USA > New York > New York City > History of the New Netherlands, province of New York, and state of New York : to the adoption of the federal Constitution. Vol. I > Part 34
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without allusion to emolument, " proceeded," says Smith, "against . Van Dam, in the exchequer." Van Dam endeavoured to institute a suit at common law. This, Cosby and his friends dreaded-as the president of the council was popular, and the jury would allow a set off. In the court of chancery, Cosby himself presided.
In certain instances the judges of the supreme court had pro- ceeded according to the course of the exchequer. Their com- missions directed them to " make such rules and orders as near as may be, to those of the English courts of king's bench, common pleas and exchequer." This had given the hint to Cosby's advi- sers for proceeding in equity, " as De Lancey and Phillipse were the governour's intimate friends."
1733 The counsel for Van Dam, were Mr. William Smith, (the father of the historian,) and Mr. James Alexander, (the father of William Alexander, afterwards Lord Stirling.) These were the two most eminent lawyers in the colony, and had, as before observed, arrived at the same time, 1716 : they, in defence of Van Dam, excepted to the jurisdiction of the court to which the - governour resorted. Chief Justice Morris supported the excep- tion ; but Messrs. De Lancey and Phillipse, two of the judges, overruled the plea. Morris published his opinion, and Cosby removed him from office and placed De Lancey in his seat. This the military governour did, without consulting his own, and his majesty's council, and thereby set himself in opposition to that body.
The order for overruling the plea of Smith and Alexander was delivered in presence of a crowded court room ; where was expressed great indignation, and immediately after, (the 9th of April, 1733,) Governour Cosby departed to his province of New Jersey. On his return, in August, he presented Mr. James Delancey at the council board, (where there was then no quorum,) as chief justice, without asking any opinion from those present ; and Phillipse as second judge. The council at this time consisted of Messrs. Clark, Harrison, Kennedy, Horsemanden, Colden, De Lancey, Lane, Cortlandt, Livingston and Phillipse. These judges (De Lancey and Phillipse) were appointed during pleasure.
The province was now divided into two violent parties ; the democratick or popular, sided with Van Dam; the aristocratick or people of figure, with Cosby ; who, notwithstanding his unpopular measures and conduct, still held a majority in the house of repre- sentatives. His advisers caused him to propitiate the peo- ple by several popular acts in the session of June, 1734, 1734
but the opposition assailed the court of exchequer, counsel was heard for and against it, but nothing definite resulted. During this session, the quakers obtained the same exemption from oaths as allowed in England; and appropriations were made for fortifications. The privilege of testifying without oath, which places the character
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of a quaker higher than that of any other citizen, was at this time formally obtained, in consequence of the sheriff, at an election, insisting upon the oath from the people of that sect, contrary to existing custom.
Bradford, who had in 16S7, set up the first printing press in Pennsylvania, while yet there was none in New York, was at this time the government printer, and issued a newspaper weekly, in the latter city .*
This publication was occupied exclusively by the governour's friends, and in support of his measures : but the patriots; as they were then called, who sided with Van Dam, did not lack an engine for offence and defence. Zenger, who acknowledges in one of his journals, that he was indebted to Queen Anne for paying his pas- sage to America, published at this time a weekly paper in New York ; and this was the mouth-piece of opposition to Cosby, and support to Van Dam. The writers in Zenger's journal attacked every branch of the government, for Cosby had with him a majority of the council and house of assembly.
Mingled with this controversy, was a charge brought against Mr. Harrison, one of the council, of having written a paper threatening Mr. Alexander and family, unless money was deposited in a cer- tain' spot for the writer. It was supposed that Harrison, wished (the writing was declared to be his,) to provoke a criminal prose- cution for the purpose of establishing a precedent of convicting, " on the proof of a similitude of hands," and then by imitating the hand writing of one of the popular leaders, convict him on the same proof, punish him, and by the governour's pardon protect IIarrison. The paper being brought before the grand jury, Mr. Alexander, argued against their finding an indictment upon such grounds. The matter was laid before the council, who declared Mr. Harrison incapable of the act, and offered £50 by proclama- tion, for the discovery of the writer.t The suspicion still rested
* Bradford's press, in Philadelphia, was situated near the tree called the " treaty tree," under whose boughs William Penn made his purchase of soil from the Delawares. The first sheet printed by Bradford was an almanack ; and the first book printed by him, was written by George Keith, teacher of the first school es- tablislied in Pennsylvania. Keith had entered into a controversy with the quakers who had employed him, and their wrath drove the printer to New York ; where, in 1725 he commenced the first newspaper which had been published in that province. It will be recollected, that the earlier governours sent from England, were instructed not to permit such a pestiferous engine to be erected.
t In William Bradford's New York Gazette, for February the 25th, 1733. will . be found a proclamation, offering a reward of £50, for discovering the author of a letter, threatening James Alexander, and his family, with destruction. if certain " villanous demands" are not complied with : and reward and pardon, to any ac- complice making discovery. In Zenger's (or the democratick) Journal, Francis Harrison, one of the council, is charged with writing this " villanous" incendiary epistle containing said threatnings ; and the idea is conveyed, that he wrote the VOL. I. 38
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upon Harrison, and some other mal-practices coming to light, he left the country .*
This, although not the commencement of the division between the aristocratick party, who looked to England for riches and honour ; and who were supplied from thence, with leaders and authority, and the democracy, ever ready as it has been found in this country, to assert its rights, and present an undaunted front of opposition ; yet it may be well to trace the progress of this division, until it resulted in throwing off that transatlantick authority, which claimed the right of legislating for those who had sought a refuge in America, from European legislation-until the hand which (under the pretence of protection,) was stretched forth with chains, disguised as garlands, was repulsed with indignation, and blows, by those who saw the irons through the roses.
Great Britain found many of the leading men in the provinces of New York, and in New Jersey, ready to accept offices, and titles of supposed honour ; but there were among the leaders, those who saw the intended vassalage of the country ; and others who joined in the cry of patriotism from jealousy of rivals. We know that the mixed motives on both parts, will not bear the appellation of pure, or deserve the unqualified reproach of being sordid ; individuals of both parties, deserve either appellation. I will endeavour to trace the effects we now feel to their causes, within the limited sphere, I have assigned to my researches.
It is well, both as it is curious, and instructive, to keep in mind the leading families, who at this time and before, took part for or against the people. In 16S9, all the aristocratick party were linked together, and opposed to the people : in 1734, we find them divided, and that division is to be perceived more distinctly, at the period of final rupture with England, in 1776. We find in 1734, on the part of the aristocracy, and of England, the names of Colden, Kennedy, De Lancey, Cortlandt, and Phillipse : these families were all friends to the same part in 1776: but Morris and Alex- ander, and their descendants, as now in 1734, were ranged on the popular side ; andin 1776, the Schuylers and the Livingstons were fully with them.
I return from this digression, if it is one, to the affairs of 1734, and particularly those of Zenger, and Van Dam.
The squibs, ballads, serious charges, and above all, home truths in the Democratick Journal, irritated Cosby and his council to madness.
letter for the purpose of throwing odium, or otherwise injuring the democratick party. In Bradford's paper, again Harrison declares the charge false and malicious. Out of this, in part, grew the imprisonment and trial of Zengre.
* See Appendix, V.
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The objections raised against the court, in which Cosby wished to decide his controversy with Van Dam, lay principally against the judges of the supreme court, being at the same time, baron; of the exchequer. " Had the governour appointed other barons, all clamour against the legality of the court must have ceased," says Chief Justice Smith. But this was not Cosby's aim. The new Chief Justice De Lancey in vain laboured to procure an indict- ment against Zenger. In the October term he renewed his efforts. He called the attention of the grand jury to certain low ballads, which he charged to be libels. "Sometimes, ( says the judge,) heavy, half-witted men get a knack of rhyming, but it is time to break them of it when they grow abusive, insolent, and mischeivous with it." The ballads being presented, were ordered to be burnt by the common whipper ; and the inquest, on their addressing the governour for a proclamation offering a reward for a discovery of the author, received a gracious answer.
The council, about the same time, urged the assembly to a con- ference for detecting the writer of certain other libels in Zenger's Journal. The council addressed the governour, desiring the printer to be prosecuted. The papers were laid before the assem- bly, but they ordered them to lie on the table.
The council on the 2nd of November, made the following order : " Whereas, by an order of this board, of this day, some of John Peter Zenger's Journals, entitled, The New York Weekly Jour- nal, containing the freshest advice, foreign and domestick, No. 7, 47, 48, 49, were ordered to be burnt by the hands of the common hangman, or whipper, near the pillory in this city, on Wednesday, the 6th instant, between the hours of eleven and twelve in the fore- noon, 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 governour in particular, the legislature in general, but also upon the most considerable persons in the most distinguised stations in this province ; it is therefore ordered, that the mayor, and magistrates of this city, do attend the burning of the several papers or journals aforesaid, numbered as above mentioned .- Fred. Morris, D. Cl. Con."
" To Robert Lurting, Esquire, mayor of the city of New York, and the rest of the magistrates for the said city and county."
" When the sheriff moved for the compliance of the magistrates at the quarter sessions, the court would not suffer the order to be ' entered, and the aldermen offered a protest against it, as an arbi- trary and illegal injunction. Harrison, the recorder, was present, and put to a defiance for its justification. He mentioned the ex- ample of the lords in Sacheveral's case, and their proceedings against bishop Burnet's pastoral letter, and withdrew. They for-
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bade even their whipper to obey it, and his place was supplied by a negro slave of the sheriff's ; the recorder, and a few dependants upon the governour, honoured the solemnity of executing this edict with their presence. Not many days after, Zenger, in pursuance of a proclamation, was seized, thrown into jail, and denied pen, ink, and paper. His friends procured a habeas corpus for his enlargement. The exceptions to his return were argued by his , council, Messrs. Alexander and Smith.
" The prisoner swore, that, except the tools of his trade, he was not worth forty pounds in the world, and yet bail was exacted in the penalty of ES00; upon this he was enlarged, and being well supported, prosecuted his paper."
But before this enlargement, which Chief Justice Smith speaks of, (unless it was the enlargement, of communicating through the hole in the door,) Zenger, on the 25th of November, 1734, in his paper of that date, apologizes for not printing the last weekly jour- nal, as the governour, by warrant, had put him in jail ;* but as now he had the liberty of speaking through the hole in the door, he could continue to entertain liis customers by publishing his journal. In answer to one of his opponents, he acknowledges, that he ".was brought over, at the charitable expense of the crown," for which he returns thanks to Queen Anne. In another passage, he says, that Harrison had threatened to cane him ; but his sword would pro- tect him. In those days, swords were almost as common as wigs, and worn as part of the dress.
1735 In April term, 1735, Zenger's council, or the cham- pions of the people, Messrs. Alexander and Smith, filed exceptions to the commissions of the judges, De Lancey and Phil- lipse. First, to the tenure, which was at will and pleasure. Se- cond, to the investiture. Third, to the form. And lastly, to the want of evidence, that the council concurred with the governour in their appointment.
The judges, of course, repelled this attack, and on the 16th of .April, Mr. De Lancey, chief justice, addressing Mr. Smith, said : " You have brought it to that point, that either we must go from the bench, or you from the bar."-And the counsel were silenced.
The court assigned Mr. Chambers as counsel for John Peter Zenger, who pleaded the general issue for his client, and obtained a rule for a struck jury.
The trial was brought on at the court in July, and nothing omit- ted by the silenced lawyers to give it a favourable issue. The press had groaned all the preceding vacation, with every species of com- .
* It must be constantly borne in mind, that the prisons, jails or dungeons, of New York, were at this time, and until 1756 or 1760, all under the roof of the City Hall. in Wall street; consequently the jail Zenger speaks of was a room in this building.
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position, tending:to animate, alarm, inform, or captivate the minds of the multitude ; and the stratagem to deprive the defendant of help, disserved the end for which.it was intended. Aware of the inadmissibility of all .proof to justify the libels, they had the art to exhibit them to the public by the press, and at clubs, and other meetings for private conversation; and, considering the inflamed .state of a small county, consisting at that time of less than a thou- sand freeholders qualified for jurors, it was easy to let every man perfectly into the full merits of the defence. Besides, he drew some . advantages from a struck jury, since he could nearly conjec- ture, out of a pannel-of twenty-four men, which of the twelve would be charged with his cause.
These preparations being made, Mr. Hamilton, who had been secretly engaged, presented himself on the day of trial.as the cham- :pion of liberty. He was a member of one of the inns of court, an opulent citizen of Philadelphia, in high reputation at the bar. He had art, eloquence, vivacity, and humour, was ambitious of fame, negligent of nothing to ensure success, and possessed a con- fidence which no terrors could awe.
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He asserted, that the matters charged were the truth, and there- fore :no libel. . He ridiculed the notion advanced by the judges, that " a libel was more dangerous for being true." His debates with the court persuaded the jury, before he addressed them, that -the refusal of the judges to permit evidence of the truth of the pub- lications, added to the tyranny of which the people complained ; and then, turning to the jury, he recapitulated the passages in the journal - asserted them to be true - and left his client in the hands of the jury, who pronounced him not guilty.
Shouts shook the hall. The judges threatened the leader of the tumult with imprisonment ; when a son of Admiral Norris de- clared himself the leader, and invited a repetition of the huzzas. The judges had no time for a reply, for the shouts were instantly repeated, and Mr. Hamilton was conducted from the hall, by the crowd, to a splendid entertainment. The whole city renewed the compliment at his departure the next day ; he entered the barge under a salute of cannon, and the corporation presented him with the freedom of the city in a gold box, on which its arms were engraved, encircled with the words, "Demersæ leges -timefacta libertas - hæc tandem emergunt ;" in a flying garter within, " Non num- mis, virtute paratur ;" and on the other front, " Ita cuique eveniat ut .de republica meruit."
I will here give a note, made by Chancellor Kent :
"Report of the case of Peter Zenger, printer of the New York weckly journal. [This paper was commenced November 5th, 1733.] On the 17th of November, 1734, Zenger was arrested and imprisoned by the order of the council, for printing and
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publishing seditious libels. He was then brought before the chief justice, on habeas corpus, and his counsel objected to the legality of the warrant, and insisted on his being admitted to bail. (James Alexander and William Smith were his counsel.) He was ordered to give bail in £400, with two sureties, each in £200. As he swore that he was not worth £40, the tools of his trade and wearing apparel excepted, he could not give bail, and was re-com- mitted. On 28th January, 1735, the grand jury having found no bill against him, the attorney-general filed an information against him, for a false, scandalous, malicious and seditious libel. His counsel took exceptions to the commissions of the chief justice and Judge Phillipse, because the commission ran during pleasure, and not during good behaviour, and were granted by the governour, without the advice and consent of the council. The court, on the 16th of April, refused to hear or allow the exceptions ; and to punish the counsel for making them, they, by order, excluded them from the bar, for denying the legality of the commissions of the two judges. The court then, on the petition of the printer, appointed John Chambers, Esq., his counsel, and he pleaded not guilty to the information. The court, on motion, ordered a struck jury. The trial came on in the supreme court, before those two judges, (James De Lancey, chief justice, and Frederick Phillipse, puisne judge ; R. Bradley, attorney-general.)
" The printing and publishing were confessed, and Mr. Hamil- ton, of Philadelphia, the counsel for the prisoner, in conjunction with Mr. Chambers, insisted in his defence, on the truth of the, facts charged as libellous. The chief justice told the counsel for defendant, that he could not be admitted to give the truth of the libel in evidence. Mr. Hamilton insisted that the jury were judges of both the law and the fact. Verdict, not guilty.
. " The corporation of New York, in common council, thereupon presented Andrew Hamilton, Esq., of Philadelphia, barrister at law, with the freedom of the city, in a gold box, 'for his learned and generous defence of the rights of mankind and the liberty of the press.' "
The trial of John Peter Zenger makes so important a feature in 'the picture of New York in 1734 and 1735, that I will, before closing this chapter, dwell at length upon the subject.
Dr. John W. Francis tells us, in his description of the city of · New York,* that the late Gouverneur Morris told him that " the trial of Zenger, in 1735, was the germ of American freedom-the morn- ing star of that liberty which subsequently revolutionized America."
It throws light upon the state of the province, the feelings of the
* Printed in the American edition of Dr. Brewster's Encyclopedia, and p. 400, of Hinton's History and Topography of the United States of America.
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people, their opposition to the mode of government fastened upon them by England, and consequently upon their conduct thirty and forty years after. It proves the prevailing opinion entertained of Governour Cosby, his council, and his judges; and it exhibits the character and talents of Andrew Hamilton, which is passed over slightly by William Smith, the son of one of the silenced lawyers .*
I have given the brief and luminous note of Mr. Kent; but as the trial, published at the time, by Zenger, and republished in Lan- caster by W. Dunlap, in 1756, is scarce, and the state trials rarely consulted, I will, for the above reasons, make extracts from it, and endeavour by comment, to elucidate it.
. The words charged to be a false, scandalous, malicious, and seditious libel, are these ; " Your appearance in print at last, gives a pleasure to many, though most wish you had come fairly into the open field, and not appeared behind retrenchments made of the supposed laws against libelling : these retrenchments, gentlemen, may soon be shewn to you and all men to be very weak, and to have neither law nor reason for their foundation, so cannot long stand you in stead : therefore, you had much better as yet leave them, and come to what the people of this city and province think are the points in question. 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, and this they collect from many past proceedings." "One of our neighbours of New Jersey being in company, observ- ing the strangers of New York full of complaints, endeavoured 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 governour, and your assembly have shown with a witness, what is to be expected from them ; one that was then moving from New York to Pennsylvania, to which place it is reported several considerable men are removing, expressed in terms very moving, much concern for the circumstances of New York, and seemed to think them very much owing to the influence that some men had in the administration ; said he was now going from them, and was not to be hurt by any measures they should
* This gentieman was the Andrew Hamilton, whose speech, Prond, the historian of Pennsylvania, gives upon the occasion of his taking leave of the assembly, of which he had been the speaker, on account of age and infirmities. This was in 1739, only five years after his celebrated defence of Zenger. He died in 1741, " in the latter end of the summer," says Proud .- " He had filled several considerable stations both in the government of Pennsylvania and the lower counties, with honour, integrity, and ability. He was a lawyer of great note, and acquired much reputation, particularly in Zenger's famous trial in New York." This celebrated barrister was an Englishman, educated and-in practice before coming to this coun. try, and must not be confounded with the Deputy-governour of Pennsylvania, who died in 1703 or 4 .- See Historical Review, published in London, 1769.
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take ; but could not help having some concern for the welfare of his countrymen, and should be glad to hear that the assembly would exert themselves as become them, by shewing 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 governour ; both which ought equally to be despised,. when the interest of their country is at stake. You, says he, complain of the lawyers, but I think the law itself is at an end. We see men's deeds destroyed, judges arbitrarily displaced, new courts erected without consent of the legislature, by which it. seems to me, trials by juries are taken away when a governour pleases ; men of known estates denied their votes, contrary to the received practice of the best expositor of any law. Who is. then in that province that can call any thing his own, or enjoy any liberty longer than those in the administration will condescend to let them do it, for which reason I left it, as I believe more will."
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We have seen, that the grand jury would not find a bill against the printer, and that his adversaries proceeded by the infamous mode of: information. When the trial came on, Mr. Hamilton avowed the printing and publishing as being the truth.
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