -(or any other work associated in any way with the phrase "Project -Gutenberg"), you agree to comply with all the terms of the Full -Project Gutenberg-tm License available with this file or online at -www.gutenberg.org/license. - -Section 1. General Terms of Use and Redistributing Project -Gutenberg-tm electronic works - -1.A. By reading or using any part of this Project Gutenberg-tm -electronic work, you indicate that you have read, understand, agree to -and accept all the terms of this license and intellectual property -(trademark/copyright) agreement. If you do not agree to abide by all -the terms of this agreement, you must cease using and return or -destroy all copies of Project Gutenberg-tm electronic works in your -possession. If you paid a fee for obtaining a copy of or access to a -Project Gutenberg-tm electronic work and you do not agree to be bound -by the terms of this agreement, you may obtain a refund from the -person or entity to whom you paid the fee as set forth in paragraph -1.E.8. - -1.B. "Project Gutenberg" is a registered trademark. It may only be -used on or associated in any way with an electronic work by people who -agree to be bound by the terms of this agreement. There are a few -things that you can do with most Project Gutenberg-tm electronic works -even without complying with the full terms of this agreement. See -paragraph 1.C below. There are a lot of things you can do with Project -Gutenberg-tm electronic works if you follow the terms of this -agreement and help preserve free future access to Project Gutenberg-tm -electronic works. See paragraph 1.E below. - -1.C. The Project Gutenberg Literary Archive Foundation ("the -Foundation" or PGLAF), owns a compilation copyright in the collection -of Project Gutenberg-tm electronic works. Nearly all the individual -works in the collection are in the public domain in the United -States. If an individual work is unprotected by copyright law in the -United States and you are located in the United States, we do not -claim a right to prevent you from copying, distributing, performing, -displaying or creating derivative works based on the work as long as -all references to Project Gutenberg are removed. Of course, we hope -that you will support the Project Gutenberg-tm mission of promoting -free access to electronic works by freely sharing Project Gutenberg-tm -works in compliance with the terms of this agreement for keeping the -Project Gutenberg-tm name associated with the work. You can easily -comply with the terms of this agreement by keeping this work in the -same format with its attached full Project Gutenberg-tm License when -you share it without charge with others. - -1.D. The copyright laws of the place where you are located also govern -what you can do with this work. Copyright laws in most countries are -in a constant state of change. If you are outside the United States, -check the laws of your country in addition to the terms of this -agreement before downloading, copying, displaying, performing, -distributing or creating derivative works based on this work or any -other Project Gutenberg-tm work. The Foundation makes no -representations concerning the copyright status of any work in any -country outside the United States. - -1.E. Unless you have removed all references to Project Gutenberg: - -1.E.1. The following sentence, with active links to, or other -immediate access to, the full Project Gutenberg-tm License must appear -prominently whenever any copy of a Project Gutenberg-tm work (any work -on which the phrase "Project Gutenberg" appears, or with which the -phrase "Project Gutenberg" is associated) is accessed, displayed, -performed, viewed, copied or distributed: - - 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. - -1.E.2. If an individual Project Gutenberg-tm electronic work is -derived from texts not protected by U.S. copyright law (does not -contain a notice indicating that it is posted with permission of the -copyright holder), the work can be copied and distributed to anyone in -the United States without paying any fees or charges. If you are -redistributing or providing access to a work with the phrase "Project -Gutenberg" associated with or appearing on the work, you must comply -either with the requirements of paragraphs 1.E.1 through 1.E.7 or -obtain permission for the use of the work and the Project Gutenberg-tm -trademark as set forth in paragraphs 1.E.8 or 1.E.9. - -1.E.3. If an individual Project Gutenberg-tm electronic work is posted -with the permission of the copyright holder, your use and distribution -must comply with both paragraphs 1.E.1 through 1.E.7 and any -additional terms imposed by the copyright holder. Additional terms -will be linked to the Project Gutenberg-tm License for all works -posted with the permission of the copyright holder found at the -beginning of this work. - -1.E.4. Do not unlink or detach or remove the full Project Gutenberg-tm -License terms from this work, or any files containing a part of this -work or any other work associated with Project Gutenberg-tm. - -1.E.5. Do not copy, display, perform, distribute or redistribute this -electronic work, or any part of this electronic work, without -prominently displaying the sentence set forth in paragraph 1.E.1 with -active links or immediate access to the full terms of the Project -Gutenberg-tm License. - -1.E.6. You may convert to and distribute this work in any binary, -compressed, marked up, nonproprietary or proprietary form, including -any word processing or hypertext form. However, if you provide access -to or distribute copies of a Project Gutenberg-tm work in a format -other than "Plain Vanilla ASCII" or other format used in the official -version posted on the official Project Gutenberg-tm web site -(www.gutenberg.org), you must, at no additional cost, fee or expense -to the user, provide a copy, a means of exporting a copy, or a means -of obtaining a copy upon request, of the work in its original "Plain -Vanilla ASCII" or other form. Any alternate format must include the -full Project Gutenberg-tm License as specified in paragraph 1.E.1. - -1.E.7. Do not charge a fee for access to, viewing, displaying, -performing, copying or distributing any Project Gutenberg-tm works -unless you comply with paragraph 1.E.8 or 1.E.9. - -1.E.8. You may charge a reasonable fee for copies of or providing -access to or distributing Project Gutenberg-tm electronic works -provided that - -* You pay a royalty fee of 20% of the gross profits you derive from - the use of Project Gutenberg-tm works calculated using the method - you already use to calculate your applicable taxes. The fee is owed - to the owner of the Project Gutenberg-tm trademark, but he has - agreed to donate royalties under this paragraph to the Project - Gutenberg Literary Archive Foundation. Royalty payments must be paid - within 60 days following each date on which you prepare (or are - legally required to prepare) your periodic tax returns. Royalty - payments should be clearly marked as such and sent to the Project - Gutenberg Literary Archive Foundation at the address specified in - Section 4, "Information about donations to the Project Gutenberg - Literary Archive Foundation." - -* You provide a full refund of any money paid by a user who notifies - you in writing (or by e-mail) within 30 days of receipt that s/he - does not agree to the terms of the full Project Gutenberg-tm - License. You must require such a user to return or destroy all - copies of the works possessed in a physical medium and discontinue - all use of and all access to other copies of Project Gutenberg-tm - works. - -* You provide, in accordance with paragraph 1.F.3, a full refund of - any money paid for a work or a replacement copy, if a defect in the - electronic work is discovered and reported to you within 90 days of - receipt of the work. - -* You comply with all other terms of this agreement for free - distribution of Project Gutenberg-tm works. - -1.E.9. If you wish to charge a fee or distribute a Project -Gutenberg-tm electronic work or group of works on different terms than -are set forth in this agreement, you must obtain permission in writing -from both the Project Gutenberg Literary Archive Foundation and The -Project Gutenberg Trademark LLC, the owner of the Project Gutenberg-tm -trademark. Contact the Foundation as set forth in Section 3 below. - -1.F. - -1.F.1. Project Gutenberg volunteers and employees expend considerable -effort to identify, do copyright research on, transcribe and proofread -works not protected by U.S. copyright law in creating the Project -Gutenberg-tm collection. Despite these efforts, Project Gutenberg-tm -electronic works, and the medium on which they may be stored, may -contain "Defects," such as, but not limited to, incomplete, inaccurate -or corrupt data, transcription errors, a copyright or other -intellectual property infringement, a defective or damaged disk or -other medium, a computer virus, or computer codes that damage or -cannot be read by your equipment. - -1.F.2. LIMITED WARRANTY, DISCLAIMER OF DAMAGES - Except for the "Right -of Replacement or Refund" described in paragraph 1.F.3, the Project -Gutenberg Literary Archive Foundation, the owner of the Project -Gutenberg-tm trademark, and any other party distributing a Project -Gutenberg-tm electronic work under this agreement, disclaim all -liability to you for damages, costs and expenses, including legal -fees. YOU AGREE THAT YOU HAVE NO REMEDIES FOR NEGLIGENCE, STRICT -LIABILITY, BREACH OF WARRANTY OR BREACH OF CONTRACT EXCEPT THOSE -PROVIDED IN PARAGRAPH 1.F.3. YOU AGREE THAT THE FOUNDATION, THE -TRADEMARK OWNER, AND ANY DISTRIBUTOR UNDER THIS AGREEMENT WILL NOT BE -LIABLE TO YOU FOR ACTUAL, DIRECT, INDIRECT, CONSEQUENTIAL, PUNITIVE OR -INCIDENTAL DAMAGES EVEN IF YOU GIVE NOTICE OF THE POSSIBILITY OF SUCH -DAMAGE. - -1.F.3. LIMITED RIGHT OF REPLACEMENT OR REFUND - If you discover a -defect in this electronic work within 90 days of receiving it, you can -receive a refund of the money (if any) you paid for it by sending a -written explanation to the person you received the work from. If you -received the work on a physical medium, you must return the medium -with your written explanation. The person or entity that provided you -with the defective work may elect to provide a replacement copy in -lieu of a refund. If you received the work electronically, the person -or entity providing it to you may choose to give you a second -opportunity to receive the work electronically in lieu of a refund. If -the second copy is also defective, you may demand a refund in writing -without further opportunities to fix the problem. - -1.F.4. Except for the limited right of replacement or refund set forth -in paragraph 1.F.3, this work is provided to you 'AS-IS', WITH NO -OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT -LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE. - -1.F.5. Some states do not allow disclaimers of certain implied -warranties or the exclusion or limitation of certain types of -damages. If any disclaimer or limitation set forth in this agreement -violates the law of the state applicable to this agreement, the -agreement shall be interpreted to make the maximum disclaimer or -limitation permitted by the applicable state law. The invalidity or -unenforceability of any provision of this agreement shall not void the -remaining provisions. - -1.F.6. INDEMNITY - You agree to indemnify and hold the Foundation, the -trademark owner, any agent or employee of the Foundation, anyone -providing copies of Project Gutenberg-tm electronic works in -accordance with this agreement, and any volunteers associated with the -production, promotion and distribution of Project Gutenberg-tm -electronic works, harmless from all liability, costs and expenses, -including legal fees, that arise directly or indirectly from any of -the following which you do or cause to occur: (a) distribution of this -or any Project Gutenberg-tm work, (b) alteration, modification, or -additions or deletions to any Project Gutenberg-tm work, and (c) any -Defect you cause. - -Section 2. Information about the Mission of Project Gutenberg-tm - -Project Gutenberg-tm is synonymous with the free distribution of -electronic works in formats readable by the widest variety of -computers including obsolete, old, middle-aged and new computers. It -exists because of the efforts of hundreds of volunteers and donations -from people in all walks of life. - -Volunteers and financial support to provide volunteers with the -assistance they need are critical to reaching Project Gutenberg-tm's -goals and ensuring that the Project Gutenberg-tm collection will -remain freely available for generations to come. In 2001, the Project -Gutenberg Literary Archive Foundation was created to provide a secure -and permanent future for Project Gutenberg-tm and future -generations. To learn more about the Project Gutenberg Literary -Archive Foundation and how your efforts and donations can help, see -Sections 3 and 4 and the Foundation information page at -www.gutenberg.org - - - -Section 3. Information about the Project Gutenberg Literary Archive Foundation - -The Project Gutenberg Literary Archive Foundation is a non profit -501(c)(3) educational corporation organized under the laws of the -state of Mississippi and granted tax exempt status by the Internal -Revenue Service. The Foundation's EIN or federal tax identification -number is 64-6221541. Contributions to the Project Gutenberg Literary -Archive Foundation are tax deductible to the full extent permitted by -U.S. federal laws and your state's laws. - -The Foundation's principal office is in Fairbanks, Alaska, with the -mailing address: PO Box 750175, Fairbanks, AK 99775, but its -volunteers and employees are scattered throughout numerous -locations. Its business office is located at 809 North 1500 West, Salt -Lake City, UT 84116, (801) 596-1887. Email contact links and up to -date contact information can be found at the Foundation's web site and -official page at www.gutenberg.org/contact - -For additional contact information: - - Dr. Gregory B. Newby - Chief Executive and Director - gbnewby@pglaf.org - -Section 4. Information about Donations to the Project Gutenberg -Literary Archive Foundation - -Project Gutenberg-tm depends upon and cannot survive without wide -spread public support and donations to carry out its mission of -increasing the number of public domain and licensed works that can be -freely distributed in machine readable form accessible by the widest -array of equipment including outdated equipment. Many small donations -($1 to $5,000) are particularly important to maintaining tax exempt -status with the IRS. - -The Foundation is committed to complying with the laws regulating -charities and charitable donations in all 50 states of the United -States. Compliance requirements are not uniform and it takes a -considerable effort, much paperwork and many fees to meet and keep up -with these requirements. We do not solicit donations in locations -where we have not received written confirmation of compliance. To SEND -DONATIONS or determine the status of compliance for any particular -state visit www.gutenberg.org/donate - -While we cannot and do not solicit contributions from states where we -have not met the solicitation requirements, we know of no prohibition -against accepting unsolicited donations from donors in such states who -approach us with offers to donate. - -International donations are gratefully accepted, but we cannot make -any statements concerning tax treatment of donations received from -outside the United States. U.S. laws alone swamp our small staff. - -Please check the Project Gutenberg Web pages for current donation -methods and addresses. Donations are accepted in a number of other -ways including checks, online payments and credit card donations. To -donate, please visit: www.gutenberg.org/donate - -Section 5. General Information About Project Gutenberg-tm electronic works. - -Professor Michael S. Hart was the originator of the Project -Gutenberg-tm concept of a library of electronic works that could be -freely shared with anyone. For forty years, he produced and -distributed Project Gutenberg-tm eBooks with only a loose network of -volunteer support. - -Project Gutenberg-tm eBooks are often created from several printed -editions, all of which are confirmed as not protected by copyright in -the U.S. unless a copyright notice is included. Thus, we do not -necessarily keep eBooks in compliance with any particular paper -edition. - -Most people start at our Web site which has the main PG search -facility: www.gutenberg.org - -This Web site includes information about Project Gutenberg-tm, -including how to make donations to the Project Gutenberg Literary -Archive Foundation, how to help produce our new eBooks, and how to -subscribe to our email newsletter to hear about new eBooks. - diff --git a/old/54836-0.zip b/old/54836-0.zip Binary files differdeleted file mode 100644 index 3ede384..0000000 --- a/old/54836-0.zip +++ /dev/null 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'tre_ 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. Special rules, set forth in the General Terms of Use part -of this license, apply to copying and distributing Project -Gutenberg-tm electronic works to protect the PROJECT GUTENBERG-tm -concept and trademark. Project Gutenberg is a registered trademark, -and may not be used if you charge for the eBooks, unless you receive -specific permission. If you do not charge anything for copies of this -eBook, complying with the rules is very easy. You may use this eBook -for nearly any purpose such as creation of derivative works, reports, -performances and research. They may be modified and printed and given -away--you may do practically ANYTHING in the United States with eBooks -not protected by U.S. copyright law. Redistribution is subject to the -trademark license, especially commercial redistribution. - -START: FULL LICENSE - -THE FULL PROJECT GUTENBERG LICENSE -PLEASE READ THIS BEFORE YOU DISTRIBUTE OR USE THIS WORK - -To protect the Project Gutenberg-tm mission of promoting the free -distribution of electronic works, by using or distributing this work -(or any other work associated in any way with the phrase "Project -Gutenberg"), you agree to comply with all the terms of the Full -Project Gutenberg-tm License available with this file or online at -www.gutenberg.org/license. - -Section 1. General Terms of Use and Redistributing Project -Gutenberg-tm electronic works - -1.A. By reading or using any part of this Project Gutenberg-tm -electronic work, you indicate that you have read, understand, agree to -and accept all the terms of this license and intellectual property -(trademark/copyright) agreement. If you do not agree to abide by all -the terms of this agreement, you must cease using and return or -destroy all copies of Project Gutenberg-tm electronic works in your -possession. If you paid a fee for obtaining a copy of or access to a -Project Gutenberg-tm electronic work and you do not agree to be bound -by the terms of this agreement, you may obtain a refund from the -person or entity to whom you paid the fee as set forth in paragraph -1.E.8. - -1.B. "Project Gutenberg" is a registered trademark. It may only be -used on or associated in any way with an electronic work by people who -agree to be bound by the terms of this agreement. There are a few -things that you can do with most Project Gutenberg-tm electronic works -even without complying with the full terms of this agreement. See -paragraph 1.C below. There are a lot of things you can do with Project -Gutenberg-tm electronic works if you follow the terms of this -agreement and help preserve free future access to Project Gutenberg-tm -electronic works. See paragraph 1.E below. - -1.C. The Project Gutenberg Literary Archive Foundation ("the -Foundation" or PGLAF), owns a compilation copyright in the collection -of Project Gutenberg-tm electronic works. Nearly all the individual -works in the collection are in the public domain in the United -States. If an individual work is unprotected by copyright law in the -United States and you are located in the United States, we do not -claim a right to prevent you from copying, distributing, performing, -displaying or creating derivative works based on the work as long as -all references to Project Gutenberg are removed. Of course, we hope -that you will support the Project Gutenberg-tm mission of promoting -free access to electronic works by freely sharing Project Gutenberg-tm -works in compliance with the terms of this agreement for keeping the -Project Gutenberg-tm name associated with the work. You can easily -comply with the terms of this agreement by keeping this work in the -same format with its attached full Project Gutenberg-tm License when -you share it without charge with others. - -1.D. The copyright laws of the place where you are located also govern -what you can do with this work. Copyright laws in most countries are -in a constant state of change. If you are outside the United States, -check the laws of your country in addition to the terms of this -agreement before downloading, copying, displaying, performing, -distributing or creating derivative works based on this work or any -other Project Gutenberg-tm work. The Foundation makes no -representations concerning the copyright status of any work in any -country outside the United States. - -1.E. Unless you have removed all references to Project Gutenberg: - -1.E.1. The following sentence, with active links to, or other -immediate access to, the full Project Gutenberg-tm License must appear -prominently whenever any copy of a Project Gutenberg-tm work (any work -on which the phrase "Project Gutenberg" appears, or with which the -phrase "Project Gutenberg" is associated) is accessed, displayed, -performed, viewed, copied or distributed: - - 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. - -1.E.2. If an individual Project Gutenberg-tm electronic work is -derived from texts not protected by U.S. copyright law (does not -contain a notice indicating that it is posted with permission of the -copyright holder), the work can be copied and distributed to anyone in -the United States without paying any fees or charges. If you are -redistributing or providing access to a work with the phrase "Project -Gutenberg" associated with or appearing on the work, you must comply -either with the requirements of paragraphs 1.E.1 through 1.E.7 or -obtain permission for the use of the work and the Project Gutenberg-tm -trademark as set forth in paragraphs 1.E.8 or 1.E.9. - -1.E.3. If an individual Project Gutenberg-tm electronic work is posted -with the permission of the copyright holder, your use and distribution -must comply with both paragraphs 1.E.1 through 1.E.7 and any -additional terms imposed by the copyright holder. Additional terms -will be linked to the Project Gutenberg-tm License for all works -posted with the permission of the copyright holder found at the -beginning of this work. - -1.E.4. Do not unlink or detach or remove the full Project Gutenberg-tm -License terms from this work, or any files containing a part of this -work or any other work associated with Project Gutenberg-tm. - -1.E.5. Do not copy, display, perform, distribute or redistribute this -electronic work, or any part of this electronic work, without -prominently displaying the sentence set forth in paragraph 1.E.1 with -active links or immediate access to the full terms of the Project -Gutenberg-tm License. - -1.E.6. You may convert to and distribute this work in any binary, -compressed, marked up, nonproprietary or proprietary form, including -any word processing or hypertext form. However, if you provide access -to or distribute copies of a Project Gutenberg-tm work in a format -other than "Plain Vanilla ASCII" or other format used in the official -version posted on the official Project Gutenberg-tm web site -(www.gutenberg.org), you must, at no additional cost, fee or expense -to the user, provide a copy, a means of exporting a copy, or a means -of obtaining a copy upon request, of the work in its original "Plain -Vanilla ASCII" or other form. Any alternate format must include the -full Project Gutenberg-tm License as specified in paragraph 1.E.1. - -1.E.7. Do not charge a fee for access to, viewing, displaying, -performing, copying or distributing any Project Gutenberg-tm works -unless you comply with paragraph 1.E.8 or 1.E.9. - -1.E.8. You may charge a reasonable fee for copies of or providing -access to or distributing Project Gutenberg-tm electronic works -provided that - -* You pay a royalty fee of 20% of the gross profits you derive from - the use of Project Gutenberg-tm works calculated using the method - you already use to calculate your applicable taxes. The fee is owed - to the owner of the Project Gutenberg-tm trademark, but he has - agreed to donate royalties under this paragraph to the Project - Gutenberg Literary Archive Foundation. Royalty payments must be paid - within 60 days following each date on which you prepare (or are - legally required to prepare) your periodic tax returns. Royalty - payments should be clearly marked as such and sent to the Project - Gutenberg Literary Archive Foundation at the address specified in - Section 4, "Information about donations to the Project Gutenberg - Literary Archive Foundation." - -* You provide a full refund of any money paid by a user who notifies - you in writing (or by e-mail) within 30 days of receipt that s/he - does not agree to the terms of the full Project Gutenberg-tm - License. You must require such a user to return or destroy all - copies of the works possessed in a physical medium and discontinue - all use of and all access to other copies of Project Gutenberg-tm - works. - -* You provide, in accordance with paragraph 1.F.3, a full refund of - any money paid for a work or a replacement copy, if a defect in the - electronic work is discovered and reported to you within 90 days of - receipt of the work. - -* You comply with all other terms of this agreement for free - distribution of Project Gutenberg-tm works. - -1.E.9. If you wish to charge a fee or distribute a Project -Gutenberg-tm electronic work or group of works on different terms than -are set forth in this agreement, you must obtain permission in writing -from both the Project Gutenberg Literary Archive Foundation and The -Project Gutenberg Trademark LLC, the owner of the Project Gutenberg-tm -trademark. Contact the Foundation as set forth in Section 3 below. - -1.F. - -1.F.1. Project Gutenberg volunteers and employees expend considerable -effort to identify, do copyright research on, transcribe and proofread -works not protected by U.S. copyright law in creating the Project -Gutenberg-tm collection. Despite these efforts, Project Gutenberg-tm -electronic works, and the medium on which they may be stored, may -contain "Defects," such as, but not limited to, incomplete, inaccurate -or corrupt data, transcription errors, a copyright or other -intellectual property infringement, a defective or damaged disk or -other medium, a computer virus, or computer codes that damage or -cannot be read by your equipment. - -1.F.2. LIMITED WARRANTY, DISCLAIMER OF DAMAGES - Except for the "Right -of Replacement or Refund" described in paragraph 1.F.3, the Project -Gutenberg Literary Archive Foundation, the owner of the Project -Gutenberg-tm trademark, and any other party distributing a Project -Gutenberg-tm electronic work under this agreement, disclaim all -liability to you for damages, costs and expenses, including legal -fees. YOU AGREE THAT YOU HAVE NO REMEDIES FOR NEGLIGENCE, STRICT -LIABILITY, BREACH OF WARRANTY OR BREACH OF CONTRACT EXCEPT THOSE -PROVIDED IN PARAGRAPH 1.F.3. YOU AGREE THAT THE FOUNDATION, THE -TRADEMARK OWNER, AND ANY DISTRIBUTOR UNDER THIS AGREEMENT WILL NOT BE -LIABLE TO YOU FOR ACTUAL, DIRECT, INDIRECT, CONSEQUENTIAL, PUNITIVE OR -INCIDENTAL DAMAGES EVEN IF YOU GIVE NOTICE OF THE POSSIBILITY OF SUCH -DAMAGE. - -1.F.3. LIMITED RIGHT OF REPLACEMENT OR REFUND - If you discover a -defect in this electronic work within 90 days of receiving it, you can -receive a refund of the money (if any) you paid for it by sending a -written explanation to the person you received the work from. If you -received the work on a physical medium, you must return the medium -with your written explanation. The person or entity that provided you -with the defective work may elect to provide a replacement copy in -lieu of a refund. If you received the work electronically, the person -or entity providing it to you may choose to give you a second -opportunity to receive the work electronically in lieu of a refund. If -the second copy is also defective, you may demand a refund in writing -without further opportunities to fix the problem. - -1.F.4. Except for the limited right of replacement or refund set forth -in paragraph 1.F.3, this work is provided to you 'AS-IS', WITH NO -OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT -LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE. - -1.F.5. Some states do not allow disclaimers of certain implied -warranties or the exclusion or limitation of certain types of -damages. If any disclaimer or limitation set forth in this agreement -violates the law of the state applicable to this agreement, the -agreement shall be interpreted to make the maximum disclaimer or -limitation permitted by the applicable state law. The invalidity or -unenforceability of any provision of this agreement shall not void the -remaining provisions. - -1.F.6. INDEMNITY - You agree to indemnify and hold the Foundation, the -trademark owner, any agent or employee of the Foundation, anyone -providing copies of Project Gutenberg-tm electronic works in -accordance with this agreement, and any volunteers associated with the -production, promotion and distribution of Project Gutenberg-tm -electronic works, harmless from all liability, costs and expenses, -including legal fees, that arise directly or indirectly from any of -the following which you do or cause to occur: (a) distribution of this -or any Project Gutenberg-tm work, (b) alteration, modification, or -additions or deletions to any Project Gutenberg-tm work, and (c) any -Defect you cause. - -Section 2. Information about the Mission of Project Gutenberg-tm - -Project Gutenberg-tm is synonymous with the free distribution of -electronic works in formats readable by the widest variety of -computers including obsolete, old, middle-aged and new computers. It -exists because of the efforts of hundreds of volunteers and donations -from people in all walks of life. - -Volunteers and financial support to provide volunteers with the -assistance they need are critical to reaching Project Gutenberg-tm's -goals and ensuring that the Project Gutenberg-tm collection will -remain freely available for generations to come. In 2001, the Project -Gutenberg Literary Archive Foundation was created to provide a secure -and permanent future for Project Gutenberg-tm and future -generations. To learn more about the Project Gutenberg Literary -Archive Foundation and how your efforts and donations can help, see -Sections 3 and 4 and the Foundation information page at -www.gutenberg.org - - - -Section 3. Information about the Project Gutenberg Literary Archive Foundation - -The Project Gutenberg Literary Archive Foundation is a non profit -501(c)(3) educational corporation organized under the laws of the -state of Mississippi and granted tax exempt status by the Internal -Revenue Service. The Foundation's EIN or federal tax identification -number is 64-6221541. Contributions to the Project Gutenberg Literary -Archive Foundation are tax deductible to the full extent permitted by -U.S. federal laws and your state's laws. - -The Foundation's principal office is in Fairbanks, Alaska, with the -mailing address: PO Box 750175, Fairbanks, AK 99775, but its -volunteers and employees are scattered throughout numerous -locations. Its business office is located at 809 North 1500 West, Salt -Lake City, UT 84116, (801) 596-1887. Email contact links and up to -date contact information can be found at the Foundation's web site and -official page at www.gutenberg.org/contact - -For additional contact information: - - Dr. Gregory B. Newby - Chief Executive and Director - gbnewby@pglaf.org - -Section 4. Information about Donations to the Project Gutenberg -Literary Archive Foundation - -Project Gutenberg-tm depends upon and cannot survive without wide -spread public support and donations to carry out its mission of -increasing the number of public domain and licensed works that can be -freely distributed in machine readable form accessible by the widest -array of equipment including outdated equipment. Many small donations -($1 to $5,000) are particularly important to maintaining tax exempt -status with the IRS. - -The Foundation is committed to complying with the laws regulating -charities and charitable donations in all 50 states of the United -States. Compliance requirements are not uniform and it takes a -considerable effort, much paperwork and many fees to meet and keep up -with these requirements. We do not solicit donations in locations -where we have not received written confirmation of compliance. To SEND -DONATIONS or determine the status of compliance for any particular -state visit www.gutenberg.org/donate - -While we cannot and do not solicit contributions from states where we -have not met the solicitation requirements, we know of no prohibition -against accepting unsolicited donations from donors in such states who -approach us with offers to donate. - -International donations are gratefully accepted, but we cannot make -any statements concerning tax treatment of donations received from -outside the United States. U.S. laws alone swamp our small staff. - -Please check the Project Gutenberg Web pages for current donation -methods and addresses. Donations are accepted in a number of other -ways including checks, online payments and credit card donations. To -donate, please visit: www.gutenberg.org/donate - -Section 5. General Information About Project Gutenberg-tm electronic works. - -Professor Michael S. Hart was the originator of the Project -Gutenberg-tm concept of a library of electronic works that could be -freely shared with anyone. For forty years, he produced and -distributed Project Gutenberg-tm eBooks with only a loose network of -volunteer support. - -Project Gutenberg-tm eBooks are often created from several printed -editions, all of which are confirmed as not protected by copyright in -the U.S. unless a copyright notice is included. Thus, we do not -necessarily keep eBooks in compliance with any particular paper -edition. - -Most people start at our Web site which has the main PG search -facility: www.gutenberg.org - -This Web site includes information about Project Gutenberg-tm, -including how to make donations to the Project Gutenberg Literary -Archive Foundation, how to help produce our new eBooks, and how to -subscribe to our email newsletter to hear about new eBooks. - diff --git a/old/54836-8.zip b/old/54836-8.zip Binary files differdeleted file mode 100644 index 40d1f23..0000000 --- a/old/54836-8.zip +++ /dev/null diff --git a/old/54836-h.zip b/old/54836-h.zip Binary files differdeleted file mode 100644 index d60706b..0000000 --- a/old/54836-h.zip +++ /dev/null diff --git a/old/54836-h/54836-h.htm b/old/54836-h/54836-h.htm deleted file mode 100644 index 4e70f5b..0000000 --- a/old/54836-h/54836-h.htm +++ /dev/null @@ -1,6008 +0,0 @@ -<?xml version="1.0" encoding="utf-8"?> -<!DOCTYPE html PUBLIC "-//W3C//DTD XHTML 1.0 Strict//EN" "http://www.w3.org/TR/xhtml1/DTD/xhtml1-strict.dtd"> -<html xmlns="http://www.w3.org/1999/xhtml" xml:lang="en" lang="en"> -<head> -<meta http-equiv="Content-Type" content="text/html;charset=utf-8" /> -<meta http-equiv="Content-Style-Type" content="text/css" /> -<title>The Trial of Peter Zenger, edited with an introduction by Vincent Buranelli: a Project Gutenberg eBook</title> -<meta name="author" content="Vincent Buranelli" /> -<meta name="pss.pubdate" content="1957" /> -<link rel="schema.DC" href="http://dublincore.org/documents/1998/09/dces/" /> -<meta name="DC.Title" content="The Trial of Peter Zenger" /> -<meta name="DC.Language" content="en" /> -<meta name="DC.Format" content="text/html" /> -<meta name="DC.Created" content="1957" /> -<meta name="DC.Creator" content="Vincent Buranelli (****-****)" /> -<style type="text/css"> -large { font-size:125%; } -sc { font-variant:small-caps; font-style: normal; } - -/* == GLOBAL MARKUP == */ -body, table.twocol tr td { margin-left:2em; margin-right:2em; } /* BODY */ -.box { border-style:double; margin-bottom:2em; max-width:30em; margin-right:auto; margin-left:auto; margin-top:2em; } -.box p { margin-right:1em; margin-left:1em; } -.box dl { margin-right:1em; margin-left:1em; } -h1, h3, h5, h6, .titlepg p { text-align:center; clear:both; text-indent:0; } /* HEADINGS */ -h1 { margin-top:3em; } -h2 { margin-top:1.5em; margin-bottom:1em; text-align:left; } -h2.center { text-align:center; clear:both; font-size:170%; } -div.box h1 { margin-top:1em; } -h3 { margin-top:2.5em; font-size:110%; } -h4, h5 { font-size:100%; text-align:right; clear:right; } -h6 { font-size:100%; } -h6.var { font-size:80%; font-style:normal; } -.titlepg { margin-left:auto; margin-right:auto; border-style:double; clear:both; } -span.chaptertitle { font-style:normal; display:block; text-align:center; font-size:150%; text-indent:0; } -.tblttl { text-align:center; text-indent:0;} -.tblsttl { text-align:center; font-variant:small-caps; text-indent:0; } - - -pre sub.ms { width:4em; letter-spacing:1em; } -table.fmla { text-align:center; margin-top:0em; margin-bottom:0em; margin-left:0em; margin-right:0em; } -table.inline, table.symbol { display: inline-table; vertical-align: middle; } -td.cola { text-align:left; vertical-align:100%; } -td.colb { text-align:justify; } - -p, blockquote, div.p, div.bq { text-align:justify; } /* PARAGRAPHS */ -div.p, div.bq { margin-top:1em; margin-bottom:1em; } -blockquote, .bq { margin-left:1em; margin-right:0em; } -.verse { font-size:100%; } -p.indent {text-indent:2em; text-align:left; } -p.tb, p.tbcenter, verse.tb, blockquote.tb { margin-top:2em; } - -span.pb, div.pb, dt.pb, p.pb /* PAGE BREAKS */ -{ text-align:right; float:right; margin-right:0em; clear:right; } -div.pb { display:inline; } -.pb, dt.pb, dl.toc dt.pb, dl.tocl dt.pb { text-align:right; float:right; margin-left: 1.5em; - margin-top:.5em; margin-bottom:.5em; display:inline; text-indent:0; - font-size:80%; font-style:normal; font-weight:bold; - color:gray; border:1px solid gray;padding:1px 3px; } -div.index .pb { display:block; } -.bq div.pb, .bq span.pb { font-size:90%; margin-right:2em; } - -div.img, body a img {text-align:center; margin-left:auto; margin-right:auto; margin-top:2em; margin-bottom:2em; clear:right; } - -sup, a.fn { font-size:75%; vertical-align:100%; line-height:50%; font-weight:normal; } -h3 a.fn { font-size:65%; } -sub { font-size:75%; } -.center, .tbcenter { text-align:center; clear:both; text-indent:0; } /* TEXTUAL MARKUP */ -span.center { display:block; } -table.center { clear:both; margin-right:auto; margin-left:auto; } -table.center tr td.l {text-align:left; margin-left:0em; } -table.center tr td.j {text-align:justify; } -table.center tr td.t {text-align:left; text-indent:1em; } -table.center tr td.t2 {text-align:left; text-indent:2em; } -table.center tr td.r {text-align:right; } -table.center tr th {vertical-align:bottom; } -table.center tr td {vertical-align:top; } -table.inline, table.symbol { display: inline-table; vertical-align: middle; } - -p { clear:left; } -.small, .lsmall { font-size:80%; } -.smaller { font-size:67%; } -.smallest { font-size:50%; } -.larger { font-size:150%; } -.large { font-size:125%; } -.xlarge { font-size:200%; line-height:60%; } -.xxlarge { font-size:200%; line-height:60%; } -.gs { letter-spacing:1em; } -.gs3 { letter-spacing:2em; } -.gslarge { letter-spacing:.3em; font-size:110%; } -.sc { font-variant:small-caps; } -.unbold { font-weight:normal; } -.xo { position:relative; left:-.3em; } -.over, over { text-decoration: overline; display:inline; } -hr { width:20%; } -.jl { text-align:left; } -.jr { text-align:right; min-width:2em; display:inline-block; float:right; } -.jr1 { text-align:right; margin-right:2em; } -h1 .jr { margin-right:.5em; } -.ind1 { text-align:left; margin-left:2em; } -.u { text-decoration:underline; } -.ol { text-decoration:overline; } -.hst { margin-left:2em; } -.rubric { color:red; } -.cnwhite { color:white; background-color:black; min-width:2em; display:inline-block; - text-align:center; font-weight:bold; font-family:sans-serif; } -.cwhite { color:white; background-color:black; text-align:center; font-weight:bold; - font-family:sans-serif; } -ul li { text-align:justify; } -.ss { font-family:sans-serif; font-weight:bold; } - -dd.t { text-align:left; margin-left: 5.5em; } -dl.toc { clear:both; margin-top:1em; } /* CONTENTS (.TOC) */ -.toc dt.center { text-align:center; clear:both; margin-top:3em; margin-bottom:1em; text-indent:0;} -.toc dt { text-align:right; clear:left; } -.toc dd { text-align:right; clear:both; } -.toc dd.ddt { text-align:right; clear:both; margin-left:4em; } -.toc dd.ddt2 { text-align:right; clear:both; margin-left:5em; } -.toc dd.ddt3 { text-align:right; clear:both; margin-left:6em; } -.toc dd.ddt4 { text-align:right; clear:both; margin-left:7em; } -.toc dd.ddt5 { text-align:right; clear:both; margin-left:8em; } -.toc dd.note { text-align:justify; clear:both; margin-left:5em; text-indent:-1em; margin-right:3em; } -.toc dt .xxxtest {width:17em; display:block; position:relative; left:4em; } -.toc dt a, -.toc dd a, -.toc dt span.left, -.toc dt span.lsmall, -.toc dd span.left { text-align:left; clear:right; float:left; } -.toc dt a span.cn { width:2em; text-align:right; margin-right:.7em; float:left; } -.toc dt a span.cn2 { width:4em; text-align:right; margin-right:.7em; float:left; } -.toc dt a span.cn3 { width:6em; text-align:left; margin-right:.7em; float:left; } -.toc dt.sc { text-align:right; clear:both; } -.toc dt.scl { text-align:left; clear:both; font-variant:small-caps; } -.toc dt.sct { text-align:right; clear:both; font-variant:small-caps; margin-left:1em; } -.toc dt.jl { text-align:left; clear:both; font-variant:normal; } -.toc dt.scc { text-align:center; clear:both; font-variant:small-caps; text-indent:0; } -.toc dt span.lj { text-align:left; display:block; float:left; } -.toc dd.center { text-align:center; text-indent:0; } -dd.tocsummary {text-align:justify; margin-right:2em; margin-left:2em; } -dd.center sc {display:block; text-align:center; text-indent:0; } -/* BOX CELL */ -td.top { border-top:1px solid; width:.5em; height:.8em; } -td.bot { border-bottom:1px solid; width:.5em; height:.8em; } -td.rb { border:1px solid; border-left:none; width:.5em; height:.8em; } -td.lb { border:1px solid; border-right:none; width:.5em; height:.8em; } - -/* INDEX (.INDEX) */ -dl.index { clear:both; } -.index dd { margin-left:4em; text-indent:-2em; text-align:left; } -.index dt { margin-left:2em; text-indent:-2em; text-align:left; } -.index dt.center {text-align:center; text-indent:0; } - -.ab, .ab1, .ab2 { -font-weight:bold; text-decoration:none; -border-style:solid; border-color:gray; border-width:1px; -margin-right:0px; margin-top:5px; display:inline-block; text-align:center; text-indent:0; } -.ab { width:1em; } -.ab2 { width:1.5em; } -a.gloss { background-color:#f2f2f2; border-bottom-style:dotted; text-decoration:none; border-color:#c0c0c0; color:inherit; } - /* FOOTNOTE BLOCKS */ -div.notes p { margin-left:1em; text-indent:-1em; text-align:justify; } - -dl.undent dd { margin-left:3em; text-indent:-2em; text-align:justify; } -dl.undent dt { margin-left:2em; text-indent:-2em; text-align:justify; clear:both; } -dl.undent dd.t { margin-left:4em; text-indent:-2em; text-align:justify; } - /* POETRY LINE NUMBER */ -.lnum { text-align:right; float:right; margin-left:.5em; display:inline; } - -.hymn { text-align:left; } /* HYMN AND VERSE: HTML */ -.verse { text-align:left; margin-top:1em; margin-bottom:1em; margin-left:0em; } -.versetb { text-align:left; margin-top:2em; margin-bottom:1em; margin-left:0em; } -.originc { text-align:center; text-indent:0; } -.subttl { text-align:center; font-size:80%; text-indent:0; } -.srcttl { text-align:center; font-size:80%; text-indent:0; font-weight:bold; } -p.t0, p.l { margin-left:4em; text-indent:-3em; margin-top:0; margin-bottom:0; text-align:left; } -p.lb { margin-left:4em; text-indent:-3em; margin-top:2em; margin-bottom:0; text-align:left; } -p.tw, div.tw, .tw { margin-left:1em; text-indent:-1em; margin-top:0; margin-bottom:0; text-align:left; } -p.t, div.t, .t { margin-left:5em; text-indent:-3em; margin-top:0; margin-bottom:0; text-align:left; } -p.t2, div.t2, .t2 { margin-left:6em; text-indent:-3em; margin-top:0; margin-bottom:0; text-align:left; } -p.t3, div.t3, .t3 { margin-left:7em; text-indent:-3em; margin-top:0; margin-bottom:0; text-align:left; } -p.t4, div.t4, .t4 { margin-left:8em; text-indent:-3em; margin-top:0; margin-bottom:0; text-align:left; } -p.t5, div.t5, .t5 { margin-left:9em; text-indent:-3em; margin-top:0; margin-bottom:0; text-align:left; } -p.t6, div.t6, .t6 { margin-left:10em; text-indent:-3em; margin-top:0; margin-bottom:0; text-align:left; } -p.t7, div.t7, .t7 { margin-left:11em; text-indent:-3em; margin-top:0; margin-bottom:0; text-align:left; } -p.t8, div.t8, .t8 { margin-left:12em; text-indent:-3em; margin-top:0; margin-bottom:0; text-align:left; } -p.t9, div.t9, .t9 { margin-left:13em; text-indent:-3em; margin-top:0; margin-bottom:0; text-align:left; } -p.t10, div.t10,.t10 { margin-left:14em; text-indent:-3em; margin-top:0; margin-bottom:0; text-align:left; } -p.t11, div.t11,.t11 { margin-left:15em; text-indent:-3em; margin-top:0; margin-bottom:0; text-align:left; } -p.t12, div.t12,.t12 { margin-left:16em; text-indent:-3em; margin-top:0; margin-bottom:0; text-align:left; } -p.t13, div.t13,.t13 { margin-left:17em; text-indent:-3em; margin-top:0; margin-bottom:0; text-align:left; } -p.t14, div.t14,.t14 { margin-left:18em; text-indent:-3em; margin-top:0; margin-bottom:0; text-align:left; } -p.t15, div.t15,.t15 { margin-left:19em; text-indent:-3em; margin-top:0; margin-bottom:0; text-align:left; } -p.lr, div.lr, span.lr { display:block; margin-left:0em; margin-right:1em; margin-top:0; margin-bottom:0; text-align:right; } -dt.lr { width:100%; margin-left:0em; margin-right:0em; margin-top:0; margin-bottom:0; margin-top:1em; text-align:right; } -dl dt.lr a { text-align:left; clear:left; float:left; } - -.fnblock { margin-top:2em; } -.fndef { text-align:justify; margin-top:1.5em; margin-left:1.5em; text-indent:-1.5em; } -.fndef p.fncont, .fndef dl { margin-left:0em; text-indent:0em; } -dl.catalog dd { font-style:italic; } -dl.catalog dt { margin-top:1em; } -.author { text-align:right; margin-top:0em; margin-bottom:0em; display:block; } - -dl.biblio dt { margin-top:.6em; margin-left:2em; text-indent:-2em; text-align:justify; clear:both; } -dl.biblio dt div { display:block; float:left; margin-left:-6em; width:6em; clear:both; } -dl.biblio dt.center { margin-left:0em; text-align:center; text-indent:0; } -dl.biblio dd { margin-top:.3em; margin-left:3em; text-align:justify; font-size:90%; } -.clear { clear:both; } -p.book { margin-left:2em; text-indent:-2em; } -p.review { margin-left:2em; text-indent:-2em; font-size:80%; } -p.pcap { margin-left:4.7em; text-indent:-4.7em; text-align:justify; margin-top:0; } -p.pcapc { margin-left:4.7em; text-indent:0em; text-align:justify; } -span.pn { display:inline-block; width:4.7em; text-align:left; margin-left:0; text-indent:0; }</style> -</head> -<body> - - -<pre> - -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: UTF-8 - -*** 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 - - - - - - -</pre> - -<div id="cover" class="img"> -<img id="coverpage" src="images/cover.jpg" alt="The Trial of Peter Zenger" width="500" height="740" /> -</div> -<div class="box"> -<p><i>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.</i></p> -<p><span class="lr"><i>New York Weekly Journal</i></span> -<span class="lr">November 12, 1733</span></p> -<h1><span class="smallest">THE TRIAL OF</span> -<br /><span class="larger">Peter Zenger</span></h1> -<p class="center"><span class="small">EDITED AND WITH AN INTRODUCTION AND NOTES BY</span> -<br /><span class="large">Vincent Buranelli</span></p> -<div class="img"> -<img src="images/p2.jpg" alt="Publisher Logo" width="200" height="236" /> -</div> -<p class="center small"><i>Washington Square -<br />New York University Press -<br />1957</i></p> -</div> -<p class="center small">© 1957 by New York University Press, Inc. -<br />Library of Congress catalogue card number: 57-6370 -<br />Manufactured in the United States of America</p> -<div class="img"> -<img src="images/p3.jpg" alt="Front page of New-York Weekly Journal" width="600" height="971" /> -</div> -<p class="center"><br /><span class="jr">Numb. XVI.</span></p> -<p class="center"><b><span class="small">THE</span> -<br /><span class="large">New-York Weekly JOURNAL.</span></b></p> -<hr /> -<p class="center"><i>Containing the freshest Advices, Foreign, and Domestick.</i></p> -<hr /> -<p class="center"><i>MUNDAY</i> February 18, 1733.</p> -<hr /> -<p>Mr. <i>Zenger</i>;</p> -<p><i>I beg you will give the following Sentiments -of</i> CATO, <i>a Place in your</i> weekly Journal, -<i>and you’ll oblige one of your Subscribers</i>.</p> -<p class="tb">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.</p> -<p>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.</p> -<p>This secret was so well known, to the -Court of King <i>Charles</i> the First, that his -wicked Ministry procured a Proclamation -to forbid the People to talk of Parliaments, -which those Traytors had laid aside.</p> -<p>To assert the undoubted Right of the -Subject, and defend his Majesty’s legal -Prerogative, was called Disaffection, and -punished as Sedition.</p> -<p>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.</p> -<p>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.</p> -<p>Freedom of Speech is ever the Symptom -as well as the Effect of good Government. -In old <i>Rome</i> 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.</p> -<p>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. <i>Tacitus</i> -speaking of the Reign of good Princes says -with extasy; <i>A blessed Time, when you -might think what you would, and Speak -what you Thought</i>.</p> -<p>I doubt not but old <i>Spencer</i> and his Son -who were the chief Ministers and Betrayers -of <i>Edward</i> the Second would have -been glad to have stopt the Mouths of all -the honest Men in <i>England</i>. They dreaded -to be called Traytors because they -were Traytors. And I dare say Queen -Elizabeths</p> -<div class="pb" id="Page_iii">iii</div> -<h2 id="c1"><span class="small">Preface</span></h2> -<p>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.</p> -<p>Alexander edited the <i>New York Weekly Journal</i>. 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.</p> -<p>Perhaps it would be too strong to say that the genius behind -the <i>Journal</i> 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.</p> -<p>The introduction to the text of the trial is based on a -series of articles by the author, published in the following -journals:</p> -<div class="pb" id="Page_iv">iv</div> -<dl class="undent"><dt>“Peter Zenger’s Editor,” <i>American Quarterly</i>, <span class="small">VII</span> (1955), 174-81.</dt> -<dt>“Governor Cosby’s Hatchet-Man,” <i>New York History</i>, <span class="small">XXXVII</span> (1956), 26-39.</dt> -<dt>“The Myth of Anna Zenger,” <i>William and Mary Quarterly</i>, <span class="small">XIII</span> (1956), 157-68.</dt> -<dt>“The Meaning of the Zenger Case,” <i>Social Studies</i>, January, 1957.</dt> -<dt>“Governor Cosby and His Enemies,” <i>New York History</i>, <span class="small">XXXVII</span> (1956), 365-87.</dt> -<dt>“The Architect of Our Free Press,” <i>Social Education</i>, <span class="small">XX</span> (1956), 311-13.</dt></dl> -<p>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.</p> -<div class="pb" id="Page_v">v</div> -<h2 id="c2"><span class="small">Foreword <span class="smaller">by H. V. Kaltenborn</span></span></h2> -<p>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.”</p> -<p>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.</p> -<p>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.</p> -<p>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 <i>Brooklyn Daily Eagle</i> 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 <i>Eagle’s</i> lawyers prove with the help of agricultural experts the -truth of my printed assertion. For today, as in the days since Peter -<span class="pb" id="Page_vi">vi</span> -Zenger’s trial, the truth of the libelous allegations mitigates damages and -justifies the libel.</p> -<p>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 <i>Brooklyn Eagle</i> 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 <i>Eagle</i> -and humiliated the sellers of Miracle Wheat.</p> -<p>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.</p> -<p>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.</p> -<p>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.</p> -<p>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.</p> -<p>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.</p> -<p>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.</p> -<div class="pb" id="Page_vii">vii</div> -<h2>Contents</h2> -<dl class="toc"> -<dt><a href="#c1">Preface</a> iii</dt> -<dt><a href="#c2">Foreword by H. V. Kaltenborn</a> v</dt> -<dt><a href="#c3"><span class="sc">Part One. Introduction</span></a> 1</dt> -<dt><a href="#c4"><span class="cn">1. </span>The Causes of the Trial</a> 3</dt> -<dt><a href="#c5"><span class="cn2">i. </span>Peter Zenger</a> 3</dt> -<dt><a href="#c6"><span class="cn2">ii. </span>A Colonial Feud</a> 5</dt> -<dt><a href="#c7"><span class="cn2">iii. </span>Governor Cosby</a> 8</dt> -<dt><a href="#c8"><span class="cn2">iv. </span>The Governor and His Enemies</a> 10</dt> -<dt><a href="#c9"><span class="cn2">v. </span>The Administration Newspaper</a> 16</dt> -<dt><a href="#c10"><span class="cn2">vi. </span>An Opposition Newspaper</a> 22</dt> -<dt><a href="#c11"><span class="cn2">vii. </span>Freedom of the Press</a> 30</dt> -<dt><a href="#c12"><span class="cn2">viii. </span>A Newspaper War</a> 32</dt> -<dt><a href="#c13"><span class="cn2">ix. </span>Zenger Goes to Jail</a> 35</dt> -<dt><a href="#c14"><span class="cn2">x. </span>Van Dam’s Indictment of the Governor</a> 40</dt> -<dt><a href="#c15"><span class="cn2">xi. </span>Morris on the London Front</a> 44</dt> -<dt><a href="#c16"><span class="cn2">xii. </span>Cosby’s Defeat</a> 47</dt> -<dt><a href="#c17"><span class="cn2">xiii. </span>Andrew Hamilton</a> 49</dt> -<dt><a href="#c18"><span class="cn">2. </span>The Meaning of the Trial</a> 52</dt> -<dt><a href="#c19"><span class="cn">3. </span>The Text</a> 68</dt> -<dt><a href="#c20"><span class="sc">Part Two. </span>The Trial</a> 77</dt> -<dt><a href="#c21"><span class="cn">1. </span>Dramatis Personae</a> 79</dt> -<dt><a href="#c22"><span class="cn">2. </span>Preliminaries</a> 80</dt> -<dt><a href="#c23"><span class="cn">3. </span>Pleading</a> 93</dt> -<dt><a href="#c24"><span class="cn">4. </span>Aftermath</a> 133</dt> -<dt><a href="#c25"><span class="cn3">Appendix I: </span><i>The New York Weekly Journal</i> Covers an Election</a> 135</dt> -<dt><a href="#c26"><span class="cn3">Appendix II: </span>Zenger’s Lawyers on the Behavior of His Judges</a> 139</dt> -<dt><a href="#c27"><span class="cn3">Appendix III: </span>James Alexander on Freedom of the Press</a> 141</dt> -<dt><a href="#c28">Notes to the Introduction</a> 144</dt> -<dt><a href="#c29">Notes to the Text</a> 145</dt> -<dt><a href="#c30">Suggestions for Further Reading</a> 147</dt> -<dt><a href="#c31">Index</a> 151</dt> -</dl> -<div class="pb" id="Page_1">1</div> -<h2 class="center" id="c3"><span class="small">Part One. Introduction</span></h2> -<div class="pb" id="Page_3">3</div> -<h2 id="c4"><span class="small">1. The Causes of the Trial</span></h2> -<h3 id="c5">I. Peter Zenger</h3> -<p>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.</p> -<p>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 -<span class="pb" id="Page_4">4</span> -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.</p> -<p>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.</p> -<p>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.</p> -<p>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.</p> -<p>There was room for two. Bradford, the official printer, -<span class="pb" id="Page_5">5</span> -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.</p> -<p>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.</p> -<h3 id="c6">II. A Colonial Feud</h3> -<p>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.</p> -<p>Lewis Morris—territorial aristocrat, councillor, assemblyman, -chief justice of the Supreme Court—was the model of -the wealthy, influential, proud, and ambitious colonial magnate. -<span class="pb" id="Page_6">6</span> -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.</p> -<p>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.</p> -<p>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.</p> -<p>Secondly, Morris seems to have instigated Governor Burnet -<span class="pb" id="Page_7">7</span> -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.</p> -<p>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.</p> -<p>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.</p> -<p>Thus the scene was set for a violent climax whenever a -sufficient cause should appear. It appeared on Montgomerie’s -<span class="pb" id="Page_8">8</span> -death in the person of the new governor, Colonel William -Cosby.</p> -<h3 id="c7">III. Governor Cosby</h3> -<p>If you look into Burke’s <i>Landed Gentry of Great Britain and -Ireland</i>, you will find the following paragraph embedded in -the genealogical history of “Cosby of Stradbally”:</p> -<blockquote> -<p>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.</p> -</blockquote> -<p>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 <i>status -quo</i> 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.</p> -<p>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.</p> -<div class="pb" id="Page_9">9</div> -<p>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.</p> -<p>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.</p> -<p>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:</p> -<blockquote> -<p>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, -<span class="pb" id="Page_10">10</span> -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.<a href="#en0_1" class="fn" id="enr0_1">[1]</a></p> -</blockquote> -<p>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.</p> -<h3 id="c8">IV. The Governor and His Enemies</h3> -<p>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:</p> -<blockquote> -<p>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 -<span class="pb" id="Page_11">11</span> -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.<a href="#en0_2" class="fn" id="enr0_2">[2]</a></p> -</blockquote> -<p>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.”<a href="#en0_3" class="fn" id="enr0_3">[3]</a></p> -<p>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.</p> -<p>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.</p> -<p>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 -<span class="pb" id="Page_12">12</span> -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.</p> -<p>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.</p> -<p>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.</p> -<p>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.</p> -<p>The three justices of the Supreme Court were divided on -the merits of the plea. Two of them, James Delancey and -<span class="pb" id="Page_13">13</span> -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.</p> -<p>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:</p> -<blockquote> -<p>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.<a href="#en0_4" class="fn" id="enr0_4">[4]</a></p> -</blockquote> -<p>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:</p> -<blockquote> -<p>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 -<span class="pb" id="Page_14">14</span> -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.<a href="#en0_5" class="fn" id="enr0_5">[5]</a></p> -</blockquote> -<p>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:</p> -<blockquote> -<p>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.<a href="#en0_6" class="fn" id="enr0_6">[6]</a></p> -</blockquote> -<p>Morris soon learned what had taken place at the meeting, -<span class="pb" id="Page_15">15</span> -and in a letter of protest he passed the information on to -London:</p> -<blockquote> -<p>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.<a href="#en0_7" class="fn" id="enr0_7">[7]</a></p> -</blockquote> -<p>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.</p> -<p>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.</p> -<p>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, -<span class="pb" id="Page_16">16</span> -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.</p> -<p>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.</p> -<h3 id="c9"><span class="small">V.</span> The Administration Newspaper</h3> -<p>The Court party also possessed the only newspaper in the -Colony, William Bradford’s <i>New York Gazette</i>. 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 <i>Gazette</i>. He could not even demur when -Governor Cosby decided to put one of his own men in charge -of editorial policy.</p> -<p>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 -<span class="pb" id="Page_17">17</span> -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.</p> -<p>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.</p> -<p>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.</p> -<p>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 -<span class="pb" id="Page_18">18</span> -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.</p> -<p>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.</p> -<p>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.</p> -<p>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 <i>Gazette</i>, 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.</p> -<p>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:</p> -<blockquote> -<div class="pb" id="Page_19">19</div> -<p>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.<a href="#en0_8" class="fn" id="enr0_8">[8]</a></p> -</blockquote> -<p>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:</p> -<blockquote> -<p>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.<a href="#en0_9" class="fn" id="enr0_9">[9]</a></p> -</blockquote> -<p>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?</p> -<div class="pb" id="Page_20">20</div> -<p>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.</p> -<p>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.</p> -<p>However, this melancholy denouement was in the future -and unforeseen when Cosby put Harison in charge of the -<i>Gazette</i> 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.</p> -<p>Here is the way the <i>Gazette</i> covered one meeting between -the Governor and the Assembly:</p> -<blockquote> -<p>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 -<span class="pb" id="Page_21">21</span> -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.<a href="#en0_10" class="fn" id="enr0_10">[10]</a></p> -</blockquote> -<p>The <i>Gazette</i> resorted to verse to make its case:</p> -<div class="verse"> -<p class="t0">Cosby the mild, the happy, good and great,</p> -<p class="t0">The strongest guard of our little state;</p> -<p class="t0">Let malcontents in crabbed language write,</p> -<p class="t0">And the D...h H...s belch, tho’ they cannot bite.</p> -<p class="t0">He unconcerned will let the wretches roar,</p> -<p class="t0">And govern just, as others did before.<a href="#en0_11" class="fn" id="enr0_11">[11]</a></p> -</div> -<p>It went to Pope’s translation of the <i>Odyssey</i> to find a suitable -description of the opposing faction:</p> -<div class="verse"> -<p class="t0">Thersites only clamored in the throng,</p> -<p class="t0">Loquacious, loud, and turbulent of tongue,</p> -<p class="t0">And by no shame, by no respect controlled;</p> -<p class="t0">In scandal busy, in reproaches bold;</p> -<p class="t0">But chief, he gloried with licentious style,</p> -<p class="t0">To lash the great, and rulers to revile.<a href="#en0_12" class="fn" id="enr0_12">[12]</a></p> -</div> -<p>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 -<i>Gazette</i>. The passage of time only made the problem more -acute.</p> -<p>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 -<span class="pb" id="Page_22">22</span> -score; it systematizes by practical example the disjointed -notes, memoranda, and other documents that have come -down to us.</p> -<p>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.</p> -<h3 id="c10"><span class="small">VI.</span> An Opposition Newspaper</h3> -<p>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.<a class="fn" id="fr_1" href="#fn_1">[1]</a></p> -<p>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.</p> -<div class="pb" id="Page_23">23</div> -<p>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.</p> -<p>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.</p> -<p>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.</p> -<div class="pb" id="Page_24">24</div> -<p>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.</p> -<p>The furor had hardly begun to die away before there burst -upon the Governor the bombshell of an opposition newspaper. -The <i>New York Weekly Journal</i>, edited by James -Alexander and printed by Peter Zenger, was the first <i>political -independent</i> 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 <i>raison d’être</i> of publication. Everything else—foreign -news, essays, verses, squibs, advertisements—was -filler.</p> -<p>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 -<i>Journal</i> lived and throve and became the ancestor of the -great American political organs of modern times.</p> -<p>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 -<span class="pb" id="Page_25">25</span> -of the copy for the opposition newspaper and blue-penciled -virtually all the contributions bearing on the feud with the -Governor.</p> -<p>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.</p> -<p>The idea of founding the <i>Journal</i> was probably his. For -one thing, he was already something of a journalist, having -published various items in William Bradford’s <i>Gazette</i> 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:</p> -<blockquote> -<p>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 -<span class="pb" id="Page_26">26</span> -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.<a href="#en0_13" class="fn" id="enr0_13">[13]</a></p> -</blockquote> -<p>Many more letters of a similar content passed between the -governor’s mansion in New York and authoritative personages -in England.</p> -<p>Alexander repaid the compliment in his own correspondence. -To his old friend, former Governor Robert Hunter, -he confided:</p> -<blockquote> -<p>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.<a href="#en0_14" class="fn" id="enr0_14">[14]</a></p> -</blockquote> -<p>This letter is notable for giving Alexander’s own express -statement about the reason for publishing the brand new -<i>Journal</i>:</p> -<blockquote> -<p>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.</p> -<div class="pb" id="Page_27">27</div> -<p>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.<a href="#en0_15" class="fn" id="enr0_15">[15]</a></p> -</blockquote> -<p>The advent of the <i>Journal</i> 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:</p> -<blockquote> -<p>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.<a href="#en0_16" class="fn" id="enr0_16">[16]</a></p> -</blockquote> -<p>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:</p> -<blockquote> -<p>His open and implacable malice against me has appeared -weekly in Zenger’s <i>Journal</i>. 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.<a href="#en0_17" class="fn" id="enr0_17">[17]</a></p> -</blockquote> -<div class="pb" id="Page_28">28</div> -<p>Cosby’s cries of rage and anguish are understandable -enough. From the date of the <i>Journal</i>’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.</p> -<p>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 -<i>Journal</i> 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.</p> -<p>All three of these acts violated the rules by which the -Governor was bound, and when the <i>Journal</i> 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.</p> -<p>Most of the <i>Journal</i> 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 -<span class="pb" id="Page_29">29</span> -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:</p> -<blockquote> -<p>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.</p> -<p>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.</p> -<p>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.</p> -<p>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.</p> -<p>There have been Nicholsons, Cornburys, Coots, Barringtons, -Edens, Lowthers, Georges, Parks, Douglases, and many more, -<span class="pb" id="Page_30">30</span> -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.<a href="#en0_18" class="fn" id="enr0_18">[18]</a></p> -</blockquote> -<p>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 <i>Journal</i> 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.</p> -<h3 id="c11"><span class="small">VII.</span> Freedom of the Press</h3> -<p>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.</p> -<p>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 -<span class="pb" id="Page_31">31</span> -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.</p> -<p>Most of all he used the celebrated <i>Cato’s Letters</i> of Thomas -Gordon and John Trenchard. They furnished him with an -ideal model. The letters had appeared in the <i>London Journal</i> -and the <i>British Journal</i> 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 -<i>London Journal</i>.</p> -<p>But that did not kill the argument, for <i>Cato’s Letters</i> 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.</p> -<p>He copied out extracts from the <i>Letters</i> both for his own -private edification and guidance and for use in the <i>Journal</i>. -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 <i>Journal</i> 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,” -<span class="pb" id="Page_32">32</span> -“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.”</p> -<p>To put his editorial credo in a nutshell, Alexander went -to another classical source, the <i>Craftsman</i>, and printed this -maxim on November 12, 1733:</p> -<blockquote> -<p>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.</p> -</blockquote> -<p>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.</p> -<h3 id="c12"><span class="small">VIII.</span> A Newspaper War</h3> -<p>The <i>Journal</i>’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 <i>Gazette</i> 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:</p> -<blockquote> -<p>The <i>Journal</i>. 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.<a href="#en0_19" class="fn" id="enr0_19">[19]</a></p> -<p>The <i>Gazette</i>. 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.<a href="#en0_20" class="fn" id="enr0_20">[20]</a></p> -</blockquote> -<div class="pb" id="Page_33">33</div> -<p>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 <i>Journal</i> -sounds like Alexander himself, while Governor Cosby agreed -with the <i>Gazette</i> that it was “libelous” and made it part of -the formal indictment of Peter Zenger.</p> -<p>Both sides went at it hammer and tongs. In the <i>Journal</i>, -where Cosby is called a “Nero,” his kept journalist is his -“spaniel.” The <i>Gazette</i> 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.”</p> -<p>The men behind the opposition newspaper made a point -of referring to Harison obliquely in satirical mock “advertisements” -like these:</p> -<blockquote> -<p>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 <i>New York Gazette</i>. -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.<a href="#en0_21" class="fn" id="enr0_21">[21]</a></p> -<p>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 <i>New York Gazette</i> -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 -<span class="pb" id="Page_34">34</span> -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.<a href="#en0_22" class="fn" id="enr0_22">[22]</a></p> -</blockquote> -<p>The writers of these squibs had measured their man perfectly. -They could become furious, caustic, ironic or insulting—that -is, <i>serious</i>—with the Governor and the rest of the -men around him; but the proper approach to Francis Harison -was through satire. From the <i>Journal</i> he received a systematic -dose of it.</p> -<p>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:</p> -<blockquote> -<p>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 <i>Amsterdam -Crane</i>, the <i>Connecticut Mastiff</i>, <i>Phillip Baboon, Senior</i>, <i>Phillip -Baboon, Junior</i>, the <i>Scythian Unicorn</i>, and <i>Wild Peter from -the Banks of the Rhine</i> might be enlarged upon, and placed -in a most ludicrous light.<a href="#en0_23" class="fn" id="enr0_23">[23]</a></p> -</blockquote> -<p>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 <i>Journal</i>: Rip Van Dam, William Smith, -Lewis Morris, Senior, Lewis Morris, Junior, James Alexander, -and Peter Zenger.</p> -<p>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 <i>in toto</i> were too vulnerable for -<span class="pb" id="Page_35">35</span> -all the <i>Journal</i>’s broadsides to go astray. The Governor was -hit over and over again. So was his editor. So were his other -cronies.</p> -<p>They fought back in the <i>Gazette</i>, 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.</p> -<h3 id="c13"><span class="small">IX.</span> Zenger Goes to Jail</h3> -<p>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 <i>Journal</i>, they -used the “anonymity” of the affair as an excuse to avoid -indicting anybody.</p> -<p>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 <i>Journal</i> -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 -<span class="pb" id="Page_36">36</span> -the floor of the legislature. A copy from that issue was one -of four earmarked for the flames.</p> -<p>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 <i>Gazette</i>.</p> -<p>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 <i>Journal</i> 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.</p> -<p>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 <i>Journal</i>; 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.</p> -<div class="pb" id="Page_37">37</div> -<p>The <i>Journal</i> 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.</p> -<p>We can judge how heated the situation had become by -reverting once more to that most percipient of contemporary -witnesses, Cadwallader Colden:</p> -<blockquote> -<p>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.<a href="#en0_24" class="fn" id="enr0_24">[24]</a></p> -</blockquote> -<p>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.</p> -<p>The hunters had fenced in the tiger, and were baiting him -from a safe distance, prodding him into a frenzy—until with a -<span class="pb" id="Page_38">38</span> -single bound he leaped on the one man who stood within -reach.</p> -<p>Printer Peter Zenger had not even a specious “anonymity” -between him and the Governor. The <i>Journal</i> 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:</p> -<blockquote> -<p>As you last week were disappointed of my <i>Journal</i>, 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 <i>Journal</i>, 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 <i>Journal</i> as formerly.</p> -</blockquote> -<p>During all the printer’s imprisonment the <i>Journal</i> 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 -<span class="pb" id="Page_39">39</span> -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 -<i>Journal</i>. 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.</p> -<p>The Court party’s editor used the occasion for a show of -mock sympathy with the Popular party’s printer. The <i>Gazette</i> -for December 9, 1734, has a reference to</p> -<blockquote> -<p>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.</p> -</blockquote> -<p>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.</p> -<p>The arrest of Peter Zenger was one of Cosby’s gross mistakes. -No one in the Colony could miss the fact that he was -<span class="pb" id="Page_40">40</span> -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.</p> -<p>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.</p> -<h3 id="c14"><span class="small">X.</span> Van Dam’s Indictment of the Governor</h3> -<p>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.</p> -<p>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 -<span class="pb" id="Page_41">41</span> -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.</p> -<p>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 <i>Articles -of Complaint</i>.</p> -<p>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 <i>Articles</i>, a fact on which he insisted with -dogged self-righteousness.</p> -<p>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:</p> -<blockquote> -<p>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.<a href="#en0_25" class="fn" id="enr0_25">[25]</a></p> -</blockquote> -<div class="pb" id="Page_42">42</div> -<p>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.</p> -<p>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.</p> -<p>Again, some of the <i>Articles</i> 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.</p> -<p>But if a number of the <i>Articles</i> 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:</p> -<blockquote> -<p>You have, contrary to your instructions, displaced Judges, Justices -of the Peace, Sheriffs, etc., without the advice of Council.<a href="#en0_26" class="fn" id="enr0_26">[26]</a></p> -<p>The Council being part of the legislature, as above, you have -taken it upon you (in order to influence their debates) to sit -<span class="pb" id="Page_43">43</span> -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.<a href="#en0_27" class="fn" id="enr0_27">[27]</a></p> -<p>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.<a href="#en0_28" class="fn" id="enr0_28">[28]</a></p> -<p>You have taken it upon yourself to act as President of the -Council in receiving bills and messages from the General -Assembly.<a href="#en0_29" class="fn" id="enr0_29">[29]</a></p> -<p>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.<a href="#en0_30" class="fn" id="enr0_30">[30]</a></p> -</blockquote> -<p>Van Dam’s <i>Articles of Complaint</i> 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 <i>Journal</i>. -Fearing the effect of the <i>Articles</i> 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:</p> -<blockquote> -<div class="pb" id="Page_44">44</div> -<p>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.<a href="#en0_31" class="fn" id="enr0_31">[31]</a></p> -</blockquote> -<h3 id="c15"><span class="small">XI.</span> Morris on the London Front</h3> -<p>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.</p> -<p>There was no time to lose. The plan to send a personal -<span class="pb" id="Page_45">45</span> -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.</p> -<p>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 <i>Articles of Complaint</i>. -Morris was to adhere strictly to criticisms that told:</p> -<blockquote> -<p>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.<a href="#en0_32" class="fn" id="enr0_32">[32]</a></p> -</blockquote> -<p>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 -<span class="pb" id="Page_46">46</span> -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:</p> -<blockquote> -<p>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.<a href="#en0_33" class="fn" id="enr0_33">[33]</a></p> -</blockquote> -<p>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:</p> -<blockquote> -<p>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.<a href="#en0_34" class="fn" id="enr0_34">[34]</a></p> -</blockquote> -<p>The Governor certainly had some success with his London -defense. He was, after all, the crown’s executive on the spot, -<span class="pb" id="Page_47">47</span> -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:</p> -<blockquote> -<p>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.</p> -<p>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....</p> -<p>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.<a href="#en0_35" class="fn" id="enr0_35">[35]</a></p> -</blockquote> -<p>This passage, written while Lewis Morris was there to -agitate for the contrary, comes close to a real endorsement -of Governor Cosby.</p> -<h3 id="c16"><span class="small">XII.</span> Cosby’s Defeat</h3> -<p>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.</p> -<div class="pb" id="Page_48">48</div> -<p>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.</p> -<p>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?</p> -<p>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 -<span class="pb" id="Page_49">49</span> -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.</p> -<p>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.</p> -<p>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.</p> -<p>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.</p> -<h3 id="c17"><span class="small">XIII.</span> Andrew Hamilton</h3> -<p>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, -<span class="pb" id="Page_50">50</span> -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.</p> -<p>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.</p> -<p>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.</p> -<p>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 -<span class="pb" id="Page_51">51</span> -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.</p> -<p>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 <i>the</i> 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.</p> -<p>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.</p> -<p>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.</p> -<div class="pb" id="Page_52">52</div> -<h2 id="c18"><span class="small">2. The Meaning of the Trial</span></h2> -<p>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.</p> -<p>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.</p> -<p>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.</p> -<div class="pb" id="Page_53">53</div> -<p>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 <i>New York Weekly Journal</i> 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.</p> -<p>Other newspapers might clear their material with the authorities, -or at least hedge in saying anything that could -cause unpleasant repercussions. The <i>Journal</i> 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.</p> -<p>The <i>Journal</i> 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.</p> -<p>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 -<span class="pb" id="Page_54">54</span> -down as “libelous” any report that caused him any uneasiness, -and impugn it as tending to excite sedition among the -governed.</p> -<p>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.</p> -<p>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 <i>ipso facto</i> 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.”</p> -<p>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 -<span class="pb" id="Page_55">55</span> -in the charges made. By the end of the eighteenth century -the change was virtually complete.</p> -<p>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.</p> -<p>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 <i>Journal</i>, and then brought the -printer into a court of law to answer the charge of seditious -libel.</p> -<p>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 -<span class="pb" id="Page_56">56</span> -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.</p> -<p>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.</p> -<p>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.</p> -<p>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 <i>Journal</i> -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.</p> -<p>Ever since, newsmen have looked back on the Zenger case -<span class="pb" id="Page_57">57</span> -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.</p> -<p>James Alexander’s <i>Brief Narrative of the Case and Tryal -of John Peter Zenger</i> 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.</p> -<p>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.</p> -<p>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.</p> -<p class="tb">The Zenger case necessarily reflected on American politics. -<span class="pb" id="Page_58">58</span> -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 <i>Journal</i> -charged it. One more stumbling block was thrown in the -path of tyranny, one more support removed from dishonesty -in high places.</p> -<p>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.</p> -<p>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 <i>Journal</i> 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.</p> -<p>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 -<span class="pb" id="Page_59">59</span> -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.</p> -<p>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.</p> -<p>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 -<span class="pb" id="Page_60">60</span> -issued critical pamphlets about things they objected to. The -<i>New York Weekly Journal</i> 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 <i>Journal</i>’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.</p> -<p>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.</p> -<p>The <i>New York Weekly Journal</i> 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’ <i>Boston Gazette</i> 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.</p> -<div class="pb" id="Page_61">61</div> -<p>The participation of ordinary men and women in political -discussions, debates, and quarrels caused a rise toward the -level of true democracy. The <i>Journal</i> 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 <i>Journal</i> 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.</p> -<p class="tb">On the constitutional side, the Zenger case helped snap the -leading strings that bound the American Colonies to the -mother country.</p> -<p>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 <i>ipso facto</i> legitimately -discredited.</p> -<p>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 -<span class="pb" id="Page_62">62</span> -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 <i>Brief Narrative of the Case -and Tryal of John Peter Zenger</i> 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.</p> -<p>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.</p> -<p>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 -<i>sanctum sanctorum</i> 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.</p> -<div class="pb" id="Page_63">63</div> -<p>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.</p> -<p>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.”</p> -<p class="tb">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 <i>Pennsylvania Gazette</i> 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.”</p> -<p>The two great principles—that truth may be used as a -defense in libel cases, and that the jury has a right to decide -<span class="pb" id="Page_64">64</span> -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.</p> -<p>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.</p> -<p class="tb">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.</p> -<div class="pb" id="Page_65">65</div> -<p>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’ <i>History of Printing in America</i>, a masterpiece that -appeared in 1810, and in Charles Hildeburn’s <i>Sketches of -Printers and Printing in Colonial New York</i> 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.</p> -<p>The twentieth century redressed the balance with Livingston -Rutherfurd’s <i>John Peter Zenger, His Press, His Trial -and a Bibliography of Zenger Imprints</i> (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.</p> -<p>The memory of Peter Zenger was given a fillip in 1933, the -year of the bicentennial of the founding of the <i>New York -Weekly Journal</i>. 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 -<span class="pb" id="Page_66">66</span> -its Zenger material. In January of 1934 Senator Borah read -into the <i>Congressional Record</i> 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:</p> -<blockquote> -<p>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.</p> -</blockquote> -<p>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.</p> -<p>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.</p> -<p>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 -<span class="pb" id="Page_67">67</span> -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.</p> -<div class="pb" id="Page_68">68</div> -<h2 id="c19"><span class="small">3. The Text</span></h2> -<p>This edition of the trial is, like all others, based on <i>A Brief -Narrative of the Case and Tryal of John Peter Zenger, -Printer of the New York Weekly Journal</i>, which was edited -by James Alexander and printed by the Zenger press in 1736.</p> -<p>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.</p> -<p>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 -<i>Brief Narrative</i> 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 -<span class="pb" id="Page_69">69</span> -public and posterity to view what happened from his angle -of vision. He deliberately chose not to do so.</p> -<p>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.</p> -<p>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.</p> -<p>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 <i>New York Weekly Journal</i> was under -fire, and Alexander was the <i>Journal</i>’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.</p> -<p>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 -<span class="pb" id="Page_70">70</span> -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.</p> -<p>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.</p> -<p>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 <i>Journal</i> 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.)</p> -<p>Hamilton’s own record of the trial went into the <i>Brief -Narrative</i>, as is indicated by this passage from one of the -letters that the Philadelphia barrister wrote to his friend -and colleague in New York:</p> -<blockquote> -<p>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 -<span class="pb" id="Page_71">71</span> -meaning of all this is to beg you to alter and correct it agreeable -to your own mind.<a href="#en0_36" class="fn" id="enr0_36">[36]</a></p> -</blockquote> -<p>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.</p> -<p>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).</p> -<p>The nineteenth century saw two particularly useful editions -in T. B. Howell’s <i>State Trials</i> (1816) and in Peleg W. -Chandler’s <i>American Criminal Trials</i> (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 <i>Brief Narrative</i> -in his <i>John Peter Zenger, His Press, His Trial and a Bibliography -of Zenger Imprints</i> (1904). Fifty years later Frank -Luther Mott did the same for our generation in <i>Oldtime -Comments on Journalism</i> (1954).</p> -<p>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 -<span class="pb" id="Page_72">72</span> -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.</p> -<p>The justification for the version here presented of James -Alexander’s <i>A Brief Narrative of the Case and Tryal of John -Peter Zenger, Printer of the New York Weekly Journal</i> 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 <i>Brief Narrative</i> needs -overhauling for our purposes.</p> -<p>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.</p> -<p>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, -<span class="pb" id="Page_73">73</span> -the <i>Brief Narrative</i> 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.</p> -<p>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:</p> -<blockquote> -<p>As There was but one Printer in the Province of <i>New-York</i>, -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, <i>Nov. 5th</i>, 1733. and I continued printing and -publishing of them, I thought to the Satisfaction of every -Body, till the <i>January</i> 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 <i>Tuesday</i> of <i>October</i>, 1734. was again pleased to -charge the Grand Jury in the following Words. -“<i>Gentlemen</i>; I shall conclude....”</p> -<p>Be it remembered, that <i>Richard Bradly</i>, Esq: Attorney General -of Our Sovereign Lord the King, for the Province of -<i>New-York</i>, 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 <i>John -Peter Zenger</i>, late of the City of <i>New-York</i>, 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 <i>New-York</i>, under the Administration -of His Excellency <i>William Cosby</i>, Esq; Captain General -<span class="pb" id="Page_74">74</span> -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 <i>January</i>, in -the seventh Year of the Reign of Our Sovereign Lord <i>George</i> -the second, by the Grace of God of <i>Great-Britain</i>, <i>France</i> and -<i>Ireland</i>, King Defender of the Faith, &c. at the City of <i>New-York, -did falsly, seditiously and scandalously</i> print and publish, -and cause to be printed and published, a certain <i>false, -malicious, seditious scandalous</i> Libel, entitled <i>The New-York -Weekly Journal, containing the freshest Advices, foreign and -domestick</i>;</p> -</blockquote> -<p>In the present edition, these passages read as follows:</p> -<blockquote> -<p>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....”</p> -<p>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:</p> -<p>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 -<span class="pb" id="Page_75">75</span> -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 <i>The New York Weekly Journal</i>.</p> -</blockquote> -<p>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.</p> -<p>Four fifths of the <i>Brief Narrative</i> 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.</p> -<blockquote> -<p><span class="small">NOTE</span>: 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.</p> -</blockquote> -<div class="pb" id="Page_77">77</div> -<h2 class="center" id="c20"><span class="small">Part Two. The Trial</span></h2> -<div class="pb" id="Page_79">79</div> -<h2 id="c21"><span class="small">1. Dramatis Personae</span></h2> -<dl class="undent"><dt><span class="sc">James Alexander</span>, a lawyer for the Defendant</dt> -<dt><span class="sc">Richard Bradley</span>, Attorney General</dt> -<dt><span class="sc">John Chambers</span>, Counsel for the Defense</dt> -<dt><span class="sc">James Delancey</span>, Chief Justice of the Supreme Court</dt> -<dt><span class="sc">Andrew Hamilton</span>, Counsel for the Defense</dt> -<dt><span class="sc">Francis Harison</span>, Recorder for the City of New York</dt> -<dt><span class="sc">Frederick Philipse</span>, Associate Justice of the Supreme Court</dt> -<dt><span class="sc">William Smith</span>, a lawyer for the Defendant</dt> -<dt>JOHN PETER ZENGER, the Defendant</dt></dl> -<div class="pb" id="Page_80">80</div> -<h2 id="c22"><span class="small">2. Preliminaries</span></h2> -<p>As there was but one printer in the Province of New York who printed a public newspaper, -I<a class="fn" id="fr_2" href="#fn_2">[2]</a> -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:</p> -<p>“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?</p> -<p>“Hawkins,<a href="#en1_1" class="fn" id="enr1_1">[1]</a> in his chapter on libels, considers, first what -<span class="pb" id="Page_81">81</span> -shall be said to be a libel, and secondly who are liable to be -punished for it. Under the first he says:</p> -<blockquote> -<p>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.</p> -</blockquote> -<p>“As to the second point, he says:</p> -<blockquote> -<p>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.</p> -</blockquote> -<p>“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.”</p> -<p>The grand jury not indicting me as was expected, the -gentlemen of the Council proceeded to take my <i>Journals</i> -into consideration, and sent the following message to the -Assembly:</p> -<blockquote> -<div class="pb" id="Page_82">82</div> -<p>[<i>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</i>]:</p> -</blockquote> -<p>“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.</p> -<p>“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.</p> -<p>“That you concur with us in an order for prosecuting the -printer thereof.</p> -<p>“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.”</p> -<blockquote> -<p>[<i>The Assembly flatly refused its concurrence, and the letter -from the Council was returned to it along with the copies -of the</i> Journal <i>that were marked for burning</i>.]</p> -</blockquote> -<p>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:</p> -<p>“<i>Whereas</i> by an order of this Council some of John Peter -Zenger’s journals, entitled <i>The New York Weekly Journal</i>, -Nos. 7, 47, 48, 49, were ordered to be burned by the hands -of the common hangman or whipper near the pillory in this -<span class="pb" id="Page_83">83</span> -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;</p> -<p>“<i>It is therefore ordered</i> that the mayor and magistrates of -this city do attend at the burning of the several papers or -journals aforesaid, numbered as above mentioned.”</p> -<p>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.</p> -<p>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:</p> -<p>“<i>Whereas</i> an order has been served on this Court;</p> -<p>“And <i>whereas</i> 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;</p> -<p>“And <i>whereas</i> 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, -<span class="pb" id="Page_84">84</span> -which, when once opened, they know not what dangerous -consequences may attend it;</p> -<p>“<i>Therefore</i> 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.”</p> -<p>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,<a href="#en1_2" class="fn" id="enr1_2">[2]</a> 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.</p> -<p>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, -<span class="pb" id="Page_85">85</span> -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.</p> -<p>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.<a href="#en1_3" class="fn" id="enr1_3">[3]</a> Upon which he -abruptly went away without waiting for an answer or promising -to bring his books, and did not return.</p> -<p>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.</p> -<div class="pb" id="Page_86">86</div> -<p>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.</p> -<p>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.</p> -<p>On the Lord’s Day, November 17, 1734, I was taken and -imprisoned by virtue of a warrant in these words:</p> -<p>“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.</p> -<p>“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 <i>The New York Weekly -Journal</i>; 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.”</p> -<p>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.</p> -<blockquote> -<p>[<i>Zenger’s lawyers, James Alexander and William Smith, -got a habeas corpus, and then argued before the court that -<span class="pb" id="Page_87">87</span> -their client had a right to reasonable bail. In support of their -case they appealed to English law and precedent.</i>]</p> -</blockquote> -<p>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).</p> -<p>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.</p> -<p>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 <i>Journals</i> Nos. -13 and 23 as being “false, scandalous, malicious and seditious.”</p> -<blockquote> -<p>[<i>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. -<span class="pb" id="Page_88">88</span> -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.”</i>]</p> -</blockquote> -<p>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.</p> -<p>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.</p> -<p>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 -<span class="pb" id="Page_89">89</span> -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:</p> -<p>“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;</p> -<p>“<i>It is therefore ordered</i> 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.”</p> -<p>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.</p> -<p>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.</p> -<blockquote> -<div class="pb" id="Page_90">90</div> -<p>[<i>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.</i>]</p> -</blockquote> -<p>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.</p> -<p>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.</p> -<p>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 -<span class="pb" id="Page_91">91</span> -as usual, produced a list of 48 persons whom he said he -had taken out of the Freeholders book.</p> -<p>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.</p> -<p>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.</p> -<p>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 -<span class="pb" id="Page_92">92</span> -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.</p> -<div class="pb" id="Page_93">93</div> -<h2 id="c23"><span class="small">3. Pleading</span></h2> -<p>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.</p> -<p>The defendant, John Peter Zenger, being called, appeared.</p> -<p><span class="small">MR. CHAMBERS</span>, <i>of counsel for the defense</i>. 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.</p> -<p><span class="small">MR. CHIEF JUSTICE.</span> How is that? Are they not so returned?</p> -<p><span class="small">MR. CHAMBERS.</span> No they are not. For some of the names -that were last set down in the panel are now placed first.</p> -<p><span class="small">MR. CHIEF JUSTICE.</span> Make that out and you shall be righted.</p> -<p><span class="small">MR. CHAMBERS.</span> 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.</p> -<p><span class="small">MR. CHIEF JUSTICE.</span> Clerk, is it so? Look upon that copy. Is -it a true copy of the panel as it was struck?</p> -<p><span class="small">CLERK.</span> Yes, I believe it is.</p> -<p><span class="small">MR. CHIEF JUSTICE.</span> How came the names of the jurors to -be misplaced in the panel?</p> -<p><span class="small">SHERIFF.</span> I have returned the jurors in the same order in -which the clerk gave them to me.</p> -<p><span class="small">MR. CHIEF JUSTICE.</span> Let the names of the jurors be ranged -<span class="pb" id="Page_94">94</span> -in the order they were struck, agreeable to the copy here in -Court.</p> -<p class="tb">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.</p> -<p>Mr. Attorney General opened the information, which was -as follows:</p> -<p class="tb"><span class="small">MR. ATTORNEY.</span> 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:</p> -<p>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:</p> -<div class="pb" id="Page_95">95</div> -<p>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 <i>The New York Weekly Journal</i>.</p> -<p>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 (<i>the City and Province of New York meaning</i>) -think are the points in question. They (<i>the people of -the City and Province of New York meaning</i>) 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.” (<i>Meaning many -of the past proceedings of His Excellency, the Governor, and -<span class="pb" id="Page_96">96</span> -of the ministers and officers of the king, of and for the said -Province.</i>)</p> -<p>And the Attorney General likewise gives the Court here -to understand and be informed:</p> -<p>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 <i>The New York Weekly Journal</i>.</p> -<p>In which libel, among other things therein contained, are -these words, “One of our neighbors (<i>one of the inhabitants -of New Jersey meaning</i>) being in company and observing the -strangers (<i>some of the inhabitants of New York meaning</i>) -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 (<i>His Excellency the said Governor -meaning</i>), and your Assembly have shown with a vengeance -what is to be expected from them. One that was then moving -to Pennsylvania (<i>meaning one that was then removing -from New York with intent to reside at Pennsylvania</i>), to -which place it is reported that several considerable men are -removing (<i>from New York meaning</i>), expressed in terms very -moving much concern for the circumstances of New York -(<i>the bad circumstances of the Province and people of New -York meaning</i>), and seemed to think them very much owing -to the influence that some men (whom he called tools) had -in the administration (<i>meaning the administration of government -of the said Province of New York</i>). 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 (<i>meaning the General Assembly -of the Province of New York</i>) would exert themselves as became -<span class="pb" id="Page_97">97</span> -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 (<i>His Excellency the said Governor -meaning</i>); both of which ought equally to be despised -when the interest of their country is at stake.</p> -<p>“You, says he, complain of the lawyers, but I think the law -itself is at an end. We (<i>the people of the Province of New -York meaning</i>) see men’s deeds destroyed, judges arbitrarily -displaced, new courts erected without consent of the legislature -(<i>within the Province of New York meaning</i>) by which -it seems to me trial by jury is taken away when a governor -pleases (<i>His Excellency the said Governor meaning</i>), 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 (<i>meaning the Province of New York</i>) -that can call anything his own, or enjoy any liberty, longer -than those in the administration (<i>meaning the administration -of government of the said Province of New York</i>) will -condescend to let them do it? For which reason I have left it, -as I believe more will.”</p> -<p>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.</p> -<p>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.</p> -<p>To this information the defendant has pleaded “Not -guilty,” but we are ready to prove it.</p> -<div class="pb" id="Page_98">98</div> -<p>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.</p> -<p>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.</p> -<p><span class="small">MR. HAMILTON.</span> 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.</p> -<p>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.</p> -<p>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.</p> -<div class="pb" id="Page_99">99</div> -<p><span class="small">MR. ATTORNEY.</span> 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.</p> -<p><span class="small">MR. HAMILTON.</span> If you brought them here only to prove -the printing and publishing of these newspapers, we have -acknowledged that, and shall abide by it.</p> -<p class="tb">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.</p> -<p class="tb"><span class="small">MR. CHIEF JUSTICE.</span> Well, Mr. Attorney, will you proceed?</p> -<p><span class="small">MR. ATTORNEY.</span> 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.</p> -<p><span class="small">MR. HAMILTON.</span> 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, -<i>false</i>, <i>scandalous</i>, <i>and seditious</i>—or else we are not guilty.</p> -<p class="tb">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.</p> -<p>He observed upon the excellency as well as the use of government, -and the great regard and reverence which had been -<span class="pb" id="Page_100">100</span> -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.</p> -<p>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.</p> -<p>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, -<span class="pb" id="Page_101">101</span> -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.</p> -<p>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.</p> -<p>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.”</p> -<p>Mr. Attorney added that he did not know what could be -said in defense of a man that had so notoriously scandalized -<span class="pb" id="Page_102">102</span> -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.</p> -<p>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.</p> -<p class="tb">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.</p> -<p class="tb"><span class="small">MR. HAMILTON.</span> 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.</p> -<div class="pb" id="Page_103">103</div> -<p>I own that when I read the information I had not the art -to find out (without the help of Mr. Attorney’s <i>innuendos</i>) -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.</p> -<p>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.</p> -<p>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.</p> -<p>In Brewster’s case,<a href="#en1_4" class="fn" id="enr1_4">[4]</a> for printing that subjects might defend -<span class="pb" id="Page_104">104</span> -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.</p> -<p>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?</p> -<p>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 -<span class="pb" id="Page_105">105</span> -our prince and his peace) make bold to transfer that allegiance -to a subject which we owe to our king only.</p> -<p>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.</p> -<p>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.</p> -<p>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 -<span class="pb" id="Page_106">106</span> -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.</p> -<p>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.</p> -<p><span class="small">MR. ATTORNEY.</span> 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.</p> -<p><span class="small">MR. HAMILTON.</span> 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.”</p> -<p><span class="small">MR. ATTORNEY.</span> I think that I did not omit the word -<span class="pb" id="Page_107">107</span> -“false.” But it has been said already that it may be a libel -notwithstanding that it may be true.</p> -<p><span class="small">MR. HAMILTON.</span> 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.</p> -<p>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 <i>true</i> 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 <i>false</i>, I shall -own them to be <i>scandalous, seditious, and a libel</i>. So the -work seems now to be pretty much shortened, and Mr. Attorney -has now only to prove the words <i>false</i> in order to -make us guilty.</p> -<p><span class="small">MR. ATTORNEY.</span> 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,<a href="#en1_5" class="fn" id="enr1_5">[5]</a> in his charge -to the jury in the case of Tutchin,<a href="#en1_6" class="fn" id="enr1_6">[6]</a> 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 -<span class="pb" id="Page_108">108</span> -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.</p> -<p><span class="small">MR. HAMILTON.</span> 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.</p> -<p>But we will save Mr. Attorney the trouble of proving a -negative, take the <i>onus probandi</i> on ourselves, and prove -those very papers that are called libels to be <i>true</i>.</p> -<p><span class="small">MR. CHIEF JUSTICE.</span> 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 <i>true</i>.</p> -<p><span class="small">MR. HAMILTON.</span> 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.</p> -<p><span class="small">MR. CHIEF JUSTICE.</span> The law is clear that you cannot justify -a libel.</p> -<p><span class="small">MR. HAMILTON.</span> 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 -<span class="pb" id="Page_109">109</span> -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.</p> -<p><span class="small">MR. CHIEF JUSTICE.</span> I pray, show that you can give the -truth of a libel in evidence.</p> -<blockquote> -<p>[<i>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.</i>]</p> -</blockquote> -<p><span class="small">MR. HAMILTON.</span> How shall it be known whether the words -are libelous, that is, <i>true</i> or <i>false</i>, but by admitting us to prove -them <i>true</i>, since Mr. Attorney will not undertake to prove -them <i>false</i>? 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 <i>truth is a greater sin than falsehood</i>. 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?</p> -<p>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 <i>truth makes a -<span class="pb" id="Page_110">110</span> -worse libel than falsehood</i>, and must follow from his not -proving our papers to be <i>false</i>, or not suffering us to prove -them to be <i>true</i>.</p> -<p>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 <i>true</i>. And as he never -pretended that they were true, the Chief Justice was not to -say so.</p> -<p>But the point will be clearer on our side from Fuller’s -case.<a href="#en1_7" class="fn" id="enr1_7">[7]</a> 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 <i>that he who will take upon him to write things, it lies upon -him to prove them, at his peril</i>. 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 -<span class="pb" id="Page_111">111</span> -to the rule laid down by Chief Justice Holt, we are -ready to prove them to be true, at our peril.</p> -<p><span class="small">MR. CHIEF JUSTICE.</span> Let me see the book.</p> -<p class="tb">Here the Court had the case under consideration a considerable -time, and everyone was silent.</p> -<p class="tb"><span class="small">MR. CHIEF JUSTICE.</span> 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?</p> -<p><span class="small">MR. ATTORNEY.</span> 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.</p> -<p><span class="small">MR. CHIEF JUSTICE.</span> 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.”</p> -<p><span class="small">MR. HAMILTON.</span> These are star chamber cases, and I was in -hopes that that practice had been dead with the court.</p> -<p><span class="small">MR. CHIEF JUSTICE.</span> 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.</p> -<p><span class="small">MR. HAMILTON.</span> With submission, I have seen the practice -in very great courts, and never heard it deemed unmannerly -to—</p> -<div class="pb" id="Page_112">112</div> -<p><span class="small">MR. CHIEF JUSTICE.</span> After the Court have declared their -opinion, it is not good manners to insist upon a point in -which you are overruled.</p> -<p><span class="small">MR. HAMILTON.</span> 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.</p> -<p><span class="small">MR. CHIEF JUSTICE.</span> Use the Court with good manners and -you shall be allowed all the liberty you can reasonably desire.</p> -<p><span class="small">MR. HAMILTON.</span> 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.</p> -<p>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 <i>false, scandalous, and seditious</i>.</p> -<p>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.</p> -<div class="pb" id="Page_113">113</div> -<p>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.</p> -<p><span class="small">MR. ATTORNEY.</span> The books, I think, have given a very full -definition of libel.</p> -<p><span class="small">MR. HAMILTON.</span> 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.”</p> -<p><span class="small">MR. ATTORNEY.</span> 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.</p> -<p><span class="small">MR. HAMILTON.</span> 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.</p> -<p>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.</p> -<div class="pb" id="Page_114">114</div> -<p>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 <i>understood</i> 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 <i>understood</i>. -I know no rule laid down in the books but this, I mean, -as the words are <i>understood</i>.</p> -<p><span class="small">MR. CHIEF JUSTICE.</span> Mr. Hamilton, do you think it so hard -to know when words are ironical or spoken in a scoffing -manner?</p> -<p><span class="small">MR. HAMILTON.</span> I own it may be known. But I insist that -the only rule by which to know is—as I do or can <i>understand</i> -them. I have no other rule to go by but as I <i>understand</i> them.</p> -<p><span class="small">MR. CHIEF JUSTICE.</span> That is certain. All words are libelous -or not as they are <i>understood</i>. 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.</p> -<p><span class="small">MR. HAMILTON.</span> I thank Your Honor. I am glad to find the -Court of this opinion. Then it follows that these twelve men -must <i>understand</i> the words in the information to be scandalous—that -is to say, false. For I think it is not pretended they -are of the <i>ironical</i> sort. And when they <i>understand</i> the words -to be so, they will say that we are guilty of publishing a <i>false -libel</i>, and not otherwise.</p> -<p><span class="small">MR. CHIEF JUSTICE.</span> 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.</p> -<p><span class="small">MR. HAMILTON.</span> I know, may it please Your Honor, the -<span class="pb" id="Page_115">115</span> -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.</p> -<p>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.</p> -<p><span class="small">MR. ATTORNEY.</span> Pray, Mr. Hamilton, have a care what you -say, don’t go too far. I don’t like those liberties.</p> -<p><span class="small">MR. HAMILTON.</span> 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.</p> -<p>May it please Your Honor, I was saying that notwithstanding -all the duty and reverence claimed by Mr. Attorney to -<span class="pb" id="Page_116">116</span> -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?</p> -<p>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.</p> -<p>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 -<span class="pb" id="Page_117">117</span> -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?</p> -<p>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.</p> -<p>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 -<span class="pb" id="Page_118">118</span> -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.</p> -<p>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.</p> -<p>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 -<span class="pb" id="Page_119">119</span> -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.</p> -<p>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.</p> -<p>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.</p> -<p>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.</p> -<div class="pb" id="Page_120">120</div> -<p>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.</p> -<p>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.</p> -<p>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 <i>false</i>. For as it is truth alone that -<span class="pb" id="Page_121">121</span> -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.</p> -<p><i>Truth</i> 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.</p> -<p>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.</p> -<p>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 -<span class="pb" id="Page_122">122</span> -sometimes had, not only upon judges, but even upon parliaments -themselves.</p> -<p>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.<a href="#en1_8" class="fn" id="enr1_8">[8]</a> 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 <i>law</i> and <i>fact</i>, -and to <i>understand</i> the petition of the Bishops to be <i>no libel</i>, -that is, to contain no falsehood or sedition; and therefore -found them not guilty.</p> -<p>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?</p> -<p>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 -<span class="pb" id="Page_123">123</span> -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.</p> -<p>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?</p> -<p>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.</p> -<p>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 -<span class="pb" id="Page_124">124</span> -have often been made use of by men in power to introduce -arbitrary rule, and to destroy the liberties of a free people?</p> -<blockquote> -<p>[<i>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.</i>]</p> -</blockquote> -<p>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.</p> -<p>Governor Nicholson,<a href="#en1_9" class="fn" id="enr1_9">[9]</a> 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.</p> -<p>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 -<span class="pb" id="Page_125">125</span> -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.</p> -<p>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 <i>innuendo</i>, -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.</p> -<p class="tb">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.</p> -<p class="tb"><span class="small">MR. HAMILTON.</span> 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?</p> -<div class="pb" id="Page_126">126</div> -<p>For according to Mr. Attorney it is no justification to say -that one has a bad name. Echard has libeled our good King -William;<a href="#en1_10" class="fn" id="enr1_10">[10]</a> Burnet has libeled, among others, King Charles -and King James; and Rapin has libeled them all.<a href="#en1_11" class="fn" id="enr1_11">[11]</a> 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?</p> -<p>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 <i>innuendos</i>) 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 (<i>innuendo, the Governor -and Council of New York</i>) cause them (<i>innuendo, the -people of this Province</i>) to err, and they (<i>the people of this -Province meaning</i>) that are led by them (<i>the Governor and -Council meaning</i>) are destroyed (<i>innuendo, are deceived -into the loss of their liberty</i>), which is the worst kind of -destruction.</p> -<p>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 <i>innuendos</i>. 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 <i>innuendos</i>. -As for instance: His watchmen (<i>innuendo, the Governor’s -Council and his Assembly</i>) are blind, they are all ignorant -<span class="pb" id="Page_127">127</span> -(<i>innuendo, will not see the dangerous designs of His Excellency</i>). -Yea, they (<i>the Governor and Council meaning</i>) are -greedy dogs which can never have enough (<i>innuendo, enough -of riches and power</i>).</p> -<p>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 <i>innuendos</i> 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?</p> -<p>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 <i>form</i> upon trial, yet they may be, and -often have been found to be, matters of <i>substance</i> upon giving -judgment.</p> -<p>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 -<span class="pb" id="Page_128">128</span> -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.</p> -<p>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.</p> -<p>This brings to my mind that saying of the immortal Brutus<a href="#en1_12" class="fn" id="enr1_12">[12]</a> -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.</p> -<p>A famous instance of this you will find in the history of -another brave Roman of the same name, I mean Lucius -Junius Brutus,<a href="#en1_13" class="fn" id="enr1_13">[13]</a> 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 -<span class="pb" id="Page_129">129</span> -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.”</p> -<p>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,<a href="#en1_14" class="fn" id="enr1_14">[14]</a> 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, -<span class="pb" id="Page_130">130</span> -nor could any other hand remove the evil but Parliament.</p> -<p>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.</p> -<p>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.</p> -<p>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.</p> -<p>Men who injure and oppress the people under their administration -<span class="pb" id="Page_131">131</span> -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.</p> -<p>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.</p> -<p class="tb">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 -<span class="pb" id="Page_132">132</span> -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.</p> -<p class="tb"><span class="small">MR. CHIEF JUSTICE.</span> 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.</p> -<p><span class="small">MR. HAMILTON.</span> I humbly beg Your Honor’s pardon, I am -very much misapprehended if you suppose that what I said -was so designed.</p> -<p>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.</p> -<p class="tb">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.</p> -<div class="pb" id="Page_133">133</div> -<h2 id="c24"><span class="small">4. Aftermath</span></h2> -<p>At a Common Council held at the City Hall on Tuesday, -September 16, 1735:</p> -<p>“<i>Ordered</i>, that Andrew Hamilton of Philadelphia, barrister-at-law, -be presented with the Freedom of this Corporation.”</p> -<p class="tb">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.</p> -<p class="tb">“To all to whom these presents shall come, greeting.</p> -<p>“<i>Whereas</i> honor is the just reward of virtue, and public -benefits demand a public acknowledgment;</p> -<p>“<i>We therefore</i>, 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;</p> -<p>“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.</p> -<div class="pb" id="Page_134">134</div> -<p>“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.</p> -<p>“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.”</p> -<div class="pb" id="Page_135">135</div> -<h2 id="c25"><span class="small">Appendix I</span></h2> -<p class="center"><i>The New York Weekly Journal</i> Covers an Election</p> -<blockquote> -<p>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 <i>Journal’s</i> story about the election -was no mean hand at covering the news, as the following -extracts will show:</p> -</blockquote> -<p>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.</p> -<p>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.</p> -<p>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.</p> -<p>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 -<span class="pb" id="Page_136">136</span> -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.</p> -<p>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 <span class="small">KING GEORGE</span>, and -on the other, in like golden capitals, <span class="small">LIBERTY AND LAW</span>; 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).</p> -<p class="tb">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!” -<span class="pb" id="Page_137">137</span> -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.</p> -<p class="tb">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.</p> -<p>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. -<span class="pb" id="Page_138">138</span> -About eleven o’clock that night the poll was closed, and it stood -thus:</p> -<table class="center" summary=""> -<tr><td class="l">For the late Chief Justice </td><td class="r">231</td></tr> -<tr><td class="l">Quakers </td><td class="r">38</td></tr> -<tr><td class="l">In all </td><td class="r"><span class="ol">269</span></td></tr> -<tr><td class="l">For William Forster </td><td class="r">151</td></tr> -<tr><td class="l">The difference </td><td class="r">118</td></tr> -<tr><td class="l"> </td><td class="r"><span class="ol">269</span></td></tr> -</table> -<p>So that the late Chief Justice carried it by a great majority -without the Quakers.</p> -<p>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.</p> -<p class="tb"><i>New York, November 5.</i></p> -<p>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, -<span class="small"><i>KING GEORGE, LIBERTY AND LAW</i></span>.</p> -<div class="pb" id="Page_139">139</div> -<h2 id="c26"><span class="small">Appendix II</span></h2> -<p class="center">Zenger’s Lawyers on the Behavior of His Judges</p> -<blockquote> -<p>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, <i>The Complaint of James Alexander -and William Smith to the Committee of the General Assembly -of the Colony of New York</i> (1735). Here is the centerpiece -of their argument:</p> -</blockquote> -<p>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 <i>Journals</i> 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 <i>Journals</i>, and which sets forth -<span class="pb" id="Page_140">140</span> -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.</p> -<p>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.</p> -<div class="pb" id="Page_141">141</div> -<h2 id="c27"><span class="small">Appendix III</span></h2> -<p class="center">James Alexander on Freedom of the Press</p> -<blockquote> -<p>In 1737 the verdict of the Zenger trial was severely criticized -in two anonymous letters to the <i>Barbados Gazette</i>, and these -were reprinted by Andrew Bradford of Philadelphia. Alexander -wrote a reply in the <i>Pennsylvania Gazette</i>. 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:</p> -</blockquote> -<p>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.</p> -<p class="tb">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.</p> -<p class="tb">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 -<span class="pb" id="Page_142">142</span> -prevented, ten thousand evils, horrible and tremendous, sprang -up in the place.</p> -<p class="tb">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.</p> -<p class="tb">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.</p> -<p class="tb">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., <span class="small">THAT WHOEVER -ATTEMPTS TO SUPPRESS EITHER OF THOSE, OUR NATURAL -RIGHTS, OUGHT TO BE REGARDED AS AN ENEMY TO LIBERTY AND -THE CONSTITUTION</span>.</p> -<p class="tb">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 -<span class="pb" id="Page_143">143</span> -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.</p> -<p class="tb">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.</p> -<div class="pb" id="Page_144">144</div> -<h2 id="c28"><span class="small">Notes to the Introduction</span></h2> -<div class="fnblock"> -<div class="fndef"><a id="en0_1" href="#enr0_1" class="fn">[1]</a>Cadwallader Colden, <i>History of William Cosby’s Administration as -Governor of the Province of New York, and of Lieutenant-Governor -George Clarke’s Administration through 1737</i> (New York Historical -Society Collections, 1935), p. 286.</div> -<div class="fndef"><a id="en0_2" href="#enr0_2" class="fn">[2]</a><i>Documents Relative to the Colonial History of the State of New York</i>, -ed. E. B. O’Callaghan (Albany, 1853-87), V, 937.</div> -<div class="fndef"><a id="en0_3" href="#enr0_3" class="fn">[3]</a>William Smith, <i>The History of the Late Province of New York, from -Its Discovery to the Appointment of Governor Colden in 1762</i> (New -York, 1829-30), II, 3.</div> -<div class="fndef"><a id="en0_4" href="#enr0_4" class="fn">[4]</a>Livingston Rutherfurd, <i>John Peter Zenger, His Press, His Trial and -a Bibliography of Zenger Imprints</i> (New York, 1904), p. 15.</div> -<div class="fndef"><a id="en0_5" href="#enr0_5" class="fn">[5]</a><i>N.Y. Col. Docs.</i>, V, 949.</div> -<div class="fndef"><a id="en0_6" href="#enr0_6" class="fn">[6]</a>Colden, <i>op. cit.</i>, p. 298.</div> -<div class="fndef"><a id="en0_7" href="#enr0_7" class="fn">[7]</a><i>N.Y. Col. Docs.</i>, V, 955.</div> -<div class="fndef"><a id="en0_8" href="#enr0_8" class="fn">[8]</a>Colden, <i>op. cit.</i>, pp. 298-299.</div> -<div class="fndef"><a id="en0_9" href="#enr0_9" class="fn">[9]</a><i>Ibid.</i>, p. 313.</div> -<div class="fndef"><a id="en0_10" href="#enr0_10" class="fn">[10]</a><i>New York Gazette</i>, November 5, 1733.</div> -<div class="fndef"><a id="en0_11" href="#enr0_11" class="fn">[11]</a><i>Ibid.</i>, January 7, 1734.</div> -<div class="fndef"><a id="en0_12" href="#enr0_12" class="fn">[12]</a><i>Ibid.</i>, March 18, 1734.</div> -<div class="fndef"><a id="en0_13" href="#enr0_13" class="fn">[13]</a><i>N.Y. Col. Docs.</i>, V, 940.</div> -<div class="fndef"><a id="en0_14" href="#enr0_14" class="fn">[14]</a><i>Documents Relating to the Colonial History of the State of New -Jersey</i>, ed. William A. Whitehead (Newark, 1880-1928), V, 359.</div> -<div class="fndef"><a id="en0_15" href="#enr0_15" class="fn">[15]</a><i>Ibid.</i>, V, 360.</div> -<div class="fndef"><a id="en0_16" href="#enr0_16" class="fn">[16]</a><i>N.Y. Col. Docs.</i>, VI, 21.</div> -<div class="fndef"><a id="en0_17" href="#enr0_17" class="fn">[17]</a><i>Ibid.</i>, VI, 5.</div> -<div class="fndef"><a id="en0_18" href="#enr0_18" class="fn">[18]</a><i>New York Weekly Journal</i>, January 21, 1734.</div> -<div class="fndef"><a id="en0_19" href="#enr0_19" class="fn">[19]</a><i>Ibid.</i>, January 28, 1734.</div> -<div class="fndef"><a id="en0_20" href="#enr0_20" class="fn">[20]</a><i>New York Gazette</i>, February 4, 1734.</div> -<div class="fndef"><a id="en0_21" href="#enr0_21" class="fn">[21]</a><i>New York Weekly Journal</i>, November 26, 1733.</div> -<div class="fndef"><a id="en0_22" href="#enr0_22" class="fn">[22]</a><i>Ibid.</i>, December 31, 1733.</div> -<div class="fndef"><a id="en0_23" href="#enr0_23" class="fn">[23]</a><i>New York Gazette</i>, April 1, 1734.</div> -<div class="fndef"><a id="en0_24" href="#enr0_24" class="fn">[24]</a>Colden, <i>op. cit.</i>, p. 323.</div> -<div class="fndef"><a id="en0_25" href="#enr0_25" class="fn">[25]</a><i>N.Y. Col. Docs.</i>, V, 978.</div> -<div class="fndef"><a id="en0_26" href="#enr0_26" class="fn">[26]</a><i>Ibid.</i>, V, 975.</div> -<div class="pb" id="Page_145">145</div> -<div class="fndef"><a id="en0_27" href="#enr0_27" class="fn">[27]</a><i>Ibid.</i>, V, 976.</div> -<div class="fndef"><a id="en0_28" href="#enr0_28" class="fn">[28]</a><i>Ibid.</i></div> -<div class="fndef"><a id="en0_29" href="#enr0_29" class="fn">[29]</a><i>Ibid.</i></div> -<div class="fndef"><a id="en0_30" href="#enr0_30" class="fn">[30]</a><i>Ibid.</i></div> -<div class="fndef"><a id="en0_31" href="#enr0_31" class="fn">[31]</a><i>Ibid.</i>, V, 984.</div> -<div class="fndef"><a id="en0_32" href="#enr0_32" class="fn">[32]</a><i>The Papers of Lewis Morris, Governor of the Province of New -Jersey from 1738 to 1746</i>, ed. William A. Whitehead (New York, -1852), pp. 22-23.</div> -<div class="fndef"><a id="en0_33" href="#enr0_33" class="fn">[33]</a><i>Ibid.</i>, pp. 24-25.</div> -<div class="fndef"><a id="en0_34" href="#enr0_34" class="fn">[34]</a><i>N.Y. Col. Docs.</i>, VI, 21.</div> -<div class="fndef"><a id="en0_35" href="#enr0_35" class="fn">[35]</a><i>Ibid.</i>, VI, 34-35.</div> -<div class="fndef"><a id="en0_36" href="#enr0_36" class="fn">[36]</a>Rutherfurd, <i>op. cit.</i>, pp. 127-128.</div> -</div> -<h2 id="c29"><span class="small">Notes to the Text</span></h2> -<div class="fnblock"> -<div class="fndef"><a id="en1_1" href="#enr1_1" class="fn">[1]</a>William Hawkins was, during Zenger’s own period, probably the outstanding -author of legal textbooks. Delancey’s quotations are from -his <i>Treatise of the Pleas to the Crown</i> (London, 1724), I, 192-193.</div> -<div class="fndef"><a id="en1_2" href="#enr1_2" class="fn">[2]</a>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, <i>The Later Stuarts</i> (Oxford, 1940), pp. 216-217.</div> -<div class="fndef"><a id="en1_3" href="#enr1_3" class="fn">[3]</a>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 <i>History of England</i>, “Fireside” ed. (Boston -and New York, 1910), IV, 464-466. Bishop Burnet was the father of -New York’s Governor William Burnet.</div> -<div class="fndef"><a id="en1_4" href="#enr1_4" class="fn">[4]</a>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 <i>The Phoenix, or the Solemn League and -Covenant</i>, which defended the regicides who executed Charles I. For -Chief Justice Robert Hyde’s excoriating summing up, see J. W. -Willis-Bund, <i>A Selection of Cases from the State Trials</i> (Cambridge, -1882), II, 415.</div> -<div class="pb" id="Page_146">146</div> -<div class="fndef"><a id="en1_5" href="#enr1_5" class="fn">[5]</a>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, <i>Freedom of the Press in England, 1476-1776</i> -(Urbana, Ill., 1952), <i>passim</i>.</div> -<div class="fndef"><a id="en1_6" href="#enr1_6" class="fn">[6]</a>John Tutchin, publisher of the <i>Observator</i>, 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, <i>op. cit.</i>, -p. 275.</div> -<div class="fndef"><a id="en1_7" href="#enr1_7" class="fn">[7]</a>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, -<i>op. cit.</i>, pp. 280-289.</div> -<div class="fndef"><a id="en1_8" href="#enr1_8" class="fn">[8]</a>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, <i>op. cit.</i>, pp. 120-121.</div> -<div class="fndef"><a id="en1_9" href="#enr1_9" class="fn">[9]</a>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 <i>Executive Journals -of the Council of Virginia</i> (Richmond, 1927), II, 451-452.</div> -<div class="fndef"><a id="en1_10" href="#enr1_10" class="fn">[10]</a>Laurence Echard, Tory divine and historian, wrote the bitterly anti-Williamite -<i>History of the Revolution of 1688</i>. See Eugene Lawrence, -<i>Lives of the British Historians</i> (New York, 1855), I, 312-315.</div> -<div class="fndef"><a id="en1_11" href="#enr1_11" class="fn">[11]</a>Paul de Rapin de Thoyras, although a Frenchman, became the foremost -authority on English history. His <i>Histoire d’Angleterre</i> appeared -in 1723, and long remained the standard work on the subject, influencing -a whole generation of British historians including Hume. See -Lawrence, <i>op. cit.</i>, I, 226-229.</div> -<div class="fndef"><a id="en1_12" href="#enr1_12" class="fn">[12]</a>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 <i>Lives</i>.</div> -<div class="fndef"><a id="en1_13" href="#enr1_13" class="fn">[13]</a>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 <i>History of Rome</i>, bk. I.</div> -<div class="pb" id="Page_147">147</div> -<div class="fndef"><a id="en1_14" href="#enr1_14" class="fn">[14]</a>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, -<i>England Under the Stuarts</i> (19th ed., London, 1947), p. 152.</div> -</div> -<h2><span class="small">Other Footnotes</span></h2> -<div class="fnblock"><div class="fndef"><a class="fn" id="fn_1" href="#fr_1">[1]</a>See <a href="#c25">Appendix I</a>. -</div><div class="fndef"><a class="fn" id="fn_2" href="#fr_2">[2]</a>Peter Zenger is the ostensible narrator throughout. -</div> -</div> -<h2 id="c30"><span class="small">Suggestions for Further Reading</span></h2> -<h3>1. Editions of the Trial.</h3> -<p class="book">Chandler, Peleg W. <i>American Criminal Trials</i> (New York, -1841).</p> -<p class="book">Howell, T. B. <i>State Trials</i> (London, 1816).</p> -<p class="book">Mott, Frank Luther. <i>Oldtime Comments on Journalism</i> -(Columbia, Mo., 1954).</p> -<p class="book">Rutherfurd, Livingston. <i>John Peter Zenger, His Press, His -Trial and a Bibliography of Zenger Imprints</i> (New York, -1904).</p> -<h3>2. Source Material.</h3> -<p class="book"><i>Documents Relating to the Colonial History of the State of -New Jersey</i>, ed. William A. Whitehead (Newark, 1880-1928).</p> -<p class="book"><i>Documents Relative to the Colonial History of the State of -New York</i>, ed. E. B. O’Callaghan (Albany, 1853-87).</p> -<p class="book"><i>New York Gazette</i>, 1732-36.</p> -<p class="book"><i>New York Weekly Journal</i>, 1732-36.</p> -<div class="pb" id="Page_148">148</div> -<h3>3. Histories of the Period.</h3> -<p class="book">Colden, Cadwallader. <i>History of William Cosby’s Administration -as Governor of the Province of New York, and of -Lieutenant-Governor George Clarke’s Administration -through 1737</i> (New York Historical Society Collections, -1935).</p> -<p class="book">Goodwin, Maud Wilder. <i>Dutch and English on the Hudson</i> -(New Haven, Conn., 1919).</p> -<p class="book"><i>History of the State of New York</i>, ed. A. C. Flick (New York, -1933).</p> -<p class="book">Osgood, Herbert L. <i>The American Colonies in the Eighteenth -Century</i> (New York, 1924).</p> -<p class="book">Smith, William. <i>The History of the Late Province of New -York, from Its Discovery to the Appointment of Governor -Colden in 1762</i> (New York, 1829-30).</p> -<h3>4. Peter Zenger.</h3> -<p class="book">Cobb, Sanford. <i>The Story of the Palatines</i> (New York, 1897).</p> -<p class="book">Hildeburn, Charles R. <i>Sketches of Printers and Printing in -Colonial New York</i> (New York, 1895).</p> -<p class="book">McMurtrie, Douglas. <i>A History of Printing in the United -States</i> (New York, 1936).</p> -<p class="book">Rutherfurd, Livingston. <i>Op. cit.</i></p> -<p class="book">Thomas, Isaiah. <i>The History of Printing in America, with a -Biography of Printers and an Account of Newspapers</i> -(Worcester, Mass., 1810).</p> -<p class="book">Wroth, Lawrence C. <i>A History of Printing in Colonial Maryland, -1686-1776</i> (Baltimore, 1922).</p> -<h3>5. The Zenger Case.</h3> -<p class="book">Bleyer, William Grosvenor. <i>Main Currents in the History of -American Journalism</i> (Boston, 1927).</p> -<p class="book">Cheslaw, Irving. <i>John Peter Zenger and His, “New York -Weekly Journal”</i> (New York, 1952).</p> -<div class="pb" id="Page_149">149</div> -<p class="book">Cook, Elizabeth Christine. <i>Literary Influences in Colonial -Newspapers</i> (New York, 1912).</p> -<p class="book">Emery, Edwin, and William Ladd Smith. <i>The Press and -America</i> (New York, 1954).</p> -<p class="book">Hudson, Frederic. <i>Journalism in the United States from -1690 to 1872</i> (New York, 1873).</p> -<p class="book">Jones, Robert W. <i>Journalism in the United States</i> (New -York, 1947).</p> -<p class="book">Kobre, Sidney. <i>The Development of the Colonial Newspaper</i> -(Pittsburgh, 1944).</p> -<p class="book">Lee, James Melvin. <i>History of American Journalism</i> (Boston, -1917).</p> -<p class="book">Morris, Richard B. <i>Fair Trial</i> (New York, 1952).</p> -<p class="book">Mott, Frank Luther. <i>American Journalism, a History of -Newspapers in the United States through 260 Years: -1690-1950</i> (New York, 1950).</p> -<p class="book">Payne, George Henry. <i>History of Journalism in the United -States</i> (New York, 1920).</p> -<p class="book">Rutherfurd, Livingston. <i>Op. cit.</i></p> -<h3>6. Miscellaneous.</h3> -<p class="book">Akers, Dwight. <i>The High Crimes of Colonel Mathews</i> -(Goshen, N. Y., 1954).</p> -<p class="book">Chenery, William L. <i>Freedom of the Press</i> (New York, 1955).</p> -<p class="book">Goebel, Julius, Jr., and T. Raymond Naughton. <i>Law Enforcement -in Colonial New York</i> (New York, 1944).</p> -<p class="book">Hamlin, Paul. <i>Legal Education in Colonial New York</i> (New -York, 1939).</p> -<p class="book">Keys, Alice. <i>Cadwallader Colden, a Representative Eighteenth -Century Official</i> (New York, 1912).</p> -<p class="book">Konkle, Burton Alva. <i>The Life of Andrew Hamilton, 1676-1741, -“The Day-Star of the American Revolution”</i> (Philadelphia, -1941).</p> -<p class="book"><i>The Papers of Lewis Morris, Governor of the Province of -New Jersey from 1738 to 1746</i>, ed. William A. Whitehead -(New York, 1852).</p> -<div class="pb" id="Page_150">150</div> -<p class="book">Siebert, Fredrick Seaton. <i>Freedom of the Press in England, -1476-1776</i> (Urbana, Ill., 1952).</p> -<p class="book">Swindler, William F. <i>Problems of Law in Journalism</i> (New -York, 1955).</p> -<p class="book">Thayer, Frank. <i>Legal Control of the Press</i> (Chicago, 1944).</p> -<h3>7. Important Articles.</h3> -<p class="book">Crossman, Ralph L. “The Legal and Journalistic Significance -of the Trial of John Peter Zenger,” <i>Rocky Mountain Law -Review</i>, X (1938), 258-268.</p> -<p class="book">Paltsits, V. H. “Some Recent Manuscript Accessions,” <i>Bulletin -of the New York Public Library</i>, XLIV (1940), 523-526.</p> -<p class="book">Price, Warren C. “Reflections on the Trial of John Peter -Zenger,” <i>Journalism Quarterly</i>, XXXII (1955), 161-168.</p> -<p class="book">“Publications Relating to New York Affairs under Governor -Cosby,” <i>Bulletin of the New York Public Library</i>, II -(1898), 249-255.</p> -<div class="pb" id="Page_151">151</div> -<h2 class="center" id="c31"><span class="small"><i>INDEX</i></span></h2> -<p class="center"><a class="ab" href="#index_A">A</a> <a class="ab" href="#index_B">B</a> <a class="ab" href="#index_C">C</a> <a class="ab" href="#index_D">D</a> <a class="ab" href="#index_E">E</a> <a class="ab" href="#index_F">F</a> <a class="ab" href="#index_G">G</a> <a class="ab" href="#index_H">H</a> <span class="ab">I</span> <a class="ab" href="#index_J">J</a> <span class="ab">K</span> <a class="ab" href="#index_L">L</a> <a class="ab" href="#index_M">M</a> <a class="ab" href="#index_N">N</a> <a class="ab" href="#index_O">O</a> <a class="ab" href="#index_P">P</a> <a class="ab" href="#index_Q">Q</a> <a class="ab" href="#index_R">R</a> <a class="ab" href="#index_S">S</a> <a class="ab" href="#index_T">T</a> <span class="ab">U</span> <a class="ab" href="#index_V">V</a> <a class="ab" href="#index_W">W</a> <span class="ab">X</span> <span class="ab">Y</span> <a class="ab" href="#index_Z">Z</a></p> -<dl class="index"> -<dt class="center" id="index_A"><b>A</b></dt> -<dt><i>A Brief Narrative of the Case and Tryal of John Peter Zenger</i>, <a href="#Page_72">72</a>-75</dt> -<dd>Bradley declines to furnish data, <a href="#Page_68">68</a>-69</dd> -<dd>Edited by Alexander, <a href="#Page_57">57</a>, <a href="#Page_68">68</a>-71</dd> -<dd>Hamilton furnishes data, <a href="#Page_70">70</a>-71</dd> -<dd>Precedent, <a href="#Page_57">57</a>, <a href="#Page_61">61</a>-62</dd> -<dd>Printed by Zenger, <a href="#Page_57">57</a>, <a href="#Page_68">68</a></dd> -<dt>Adams, Samuel, <a href="#Page_60">60</a>, <a href="#Page_62">62</a></dt> -<dt>Alexander, James, <i>passim</i></dt> -<dd><i>Articles of Complaint</i>, possible author of, <a href="#Page_41">41</a></dd> -<dd><i>Brief Narrative</i>, edits, <a href="#Page_57">57</a>, <a href="#Page_68">68</a>-71</dd> -<dd>Cosby, conflict with, <a href="#Page_25">25</a>-26, <a href="#Page_37">37</a>, <a href="#Page_46">46</a>-47, <a href="#Page_69">69</a>-70</dd> -<dd>Disbarred by Delancey, <a href="#Page_40">40</a>, <a href="#Page_70">70</a>, <a href="#Page_88">88</a>-90, <a href="#c26">Appendix II</a></dd> -<dd>Early life, <a href="#Page_25">25</a></dd> -<dd>Equity court, denies validity of, <a href="#Page_12">12</a></dd> -<dd>Freedom of press, defends, <a href="#Page_30">30</a>-32, <a href="#Page_141">141</a></dd> -<dd>Hamilton, provides court strategy for, <a href="#Page_70">70</a></dd> -<dd>Morris, helps draw up strategy for, <a href="#Page_45">45</a></dd> -<dd><i>New York Weekly Journal</i>, edits, <a href="#Page_24">24</a>-26, <a href="#Page_34">34</a>, <a href="#Page_69">69</a></dd> -<dd>Van Dam’s lawyer, <a href="#Page_12">12</a></dd> -<dd>Westchester election, attends, <a href="#c25">Appendix I</a></dd> -<dd>Zenger’s lawyer, <a href="#Page_40">40</a>, <a href="#Page_69">69</a>-70, <a href="#Page_79">79</a>, <a href="#Page_86">86</a>-87, <a href="#c26">Appendix II</a></dd> -<dt>Alsop, John, <a href="#Page_36">36</a></dt> -<dt><i>Articles of Complaint</i>, <a href="#Page_40">40</a>-44</dt> -<dt>Assembly, <a href="#Page_11">11</a>, <a href="#Page_35">35</a>, <a href="#Page_82">82</a></dt> -</dl> -<dl class="index"> -<dt class="center" id="index_B"><b>B</b></dt> -<dt><i>Barbadoes Gazette</i>, <a href="#c27">Appendix III</a></dt> -<dt>Bennett, James Gordon, <a href="#Page_65">65</a></dt> -<dt>Bible cited, <a href="#Page_10">10</a>, <a href="#Page_125">125</a>, <a href="#Page_126">126</a>-127</dt> -<dt>Blagg, Edward, <a href="#Page_36">36</a></dt> -<dt>Board of Trade, <a href="#Page_15">15</a>, <a href="#Page_27">27</a>, <a href="#Page_28">28</a>, <a href="#Page_55">55</a></dt> -<dt>Borah, William E., <a href="#Page_65">65</a>-66</dt> -<dt><i>Boston Gazette</i>, <a href="#Page_60">60</a></dt> -<dt>Bradford, Andrew, <a href="#Page_4">4</a>, <a href="#c27">Appendix III</a></dt> -<dt>Bradford, William, <a href="#Page_3">3</a>-5, <a href="#Page_16">16</a></dt> -<dt>Bradley, Franklin, <i>passim</i></dt> -<dd>Attorney General, <a href="#Page_48">48</a>, <a href="#Page_79">79</a></dd> -<dd><i>Brief Narrative</i>, declines to furnish data, <a href="#Page_68">68</a>-69</dd> -<dd>Prosecutes Zenger, <a href="#Page_48">48</a>, <a href="#Page_68">68</a>, <a href="#Page_94">94</a>-132</dd> -<dd>Westchester election, attends, <a href="#c25">Appendix I</a></dd> -<dt>Brewster, Thomas, <a href="#Page_103">103</a>-104</dt> -<dt><i>British Journal</i>, <a href="#Page_31">31</a></dt> -<dt>Brutus, Lucius Junius, <a href="#Page_128">128</a>-129</dt> -<dt>Burnet, Bishop, <a href="#Page_85">85</a>, <a href="#Page_126">126</a></dt> -<dt>Burnet, William, <a href="#Page_6">6</a>-7</dt> -</dl> -<dl class="index"> -<dt class="center" id="index_C"><b>C</b></dt> -<dt><i>Cato’s Letters</i>, <a href="#Page_31">31</a>-32</dt> -<dt>Censorship, <a href="#Page_16">16</a>, <a href="#Page_55">55</a>-57, <a href="#Page_66">66</a>-67</dt> -<dt>Chambers, John, <a href="#Page_79">79</a>, <a href="#Page_90">90</a>, <a href="#Page_98">98</a>, <a href="#Page_102">102</a></dt> -<dt>Chandler, Peleg W., <a href="#Page_71">71</a></dt> -<dt>Clarke, George, <a href="#Page_49">49</a>, <a href="#Page_86">86</a></dt> -<dt>Colden, Cadwallader, <i>passim</i></dt> -<dd>Cosby in Minorca, <a href="#Page_9">9</a>-10</dd> -<dd>Harison, Francis, <a href="#Page_19">19</a></dd> -<dd>Morris, removal from Supreme Court, <a href="#Page_14">14</a>, <a href="#Page_18">18</a>-19</dd> -<dd>Morris-Delancey feud, <a href="#Page_7">7</a></dd> -<dd>Newspapers, new importance of, <a href="#Page_60">60</a></dd> -<dd>Zenger prosecution, <a href="#Page_37">37</a></dd> -<dt>Cooper, Nicholas, <a href="#Page_23">23</a>, <a href="#c25">Appendix I</a></dt> -<dt>Cosby, William, <a href="#Page_8">8</a>-9, <a href="#Page_26">26</a></dt> -<dd>Attacked by <i>Journal</i>, <a href="#Page_28">28</a>, <a href="#Page_32">32</a></dd> -<dd>Burning of <i>Journal</i>, <a href="#Page_35">35</a></dd> -<dd>Complaints to superiors, <a href="#Page_10">10</a>-11, <a href="#Page_13">13</a>-14, <a href="#Page_25">25</a>-26, <a href="#Page_27">27</a>, <a href="#Page_46">46</a>, <a href="#Page_47">47</a></dd> -<dd>Court party and, <a href="#Page_11">11</a>, <a href="#Page_16">16</a></dd> -<dd>Defended by <i>Gazette</i>, <a href="#Page_20">20</a>-21, <a href="#Page_32">32</a></dd> -<dd>Equity court, <a href="#Page_12">12</a>-13</dd> -<dd>Governor of New York, <a href="#Page_9">9</a>-11</dd> -<dd>and Harison, Francis, <a href="#Page_18">18</a>-19</dd> -<dd>Misdemeanors, <a href="#Page_11">11</a>, <a href="#Page_15">15</a>, <a href="#Page_28">28</a>, <a href="#Page_39">39</a>-40, <a href="#Page_55">55</a>, <a href="#Page_58">58</a></dd> -<dd>Morris, removes from Supreme Court, <a href="#Page_14">14</a>, <a href="#Page_18">18</a>-19, <a href="#Page_23">23</a></dd> -<dd>Opponents, <a href="#Page_11">11</a>-12, <a href="#Page_23">23</a>, <a href="#Page_25">25</a>-26, <a href="#Page_37">37</a>-38, <a href="#Page_40">40</a>-47, <a href="#Page_49">49</a>, <a href="#Page_55">55</a>, <a href="#Page_69">69</a>-70</dd> -<dt>Council, <a href="#Page_11">11</a>, <a href="#Page_43">43</a>-44, <a href="#Page_82">82</a>-83, <a href="#Page_86">86</a></dt> -<dt>Court party, <a href="#Page_11">11</a>, <a href="#Page_16">16</a>, <a href="#Page_22">22</a>, <a href="#Page_39">39</a>, <a href="#Page_43">43</a></dt> -<dt><i>Craftsman</i>, <a href="#Page_32">32</a></dt> -</dl> -<dl class="index"> -<dt class="center" id="index_D"><b>D</b></dt> -<dt>Dana, Charles A., <a href="#Page_65">65</a></dt> -<dt>Delancey, James, <i>passim</i></dt> -<dd>Chief Justice, <a href="#Page_14">14</a>, <a href="#Page_18">18</a>-19, <a href="#Page_79">79</a></dd> -<dd>Disbars Alexander and Smith, <a href="#Page_40">40</a>, <a href="#Page_70">70</a>, <a href="#Page_88">88</a>-90, <a href="#c26">Appendix II</a></dd> -<dd>Equity court, defends, <a href="#Page_12">12</a>-13</dd> -<dd>Hamilton, compared with, <a href="#Page_51">51</a></dd> -<dd>Harison, Francis, <a href="#Page_18">18</a></dd> -<dd>Westchester election, attends, <a href="#c25">Appendix I</a></dd> -<dd>and Zenger, Peter, <a href="#Page_35">35</a>, <a href="#Page_40">40</a>, <a href="#Page_48">48</a>, <a href="#Page_51">51</a>, <a href="#Page_59">59</a>, <a href="#Page_80">80</a>-81, <a href="#Page_87">87</a></dd> -<dd>Zenger trial, presides over, <a href="#Page_79">79</a>, <a href="#Page_93">93</a>-132</dd> -<dt>Delancey, Stephen, <a href="#Page_6">6</a>-7</dt> -<dt>Delancey Interest, <a href="#Page_7">7</a>, <a href="#Page_11">11</a></dt> -</dl> -<dl class="index"> -<dt class="center" id="index_E"><b>E</b></dt> -<dt>Echard, Laurence, <a href="#Page_126">126</a></dt> -</dl> -<dl class="index"> -<dt class="center" id="index_F"><b>F</b></dt> -<dt>Forster, William, <a href="#Page_22">22</a>, <a href="#c25">Appendix I</a></dt> -<dt>Fox Libel Act, <a href="#Page_64">64</a></dt> -<dt>Franklin, Benjamin, <a href="#Page_4">4</a>, <a href="#Page_63">63</a></dt> -<dt>Fuller, William, <a href="#Page_110">110</a></dt> -</dl> -<dl class="index"> -<dt class="center" id="index_G"><b>G</b></dt> -<dt>Gordon, Thomas, <a href="#Page_31">31</a></dt> -<dt>Greeley, Horace, <a href="#Page_65">65</a></dt> -</dl> -<dl class="index"> -<dt class="center" id="index_H"><b>H</b></dt> -<dt>Halifax, Earl of, <a href="#Page_9">9</a></dt> -<dt>Hamilton, Andrew, <i>passim</i></dt> -<dd>Alexander, follows court strategy of, <a href="#Page_70">70</a></dd> -<dd><i>Brief Narrative</i>, furnishes data, <a href="#Page_70">70</a>-71</dd> -<dd>British law and America, <a href="#Page_62">62</a>-63, <a href="#Page_105">105</a>-106</dd> -<dd>Career in Pennsylvania, <a href="#Page_50">50</a>-51</dd> -<dd>Counsel for the Defense, <a href="#Page_48">48</a>, <a href="#Page_55">55</a>-56, <a href="#Page_59">59</a>, <a href="#Page_79">79</a>, <a href="#Page_98">98</a>-132</dd> -<dd>Delancey, compared with, <a href="#Page_51">51</a></dd> -<dd>Early life, <a href="#Page_49">49</a>-50</dd> -<dd>Freedom of press, <a href="#Page_55">55</a>-56</dd> -<dd>Influence, <a href="#Page_62">62</a>-64, <a href="#Page_66">66</a></dd> -<dd>New York citizen, <a href="#Page_133">133</a>-134</dd> -<dd>On right of jury to decide verdict, <a href="#Page_58">58</a>-59, <a href="#Page_99">99</a>-132 <i>passim</i></dd> -<dd>Truth a defense in libel cases, <a href="#Page_56">56</a>, <a href="#Page_99">99</a>-132</dd> -<dt>Hampden, John, <a href="#Page_129">129</a></dt> -<dt>Hancock, John, <a href="#Page_62">62</a></dt> -<dt class="pb" id="Page_152">152</dt> -<dt>Harison, Francis, <i>passim</i></dt> -<dd>Career in New York, <a href="#Page_16">16</a>-18</dd> -<dd>Cosby, henchman of, <a href="#Page_18">18</a>-20, <a href="#Page_36">36</a>, <a href="#Page_45">45</a>, <a href="#Page_84">84</a>-85</dd> -<dd><i>Journal</i> and, <a href="#Page_33">33</a>-34, <a href="#Page_37">37</a>, <a href="#Page_86">86</a></dd> -<dd><i>New York Gazette</i>, edits, <a href="#Page_16">16</a>, <a href="#Page_20">20</a>-21, <a href="#Page_34">34</a></dd> -<dd>Recorder for New York City, <a href="#Page_17">17</a>, <a href="#Page_79">79</a>, <a href="#Page_84">84</a></dd> -<dt>Hawkins, William, <a href="#Page_80">80</a>-81</dt> -<dt>Hildeburn, Charles R., <a href="#Page_65">65</a></dt> -<dt>Holt, Sir John, <a href="#Page_107">107</a>, <a href="#Page_110">110</a>-111</dt> -<dt>Horsmanden, Daniel, <a href="#Page_45">45</a>, <a href="#Page_86">86</a></dt> -<dt>Howell, T. B., <a href="#Page_71">71</a></dt> -</dl> -<dl class="index"> -<dt class="center" id="index_J"><b>J</b></dt> -<dt>Jefferson, Thomas, <a href="#Page_61">61</a></dt> -<dt>Jury, struck</dt> -<dd>Acquits Zenger, <a href="#Page_48">48</a>, <a href="#Page_56">56</a>, <a href="#Page_58">58</a>-59, <a href="#Page_61">61</a>, <a href="#Page_132">132</a></dd> -<dd>Court party attempts to pack, <a href="#Page_90">90</a>-94</dd> -<dd>Members, <a href="#Page_94">94</a></dd> -</dl> -<dl class="index"> -<dt class="center" id="index_L"><b>L</b></dt> -<dt>Libel</dt> -<dd>Meaning, <a href="#Page_54">54</a>-55, <a href="#Page_63">63</a>-64, <a href="#Page_99">99</a>-132 <i>passim</i></dd> -<dd>Zenger and, <a href="#Page_35">35</a>, <a href="#Page_48">48</a>, <a href="#Page_55">55</a>, <a href="#Page_61">61</a>, <a href="#Page_69">69</a>, <a href="#Page_81">81</a>, <a href="#Page_94">94</a>-98, <a href="#Page_131">131</a>-132</dd> -<dt><i>London Journal</i>, <a href="#Page_31">31</a></dt> -<dt>Lord Campbell’s Act, <a href="#Page_64">64</a></dt> -</dl> -<dl class="index"> -<dt class="center" id="index_M"><b>M</b></dt> -<dt>Magistrates of New York City, <a href="#Page_35">35</a>, <a href="#Page_36">36</a>, <a href="#Page_83">83</a>-85, <a href="#Page_133">133</a>-134</dt> -<dt>Matthews, Vincent, <a href="#Page_35">35</a>-36</dt> -<dt>Montgomerie, John, <a href="#Page_7">7</a></dt> -<dt>Morris, Gouverneur, <a href="#Page_6">6</a>, <a href="#Page_63">63</a></dt> -<dt>Morris, Lewis, <i>passim</i></dt> -<dd><i>Articles of Complaint</i>, possible author of, <a href="#Page_41">41</a></dd> -<dd>Career in New York, <a href="#Page_5">5</a>-7</dd> -<dd>Cosby, conflict with, <a href="#Page_14">14</a>-15, <a href="#Page_37">37</a>, <a href="#Page_44">44</a>-47</dd> -<dd>Equity court, denies validity of, <a href="#Page_13">13</a></dd> -<dd><i>Journal</i> and, <a href="#Page_29">29</a>-30, <a href="#Page_34">34</a></dd> -<dd>Popular party, <a href="#Page_15">15</a></dd> -<dd>Removed from Supreme Court, <a href="#Page_14">14</a>, <a href="#Page_18">18</a>-19, <a href="#Page_23">23</a></dd> -<dd>Westchester election, wins, <a href="#Page_22">22</a>-24, <a href="#c25">Appendix I</a></dd> -<dt>Morris, Lewis (grandson of above), <a href="#Page_6">6</a></dt> -<dt>Morris, Lewis, Jr., <a href="#Page_16">16</a>, <a href="#Page_34">34</a>, <a href="#Page_45">45</a></dt> -<dt>Morris Interest, <a href="#Page_7">7</a>, <a href="#Page_11">11</a></dt> -<dt>Mott, Frank Luther, <a href="#Page_71">71</a></dt> -</dl> -<dl class="index"> -<dt class="center" id="index_N"><b>N</b></dt> -<dt>Newcastle, Duke of, <a href="#Page_9">9</a>, <a href="#Page_10">10</a>-11, <a href="#Page_13">13</a>-14, <a href="#Page_25">25</a>-26</dt> -<dt>New York Bar Association, <a href="#Page_66">66</a></dt> -<dt><i>New York Gazette</i>, <a href="#Page_16">16</a></dt> -<dd>Defends Cosby, <a href="#Page_20">20</a>-21, <a href="#Page_32">32</a></dd> -<dd>Harison and, <a href="#Page_16">16</a>, <a href="#Page_34">34</a>, <a href="#Page_39">39</a></dd> -<dd>War with <i>Journal</i>, <a href="#Page_32">32</a>-35</dd> -<dt>New York Public Library, <a href="#Page_65">65</a></dt> -<dt><i>New York Weekly Journal</i>, <i>passim</i></dt> -<dd>Alexander and, <a href="#Page_24">24</a>-25, <a href="#Page_26">26</a>, <a href="#Page_69">69</a></dd> -<dd><i>Boston Gazette</i>, forerunner of, <a href="#Page_60">60</a></dd> -<dd>Burned, <a href="#Page_37">37</a>, <a href="#Page_82">82</a>-83, <a href="#Page_86">86</a></dd> -<dd>Constitutional development, <a href="#Page_61">61</a>-63</dd> -<dd>Continuing importance, <a href="#Page_65">65</a>-67</dd> -<dd>Cosby and, <a href="#Page_28">28</a>, <a href="#Page_32">32</a>, <a href="#Page_35">35</a>, <a href="#Page_55">55</a></dd> -<dd>Democracy, influence on, <a href="#Page_59">59</a>-66</dd> -<dd>Harison and, <a href="#Page_33">33</a>-34</dd> -<dd>Political independent, America’s first, <a href="#Page_24">24</a>, <a href="#Page_53">53</a>, <a href="#Page_56">56</a></dd> -<dd>Printed by Zenger, <a href="#Page_24">24</a>, <a href="#Page_38">38</a>, <a href="#Page_80">80</a>, <a href="#Page_82">82</a>, <a href="#Page_86">86</a>, <a href="#Page_95">95</a>-99</dd> -<dd>War with <i>Gazette</i>, <a href="#Page_32">32</a>-35</dd> -<dd>Westchester election, <a href="#Page_28">28</a>, <a href="#Page_135">135</a></dd> -<dt>Nicholson, Francis, <a href="#Page_124">124</a></dt> -</dl> -<dl class="index"> -<dt class="center" id="index_O"><b>O</b></dt> -<dt>Otis, James, <a href="#Page_62">62</a></dt> -</dl> -<dl class="index"> -<dt class="center" id="index_P"><b>P</b></dt> -<dt><i>Pennsylvania Gazette</i>, <a href="#Page_63">63</a>, <a href="#c27">Appendix III</a></dt> -<dt>Philipse, Frederick, <a href="#Page_12">12</a>-13, <a href="#Page_79">79</a>, <a href="#Page_89">89</a>-90, <a href="#Page_93">93</a></dt> -<dt>Popular party, <a href="#Page_11">11</a>, <a href="#Page_15">15</a>, <a href="#Page_21">21</a>-22, <a href="#Page_24">24</a>, <a href="#Page_34">34</a>, <a href="#Page_39">39</a>, <a href="#Page_45">45</a>, <a href="#Page_65">65</a>, <a href="#Page_69">69</a></dt> -<dt>Press, freedom of, <a href="#Page_30">30</a>-32, <a href="#Page_49">49</a>, <a href="#Page_55">55</a>-56, <a href="#Page_66">66</a>, <a href="#Page_61">61</a>, <a href="#Page_66">66</a>, <a href="#Page_99">99</a>-132 <i>passim</i>, <a href="#Page_133">133</a>, <a href="#c27">Appendix III</a></dt> -</dl> -<dl class="index"> -<dt class="center" id="index_Q"><b>Q</b></dt> -<dt>Quakers, <a href="#Page_23">23</a>, <a href="#c25">Appendix I</a></dt> -</dl> -<dl class="index"> -<dt class="center" id="index_R"><b>R</b></dt> -<dt>Rapin de Thoyras, Paul de, <a href="#Page_126">126</a></dt> -<dt>Raymond, Henry J., <a href="#Page_65">65</a></dt> -<dt>Rutherfurd, Livingston, <a href="#Page_65">65</a>, <a href="#Page_71">71</a></dt> -</dl> -<dl class="index"> -<dt class="center" id="index_S"><b>S</b></dt> -<dt>Sacheverell, Henry, <a href="#Page_84">84</a>-85, <a href="#Page_104">104</a></dt> -<dt>Sedition Act, <a href="#Page_64">64</a></dt> -<dt>Seven Bishops, <a href="#Page_122">122</a></dt> -<dt>Smith, William, <i>passim</i></dt> -<dd>Disbarred by Delancey, <a href="#Page_40">40</a>, <a href="#Page_88">88</a>-90, <a href="#Page_139">139</a></dd> -<dd>Equity court, denies validity of, <a href="#Page_12">12</a></dd> -<dd><i>Journal</i> and, <a href="#Page_34">34</a></dd> -<dd>Morris, helps draw up strategy for, <a href="#Page_45">45</a></dd> -<dd>Van Dam’s lawyer, <a href="#Page_12">12</a></dd> -<dd>Westchester election, attends, <a href="#c25">Appendix I</a></dd> -<dd>Zenger’s lawyer, <a href="#Page_40">40</a>, <a href="#Page_79">79</a>, <a href="#Page_86">86</a>-87, <a href="#Page_139">139</a></dd> -<dt>Star Chamber, <a href="#Page_103">103</a>, <a href="#Page_111">111</a>, <a href="#Page_121">121</a>, <a href="#Page_129">129</a>-130</dt> -</dl> -<dl class="index"> -<dt class="center" id="index_T"><b>T</b></dt> -<dt>Thomas, Isaiah, <a href="#Page_65">65</a></dt> -<dt>Tocqueville, Alexis de, <a href="#Page_61">61</a></dt> -<dt>Trenchard, John, <a href="#Page_31">31</a></dt> -<dt>Truesdale, William, <a href="#Page_19">19</a>-20</dt> -<dt>Tutchin, John, <a href="#Page_107">107</a>, <a href="#Page_110">110</a></dt> -</dl> -<dl class="index"> -<dt class="center" id="index_V"><b>V</b></dt> -<dt>Van Dam, Rip, <a href="#Page_34">34</a></dt> -<dd>Cosby, dispute with, <a href="#Page_11">11</a>-12, <a href="#Page_23">23</a>, <a href="#Page_40">40</a>-44, <a href="#Page_47">47</a>, <a href="#Page_49">49</a></dd> -</dl> -<dl class="index"> -<dt class="center" id="index_W"><b>W</b></dt> -<dt>Westchester election, <a href="#Page_22">22</a>-24, <a href="#Page_28">28</a>, <a href="#Page_65">65</a></dt> -<dt>White, Mary, <a href="#Page_4">4</a></dt> -</dl> -<dl class="index"> -<dt class="center" id="index_Z"><b>Z</b></dt> -<dt>Zenger, Anna Catherine, <a href="#Page_4">4</a>, <a href="#Page_38">38</a>-39</dt> -<dt>Zenger, John, <a href="#Page_4">4</a></dt> -<dt>Zenger, John Peter, <i>passim</i></dt> -<dd>Acquitted, <a href="#Page_48">48</a>, <a href="#Page_56">56</a>, <a href="#Page_59">59</a>, <a href="#Page_132">132</a></dd> -<dd>Arrested, <a href="#Page_38">38</a>, <a href="#Page_44">44</a>, <a href="#Page_86">86</a></dd> -<dd>Bradford and, <a href="#Page_3">3</a>-4</dd> -<dd><i>Brief Narrative</i>, prints, <a href="#Page_57">57</a>, <a href="#Page_68">68</a></dd> -<dd>Cosby and, <a href="#Page_55">55</a></dd> -<dd>Delancey and, <a href="#Page_35">35</a>, <a href="#Page_40">40</a>, <a href="#Page_48">48</a>, <a href="#Page_51">51</a>, <a href="#Page_59">59</a>, <a href="#Page_80">80</a>-81, <a href="#Page_87">87</a>, <a href="#c26">Appendix II</a></dd> -<dd>Harison and, <a href="#Page_36">36</a>, <a href="#Page_39">39</a></dd> -<dd>New York’s second printer, <a href="#Page_4">4</a>-5</dd> -<dd><i>New York Weekly Journal</i> and, <a href="#Page_24">24</a>, <a href="#Page_34">34</a>, <a href="#Page_57">57</a></dd> -<dd>Prints opposition pamphlets, <a href="#Page_4">4</a>, <a href="#Page_13">13</a>, <a href="#Page_40">40</a>-41</dd> -<dd>Reputation, <a href="#Page_64">64</a>-66</dd> -<dt>Zenger trial, <i>passim</i></dt> -<dd>Aftermath, <a href="#Page_133">133</a>-134</dd> -<dd>Causes, <a href="#Page_3">3</a>-51</dd> -<dd>Dramatis personae, <a href="#Page_79">79</a></dd> -<dd>Meaning, <a href="#Page_52">52</a>-67</dd> -<dd>Pleading, <a href="#Page_93">93</a>-132</dd> -<dd>Preliminaries, <a href="#Page_80">80</a>-92</dd> -<dd>Text, <a href="#Page_68">68</a>-75</dd> -</dl> -<h2>Transcriber’s Notes</h2> -<ul> -<li>Retained publication information from the printed edition: this eBook is public-domain in the country of publication.</li> -<li>Silently corrected a few typos in the text; retained typos in the transcribed newpaper page.</li> -<li>Provided an original cover image, for free and unrestricted use with this Project Gutenberg eBook.</li> -<li>In the text versions only, text in italics is delimited by _underscores_.</li> -</ul> - - - - - - - -<pre> - - - - - -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-h.htm or 54836-h.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. Special rules, set forth in the General Terms of Use part -of this license, apply to copying and distributing Project -Gutenberg-tm electronic works to protect the PROJECT GUTENBERG-tm -concept and trademark. Project Gutenberg is a registered trademark, -and may not be used if you charge for the eBooks, unless you receive -specific permission. If you do not charge anything for copies of this -eBook, complying with the rules is very easy. You may use this eBook -for nearly any purpose such as creation of derivative works, reports, -performances and research. They may be modified and printed and given -away--you may do practically ANYTHING in the United States with eBooks -not protected by U.S. copyright law. Redistribution is subject to the -trademark license, especially commercial redistribution. - -START: FULL LICENSE - -THE FULL PROJECT GUTENBERG LICENSE -PLEASE READ THIS BEFORE YOU DISTRIBUTE OR USE THIS WORK - -To protect the Project Gutenberg-tm mission of promoting the free -distribution of electronic works, by using or distributing this work -(or any other work associated in any way with the phrase "Project -Gutenberg"), you agree to comply with all the terms of the Full -Project Gutenberg-tm License available with this file or online at -www.gutenberg.org/license. - -Section 1. General Terms of Use and Redistributing Project -Gutenberg-tm electronic works - -1.A. By reading or using any part of this Project Gutenberg-tm -electronic work, you indicate that you have read, understand, agree to -and accept all the terms of this license and intellectual property -(trademark/copyright) agreement. If you do not agree to abide by all -the terms of this agreement, you must cease using and return or -destroy all copies of Project Gutenberg-tm electronic works in your -possession. If you paid a fee for obtaining a copy of or access to a -Project Gutenberg-tm electronic work and you do not agree to be bound -by the terms of this agreement, you may obtain a refund from the -person or entity to whom you paid the fee as set forth in paragraph -1.E.8. - -1.B. "Project Gutenberg" is a registered trademark. It may only be -used on or associated in any way with an electronic work by people who -agree to be bound by the terms of this agreement. There are a few -things that you can do with most Project Gutenberg-tm electronic works -even without complying with the full terms of this agreement. See -paragraph 1.C below. There are a lot of things you can do with Project -Gutenberg-tm electronic works if you follow the terms of this -agreement and help preserve free future access to Project Gutenberg-tm -electronic works. See paragraph 1.E below. - -1.C. The Project Gutenberg Literary Archive Foundation ("the -Foundation" or PGLAF), owns a compilation copyright in the collection -of Project Gutenberg-tm electronic works. Nearly all the individual -works in the collection are in the public domain in the United -States. If an individual work is unprotected by copyright law in the -United States and you are located in the United States, we do not -claim a right to prevent you from copying, distributing, performing, -displaying or creating derivative works based on the work as long as -all references to Project Gutenberg are removed. Of course, we hope -that you will support the Project Gutenberg-tm mission of promoting -free access to electronic works by freely sharing Project Gutenberg-tm -works in compliance with the terms of this agreement for keeping the -Project Gutenberg-tm name associated with the work. You can easily -comply with the terms of this agreement by keeping this work in the -same format with its attached full Project Gutenberg-tm License when -you share it without charge with others. - -1.D. The copyright laws of the place where you are located also govern -what you can do with this work. Copyright laws in most countries are -in a constant state of change. If you are outside the United States, -check the laws of your country in addition to the terms of this -agreement before downloading, copying, displaying, performing, -distributing or creating derivative works based on this work or any -other Project Gutenberg-tm work. The Foundation makes no -representations concerning the copyright status of any work in any -country outside the United States. - -1.E. Unless you have removed all references to Project Gutenberg: - -1.E.1. The following sentence, with active links to, or other -immediate access to, the full Project Gutenberg-tm License must appear -prominently whenever any copy of a Project Gutenberg-tm work (any work -on which the phrase "Project Gutenberg" appears, or with which the -phrase "Project Gutenberg" is associated) is accessed, displayed, -performed, viewed, copied or distributed: - - 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. - -1.E.2. If an individual Project Gutenberg-tm electronic work is -derived from texts not protected by U.S. copyright law (does not -contain a notice indicating that it is posted with permission of the -copyright holder), the work can be copied and distributed to anyone in -the United States without paying any fees or charges. If you are -redistributing or providing access to a work with the phrase "Project -Gutenberg" associated with or appearing on the work, you must comply -either with the requirements of paragraphs 1.E.1 through 1.E.7 or -obtain permission for the use of the work and the Project Gutenberg-tm -trademark as set forth in paragraphs 1.E.8 or 1.E.9. - -1.E.3. If an individual Project Gutenberg-tm electronic work is posted -with the permission of the copyright holder, your use and distribution -must comply with both paragraphs 1.E.1 through 1.E.7 and any -additional terms imposed by the copyright holder. Additional terms -will be linked to the Project Gutenberg-tm License for all works -posted with the permission of the copyright holder found at the -beginning of this work. - -1.E.4. Do not unlink or detach or remove the full Project Gutenberg-tm -License terms from this work, or any files containing a part of this -work or any other work associated with Project Gutenberg-tm. - -1.E.5. Do not copy, display, perform, distribute or redistribute this -electronic work, or any part of this electronic work, without -prominently displaying the sentence set forth in paragraph 1.E.1 with -active links or immediate access to the full terms of the Project -Gutenberg-tm License. - -1.E.6. You may convert to and distribute this work in any binary, -compressed, marked up, nonproprietary or proprietary form, including -any word processing or hypertext form. However, if you provide access -to or distribute copies of a Project Gutenberg-tm work in a format -other than "Plain Vanilla ASCII" or other format used in the official -version posted on the official Project Gutenberg-tm web site -(www.gutenberg.org), you must, at no additional cost, fee or expense -to the user, provide a copy, a means of exporting a copy, or a means -of obtaining a copy upon request, of the work in its original "Plain -Vanilla ASCII" or other form. Any alternate format must include the -full Project Gutenberg-tm License as specified in paragraph 1.E.1. - -1.E.7. Do not charge a fee for access to, viewing, displaying, -performing, copying or distributing any Project Gutenberg-tm works -unless you comply with paragraph 1.E.8 or 1.E.9. - -1.E.8. You may charge a reasonable fee for copies of or providing -access to or distributing Project Gutenberg-tm electronic works -provided that - -* You pay a royalty fee of 20% of the gross profits you derive from - the use of Project Gutenberg-tm works calculated using the method - you already use to calculate your applicable taxes. The fee is owed - to the owner of the Project Gutenberg-tm trademark, but he has - agreed to donate royalties under this paragraph to the Project - Gutenberg Literary Archive Foundation. Royalty payments must be paid - within 60 days following each date on which you prepare (or are - legally required to prepare) your periodic tax returns. Royalty - payments should be clearly marked as such and sent to the Project - Gutenberg Literary Archive Foundation at the address specified in - Section 4, "Information about donations to the Project Gutenberg - Literary Archive Foundation." - -* You provide a full refund of any money paid by a user who notifies - you in writing (or by e-mail) within 30 days of receipt that s/he - does not agree to the terms of the full Project Gutenberg-tm - License. You must require such a user to return or destroy all - copies of the works possessed in a physical medium and discontinue - all use of and all access to other copies of Project Gutenberg-tm - works. - -* You provide, in accordance with paragraph 1.F.3, a full refund of - any money paid for a work or a replacement copy, if a defect in the - electronic work is discovered and reported to you within 90 days of - receipt of the work. - -* You comply with all other terms of this agreement for free - distribution of Project Gutenberg-tm works. - -1.E.9. If you wish to charge a fee or distribute a Project -Gutenberg-tm electronic work or group of works on different terms than -are set forth in this agreement, you must obtain permission in writing -from both the Project Gutenberg Literary Archive Foundation and The -Project Gutenberg Trademark LLC, the owner of the Project Gutenberg-tm -trademark. Contact the Foundation as set forth in Section 3 below. - -1.F. - -1.F.1. Project Gutenberg volunteers and employees expend considerable -effort to identify, do copyright research on, transcribe and proofread -works not protected by U.S. copyright law in creating the Project -Gutenberg-tm collection. Despite these efforts, Project Gutenberg-tm -electronic works, and the medium on which they may be stored, may -contain "Defects," such as, but not limited to, incomplete, inaccurate -or corrupt data, transcription errors, a copyright or other -intellectual property infringement, a defective or damaged disk or -other medium, a computer virus, or computer codes that damage or -cannot be read by your equipment. - -1.F.2. LIMITED WARRANTY, DISCLAIMER OF DAMAGES - Except for the "Right -of Replacement or Refund" described in paragraph 1.F.3, the Project -Gutenberg Literary Archive Foundation, the owner of the Project -Gutenberg-tm trademark, and any other party distributing a Project -Gutenberg-tm electronic work under this agreement, disclaim all -liability to you for damages, costs and expenses, including legal -fees. YOU AGREE THAT YOU HAVE NO REMEDIES FOR NEGLIGENCE, STRICT -LIABILITY, BREACH OF WARRANTY OR BREACH OF CONTRACT EXCEPT THOSE -PROVIDED IN PARAGRAPH 1.F.3. YOU AGREE THAT THE FOUNDATION, THE -TRADEMARK OWNER, AND ANY DISTRIBUTOR UNDER THIS AGREEMENT WILL NOT BE -LIABLE TO YOU FOR ACTUAL, DIRECT, INDIRECT, CONSEQUENTIAL, PUNITIVE OR -INCIDENTAL DAMAGES EVEN IF YOU GIVE NOTICE OF THE POSSIBILITY OF SUCH -DAMAGE. - -1.F.3. LIMITED RIGHT OF REPLACEMENT OR REFUND - If you discover a -defect in this electronic work within 90 days of receiving it, you can -receive a refund of the money (if any) you paid for it by sending a -written explanation to the person you received the work from. If you -received the work on a physical medium, you must return the medium -with your written explanation. The person or entity that provided you -with the defective work may elect to provide a replacement copy in -lieu of a refund. If you received the work electronically, the person -or entity providing it to you may choose to give you a second -opportunity to receive the work electronically in lieu of a refund. If -the second copy is also defective, you may demand a refund in writing -without further opportunities to fix the problem. - -1.F.4. Except for the limited right of replacement or refund set forth -in paragraph 1.F.3, this work is provided to you 'AS-IS', WITH NO -OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT -LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE. - -1.F.5. Some states do not allow disclaimers of certain implied -warranties or the exclusion or limitation of certain types of -damages. If any disclaimer or limitation set forth in this agreement -violates the law of the state applicable to this agreement, the -agreement shall be interpreted to make the maximum disclaimer or -limitation permitted by the applicable state law. The invalidity or -unenforceability of any provision of this agreement shall not void the -remaining provisions. - -1.F.6. INDEMNITY - You agree to indemnify and hold the Foundation, the -trademark owner, any agent or employee of the Foundation, anyone -providing copies of Project Gutenberg-tm electronic works in -accordance with this agreement, and any volunteers associated with the -production, promotion and distribution of Project Gutenberg-tm -electronic works, harmless from all liability, costs and expenses, -including legal fees, that arise directly or indirectly from any of -the following which you do or cause to occur: (a) distribution of this -or any Project Gutenberg-tm work, (b) alteration, modification, or -additions or deletions to any Project Gutenberg-tm work, and (c) any -Defect you cause. - -Section 2. Information about the Mission of Project Gutenberg-tm - -Project Gutenberg-tm is synonymous with the free distribution of -electronic works in formats readable by the widest variety of -computers including obsolete, old, middle-aged and new computers. It -exists because of the efforts of hundreds of volunteers and donations -from people in all walks of life. - -Volunteers and financial support to provide volunteers with the -assistance they need are critical to reaching Project Gutenberg-tm's -goals and ensuring that the Project Gutenberg-tm collection will -remain freely available for generations to come. In 2001, the Project -Gutenberg Literary Archive Foundation was created to provide a secure -and permanent future for Project Gutenberg-tm and future -generations. To learn more about the Project Gutenberg Literary -Archive Foundation and how your efforts and donations can help, see -Sections 3 and 4 and the Foundation information page at -www.gutenberg.org - - - -Section 3. Information about the Project Gutenberg Literary Archive Foundation - -The Project Gutenberg Literary Archive Foundation is a non profit -501(c)(3) educational corporation organized under the laws of the -state of Mississippi and granted tax exempt status by the Internal -Revenue Service. The Foundation's EIN or federal tax identification -number is 64-6221541. Contributions to the Project Gutenberg Literary -Archive Foundation are tax deductible to the full extent permitted by -U.S. federal laws and your state's laws. - -The Foundation's principal office is in Fairbanks, Alaska, with the -mailing address: PO Box 750175, Fairbanks, AK 99775, but its -volunteers and employees are scattered throughout numerous -locations. Its business office is located at 809 North 1500 West, Salt -Lake City, UT 84116, (801) 596-1887. Email contact links and up to -date contact information can be found at the Foundation's web site and -official page at www.gutenberg.org/contact - -For additional contact information: - - Dr. Gregory B. Newby - Chief Executive and Director - gbnewby@pglaf.org - -Section 4. Information about Donations to the Project Gutenberg -Literary Archive Foundation - -Project Gutenberg-tm depends upon and cannot survive without wide -spread public support and donations to carry out its mission of -increasing the number of public domain and licensed works that can be -freely distributed in machine readable form accessible by the widest -array of equipment including outdated equipment. Many small donations -($1 to $5,000) are particularly important to maintaining tax exempt -status with the IRS. - -The Foundation is committed to complying with the laws regulating -charities and charitable donations in all 50 states of the United -States. Compliance requirements are not uniform and it takes a -considerable effort, much paperwork and many fees to meet and keep up -with these requirements. We do not solicit donations in locations -where we have not received written confirmation of compliance. To SEND -DONATIONS or determine the status of compliance for any particular -state visit www.gutenberg.org/donate - -While we cannot and do not solicit contributions from states where we -have not met the solicitation requirements, we know of no prohibition -against accepting unsolicited donations from donors in such states who -approach us with offers to donate. - -International donations are gratefully accepted, but we cannot make -any statements concerning tax treatment of donations received from -outside the United States. U.S. laws alone swamp our small staff. - -Please check the Project Gutenberg Web pages for current donation -methods and addresses. Donations are accepted in a number of other -ways including checks, online payments and credit card donations. To -donate, please visit: www.gutenberg.org/donate - -Section 5. General Information About Project Gutenberg-tm electronic works. - -Professor Michael S. Hart was the originator of the Project -Gutenberg-tm concept of a library of electronic works that could be -freely shared with anyone. For forty years, he produced and -distributed Project Gutenberg-tm eBooks with only a loose network of -volunteer support. - -Project Gutenberg-tm eBooks are often created from several printed -editions, all of which are confirmed as not protected by copyright in -the U.S. unless a copyright notice is included. Thus, we do not -necessarily keep eBooks in compliance with any particular paper -edition. - -Most people start at our Web site which has the main PG search -facility: www.gutenberg.org - -This Web site includes information about Project Gutenberg-tm, -including how to make donations to the Project Gutenberg Literary -Archive Foundation, how to help produce our new eBooks, and how to -subscribe to our email newsletter to hear about new eBooks. - - - -</pre> - -</body> -</html> diff --git a/old/54836-h/images/cover.jpg b/old/54836-h/images/cover.jpg Binary files differdeleted file mode 100644 index 455cc17..0000000 --- a/old/54836-h/images/cover.jpg +++ /dev/null diff --git a/old/54836-h/images/p2.jpg b/old/54836-h/images/p2.jpg Binary files differdeleted file mode 100644 index dc5c65d..0000000 --- a/old/54836-h/images/p2.jpg +++ /dev/null diff --git a/old/54836-h/images/p3.jpg b/old/54836-h/images/p3.jpg Binary files differdeleted file mode 100644 index 6d6b5e3..0000000 --- a/old/54836-h/images/p3.jpg +++ /dev/null |
