Dutch and English on the Hudson: A Chronicle of Colonial New York

by Maud Wilder Goodwin

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 Golden, 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 Golden 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.