USA > New York > New York City > The Memorial History of the City of New York: From Its First Settlement to the Year 1892, Volume II > Part 28
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1 "History of the Five Indian Nations." It was printed by Bradford, New-York, in small 12mo, 1727, and afterward enlarged.
WILLIAM COSBY AND THE FREEDOM OF THE PRESS 233
of New-York, one of the ruling intellects of the time. He died at eighty-eight, in 1776; unfortunately, he lingered too long in the royal party, and was forgotten.
Driven from office by his foes, Morris was now the favorite cham- pion of the people. He had retired to his estate at Morrisania. But here he was not permitted to rest; perhaps he was incapable of it. He threw himself at once into the politics of the time, and, although old (for he was now over sixty), became a candidate for the assem- bly. The story of his election, despite all the efforts of De Lancey and the court party, is pre- served for us in Zenger's journal, almost with the minuteness of a modern reporter. I shall abridge THE DE LANCEY ARMS. it for the reader, since it tells us much of the manners of our ancestors. When Lewis Morris, in the autumn of 1733, appeared as the candidate of the people for Westchester, a very remarkable election took place. Few modern politicians would care to undergo the fatigues and the dangers that awaited the patriotic voters in 1733. There was fear that the court party might practise some fraud; fifty electors kept watch all night at East Chester, where the polling was to take place, until the morning of the election day. The other electors of Morris's party began to move on Sunday afternoon so as to be at New Rochelle by midnight; on their way they were entertained at plentifully covered tables in each house as they passed; at midnight they met at the home of an active partizan whose house could not contain them all. A large fire was made in the street, and here they sat till daylight came, in the damp air of a Westchester morning. At daylight they were joined by seventy mounted voters from the lower part of the county, and then the whole body moved to the polling place at East Chester in the following order: first rode "two trumpeters and two violins," the representatives of a modern band; then came four freeholders, one of whom carried a banner, on one side of which was inscribed, in golden capitals, "King George," on the other, "Liberty and Law." Next came the candidate, Lewis Morris, Esq., late chief justice, then two colors, and at sunrise they entered the common of East Chester. Three hundred of the principal freeholders of the county followed Morris on horseback, the largest number ever known to be assembled since the settlement of the town. Three times they rode around the green, and then went to the houses of their friends. About eleven o'clock, perhaps with still more state and show, appeared the candidate of the opposing party. It was William Forster, Esq., once a schoolmaster sent over by the Society for the Propagation of the Gospel, but now clerk of the peace and justice of the Common Pleas by the appoint- ment of Governor Cosby. It is suggested that he paid a hundred
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pistoles for his office. Next him in the procession were two ensigns borne by two freeholders, and then came James De Lancey, chief justice, and Frederick Philipse, second judge, baron, etc. They were followed by one hundred and seventy mounted freeholders, the magnates of Westchester County. They entered the green on the east side, rode around it, and as he passed it was noticed that De Lancey bowed to Morris and that the civility was returned. But now one of the Morris party called out, "No Pretender," and Forster said angrily, "I will take notice of you." It was reported that he was no friend to the Hanoverian family. An hour after came the high sheriff, finely mounted, with housings and trappings of scarlet richly laced with silver. The electors gathered on the green; the great majority was evi- VICE dently for Morris, but the other side BNO demanded a poll, LoftheBLUE. and the voting be- gan. It was rudely interrupted when the high sheriff refused to receive the vote of a ADMIRAL VERNON MEDAL FOR PORTO BELLO.1 Friend or Quaker of large estate who would not take the usual oath. A fierce wrangle began. Morris and his friends insisted that an affirmation was suffi- cient; the sheriff, a stranger in the county, one of Cosby's instruments, persisted in his refusal. De Lancey and his friends sustained him, and thirty-seven Quakers, who were ready to vote for Morris, were ex- cluded by this unjust decision. Even in England they would have been allowed to vote. Fierce, no doubt, was the rage of the popular party. One of them called out that Forster was a Jacobite; Forster denied it. At last the "late Chief Justice" was returned by a large majority. He rebuked Forster and the sheriff for their attempt upon the liberties of the people, and threatened them with deserved punishment; but when all his followers answered with loud cheers, he restrained them from violence. De Lancey and his faction, we may fancy, rode sullenly away. But soon after Morris entered New-York in triumph, amidst salutes from all the vessels in the harbor. He was met by a party of the chief merchants and gentlemen of the town. The people followed him with "loud acclamations." He was conducted to the Black Horse Tavern, where a fine entertainment had been prepared, and where,
1 The above medal, copied from the original in non (1684-1757), after whom Washington's resi- the British Museum, was made to commemorate dence on the banks of the Potomac was named. EDITOR. the capture in 1739 of Porto Bello, by Admiral Ver-
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WILLIAM COSBY AND THE FREEDOM OF THE PRESS
amidst the flow of fiery Madeira and steaming punch, it is not likely that the governor and his followers were spared in the usual speeches.
In the midst of their internal dissensions the colonists were sud- denly awakened to the danger of a war with France. England in 1733-34 was arming to be ready for any unlooked-for event. France, Spain, and Sardinia were carrying on a successful war against the German emperor: the French had never forgotten Blenheim and Mal- plaquet. An English fleet set sail to pro- tect Portugal against Spain. But no aid was sent to guard the frontier of New- York against the French. Here they were never idle, se- ducing the Iroquois from their league with the English, and strengthening their forts. The English garrison at Oswego was threatened. The savages were mutin- ous and revengeful. New-York felt its danger, and all its people united in measures of defense. The assembly met BERNARDUS FREEMAN, BEDIENAAR April, 1734. It passed at once liberal grants for the defense of New-York, Albany, and Schenectady. As the news from Europe became more alarming, the grants were increased. Six thousand pounds were voted for fortifying New-York, four thousand for a stone fort at Albany. Before this assembly William Smith, the eminent lawyer, argued against the legality of the Court of Chancery without success, the governor controlling the votes. A bill was passed making the affirmation of the Friends or Quakers equivalent to an oath. The injustice they had suffered in the recent election
The Rev. Bernardus Freeman, whose portrait is given above, was pastor of the Dutch church at Schenectady from 1700 to 1705. In the latter year he accepted a call to the Reformed churches of Kings County, L. 1., including those of Brooklyn.
Flatlands, Flatbush, Bushwick, and New Utrecht, which were then served by one pastor, and minis- tered to them for a period of thirty-six years. He resigned in 1741, the year of the negro plot, and died two years later. EDITOR.
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silenced the objections of their opponents. To fill the empty trea- sury the assembly laid a tax of a shilling on every slave in the col- ony, and other heavy duties were imposed. Bills of credit were issued to a large amount : a correspondent of the "Journal" warned the legislature that if they persisted in creating paper money they would drive all the gold and silver from the province, as had already happened at Boston and Philadelphia. To revive trade they im- posed a duty on every foreign ship that entered the harbor: vessels owned in New-York were exempt from the tax. Then the house prayed the governor to dissolve, and their request was refused.
The year 1733-34 passed on with little peace for New-York. The fear of the French and Indians still hung over the colony, trade was declining, several families emigrated to New Jersey, the assembly was adjourned, not to meet again until April, 1734. Fierce political dissen- sions raged in the little town. Party violence must have separated families, parted friends. Our ancestors were bold, strong, violent, ac- customed to harsh measures and bitter words; humanity has made great progress since then. Of its fine natural advantages no unwise government could deprive New-York. The great Hudson, flowing from far in the interior, seemed to our ancestors the chief of rivers; the East River and the bay drew in the commerce of Connecticut, Long Island, and New Jersey. Perth Amboy vainly tried to rival New-York. The province was still confined to a narrow strip of land along the Hudson, and a claim to all of Massachusetts beyond the Connecticut River, and all Vermont. Still the slaver sailed into the harbor, and the chief merchants were engaged in the slave-trade. No one seemed to feel that it was wrong; white slaves were still im- ported from England. Large rewards were offered in the newspapers for the capture and return of white mechanics, and negro women who were good cooks. The whipping-post and the jail were too often the re- ward of those who labored. New-York received its first fire-engines about this time. They were imported from London, of the newest pattern, and were lodged at first in the City Hall. At the next fire that happened they were used with great effect, but the building was burned down. Our ancestors had been accustomed to use buckets of water, and had always in readiness large bags in which to put their valuables in case of fire, and then throw them out of the windows into the street. The bakers of the city complained that bread was im- ported in large quantities from the neighboring provinces, and asked the legislature to lay a duty on its importation. Flour was sold in considerable quantities from New-York. The wheat was raised near Kingston-on-the-Hudson and on Long Island.
On the feast of St. Michael the archangel, the freeholders of New- York were directed by their charter to assemble in their wards and
WILLIAM COSBY AND THE FREEDOM OF THE PRESS 237
proceed to the election of aldermen and assistants for the coming year. Not many modern voters in these less fanciful days would know when the medieval saint's festival occurred, or could understand why he was chosen to preside over a New-York election; but in 1734 the fierce spirits of our ancestors seemed to require the flaming sword of an archangel to hold them in check. The bitter enmities of the Leislerian tra- gedy had not yet died out, and were probably des- tined never to die. The court party were still the oppressors of the people. On September 29 the two factions met at the polls; the contest had been long and violent; the result was the complete overthrow of the governor's party and the election of a com- THE COLDEN ARMS. mon council in which he had but a single adherent, a Mr. Moore. The opposition celebrated their victory with new essays, songs, and satires. The governor denied, in a message to the assembly, which was now sitting, that he had any interest in the election. He even claimed a victory. The election in the city of a hostile board of aldermen and assistants roused the court party to fatal energy. They seem to have adopted the worst practices of Charles I. and Laud, all the insane violence of James II. In the little town, torn by wild excitement, Cosby hoped to crush his opponents by aid of his obedient judges. De Lancey charged the grand jury, in angry terms, that Zenger's paper was inculcating treason and dissension, and he pressed the in- dictment of the editor. The grand jury boldly refused to obey; they paid no attention to the recommendation of the chief justice, doubt- ing both his discretion and his law. Next Cosby appealed to the assembly, which was then in session, for aid against his tormentors. His obedient majority in the council sent a message to the house, complaining of Zenger's and other "scurrilous papers"; they re- quested the appointment of a committee to consider with them what should be done with the offenders. They met October 17, 1734; the complaint was laid before the house on the 22d; but the assembly, ruled no doubt by the counsels of Morris and his followers, would have nothing to do with the affair. They were plainly unwilling to silence free discussion. The new cry, "The Liberty of the Press," rang in the ears of all Americans. The legislature wisely laid the complaint on the table.
It would have been well for Cosby could he have paused here and yielded to the plain wishes of his people. But, like James II., he con- sulted only his own angry passions and resolved upon revenge. He evidently hoped to involve Morris, Alexander, and all his opponents in a common ruin. Two "scurrilous ballads" on the recent election of opposition aldermen in the city had produced a new excitement.
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They are not extant, but they must have been both pointed and bitter to have awakened so fierce a resentment in the ruling faction. The chief justice, De Lancey, presented them to the grand jury in terms that show his strong feeling. "Gentlemen," he said, "you must have heard of two scandalous songs that are handed about; it is your duty to enquire [sic] the author, printer, and publisher of them. Some- times heavy half-witted men get a knack of rhyming, but it is time to break them of it when they grow abusive, insolent, and mischie- vous." De Lancey was plainly no lenient critic of the poetical labors of his foes. The grand jury presented the "two scandalous songs": one on the recent "election of Magistrates in this city," the other "a song on the foregoing occasion." They were ordered to be burned by the hands of the common hangman, and the governor offered a reward for the discovery of the author or authors. He was resolved to break his opponents of their "habit of rhyming." Careless or un- conscious of the disgust of the people, of the reproaches of posterity, the obedient council next ordered the papers Nos. 7, 47, 48, and 49 of Zenger's journal to be burned "near the pillory by the hands of the common hangman." They declared them libelous and seditious. They were resolved to spare their opponents no humiliation, and directed the magistrates and newly elected aldermen of the city to be present at the burning. The aldermen flatly refused to obey. They denied the right of the governor and council to control their conduct or that of any city official.' In vain the recorder, Harrison, pressed them with arguments drawn from the burning of Bishop Burnet's book or the precedents of the reigns of Charles and James; the brave aldermen were not to be intimidated. Even the hangman of the city refused to serve the ruling faction. No one could be found to burn the papers. The sheriff then ordered one of his negroes to perform the unwelcome duty. It took place at the "pillory " on the east side of what is now the City Hall Park. Recorder Harrison, with one or two of his party and some soldiers from the garrison, were the only persons present. The citizens by their absence showed their contempt for the folly of their rulers.
The next step was the arrest and imprisonment of Zenger. The attorney-general filed an information against him for libel, and the council ordered him to be seized and carried to prison. The unlucky printer has left an account of his own harsh treatment that shows the bitter spirit of his opponents. He was seized "on the Lord's day," hurried away to the common jail, deprived of pen, ink, and paper, was permitted to see no one, and was at last allowed to speak to his wife and friends only through " a hole in the door." For one week the "New-York Journal " was silenced, but the next it appeared
1 " Zenger's Trial," pp. 1-6, has an account of the scene.
WILLIAM COSBY AND THE FREEDOM OF THE PRESS 239
with an apology from Zenger to his patrons, and an assurance that he would continue to print his paper even through the "hole in the door." In his narrative of his trial, printed afterward in Boston, he relates the hardships to which he had been exposed for advocating the cause of a free press. Its accuracy has never been doubted; it was probably written by Smith or Alexander.' "As there was but one printer in the province of New-York," he says, "that printed a public newspaper, I was in hopes if I undertook to publish another, I might make it worth my while, and I soon found that my hopes were not groundless. My first paper was printed November V. 1733, and I continued printing and publishing of them, I thought to the satisfaction of everybody, till the January following when the chief justice (De Lancey) was pleased to animadvert upon the doctrine of libels. In a long charge given in that term to the Grand Jury and afterwards on the third Tuesday of October, 1734, was again pleased to charge the Grand Jury in the following words -. " He then gives De Lancey's charge, and adds "but, the Jury did not indict me." Then came the refusal of the assembly to notice the request of the coun- cil; the burning of the papers, November 2, 1734; the refusal of the aldermen to attend; the order of the council, sitting at Fort George, for his arrest; his imprisonment on Sunday. "I was for several days deprived," he . says, " of the use of pen, ink, and paper and the liberty of speaking with any person."
It is not difficult to conceive the excitement and interest in the little town at the news of Zenger's arrest. It was a threat to the majority of the people, an arbitrary act that placed them all at the mercy of their rulers. "Some friends," he says, brought him before the court to obtain bail. De Lancey, a hostile judge, fixed it at so large a sum that he could not ask any one to become his surety: the sum required was "ten times as much as it was in my power to counter-secure." At the hearing before De Lancey the court-room was filled with hun- dreds of citizens, looking with no friendly eyes upon the partial judge: the court party was in a small minority in the city. New-York had expressed its wishes at the recent election, and the people must have looked with real alarm upon the actions of their opponents. The
1 See "A brief narrative of the Case and Trial of John Peter Zenger of the ' New-York Weekly Journal,' for libel "; reprinted by John Holt, at the Exchange, 1770. I believe the original pam- phlet is not in existence.
The illustration on this page furnishes a good
idea of the uniform worn by the soldiers of the 43d Regiment of foot, a regiment raised in North America in 1740, and composed entirely of colonial troops. The copy is made from a drawing found in the library of the British Museum. I saw another copy at Strathfieldsaye.
EDITOR.
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Presbyterians still felt their wrongs; it was even rumored that Cosby intended to seize on one of the Dutch churches for the ruling sect ; religious fears and violence added to the excitement of the hour. Zenger was taken back to the prison, where he remained until Tues- day, January 28, 173}, when, as the grand jury had refused to indict him, he should have been discharged. "But my hopes were vain," he says, for the attorney-general brought a new charge against him for printing in his papers Nos. 13 and 23 matter "false, scandal- ous, and seditious." Again he was brought up before the hostile court. But his counsel, Smith and Alexander, acute and bold, now assumed a posi- tion that involved all the past acts of Governor Cosby. They objected to the validity of the appointment of De Lancey and Philipse as judges. They had been appointed "during plea- sure"; it should have been dur- ing "good behaviour." Morris, they urged, had been improp- erly removed from office - the governor could not displace an . Hamilton official without consulting his council. By both statutory and common law his acts were void. On Tuesday, April 15, Mr. Alex- ander offered to argue these points before his excellency the chief justice. It is easy to fancy the rage of the presiding judge at this appeal from his authority. He warned the two lawyers, Smith and Alexander, that they should consider well the consequences of their boldness. The next day, at the meeting of the court, he ordered them to be expelled from the New-York bar, and refused to allow them to say anything in their defense. He said: "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 the bench or you from the bar."
No lawyer of eminent talent seemed left to defend Zenger and the freedom of the press. The day of trial came, the most important in the annals of the city. De Lancey and Philipse sat upon the bench : the court-room was crowded by all the leading citizens of New-York. The court party were certain of an easy triumph; there was appa-
WILLIAM COSBY AND THE FREEDOM OF THE PRESS 241
rently no one able to meet them in argument and defend the prisoner. There was at this time an eminent lawyer in Philadelphia, Andrew Hamilton. He was of English birth, had practised law with success in London, but had emigrated to Philadelphia, where he rose high in reputation and wealth. He was now old, in bad health, but his mind was never more vigorous, nor more eager for an honorable fame. The friends of Zenger sent to him to come to their aid and defend the freedom of New-York. Hamilton consented with a chivalrous zeal and pure devotion that mark only the highest order of intellect in his profession. It was the 4th of August, 1735, when, in the crowded court-room on a hot day of a New-York summer, the prisoner was brought to the bar. He was to have a struck jury selected from a number of freeholders. The clerk of the court attempted some irreg- ular proceeding, and De Lancey was forced by the prisoner's attor- ney, John Chambers, to correct him. Bradley, the attorney-general, opened the charge against Zenger. He accused him of publishing certain passages in his paper that were "false, scandalous, and sedi- tious." They suggested in an ironical way that in New-York the liberty and property of the people were in danger; that they were sinking into slavery, that judges had been removed without cause, deeds destroyed that were of great value, new courts erected, the trial by jury set aside. It was a bitter satirical review of Cosby's administration, told by a citizen of New-York who was about to emigrate to Pennsylvania. Juvenal's satire was possibly in the mind of its composer. Bradley showed all the evils that would flow from language like this and the contempt that must fall on the government.
Hamilton had come to the court apparently unknown to his oppo- nents. He now rose and said: "May it please your honor, I am concerned in this cause on the part of Mr. Zenger, the defendant." The surprise of the crowded audience may well be imagined when the famous lawyer rose to address the court. "I'll save Mr. Attorney," he added, "the trouble of examining witnesses"; he admitted the pub- lication. Bradley then called for conviction. "Not so neither, Mr. Attorney," said Hamilton, "you have something more to do : the words must be proved libellous." And then began a remarkable intellectual contest between the young and overbearing chief justice and his hos- tile court, and the grave, keen, cultivated counsel for the defendant. De Lancey insisted that the law was that the truth of a libel made no difference-it was a libel still. Hamilton urged 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 repeated his decision and said : "Mr. Hamilton, we expect you to use good man- ners." Hamilton said he wished only to be heard in defense of his position; the chief justice refused to listen to him. "I thank your VOL. II .- 16.
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honor," Hamilton said, and then turning to the jury continued: "Gen- tlemen 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 to be the judges of the law and the facts." It would be impossible here to give any distinct idea of this wonderful speech. Its chief trait that raises it above all others is its prophetic novelty. In the midst of the dim, unfixed notions of the age of monarchy and tyranny, it brings into a clear light all the principles of free speech and free thought that rule among us to-day. "Shall not the oppressed have even the right to complain : shall the press be silenced that evil governors may have their way ?" On this theme for hours the best people of New-York listened with deep interest to the rare and inspiring eloquence of the aged orator. He painted the danger of unlicensed power, and likened it to a raging stream that breaks its banks. He turned aside with easy irony the interruptions of the chief justice and the attorney- general. He felt that he had the sympathy of the jury and the people.
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