USA > New York > New York City > History of the city of New York : its origin, rise, and progress. Vol. I > Part 58
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He was brought before the chief justice on a writ of habeas corpus, but his counsel, Smith and Alexander, objected to the legality of the warrant, and insisted upon his being admitted to bail. He swore that he was not worth £ 40, the tools of his trade and wearing apparel excepted, and could not give bail. Consequently he was recommitted.1
1 Chancellor Kent.
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HISTORY OF THE CITY OF NEW YORK.
The grand jury found no bill against him, therefore on the 28th of 1735. January, Bradley, the attorney-general, filed an information for Jan. 28. " false, scandalous, malicious, and seditious libels."
The trial excited the attention of all America.
Smith and Alexander were the most eminent lawyers in the city, and were well prepared on this occasion. They commenced by a spirited attack upon the court itself, aiming at the legality of the commissions of Chief Justice De Lancey and Judge Philipse, which, as has before been stated, read, during pleasure, instead of good behavior, and had been granted by the governor independent of the council.1
Such a proceeding was esteemed a gross contempt of court, and Chief Justice De Lancey, addressing Smith, remarked, "You have brought it to that point, sir, that either we must go from the bench, or you from the
bar." And he ordered their names struck from the roll, and thus April 16. they were excluded from further practice. It would be difficult to designate any other course which De Lancey could have taken under the circumstances, consistent with his own dignity and self-respect, but it caused almost a panic.
The court assigned John Chambers as counsel for the printer, who pleaded NOT GUILTY for his client, and obtained a struck jury. The silenced lawyers omitted no effort on their part which would tend to the acquittal of the prisoner. They made it appear that their own suppres- sion was a stratagem to deprive the defendant of help. They artfully exhibited the "libels " to the public by the press, and at clubs, and in other meetings for private conversation. It was easy to let every man qualified for a juror into the full merits of the defense. The services of the eloquent Philadelphia lawyer, Andrew Hamilton, were also secretly engaged.2
. The trial came on in July and occupied the entire summer. It was an important feature in the early history of the press of New York, July. and as it has been variously styled, "the germ of American free- dom," and "the morning star of that liberty which subsequently revolu- tionized America," etc., etc., it will be pardonable to go somewhat into details on the subject. Hamilton presented himself promptly, and was eagerly welcomed as the champion of liberty. He asserted that the matter charged was the truth, and therefore no libel, and ridiculed some
1 Doc. Hist. N. Y., IV. 1043. Zenger's Report of the trial published in Boston three years afterward.
2 Hamilton was a lawyer of great note, although the famous trial of Zenger widely in- creased his reputation. He was educated and in practice in England before coming to this country. He filled many stations of trust during his long residence in Pennsylvania with honor and ability. He died in 1741.
1
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ANDREW HAMILTON.
of the notions advanced by the judges. The words charged as " false, scandalous, malicious, and seditious libels " were as follows :-
"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 retrench- ments made of the supposed laws against libelling ; these retrenchments, gen- tlemen, may soon be shown to you and all men to be very weak, and to have
Portrait of Andrew Hamilton. (From original painting in the Pennsylvania Historical Society.)
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 mat- ters now stand, that their liberties and properties are precarious, and that slavery is likely 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 neighbors of New Jersey being in company, observing the stran- gers of New York full of complaints, endeavored 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 governor, and your Assembly have shown with a witness what is to be expected from them : one
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that was then moving from New York to Pennsylvania, to which place it is reported several considerable men are removing, expressed 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 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 became them, by showing 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 governor ; 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 governor pleases ; men of known estates denied their votes, contrary to the received practice of the best expositor of any law. Who is there in that province that can call anything his own, or enjoy any liberty longer than those in the administration will con- descend to let them, for which reason I left it, as I believe more will.'"
The court-room was crowded almost to suffocation ; every kind of busi- ness was neglected. The freedom of the press was at stake, as was also liberty of speech, and men looked at each other anxiously and conversed in undertones. Hamilton admitted the publication. Bradley, the attorney- general, remarked that the jury must then find a verdict for the king.
" By no means," exclaimed Hamilton, in his clear, thrilling, silvery voice. "It is not the bare printing and publishing of a paper that will make it a libel; the words themselves must be libelous, that is, false, scandalous, and seditious, or else my client is not guilty."
Bradley said " the truth of a libel could not be taken in evidence."
" What is a libel ?" asked Hamilton.
Bradley gave the usual definition. He said :-
" Whether the person defamed be a private man or a magistrate, whether living or dead, whether the libel be true or false, or the party against whom it is made be of good or evil fame, it is nevertheless a libel, and as such, must be dealt with according to law ; for in a settled state of government every person has a right to redress for all grievances done him. As to its publication the law has taken such great care of men's reputations that if one maliciously repeats it or sings it in the presence of another, or delivers a copy of it over to defame or scandalize the party, he is to be punished as the publisher of a libel. It is likewise evident that it is an offense against the law of God, for Paul himself has said, 'I wist not, brethren, that he was the high priest ; for it is written, Thou shalt not speak evil of the ruler of thy people.'"
" By no means, " exclaimed Hamilton, in his clear, thrilling, silvery voice. "It is not the bare printing and publishing of a paper that will make it a libel : the words themselves must be libelous, that is, false, scandalous, and seditious, else my client is not guilty." Page 552.
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THE FAMOUS TRIAL.
Bradley attempted to show how Zenger had been guilty of "a gross offense against God and man, by attacking with words and innuendoes the sacred person of royalty through its representative the governor," and quoted precedents to prove that, whether true or false, a libel re- mained the same in the eye of the law.
Chambers, in his address to the jury, insisted that the just complaint of a number of men suffering under the bad administration of a govern- ment was no libel. He said the authorities which Bradley had cited were from that terrible and long-exploded court, "the Star Chamber." He asked if it was not surprising "to see a subject, upon his receiving a commission from the king to govern a colony in America, imagine himself at once invested with all the prerogatives belonging to his Majesty, and more astonishing to see a people so wild as to allow of and acknowledge those prerogatives even to their own destruction. Is it so hard a matter to distinguish between the majesty of our sovereign and the power of the governor of a province ?" He showed the folly of such ideas, and insisted that the rights of a freeholder in New York were as great as those of a freeholder in England.
Bradley interrupted the barrister by declaring that the confession of publication, admitted the guilt of Zenger to what was charged in the information, as " scandalous and leading to sedition."
Hamilton sprang to his feet, and suggested that Mr. Attorney had omitted the word "false "; he thought the word must have had some meaning in it, and was not put in the information by chance. In his opinion an untruth made the libel. He challenged Bradley to prove the facts charged to be false, in which case he would acknowledge them " scandalous, seditious, and a libel." To save trouble, he offered to prove the papers true.
Chief Justice De Lancey objected, telling Hamilton that he could not be admitted to give the truth of a libel in evidence, as the law was clear that a libel could not be justified.
Hamilton proceeded to give his opinion of the word justify in its appli- cation to the present case.
De Lancey then desired him to show that he could give the truth of a libel in evidence.
Hamilton responded by arguing the point at considerable length. After referring to an authority in Coke's third Institute, he explained that by the judgment, the libelous words were utterly false, and the falsehood was the crime, and ground of that judgment; that falsehood makes scandal, and both make the libel. " And how," he asks, " shall it be known whether the words are libelous - that is, true or false - but by 35
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admitting us to prove them true ?" Hamilton made it appear monstrous and ridiculous to assert that truth makes a worse libel than falsehood.
The court was of opinion that he ought not to be permitted to prove the "facts in the papers." The chief justice said : " 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 ap- pearance there is of truth in any malicious invective, so much the more provoking it is."
Hamilton's address to the jury was full of sarcasm. He said : "You are the best judges of the law and the fact, and are to take upon your- selves to say whether the papers are false, scandalous, and seditious." He was interrupted several times by the court, and there was some brilliant sparring.
He went on to declare that juries had a right to determine both the law and the fact, and ought to do so. In his opinion, leaving to the court to say whether the words are libelous or not rendered the jury useless, and worse. He declared that if a ruler brings personal failings and vices into his administration, and the people are affected by them either in their lib- erties or properties, all the arguments in favor of dignitaries and power will not stop their mouths in a free government, if they feel oppressed. Said he : -
"Years ago it was a crime to speak the truth, and in that terrible court of Star Chamber many brave men suffered for so doing; and yet, even in that court and in those 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 informations 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 any other manner.' .... Our Constitution gives us an opportunity to prevent wrong, by appealing to the people. . ... But 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 libeler for telling his sufferings to his neighbor? I know it may be answered, '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 governor ? 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 governor who has places (I will not say pensions, for I believe they seldom give that to another which they can take to themselves) to bestow, and can or will keep the same as- sembly (after he has modeled 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 ex-
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pected for an honest man, who makes his complaint against a governor to an as- sembly who may properly enough be said to be made by the same governor against whom the complaint is made ? . . A man that is neither good nor wise before his being made a governor never mends upon his preferment, but generally grows worse ; and we all understand why gentlemen take so much pains and make such great interest to be appointed governors, nor is the design of their appointment less manifest. . Prosecutions for libels since the time of that arbitrary court, the Star Chamber, have generally been set on foot at the instance of the crown or his ministers, and countenanced by judges who hold their places at pleasure. If a libel is understood in the large and un- limited sense urged by Mr. Attorney, there is scarce a writing I know that may not be called a libel, or scarcely any person safe from being called to account as a libeler. Moses, meek as he was, libeled Cain ; and who has not libeled the Devil ? for, according to Mr. Attorney, it is no justification to say that one has a bad name. . . How must a man speak or write, or what must he hear, read, or sing, or when must he laugh, so as to be secure from being taken up as a libeler ? I sincerely believe that were some persons to go through the streets of New York nowadays, and read a part of the Bible, if it were not known to be such, Mr. Attorney, with the help of his innuendoes, would easily turn it to be a libel ; as, for instance, the sixteenth verse of the ninth chapter of Isaiah : 'The leaders of the people (innuendo, the governor and council of New York) cause them (innuendo, the people of this province) to err, and they (meaning the people of this province) are destroyed (innuendo, are deceived into the loss of their liberty, which is the worst kind of destruction). Or, if some person should publicly repeat, in a manner not pleasing to his betters, the tenth and eleventh verses of the fifty-fifth chapter of the same book, then Mr. Attorney would have a large field to display his skill in the artful application of his innuendoes. The words are : 'His watchmen are all blind, they are ignorant ; yea, they are greedy dogs, that can never have enough.' To make them a libel, arrange thus : 'His watchmen (innuendo, the governor, council, and assembly) are all blind ; they are ignorant (innuendo, will not see the dangerous designs of his Excellency) ; yea, they (meaning the governor and council) are greedy dogs which can never have enough (innuendo, of riches and power)."
These humorous illustrations were followed by many others, all strictly analogous to the charges against his client. He dwelt at great length on many topics which we have not cited. He closed by saying :-
" I am truly very unequal to such an undertaking on many accounts ; and you see I labor under the weight of years, and am borne down with great in- firmities 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 use in assisting to quench the flame of prosecutions upon informations set on foot by the government, to deprive a people of the right of remonstrating (and com-
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plaining 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 oppres- sions 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 America ! 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 honor you, as men who have baffled the attempt of tyranny, and by an impartial and uncorrupt verdict have laid a noble founda- tion 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 truth."
It was in vain that Chief Justice De Lancey charged the jury that they were judges of the fact, but not of the law, and that the truth of the libel was a question beyond their jurisdiction. They returned a verdict, after only a few minutes' deliberation, of "NOT GUILTY." The court-room was at once the scene of a noisy uproar. The ignorant audience held the court in contempt, because of the gifted irony of the bar, and supposed that the action of the judges was but another illustration of the tyranny and oppression of the times. The shouts which shook the building until it seemed as if all its component parts would be divorced from each other, startled and angered the judges, and one of them indiscreetly threatened the leader of the tumult with imprisonment, if he could be discovered. Captain Norris, a son of the knighted admiral of that name, and connected with Ex-Chief-Justice Morris by the marriage of his daughter, pertly re- sponded, that huzzas were common in Westminster Hall, and were some- what loud at the time of the acquittal of the seven bishops. The shouts were repeated and repeated, and Hamilton, as the champion of the rights of the oppressed, was the lion of the hour. He was conducted from the court-room, with some difficulty resisting a ride upon the shoulders of the crowd, to an elegant entertainment.
The next day the corporation of the city tendered him a public dinner, at which there was a superabundance of fine wines and finer brandies. The mayor, in a complimentary address, presented him with the freedom of the city in a magnificent gold box purchased by private subscription. A grand ball was given in his honor the same evening, which was at- tended by the families of all such as opposed the existing administration,
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and by many others, who, when the enthusiasm subsided, dropped back into the conservative channel. The whole city complimented him upon his departure. He was escorted with ostentatious ceremony to the barge which was to convey him to Philadelphia, and received a parting salute of cannon, amid the huzzas of the multitudes and the waving of banners.
The scribblers of the day took courage, and grew more aggravating than ever. Squibs, ballads, and serious charges against high officials filled the public prints. The acquittal of Zenger was esteemed the great triumph of the age. It was not Zenger alone, however, who had been on trial. The quick-witted, restless, and malignant politicians who had sustained him, were jubilant over results through which they had been more nearly affected than even Zenger himself. There was opportunity now for retaliation. Alexander and Smith entered a complaint, as soon as the Assembly met in the autumn, against the judges for depriving them of their practice. They were heard by the committee of grievances on the 23d of Oc- tober; and a copy of the complaint was ordered to be served on Oct. 23. the judges, and an answer required within forty days.
Prior to 1743 the statute provided no limit to the length of office of the members of the Assembly. The governor might at any time dissolve them and order a new election, according to his pleasure. In Governor Hunter's time the Legislature chosen in 1716 remained in office until 1725. After that an election took place annually until 1728, when the Assembly had another protracted existence of nine years, until 1737. A bill passed the House in 1734, that no Assembly should continue more than three years. The council did not act upon it, and it was lost. The subject was repeatedly agitated. In November of the same year the House petitioned the governor for a dissolution. He gave them to under- stand that he should do it when he pleased. And he did not then please. In the midst of these special agitations, in 1735, a petition, very largely signed by the citizens, was presented to the governor, suggesting that the long session was a grievance, and asking that it might be dissolved, which was again refused, notwithstanding the members unanimously asked his consent. The House at once resolved " that, the Court of Chancery, under the exercise of a governor, without consent of the General Assembly, is contrary to law, unwarrantable, and of dangerous consequences to the liberties and properties of the people." Presently a petition came from Queen's County, to the effect that the long continuance of the Assembly occasioned a decay of trade and depreciation of lands. This incensed some of the members, and after a spirited debate the House voted that the charge was an "unjust and audacious misrepresentation." Shortly after, the lawyers who had been silenced in their profession, insinuated with stinging
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emphasis, that the distant day assigned for the answer of the judges to their complaints was an attempt to evade justice.
Cosby wrote to the Lords of Trade, complaining of Alexander as being at the head of a scheme to give all imaginable uneasiness to the govern- ment, and asked for the removal of both Alexander and Van Dam from the council. He said that private meetings were being held several nights in a week, and that scurrilous and abusive pamphlets, published against the Ministry and persons of honor and quality in England, were being reprinted in New York, with such alterations as served to enrage the people against the governor, council, Assembly, and magistrates gen- erally.
Cosby himself seems to have done very little to rescue his memory from universal detestation. He destroyed, about this time, certain deeds belonging to the city of Albany, which occasioned almost a panic. The Mohawks had conveyed a valuable part of their territory to the corpora- tion of that city, to take effect upon the total dissolution of their tribe. These documents were shown to Cosby to convince him of the injustice of granting the same property to private patentees. He had requested the perusal of them, and after reading threw them into the fire before which he was seated, and they were instantly consumed. He intended to enrich himself with fees for new grants, as well as by the acquisition of improved lands. From the same motive originated a project to re- survey all the old patents on Long Island. The inhabitants were almost universally alarmed. Long Island comprehended at that time nearly a third part of the improved lands of the colony. No land-owner knew whether his best improved possessions might not fall beyond the new lines assigned for his tract. Every intelligent man understood that the old grants and patents were penned inaccurately, and with all the negli- gence of liberality, and that in some instances proprietors had taken ad- vantage of the description of their limits by marked trees and other un- certain boundaries, to extend their possessions too far. But a re-survey could only be attended with difficulty and danger. The adventurous planter had been obliged, after acquiring his title from the crown, to buy peace from the savages as often as they were pleased to renew their claims, before he could cultivate the soil in safety. The prospect of sec- ond patents promised mischief, animosities, and lawsuits. De Lancey was astonished, for he comprehended the embarrassments which must ensue. In reply to his expostulations, Cosby remarked, petulantly, "What do you suppose I care for the grumbling rustics ?"
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