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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 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