USA > New York > Courts and lawyers of New York; a history, 1609-1925, Volume II > Part 10
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The last word had not been said, however. On November 2nd a message from the Council to the House demanded the return of the Zenger papers; and on the same day, the Coun- cil ordered "That the said Journalls . . . be burnt by the hands of the Comon hangman or whipper ; that the Mayor and Magistrates be ordered to attend the burning thereof; that a reward of £50 be offered for the discovery of the real authors of the scurrilous papers ; that Zenger be taken into custody by the Sheriff, and committed to prison ; that the Attorney Gen- erall be ordered to prosecute the printer, and the author or authors when discovered." Those who attended that meeting, besides the Governor and Chief Justice De Lancey were Messrs. Clarke, Harrison, Livingston, Kennedy, Cortlandt, Lane, Horsmanden.
The strife momentarily veered to the municipal officers. The magistrates and newly elected aldermen refused to at- tend the burning, and challenged the right of the Governor's Council to control municipal officials. Harrison, the Recorder,
40. In England . . . De Foe was pilloried for a satirical pamphlet ; Swift was in danger of imprisonment for the Drapier's letters, having himself inflicted on the opposition writers the punishment he now feared. Still he suffered for his pamphlets. Ralph or Shebbeare could tell of the severity of the law. In Philadelphia Bradford had been prosecuted and exiled; Franklin fled from Boston because he had written too freely .- Lawrence, in "William Cosby and the Freedom of the Press," "Mem. Hist. N. Y.," Vol. II, p. 226.
41. the chief purpose of the paper lay in its bitter attack upon Cosby's administration. No point of assault is neglected, no personality or satire spared. Morris, Alexander, Smith and others had formed a club that met weekly, and here were no doubt arranged and suggested the essays, the squibs, the verses, parodies, and sharp rejoinders to the heavy and often ill-considered replies that were sometimes inserted in the "Gazette." It is not likely that Bradford, its editor, was in sympathy with Cosby's party ; he claims to be neutral, but his paper was controlled by Harrison and De Lancey, and was treated with little tenderness by his acute assailants. Many of the leading essays in the "Journal" are written in a clear, correct style, full of force and novelty. Their chief aim is to defend the most liberal view of the liberty of the press. The writers felt no doubt that they lived under a despotism that might at any moment strike them with its sharp penalties; they use all the resources of reason to rouse the people to resistance .- Ibid, pp. 228-229.
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tried in vain to persuade them. He "pressed them with argu- ments drawn from the burning of Bishop Burnet's book," and precedents of the reigns of Charles and James, but without effect. Even the City hangman refused the summons ; and the Sheriff eventually had to get a negro to perform this duty. The burning was public, but "the citizens by their absence show their contempt for the folly of their rulers."
Immediately thereafter, Zenger was seized "on the Lord's day," rushed to the common jail, and forbidden to communi- cate with any one. And he remained in prison until January 28, 1735, notwithstanding which the "Journal" still appeared weekly, with one exception. Smith and Alexander presumably were the acting editors, for Lewis Morris had been out of the province having gone to England to lay his own case before the home government, and also to make the home ministers cognizant of the true state of provincial government. Cosby said, in a letter to the Duke of Newcastle, in December, 1734: "Morris has fled to England to escape punishment." Morris was suspected of authorship of the offensive articles. But in England Morris found that the ministers looked upon a com- plaint against a governor they had chosen as a reflection upon their own ministry. They even offered to appoint Morris Gov- ernor of New Jersey if he would withdraw his charges against Cosby. This he refused to do, and he continued to pester the English ministers with his presence. Shortly after his arrival in England, Morris wrote to Alexander thus: "We talk in America of applications to Parliaments. Alas! my friend, parliaments are parliaments everywhere . . . We have a Parliament and Ministry, some of whom, I am apt to believe, 'know that there are plantations and governors . . . and seem less concerned in our contests than we are at those be- tween crows and kingbirds." Again, on March 31, 1735, he wrote: "They are unconcerned at the sufferings of the people in America . . . and it may be you will be surprised to hear that the most nefarious crime a governor can commit is not
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by some counted as bad as the crime of complaining of it." Cosby, therefore, was probably more concerned as to what difficulties there were immediately before him in America than as to those Morris might be able to make in London.42
Friends of Zenger, in January, 1735, sought to obtain his release on bail. Chief Justice De Lancey set this at "ten times as much as it was in my power to counter-secure," stated Zen- ger; so the printer was taken back to prison and there re- mained until January 28, 1735. On that day, the Grand Jury having refused to find a true bill against him, the Attorney- General was directed to proceed without indictment, by infor- mation for a misdemeanor. It was charged that Zenger's papers Nos. 13 and 23 contained matter "false, scandalous and se- ditious." He was defended by Smith and Alexander, who at once filed exceptions to the "being of the Court," Judges De Lancey and Philipse having been commissioned for an in- definite term : "during the King's pleasure," and not "for good behaviour as in England," and thus being contrary to the statutes of William III. De Lancey, they pointed out, was improperly appointed, for the governor could not displace an officer (the former Chief Justice Morris) without consulting his Council, which Cosby did not do. On April 15th, Mr. Alexander offered to argue these points, but the presiding judge, De Lancey, angrily warned them that they should con- sider well the consequences of their boldness. On the next day he denounced both Smith and Alexander, saying: "You thought to have gained a great deal of applause and popularity by opposing this court, as you did the Court of Exchequer, but you have brought it to the point that either we must go from
42. " : the early New Yorkers were a turbulent, factious, cen- sorious and insubordinate folk, and . . . consequently it is necessary to receive their accounts of their rulers with a good deal of allowance. The old Dutch element was disposed to quarrel with every English governor, and the Dutch, English and French merchants regarded and treated as enemies and oppressors all who would not let them do as they pleased, without any restriction, in matters of trade and taxation."-"New York Tribune," April 24, 1892.
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the bench or you from the bar." Then he disbarred them, his order reading that "for the said contempt the said James Alex- ander and William Smith be excluded from further practice in this court, and that their names be struck out of the roll of the attorneys of this court." The judges then assigned other, and inferior counsel to the prisoner.
Zenger was thus left with almost no defence, for the coun- sel assigned to the case would probably make but a half- hearted effort in his behalf. The day of trial came, August 4, 1735, a hot humid day such as New York City is called upon to endure only occasionally, in the height of summer. De Lan- cey and Philipse were on the bench, and although the court- room was crowded and the interest was intense, the general opinion was that the Court Party would triumph and that the Zenger case would be quickly disposed of. After some irregu- lar procedure by the Clerk of the Courts, which brought the prisoner's attorney, John Chambers, to his feet in protest, At- torney-General Bradley opened the charge against Zenger, whom he accused of publishing matter that was "false, scan- dalous and seditious." Bradley expected to close the case very quickly, and did not expect that Attorney Chambers would cause him much trouble. But, much to his surprise, and to the surprise of most people in the courtroom, another and greater lawyer rose, one better known in Philadelphia than in New York, and at that time almost at the end of a brilliant career. When Andrew Hamilton of Philadelphia rose and said: "May it please your honor, I am concerned in this cause on the part of Mr. Zenger, the defendant," the humid air of the crowded courtroom became electrified. Surprise and expectation roused the flagging interest. "I'll save Mr. At- torney the trouble of examining witnesses," he added, admit- ting the publication. With alacrity, Bradley demanded con- viction. "Not so, either, Mr. Attorney," said Hamilton, "You have something more to do; the words must be proved libel- lous." Chief Justice de Lancey insisted that the law was that
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the truth of a libel made no difference-it was a libel still. Hamilton argued that "the decisions of the Star Chamber were not binding ; that men had a right to complain of an unjust government and oppressive laws." De Lancey, who could not be moved from his decision, showed impatience, and at last said : "Mr. Hamilton, we expect you to use good manners." The overbearing young jurist refused to listen further to the famous lawyer. "I thank your Honor," said Hamilton. Then, turning to the jury, he said : "Gentlemen of the Jury ! to you we must now appeal for witnesses of the facts we have offered and are denied the liberty to prove; you are the judges of the law and the facts." For several hours thereafter Hamilton poured forth a torrent of condemnation of the existing state of gov- ernment, which curbed free speech and free thought. "Shall not the opposed have even the right to complain? Shall the Press be silenced that evil governors may have their way?" To Hamilton's mind a greater issue than the Zenger case loomed up. His closing words were prophetic : "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 consequences affect every freeman that lives under the British government on the main of America. It is the best cause; the cause of Liberty! and I make no doubt but your upright conduct to-day will not only entitle you to the love and esteem of your fellow-citizens, but every one who prefers freedom to slavery will bless and honor you as men who have baffled the attempts of tyranny, and by an impartial and incorrupt 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 (in these parts of the world at least), by speaking and writing the truth." It was of no avail that Attorney-General Bradley de- manded the conviction of Zenger and that the Chief Justice
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charged the jury that they must convict the printer. Hamil- ton had spoken; and the echo was "Not Guilty !"43 Loud cheers filled the courtroom, and were heard perhaps even as far as the Governor's mansion in the fort. The judges, enraged, threatened to imprison the cheer-leader; but Captain Norris rose and said that applause was common in Westminster Hall, and was loudest in the acquittal of the seven bishops. Then came an uproar beyond the power of the Court to check. Ham- ilton, the "champion of liberty," was carried shoulder-high out of the courthouse and through the streets. The next day, the magistrates of the City presented him with the freedom of the city, and as he entered his barge, for Philadelphia, cannons fired salutes in his honor.
In the Zenger case, Andrew Hamilton established the freedom of the Press in America. It has been said that the decision was "the germ of American freedom-the morning star of that liberty which subsequently revolutionized Amer- ica." It "forever fixed the principles which controlled the public mind and directed the public conduct for the next forty years until the struggle for freedom culminated in the Revo- lution of 1776."
Cosby did not long survive this affront. Maybe, his hope- less physical state had some bearing on his reckless adminis- tration of public affairs. He battled with the ravages of tuberculosis which were fast sapping his strength at the time when his administrative mistakes, and the active opposition of Lewis Morris and others of the People's Party, were under- mining Cosby's influence with the home ministers. The lat- ter had grown weary of Cosby's endless complaints, and realized that his administration was decidedly unpopular. They had grown weary of Lewis Morris also, but he persisted,
43. The jurors were: Thomas Hunt, foreman; Harmanus Rutgers, Stanley Holmes, Edward Man, John Bell, Samuel Weaver, Andries Maer- schalk, Egbert van Borsum, Benjamin Hildreth, Abraham Keteltas, John Goelet and Hercules Wendover.
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and they finally came to the conclusion that he had been im- properly removed from the Chief Justiceship. They actually reproved the Governor for voting in his Council, and gave other evidences that Morris was gaining favor. Cosby was no doubt also troubled by the endeavor that was made to im- peach him, for his part in land-title transactions. Neverthe- less, his arbitrary actions did not lessen in intensity until al- most the end. One of his last acts was to tyrannously en- deavor to remove Van Dam from his Council. Had he not tried to do so, Van Dam, as senior councillor, would, in the event of Cosby's death, again become Governor, pro tem. As a matter of fact, Rip van Dam had not attended the meetings of the Council since he and Cosby had first become estranged ; but before final action to remove Van Dam could be taken death came to Cosby at the Fort on March 7, 1735.
It is said that there was general rejoicing among the people of New York at Governor Cosby's death. The Popu- lar Party probably felt that, temporarily at least, they would now be ascendant in governmental affairs. With this in mind, possibly, Rip van Dam again sought to hold the Acting-Gov- ernorship. The Council met, but they passed over his claims to the chief office, selecting George Clarke, Cosby's choice, as President of the Council. But Van Dam could not be set aside so easily. He assumed the presidency, demanded the seals of the Province from Mrs. Cosby, nominated a mayor, and made other dispositions which showed that for some time New York would have two governments. It is said that he went to the Fort, but was refused admittance, which is not surprising, for Clarke and his party were in armed possession of the Fort, and were equally determined to rule.
The summer passed with those two factions at logger- heads, and with the ever-present possibility of armed conflict. The Clarke faction was in the minority, but they held Fort George and the soldiery ; and so perhaps should be considered as the Government. The first proclamation issued by "The
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Honourable George Clarke, Esqr., President of his Majesties Council, and Commander in Chief (L.S.), Province of New York, &c" bears date of March 18, 1735. Its purpose was to adjourn the General Assembly until the last Tuesday in April. Three further adjournments were announced before July 24th, when President Clarke issued another proclamation warning assemlymen against refusing to serve as such when called into session. The proclamation was evidently prompted by the efforts of the Van Dam faction to establish a rival gov- ernment; one preamble reads: "Whereas some disaffected persons seeking their own private ends in publick discentions, have by false, groundless, & wicked Insinuations, reports, let- ters & other papers endeavoured to corrupt the minds of the Members of the said Assembly, hoping thereby to hinder them from meeting and acting, and to draw from the Service of their Country and their duty and allegiance to his Majesty, whereby the province would be involved in fatall Convul- sions and Miserys," and so forth. Nevertheless, the Court Party felt it inadvisable to put the legislators to the test at that time. Three further proclamations were sent out from Fort George before October, 1736, and the state of the Court Party was becoming precarious when a ship arrived from Eng- land bringing to President Clarke his commission as Lieuten- ant-Governor.44 The opposition then lost its force, and the Assembly was convened on October 13th.
But for this royal settlement of the dispute, the situation
44. George Clarke had been an attorney in Dublin, Ireland, before crossing to Virginia. He was a man of poor education, but of some influ- ence in court circles. In 1703 he was appointed, by Queen Anne, Secretary of the Province of New York, vice Matthew Clarkson, deceased. Soon afterwards he married Anne Hyde, of the Clarendon family, and thus came into one of the collatoral lines of the Queen. He acquired wealth in New York, and was a member of Cosby's council, and Cosby favored him. His influential English connections brought him confirmation as Lieutenant- Governor, and he served as such for seven years. He was Lieutenant- Governor until 1743, when George Clinton superceded him, as Governor. Clarke, who had become very wealthy, returned to England, and there died on Jan. 12, 1760.
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might have developed civil war. Clarke, in a letter written to Newcastle on May 16, 1736, asserted that the opposition actually planned an insurrection. Had fighting resulted, New York might have won its independence then, instead of forty years later. It is more probable, however, that England would have made such an example of a rebellious New York, fight- ing alone, that the patriots of forty years later would remem- ber the punishment meted out to their fathers, and hesitate long before again drawing the sword against the mother coun- try. However, such was not America's destiny.
The attitude of the people in this summer of unrest is well seen in the result of the municipal elections. New York City, on September 29, 1736, placed in office a city administration taken almost wholly from the Popular Party-from the "Dutch mob," as the Court Party called it. "Zenger's Week- ly Journal" promptly retaliated with abuse of the "courtiers." About this time Lewis Morris returned from England, tri- umphant.
The Assembly met in October, and while it set aside all the pretensions of Van Dam, and recognized Clarke as President of the Council and Lieutenant-Governor, the latter found little consolation in the function of the lower house. The As- sembly, as of yore, was especially jealous of its right to guard the public purse. And in one vote, in legislation introduced to safeguard the revenues from misapplication by the Lieu- tenant-Governor or the Council, the Assembly so offended Mr. Clarke, that he called them together for admonition and dis- solution. The Twentieth Assembly was dissolved on May 3, 1737. It had had nine stormy years of existence, and the people had almost forgotten how to vote. However, the lines were clearly drawn, and the electioneering campaigns were stormy during May and June; and despite the power that money is able to command, the Popular Party was every- where strong, and in the Twenty-first Assembly, which con- vened on June 15, 1737, the Court Party was in a distinct
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minority. James Alexander, the disbarred attorney, was one of the representatives from New York City; Col. Lewis Mor- ris, Jr., represented Westchester, and was chosen as Speaker ; and Lewis Morris, the former Chief Justice, was also a mem- ber. As to the election of Adolph Phillipse there was a dis- pute. William Smith, who also had been disbarred in the Zenger case, appeared before the House and so aroused it by his eloquence that the members excluded the Hebrew vote by which Phillipse had been so much helped. Still, they did not exclude the alien vote, and it was large enough to give Phillipse a bare majority.
The Twenty-first Assembly had but a short life, though when Clarke dissolved it in October, 1738, he was but fol- lowing the recommendation made by the Popular Party lead- ers themselves. One of their first acts in 1737 session had been to demand more frequent elections. In September, 1737, the House, in a remarkable address to the Lieutenant-Governor, defined the principles which were to govern their future con- duct. The address called attention to the extravagance of past governors, and declared that no grants would be made in future that could not be well protected from misapplication by the governor, and on revenue for a longer period than one year. Clarke thanked the House for its address, and seemed to yield to the remonstrance; but in the fall of the next year he gained courage: The Assembly had granted him a salary of £ 1,580, but had hampered him by limiting the taxes to one year. He wanted the revenue fixed for the whole period of his term of office; and by this time he had come to look upon the restrictions of the House as disloyal. The Assembly, however, could not be moved from its stated policy, so, on October 20, 1738, Clarke dissolved it.
The Twenty-second Assembly began its first session on March 27, 1739. There had been many changes, and, as now constituted, the House might be expected to more readily meet the wishes of the Governor. Lewis Morris was no longer a
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member, and Adolph Phillipse was Speaker, in place of Lewis Morris, Jr. The latter was however still a member from Westchester. War had broken out between England and Spain, and the common danger tended to bring all factions together. Yet, Clarke did not fare so well with the new As- sembly as with the old. His salary was reduced to £ 1,300 and the House turned a deaf ear to all his entreaties that, in this time of war, he be given a revenue grant in gross, leav- ing its disposition to the officials. The province was indeed, in a serious financial state, its expenditure far exceeding its revenue. A heavy tax was laid on the importation of African slaves, and other measures of swelling the revenue were de- vised, but the legislators ever kept a watchful jealous eye on the Government's use of the public purse.
In 1741 New York City was stirred into one of those un- controllable panics which sometimes occur in rapidly-grow- ing cosmopolitan areas. Rumors of a plot by negro slaves and disaffected white men to burn New York spread. The panic took hold of all classes, and its intensity lay, perhaps, in the realization that the slaves had been treated shamefully. Indeed, they were hardly considered human. For a hundred years, they had come much as cattle would come, specially billed as freight, and after being gauged, chiefly by weight and age, in the slave market on Wall Street, passed into pri- vate ownership, to be inventoried with the cattle, horses, dogs, guns, and what not-the goods and chattels of said owner. Flogging was frequent, and in other ways life must have been unbearable to them. And as some of the slaves had but re- cently been snatched from their wild native state white people dreaded the consequences, if these wild men should get the upper hand. Hence, in a community where the black popu- lation represented about one-sixth of the whole, there was some basis for the credence given to the rumors.
It appears that in February, 1741, several small robberies were committed. They were traced to John Hughson, a white
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man who kept a tavern frequented by negroes and disreputa- ble whites. Hughson confessed that he had received stolen goods, for which offense he was held for trial. During the next month many fires occurred in different parts of the city ; some seemed unexplainable, and the belief became general that incendiaries were at work. Negroes were suspected of . setting the fires, in retaliation for Hughson's arrest. To make matters worse, an unusually large shipload of Spanish negroes had just been discharged at New York. The nervous citizens were quite ready to look upon this human freight as reinforce- ments sent for the purpose of establishing a negro republic. Vigorous action was taken by the municipal authorities. Ar- rest followed arrest, until the jails were full of negroes, and dissolute whites who associated with them, and were of nefari- ous repute. Some were offered immunity, and indeed money, if they would give evidence against the ringleaders. Mary Burton, servant of John Hughson, before the Supreme Court in April, 1741, told of her knowledge of a conspiracy which planned to make a certain negro the Governor, and John Hughson the King. Hughson and his wife, with Peggy Carey, or Solinburgh, a woman of dissolute character who lived in Hughson's tavern, were tried and found guilty of robbery. Peggy, to save herself, confessed. Other negroes, from like motives, began to confess one against the other, and finally implicated John Ury, or Jury, a Jesuit priest who had been a teacher in Philadelphia and New York since 1738, when he ar- rived in the country. He was arraigned, and the outcome of this panic was that Hughson and his wife, Peggy Carey, and John Ury and eighteen negroes were hanged. The record is even worse, for during the panic thirteen negroes were burned at the stake, and seventy were transported. Altogether, twenty-one white persons were arrested, and of them Hugh- son, his wife, and John Ury were hanged, the latter protesting his innocence to the last. On the scaffold, he called upon God to witness the falseness of the charge. It is a deplorable
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