The Trial of Peter Zenger

by Unknown

X. Van Dam’s Indictment of the Governor

As the Zenger case developed step by step in New York, Cosby was being forced to a more energetic defense on the London front, where Van Dam was waging a pamphlet war against him, and where Morris was present in person.

Months before the newspaper war began Van Dam had resolved to keep the New York public and the London authorities informed of the way in which the Cosby suit for half of his salary was going, and he began to publish successive accounts, with Peter Zenger doing the printing for him just as for the rest of the Popular party. Zenger’s business got better as the political controversy got worse. In the summer of 1733 he turned out for Alexander and Smith their arguments against the validity of the equity court. Shortly afterward Van Dam gave him the job of handling two protests in which the stubborn old Dutchman expressed his personal indignation at the way he was being treated by the Governor.

These partial attacks on Cosby were followed by a general indictment, a full bill of particulars drawn up to expose him point by point with the most meticulous exactitude. Almost everything that could be alleged against him with any degree of plausibility at all was set down in Van Dam’s Articles of Complaint.

The apparent author was not the real one. Van Dam undoubtedly had a hand in formulating the charges, but the writing must have been due to someone else since Van Dam was not skillful with the pen. James Alexander springs to mind as the obvious candidate for the role of ghost writer, a suspicion that is strengthened by the accusations that Cosby leveled at both him and Morris. Nevertheless, Van Dam was responsible for the Articles, a fact on which he insisted with dogged self-righteousness.

The indictment is composed of 34 separate counts. Not all of them are watertight, for some descend into carping criticism about trivialities. One, for instance, accuses Cosby of accepting a gift of French wines from the commander at Louisbourg:

You received of the said Frenchman by way of present all of the said brandy, claret and salad oil, which were carried into the fort and lodged in your cellar; and this, I suppose, induced you to grant a liberty to trade here, which you ought not to have done.[25]

Another charges that Cosby’s candidate in the Westchester election, William Forster, was “a known Jacobite,” an astonishing grievance in this context since James Alexander was himself a Jacobite, a veteran of the rising of 1715.

These are mere debaters’ points (at the most charitable estimation), and they prove that the leaders of the Popular party could be just as unscrupulous as the Governor when they put their minds to it. They did not disdain to use against him the weapons that he used against them. Too often the struggle has been painted in stark tones of black and white, when it was really a matter of degree, with neither side having a monopoly of either vice or virtue—which is to say little more than that we are dealing with the factional politics of real men rather than with the stereotypes of melodrama.

Again, some of the Articles are of doubtful validity, as when Cosby is accused of destroying a deed given to the City of Albany by the Mohawks, and of permitting the French to map and sound New York harbor on the pretence of trading there. The Governor retorted that the deed was unjust to begin with, and that to have kept it in force would have driven the Indians into the arms of the French; and that trade with Louisbourg was legitimate and humanitarian because the garrison was close to famine.

But if a number of the Articles have a dubious ring, others do make fundamental points. They mention the dismissal of Morris from the Supreme Court, the Van Dam lawsuit, and the attempt to rig the Westchester election. Several are devoted to Cosby’s contemptuous treatment of his Council:

You have, contrary to your instructions, displaced Judges, Justices of the Peace, Sheriffs, etc., without the advice of Council.[26]

The Council being part of the legislature, as above, you have taken it upon you (in order to influence their debates) to sit among them and act as their President, though by your patent His Majesty has given you a negative voice to prevent the passing of any law prejudicial to His Majesty’s prerogative and the public good.[27]

Where the advice of the Council has been thought necessary you have not given general summonses as usual, but have only summoned so small a number as would constitute a quorum, in which you were sure of a majority to carry such point as you thought proper, and by this method seem to support your proceedings by the sanction of advice of Council—when three makes a majority of such a quorum, and nine might have been dissenting had they been summoned.[28]

You have taken it upon yourself to act as President of the Council in receiving bills and messages from the General Assembly.[29]

By these methods you have rendered the Council useless in their legislative capacity of being that check and balance in government that His Majesty intended they should be.[30]

Van Dam’s Articles of Complaint constituted a deadly blow at Governor Cosby, what with his Minorca past added to his present troubles in New York, nor was he slow to recognize the fact. We have already seen how he was warned by the Board of Trade because of reports in the Journal. Fearing the effect of the Articles in London, he prompted his confederates of the Council to draw up for the Duke of Newcastle a point by point “refutation”—which does not, however, actually refute anything fundamental, for if it deals validly enough with the trivialities, it sedulously avoids, or else boldly denies, the facts about Cosby’s maladministration and misdemeanors. At the same time the Cosby councillors appended a note that gives the Court party’s version of the New York situation:

We have been, while we traced Mr Van Dam through a labyrinth of detestable falsehoods, very often at a loss how to believe that a man of his years could forge so many and so notorious scandals, but we are to inform your Grace that the resentment, malice and revenge of some of the wickedest men are thrown to his assistance. No government or administration can please these restless minds. Nothing will satisfy them but the power which they joyfully would exercise to the destruction or ruin of their fellow subjects. We beg Your Lordship to be assured that we know, and daily are made more sensible of, our happiness under His Excellency’s administration.[31]