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 35
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Even the names of the struck jury possess interest at this day : Harmanus Rutgers, Stanly Holmes, Edward Mann, Jolm Bell, Samuel Weaver, Andries Marchalk, Egbert Van Borson, Thomas Hunt- foreman, Benjamin Hildreth, Abraham Keteltas, John Goelet, Hercules Wendover.
Hamilton confessed the printing and publishing. Bradley ob- served.that " the jury must find a verdict for the king." "Not so, Mr. Attorney," said Hamilton, " there are two words to that bar- gain : I hope it is not our bare printing and publishing a paper that will make it a libel : you will have something more to do, before you make my client a libeller ; for the words themselves must be libellous, that is, false, scandalous and seditious, or else we are not guilty." Bradley gave the usual definition of a libel : he asserted, " that whether the person defamed is a private man or magistrate, whether living or dead, whether the libel is true or false, or. if the party against whom it is made is of good or evil fame, it is nevertheless a libel : for in a settled state of government, the party grieved, ought to complain for every injury done him, in the ordi- nary course of the law And as .to its publication, the law had taken so great care of men's reputations, that if one maliciously repeats. it, or sings it, in the presence of another, or delivers the libel or a copy of it over, to scandalize the party, he is to be pun- ished as a publisher of a libel. He said, it was likewise evident, that libelling was an offence against the law of God : Acts xxiii, 5. Then said Paul, I wist not, brethren, that he was the high priest ; for it is written, thou shalt, not speak. evil, of the ruler of the people.
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2 Pet. x, 11 .- Despise government, presumptuous are they, self- willed, they are not afraid to speak evil of dignities, &c. He then insisted that it was clear, both by the law of God and man : that it was a very great offence to speak evil of, or to revile those in authority over us ; and that Mr. Zenger had offended in a most noto- rious and gross manner, in scandalizing his excellency, our gover- nour, who is the king's immediate representative, and the supreme magistrate of this province. Mr. Chambers, who had been appointed by the court to defend Zenger, after Smith and Alexan- der were silenced, addressed the jury ; and then Hamilton followed. He insisted, that the just complaint of a number of men suffering under the bad administration of a government, was no libel. He said, that Bradley, by reading and expounding the information, had shown that the prosecution had been directed by the gover- nour and council ; and by the appearance of the crowded court, it was apparent that people think there is a great deal more at stake than appears on the surface of this business; and, therefore, he should be both plain and particular in what he had to say. He pointed out, that the authorities Bradley had cited, were from that terrible and long exploded court, the star-chamber. " Is it not surprising," he said, " to see a subject, upon his receiving a com- mission from. the king to be a governour of a colony in America, immediately imagining himself to be invested with all the preroga- tives belonging to the sacred person of his prince ? And which is yet more astonishing, to see that a people can be so wild as to allow of and acknowledge those prerogatives and exemptions, even to their own destruction ? Is it so hard a matter to distinguish between the majesty of our sovereign, and the power of a governour of the plantations ?" He showed the folly of such supposition. He in- sisted on the rights of a freeholder in New York being as great as those of a freeholder in England.
Bradley, the attorney-general, interrupted the barrister, and insisted that the confession of publication, was a confession that Zen- ger was guilty of what was charged in the information, as scanda- lous and leading to sedition.
Hamilton observed, that Mr. Attorney now omitted the word false. " We are charged," he said, "with printing and publishing a certain false, malicious, seditious and scandalous libel. This word fulse, must have some meaning, or else how came it there ? I hope Mr. Attorney will not say, he put it there by chance, and I am of opinion his information would not be good without it. But to show that it is the principal thing which, in my opinion, makes a libel, I put the case, if the information had been for printing and publishing a certain true libel, would that be the same thing? Or could Mr. Attorney support such an information by any precedent in the English law ? No; the falsehood makes the scandal, and
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both make the libel. And to show the court that I am in good earnest, and to save the court's time and Mr. Attorney's trouble, I will agree, that if he can prove the facts charged upon us to be false, I will own them to be scandalous, seditious, and a libel. So the work seems now to be pretty much shortened, and Mr. Attorney has now only to prove the words false, in order to make us guilty." He then offered to save Mr. Attorney the trouble of proving the papers to be false, and would prove them to be true. To this, Mr. Chief Justice De Lancey objects .- " You cannot be admitted, Mr. Hamilton, to give the truth of a libel in evidence. The law is clear, that you cannot justify a libel."
" Mr.Hamilton .- I own that, may it please your honour, to be so : but with submission, I understand the word justify, there to be a justification by plea, as it is in the case upon an indictment for mur- der, or an assault and battery ; there the prisoner cannot justify, but plead not guilty. Yet it will not be denied but he may, and always is, admitted to give the truth of the fact, or any other matter in evidence, which goes to his acquittal ; as in murder-he may prove it was in defence of his life, his house, etc .; and in assault and battery-he may give in evidence, that the other party struck first-and in both cases he will be acquitted. And in this sense I understand the word justify, when applied to the case before the court.
" Mr. Chief Justice .- I pray show that you can give the truth of a libel, in evidence.
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" Mr. Hamilton .- I am ready." After referring to an autho- rity in Coke's third Institute, he proceeds. "Now, sir, by this judgment, it appears the libellous words were utterly false, and there the falsehood was the crime, and is the ground of that judg- ment: and is not that what we contend for? Do not we insist, that the falsehood makes the scandal, and both make the libel ?- And how shall it be known whether the words are libellous -- that is, true or false-but by admitting us to prove them truc ?"
Mr. Hamilton proves it to be both monstrous and ridiculous to assert, that truth makes a worse libel than falsehood. He recites a case in which Lord Chief Justice Holt asks of the person accused as a libeller, "Can you make it appear they are true? Have you any witnesses ? You might have had subpoenas for your witnesses against this day. If you take upon you to write such things as you are charged with, it lies upon you to prove them true, at your peril. If you have any. witnesses, I will hear them. How came you to write those books, which are not true ? If you have any witnesses, produce them. If you can offer any matter to prove what you have wrote, let us hear it."
After some. consultation, De Lancey said, " Mr. Hamilton, the court is of opinion you ought not to be permitted to prove the facts
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in the papers :" and the chief justice proceeded, "these are the words of the book : " It is far from being a justification of a libel, that the contents thereof are true, or that the person on whom it is made, had a bad reputation, since the greater appearance there is of truth in any malicious invective, so much the more provoking it is.' "
These cases, Hamilton called star-chamber, and the court reproved him, but permitted him to address the jury. .
" Then, gentlemen of the jury, it is to you we must appeal for witnesses of the facts." They being summoned out of the neigh- bourhood, were the best judges of the truth, and they are to take upon them to say, that the papers are false, scandalous and sedi- tious.
After some further contest with the attorney and court, Hamilton said, " I know the jury have a right to determine both the law and the fact, and they ought to do so." Leaving to the court to deter- mine "whether the words are libellous or not, renders juries use- less, or worse." He afterwards said, "But when the ruler of a people brings his personal failings, but much more his vices, into his administration, and the people find themselves affected by them, . either in their liberties or properties, that will alter the case mightily, and all the high things that are said in favour of rulers and of digni- taries, and upon the side of power, will not be able to stop people's mouths, when they feel themselves oppressed-I mean in a free government. It is true, in times past, it was a crime to speak truth, and in that terrible court of star-chamber, many worthy and brave men suffered for so doing; and yet even in that court, and in those bad times, a great and good man durst say, what I hope will not be taken amiss of me to say in this place, to wit : The practice of in- formations for libels, is a sword in the hands of a wicked king, and an arrant coward, to cut down and destroy the innocent; the one cannot, because of his high station, and the other dares not, because of his want of courage, revenge himself in another manner."
" Our constitution," said the barrister, "gives us an opportu- nity to prevent wrong, by appealing to the people." "And has it not often been seen (and I hope it will always be seen,) that when the representatives of a free people are by just representations or remonstrances, made sensible of the sufferings of their fellow sub- - jects, by the abuse of power in the hands of a governour, they have declared (and loudly too) that they were not obliged by any law to support a governour who goes about to destroy a province or colo- ny, or their privileges, which by his majesty he was appointed, and by the law he is bound to protect and encourage. But I pray it may be considered, of what use is this mighty privilege, if every man that suffers must be silent ? And if a man must be taken up as a libeller, for telling his sufferings to his neighbour? I know it
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may be answered,-have you 'not a legislature ? Have you not a house of representatives, to whom you may complain ? And to this I answer, we have : but what then ? Is an assembly to be troubled with every injury done by a governour? Or are they to hear of nothing but what those in the administration will please to tell them? Or what sort of a trial must a man have? And how is he to be remedied-especially if the case were, as I have known it. . to happen in America in my time-that a governour who has places (I will not say pensions, for I believe they seldom give that to ano- ther, which they can take to themselves) to bestow, and can or will keep the same assembly (after he has modelled them so as to get a majority of the house in his interest) for near twice seven years together ? I pray what redress is to be expected for an honest man, who makes his complaint against a governour to an assembly, who may properly enough be said to be made by the same gover- nour, against whom the complaint is made ?"
We here see the light in which Cosby's conduct was viewed by just men, and the opinion which the wise had of governours, in the year 1735. Again : " And when a house of assembly, composed of honest freemen, sees the general bent of the people's inclinations, that is it which must and will (I am sure it ought so) weigh with a legislature, in spite of all the craft, caressing, and cajoling, made use of by a governour, to divert them from hearkening to the voice of their country. As we all very well understand the true reason why gentlemen take so much pains, and make such great interest to be appointed governours, so is the design of their appointment not less manifest."
He comes to the conclusion "that the man who was neither good nor wise before his being made a governour, never mended upon his preferment, but has generally been observed to become worse." He alluded to those who might wish well to the present prosecution, from attachment to the governour, or " from their own or their rela- tion's dependence on him." The reader will remember that both De Lancey and Phillipse held their seats as judges, during the governour's pleasure. As may be supposed, the veteran barrister dwelt at great length on topics which are here scarcely noticed; and I consider his address to the jury not only eloquent, but as coming from an old man who saw all the vices of colonial govern- ment, and represented them pretty much as the people generally felt them, forty years afterward. " I think it will be agreed, that ever since the time of the star-chamber, where the most arbitrary and destructive judgments and opinions were given, that ever an Eng- lishman heard of, at least in his own country-I say, prosecutions for libels since the time of that arbitrary court, and until the glori- ous revolution, have generally been set on foot at the instance of the crown or its ministers : and it is no small reproach to the law,
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that these prosecutions were too often and too much countenanced by the judges, who held their places at pleasure, a disagreeable tenure to any officer, but a dangerous one in the case of a judge."
He mentioned the "complaisance of court judges," in the case of Sir Edward Hales, who enjoyed the office of colonel in James the Second's army, notwithstanding that he was an avowed Roman Catholic, (in despite of a statute to the contrary,) because the judges, hol ling their seats at the king's pleasure, declared the king's dispensing power above an act of parliament. A portion of Mr. Hamilton's argument went to show that juries might with pro- priety differ from the court ; he instanced the case of Penn and Mead, "who being quakers, and having met in a peaceable manner, after being shut out of their meeting-house, preached in Grace- church street, in London, to the people of their own persuasion, and for this they were indicted ; and it was said, that they with other persons, to the number of 300, unlawfully and tumultuously assembled, to the disturbance of the peace, etc .: to which they pleaded not guilty ; and the petit jury were sworn to try the issue between the king and the prisoners, that is, whether they were guilty, according to the form of the indictment ? Here there was no dispute, but they were assembled together to the number men- tioned in the indictment : but whether that meeting together was riotously, tumultuousły, and to the disturbance of the peace ? was the question ; and the court told the jury it was, and ordered the jury to find it so ; for, said the court, the meeting was the matter of fact, and that is confessed, and we tell you it is unlawful, for it is against the statute; and the meeting being unlawful, it follows of course that it was tumultuous, and to the disturbance of the peace. But the jury did not think fit to take the court's word for it, for they could neither find riot, tumult, or any thing tending to the breach of the peace, committed at that meeting; and they acquitted Mr. Penn and Mead: in doing of which, they took upon them to judge both the law and the fact."
The barrister showed, that by innuendo, scripture might be made libellous, and with great humour, quoted a passage from Isaiah : " His watchmen are all blind, they are ignorant, &c. Yea, 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 his innuendoes. As, for instance : His watchmen innuendo, the governour's council and assembly are blind, they are ignorant, innuendo, will not see the dangerous designs of his excellency. Yea, they (the gover- nour and council, meaning) are greedy dogs, which can never have enough, innuendo, enough of riches and power."
He concluded thus : "I am truly very unequal to such an un- dertaking, on many accounts ; and you see I labour under the weight
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of many 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 any use in assisting to quench the flame of prosecutions upon infor- mations, 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 consequences affect every freeman that lives under a British government on the Main of Ame- rica. 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 neighbours, that, to which na- ture 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 truth."
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It has been already said, that the jury pronounced the prisoner " not guilty." The people applauded the verdict, and the Corpo- ration of New York did themselves honour, by honouring the de- fender of the rights of man: I have to record transactions of the same body, of a very dissimilar character.
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VALUE OF COLONIAL HISTORY.
CHAPTER XX.
Colonial history of New York ; why valuable-City ; description of-Manners of the times-Lord Augustus Fitzroy ; his reception, and the consequences-Death of Governour Cosby, and promulga- tion of the suspension of Van Dam-Struggle for power between Clarke and Van Dam, terminated by a mundate from England -Morris-Disfranchisement of the Jews-Management and abi- lities of Clarke.
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1732 HAD it been possible to arrest the progress of New York, in its growth, from a few trading huts for buying peltry from savages, to its present state-a great republican empire-to have cut short its existence, before that great trial commenced, the issue of which proved the folly, and injustice, of depriving Englishmen of their rights, because they had removed to a distance from home, for the purpose of enjoying those rights uninterruptedly-if our history reached no further than that state of dependence, which the government and people of England wished to perpetuate, when the colonists were prohibited, for the supposed benefit of the mother country, from using, for their own good, the materials nature had given them, and the ingenuity they brought from home, and, in the language of the great Pitt, Lord Chatham, ( a man so erroneously considered as the colonist's friend, when he advocated measures that were intended for England's enrichment, and the bond of the province,) in that expressive sentiment uttered by him, " that he would prohibit the colonies from manufacturing even a hob-nail,"-if we rested in that state of childlike dependence, in- stead of manufacturing according to our wishes, those things which our state of manhood required-if, in short, the history of New York had ceased, after recording the disputes of Van Dam and Cosby, and the intrigues of their enemies or friends, though we might lament that the actions of good men, would be lost to posterity ; yet, as leading to no permanent political consequence, the history of New York, would have been nearly worthless. But as a chain of events characterizing the progress to our present great- ness ; every fact that can be rescued from oblivion, and so placed on the record, as to show the advancement from the paltry province to a mighty sovereign state, becomes of immense importance. It
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is this consideration that has made me dwell with delight, on the characters of Peter Stuyvesant, Jacob Leisler, Peter Schuyler, Andrew Hamilton, and other patriots, Dutch, American, and Eng- lish ; as well as on the virtues of the Hibernian, Richard Coote, Earl of Bellamont, and the learned, wise, and benevolent Briton, William Burnet ; and assures me, that by showing one continued chain of events, however trivial in the commencement, which led ultimately and inevitably, to the great results which we now wit- ness, I am doing an essential service to my fellow men.
'The origin of Rome, the boasted eternal city, is sought amidst fables ; and every absurd legend is cherished as a part of the edu- cation of the modern race : how much more important to the Ame- ricans, is the true record, of the origin of this empire : and the steps by which the greatness was attained, which he now witnesses. With these views, I will here notice the state of the city of New York, about the period under consideration.
The advertisements in the old newspapers give one a more decided view of the manners of this time, than any intentional essay could do. I likewise gain some knowledge of the state of the city at that period ; for example, in Zenger's Weekly Journal, dated Monday, July the 29th, 1734, I find, " to be sold, 6 lots of land, on the west side of the Swamp or Criplebush, three of them fronts . the row that leads from Spring Garden to the Fresh Water, the other three, the street next to the Swamp; there is three good houses on them, one in the possession of Mrs. Scott. Enquire of Anna Ten Eyck, near Coenties market." This I copy literally. I have before remarked, that the houses were not numbered, and the streets were not at all times called by the same name ; in this instance we have a " street and a row," without names. It will be . amusing to discover the situation of these advertised lots, and mark their present state. There were, as may be seen by the map of 1729, two swamps in the city : the swamp well remembered by me, as such par excellence, is in the map, called Beekman's Swamp, lying in Montgomerie's Ward, and is the most southerly of the two: now it is occupied by Ferry street, Frankfort street, Vandewater street, etc. To the east of this, is a more extensive swamp and meadow, which I suppose to be that called in the advertisement Criplebush : now occupied by Oliver, James, Catherine, Roosevelt, Oak, and other streets, and lying between Cherry and Pearl streets. The Fresh Water, or Kolk, or Collect, is a part of Centre street, the Halls of Justice, the Five Points, etc. Chatham street was at this time (1734) the high road to Boston ; and the part of pre- sent Pearl Street, from Cherry street to Chatham, (or the Boston road,) was nameless. Now we must look for Mrs. Anna Ten Eyck's six lots, and four houses, east of Pearl street, (before des- cending to the Swamp or Criplebush,) perhaps in the neighbourhood
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of Madison street. Spring Garden, (probably a place of rural recreation for the citizens,) was between Beekman's Swamp, and the Criplebush ; or on Pearl street, as now occupied and called, between the junction of Cherry, Pearl, and Chatham streets.
To return to our history. Colonel Cosby was one of those . ' military gentlemen, who looked to their connexions with the nobi- lity at home, for preferment abroad. His brother, Major Cosby, was of the same class, and had been lieutenant-governour of Anna- polis, but finding the colonel had the power in New York, to give him preferment, (or for reasons unknown to me,) came hither, and thus the common council of our city speak on the occasion. " This corporation being very desirous upon all occasions, to demonstrate the great deference they have, and justly entertain for his excel- lency, William Cosby, captain general, etc., and for his noble family, order, that the honourable Major Alexander Cosby, bro- ther to his excellency, and lieutenant-governour of his majesty's garrison of Annapolis Royal, and Thomas Freeman, the governour's son-in-law, be presented with the freedom of the city, in silver boxes." In consequence of this resolve, three days after, the cor- poration waited on the above, and took occasion to compliment the governour most outrageously, and likewise his lately married daughter, Miss Grace Cosby, and her wedded lord, Thomas Free- man. : But to show the spirit of the times, and the provincial feel- ing of our city dignitaries, I must relate the manner in which a lord was received into the city and fort. The consequences were not worthy of the occasion.
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