CHAPTER XII

THE ZENGER TRIAL

AMONG the children of the Palatines imported by Governor Hunter in 1710 was a lad of thirteen by the name of John Peter Zenger. Instead of proceeding to the Palatine colony, his widowed mother and her little family remained in New York. There Peter was bound apprentice to William Bradford, then a well-known printer, for a term of eight years, at the end of which time he set up an office of his own. He evidently found himself hard pressed for the means of living, since one finds him in 1732 applying to the consistory of the Dutch Church of New York and proposing that, since he had so long played the organ without recompense, he might take up a voluntary subscription from the congregation and that the members of the consistory should head the paper as an example to others. The consistory agreed to allow him provisionally the sum of six pounds, New York currency, to be paid by the church masters and promised that they would speak with him further on the subject of his seeking subscriptions in the congregation, a favor for which John Peter was duly grateful.

Governor William Cosby, as he drove in his coach on a Sunday to Trinity Church, or as he walked in stately raiment, attended by a negro servant who carried his prayer-book on a velvet cushion, could have little dreamed that the young printer striding past him on his way to play the organ in the old Dutch Church was destined to be the instrument of His Excellency’s downfall; but the time was not far off when this David, armed only with a blackened type of his printer’s form, was to set forth against this Goliath. All flaming convictions have a tendency to cool into cant, and “the Freedom of the Press” has so long been a vote-catching phrase that it is hard nowadays to realize that it was once an expression of an ideal for which men were willing to die but which they scarcely hoped to achieve.

When Colonel Cosby, former Governor of Minorca, came over the seas in 1732, to become Governor of New York, he brought with him a none too savory reputation. All that he seemed to have learned in his former executive post was the art of conveying public funds to private uses. His government in New York sustained his reputation: it was as high-handed as it was corrupt. He burned deeds and strove to overthrow old land-patents, in order that fees for new ones might find their way into his pocket. “Cosby’s Manor,” a vast tract of land in the Mohawk Valley, bore testimony to the success of his methods in acquiring wealth.

Upon the death of Cosby’s predecessor, John Montgomerie, in 1731, Rip van Dam, as president of the Council, had assumed control of the affairs of the province until the arrival of the new Governor. At the close of his term, which had lasted a little more than a year, the Council passed warrants giving Rip van Dam the salary and the fees of the office for the time of his service. When Cosby appeared he produced an order from the King commanding that the perquisites of the Governor during the interregnum be equally divided between him and Van Dam. On the authority of this document, Cosby demanded half of the salary which Van Dam had received. “Very well,” answered the stalwart Dutchman, “but always provided that you share with me on the same authority the half of the emoluments which you have received during the same period.”

The greedy Governor maintained that this was a very different matter. Nevertheless he was somewhat puzzled as to how to proceed legally with a view to filling his purse. Since he was himself Chancellor, he could not sue in chancery. He did not dare to bring a suit at common law, as he feared that a jury would give a verdict against him. Under these circumstances Cosby took advantage of a clause in the commissions of the judges of the Supreme Court which seemed to constitute them Barons of the Exchequer, and he therefore directed that an action against Van Dam be brought in the name of the King before that court. The Chief Justice, who had held office for eighteen years, was Lewis Morris. Van Dam’s counsel promptly took exception to the jurisdiction of the court and Morris sustained their plea, whereupon Cosby removed Morris as Chief Justice. Cosby’s party included De Lancey, Philipse, Bradley, and Harrison, while Alexander, .Stuyvesant, Livingston, Cadwallader Colden, and most of the prominent citizens, supported Van Dam. The people of New York were now awakening to the fact that this was no petty quarrel between two men as to which should receive the larger share of government moneys, but that it involved the much larger question of whether citizens were to be denied recourse to impartial courts in the defense of their rights.

The only paper published in the province, the New York Weekly Gazette, established in 1725, was entirely in Cosby’s interest, and the Van Dam party seemed powerless. They determined, however, to strike at least one blow for freedom, and as a first step they established in 1733 a paper known as the New York Weekly Journal, to be published by John Peter Zenger, but to be under the control of far abler men. Morris, Alexander, Smith, and Colden were the principal contributors to the new paper, and in a series of articles they vigorously criticized the Governor’s administration, particularly his treatment of Van Dam. The Governor and Council in high dudgeon at once demanded the punishment of the publisher. They asked the Assembly to join them in prosecuting Zenger, but the request was laid upon the table. The Council then ordered the hangman to make a public bonfire of four numbers of the Weekly Journal; but the mayor and the aldermen declared the order illegal and refused to allow it to be carried out. Accordingly the offending numbers of the Journal were burned by a negro slave of the sheriff in the presence of Francis Harrison, the recorder, and some other partizans of Cosby, the magistrates declining to be present at the ceremony. Whatever satisfaction the Governor and his adherents could gain from the burning of these copies of the Journal was theirs; but their action served only to make them both more ridiculous and more despicable in the eyes of the people.

Not long after this episode Zenger was arrested upon order of the Council and thrown into the jail, which was at that time in the City Hall on the site of the present United States Sub-Treasury building on Wall Street. Zenger was denied the use of pens, ink, or paper. The grand jury refused to indict him. But Cosby’s attorney-general filed an “information” against Zenger for “false, scandalous, malicious and seditious libels.”

Public interest was now transferred from Van Dam to Zenger, and the people saw him as their representative, robbed of his right of free speech and imprisoned on an “information” which was in form and substance an indictment without action of a grand jury. Months elapsed while Zenger was kept in prison. His counsel, Smith and Alexander, attacked two judges of the court before which he was to be tried, on the ground that they were irregularly appointed, the commissions of two of them, Chief Justice De Lancey and Judge Philipse, running “during pleasure” instead of “during good behavior” and having been granted by the Governor without the advice or consent of his Council. The anger of the judges thus assailed was expressed by De Lancey, who replied: “You have brought it to that point, gentlemen, that either we must go from the bench or you from the bar,” wherewith he summarily ordered the names of the two distinguished lawyers stricken from the list of attorneys.

This was obviously a heavy blow to Zenger, as the only other lawyer of note in New York was retained in the interests of Cosby and his faction. But Zenger’s friends never ceased their determined efforts in his behalf, and Smith and Alexander remained active in counsel if not in court. Meanwhile the judges appointed an insignificant attorney, John Chambers by name, to act for Zenger and fancied that their intrigue was sure of success.

The trial came on before the Supreme Court sitting on August 4, 1735, De Lancey acting as Chief Justice, Philipse as second judge, and Bradley as attorney-general. Chambers pleaded “not guilty” on behalf of his client; but to the throng who crowded the court-room to suffocation, Zenger’s case must have looked black indeed. There was no question that he had published the objectionable articles, and according to the English law of the day the truth of a libel could not be set up as a defense. It was even some years later that Lord Mansfield upheld the amazing doctrine that “the greater the truth the greater the libel.” A part of the importance of the Zenger trial lies in its sweeping away in this part of the world the possibility of so monstrous a theory.

A great and overwhelming surprise, however, awaited the prosecutors of Zenger. The secret had been well kept and apparently every one was amazed when there appeared for the defense one Andrew Hamilton, a citizen of Philadelphia, of venerable age and the most noted and able lawyer in the colonies. From this moment he became the central figure of the trial and his address was followed with breathless interest. He touched upon his own age and feebleness with consummate tact and dramatic effect:

You see that I labour under the weight of years, and am borne 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 service could be of use in assisting to quench the flame of prosecutions upon information set on foot by the government, to deprive a people of the right of remonstrating (and complaining too) of the arbitrary attempts of men in power. Men who injure and oppress the people under their administration provoke them to cry out and complain, and then make that very complaint the foundation for new oppressions and prosecutions. I wish I could say there were no instances of this kind. But to conclude: the question before the court, and you, gentlemen of the jury, is not of small nor private concern; it is not the cause of a poor printer, nor of New York alone, which you are now trying. No! It may in its consequence affect every freeman 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 honour 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 both of exposing and opposing arbitrary power ... by speaking and writing truth!

With scathing irony he fell upon the theory that truth was no defense for libel:

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 any person safe from being called to account as a libeller; for Moses, meek as he was, libelled Cain, and who is it that has not libelled the devil? For according to Mr. Attorney, it is no justification to say that one has a bad name. Echard has libelled our good King William; Burnet has libelled among others, King Charles and King James; and Rapin has libelled them all. 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 libeller? 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 were not known to be such, Mr. Attorney, with the help of his innuendoes, would easily turn it into a libel. As for instance, the sixteenth verse of the ninth chapter of Isaiah: The leaders of the people cause them to err, and they that are led by them are destroyed. But should Mr. Attorney go about to make this a libel, he would treat it thus: “The leaders of the people (innuendo, the governor and council of New York) cause them (innuendo, the people of this province) to err, and they (meaning the people of the province) are destroyed (innuendo, are deceived into the loss of their liberty),” which is the worst kind of destruction. Or, if some person should publicly repeat, in a manner not pleasing to his betters, the tenth and eleventh verses of the fifty-sixth chapter of the same book, there Mr. Attorney would have a large field to display his skill in the artful application of his innuendoes. The words are, “His watchmen are all blind, they are ignorant; yes, they are greedy dogs, that can never have enough.” But 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 innuendoes. As for instance, “His watchmen (innuendo, the governor’s council and Assembly) are blind; they are ignorant (innuendo, will not see the dangerous designs of His Excellency); yea they (meaning the governor and council) are greedy dogs which can never have enough (innuendo, enough of riches and power).”

Thus Hamilton skillfully appealed to the independent principles of the jury. There was no note, satiric, pathetic, or patriotic, which he did not strike. Overwhelmed by the torrent of his eloquence, Bradley, the Attorney-General, scarcely attempted a reply. The Chief Justice stated that the jury might bring in a verdict on the fact of publication and leave it to the Court to decide whether it were libelous. But Hamilton was far too wary to be caught thus. “I know, may it please your Honor,” said he, “the jury may do so; but I do likewise know that they may do otherwise. I know they have the right, beyond all dispute, to determine both the law and the fact, and where they do not doubt the law, they ought to do so.” Nevertheless the Chief Justice charged the jury:

Gentlemen of the Jury: The great pains Mr. Hamilton has taken, to show you how little regard juries are to pay to the opinion of the 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 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.

But the show of authority and the attempt at allurement were all in vain. The jury took but a few moments to deliberate and returned with the verdict of “not guilty.” The roar of applause which shook the court-room was more than a tribute to the eloquence of the aged counsel who had accepted an unpopular case without fees because he felt that he was working for the cause of freedom. It was more than a tribute to the poor printer who had risked everything in the same cause. It was the spirit of the barons at Runnymede, of the Long Parliament, of the Revolution of 1688, of Patrick Henry of Virginia when he cried: “Give me liberty or give me death!”

The Court, divided between wrath and surprise, strove to check the wave of applause and threatened with imprisonment the leader of the cheers; but a son-in-law of ex-Chief Justice Lewis Morris succeeded in making himself heard, and declared that cheers were as lawful there as in Westminster Hall, where they had been loud enough over the acquittal of the seven bishops in 1688. Upon this the applause broke out again, and Hamilton was acclaimed the people’s champion. A dinner was given in his honor and the freedom of the city was bestowed upon him. When he entered his barge for the return journey to Philadelphia, flags waved, cannon boomed, and hurrahs resounded from all quarters.