AFTER DEFEATING THE DUTCH, BRITAIN SOWED the Atlantic seaboard with colonies from Spanish Florida to French Canada. New Amsterdam established religious liberty, but liberty of expression would be the work of British colonists.
Britain’s colonial governments showed a family resemblance. All had popularly elected assemblies, like the Virginia House of Burgesses. The chief executive was a governor, answerable to the king or queen. (Most were appointed directly by the sovereign; some were appointed by proprietors—private persons, like William Penn, who had been given chunks of the continent as royal favors; a few were chosen by their colonial assemblies.) Governors were assisted by councils, whose members were generally chosen by London. Over time criminal trials and lawsuits were removed from the purview of governors’ councils and assigned to courts, with judges, juries, and lawyers. But ambition, interest, and faction—that is to say, politics—tugged at these formal structures of government, as they do always and everywhere.
One destabilizing factor was inattention. Britain did not always send its best administrative talent overseas. One early eighteenth-century governor of New York, Henry Hyde, Lord Cornbury, was accused of lurking on the streets of New York City at night in order to accost male passersby and tug their ears. On his midnight rambles he dressed as a woman. A portrait of him, so garbed, hangs in the New-York Historical Society. The story and the painting are quite possibly hoaxes, produced by New Yorkers who disliked him. One of his successors, however, caused very real problems.
William Cosby belonged to that class of gentlemen who earned office by marrying well, in his case to the sister of an earl. As governor of Minorca in the Mediterranean, he acquired a reputation for lining his pockets, but in 1732, still married, he was transferred across the Atlantic to fill the vacant governorships of New York and New Jersey. (Neighboring colonies occasionally shared the same governor; New York’s and New Jersey’s previous one had died of an epileptic seizure.)
Between the death of the old governor and the arrival of the new one, six months passed. Transatlantic travel was slow, but Cosby also dawdled. In the interim his duties were filled by Rip Van Dam, the senior member of the governor’s council. When Cosby arrived, he demanded that Van Dam give him half the salary he had earned while serving as his stand-in.
This was getting off on the wrong foot. Van Dam refused. Governor Cosby sued him in New York’s supreme court. The chief justice, Lewis Morris, ruled for Van Dam, whereupon Cosby dismissed him from the bench, replacing him with one of his colleagues, James DeLancey.
Governor Cosby, fresh off the boat, had run afoul of two powerful forces. One, felt throughout the colonies, was an interest in studying the law and in upholding those who administered it fairly. This disposition was transplanted from Britain, which had a rich and respected legal culture. American colonials took it to heart. Justice Morris appealed to this legal-mindedness in a tart letter of reproof he sent Cosby. “The people of this province… are very much concerned both with respect to their lives and fortunes, in the freedom and independency of those who are to judge of them.… But if judges are to be intimidated so as not to dare to give any opinion but what is pleasing to a governor,” New Yorkers “may possibly not think themselves so secure.”1
The second force Cosby defied was the pride of local grandees. Lewis Morris was the scion of a family that had made its fortune in Barbados before moving to the North American mainland. He owned large properties in both New York and New Jersey and the largest library (three thousand volumes) in the colonies. He forbade his steward to loan his copy of Tacitus “to anyone whatever,” lest it “come into a country fellow’s hand, to daub and dirty.”2 Morris bolstered his social standing by office-holding and electioneering. He had been active in the politics of both New Jersey and New York for years: he was one of those who had made life miserable for Lord Cornbury. He was not intimidated by Cornbury’s most recent successor.
Powerful New Yorkers and their families jostled each other, jockeying for influence. The cross-currents of family politics pitted landowners, like the Morrises, against merchants. Morris’s replacement on the bench, James DeLancey, happened to be a leader of the merchant faction. He was also not yet thirty years old, half Morris’s age—the final insult. Morris sought revenge via a third force, newly manifest in New York and America: the power of the press.
The first newspaper in colonial America had appeared in Boston in September 1690: Publick Occurences Both Foreign and Domestic—a monthly offering three pages of local and foreign news items (the latter lifted from months-old British journals), plus a blank fourth page for readers’ notes. It lasted only one issue, the governor and council of Massachusetts suppressing it for propagating “doubtful and uncertain reports.”3 But early in the eighteenth century, other newspapers appeared, first in Boston, then in other towns.
Printing was a complicated process. Ink was made from the soot of oil lamps, paper from linen rags. The type for each page was set in a wooden frame by hand and inked using leather balls. A screw press, operated by pulling a long wooden handle, brought the type in contact with the paper. Each sheet that was printed was then hung up to dry before being sorted, folded, and finally delivered. Printing was laborious and smelly—at the end of the day the inky leather balls were cleaned with urine—but, once the type was set, a skilled printer could do a page in as little as fifteen seconds.
Newspapers maintained the formula of local news, often uncertain, and foreign news, always old. Sometimes they deliberately stirred up controversy. The New England Courant, a Boston newspaper printed by James Franklin and his apprentice and younger brother Benjamin, feuded with Cotton Mather, a prominent clergyman, over the efficacy of inoculation as a treatment for smallpox. Mather said it was helpful, the Courant scoffed (Mather was right, the newspaper wrong).
The Franklins were outsiders attacking Boston’s clerical establishment; Morris was a disgruntled member of New York’s establishment, seeking redress. But he willingly used the Franklins’ methods.
The printer he turned to was John Peter Zenger. Zenger had landed in New York as a boy in 1710, one of a wave of German Protestant refugees fleeing the wars of Louis XIV. Zenger’s father had died on the voyage across the Atlantic; once in New York, Zenger’s mother apprenticed him to William Bradford, New York’s printer.
Bradford printed almanacs, pamphlets, religious works (including the Book of Common Prayer), and, beginning in 1725, New York’s lone newspaper, the weekly Gazette. He also acted as the official printer of all laws and public proclamations. For Bradford to help Morris would be biting the hand that fed him. Zenger, however, willingly set up a competing newspaper, New York’s second, the Weekly Journal, which began publishing in November 1733.
The Weekly Journal rarely named Governor Cosby, but it was filled with attacks on “SCHEMES OF GENERAL OPPRESSION AND PILLAGE… RESTRAINTS UPON LIBERTY AND PROJECTS FOR ARBITRARY WILL [caps in the original].”4 Zenger lacked the literary powers to produce these; they were written by James Alexander and William Smith, two lawyers allied with Morris. When they needed reinforcement, Zenger reprinted essays by English contrarians condemning official malfeasance there.
Zenger also published songs and bogus ads, all tacitly anti-Cosby (one ad asked after a missing spaniel, intended as a reference to a Cosby supporter; another ad mentioned a monkey—Cosby himself). The Gazette answered with defenses of the governor, but they were tepid.
The Weekly Journal’s polemics were not written for their own sake. They were intended to influence public opinion and win victories for Morris’s allies at the polls. Only the king could name a replacement for Cosby, but the people could embarrass and annoy him. The city had an elected common (or city) council (the mayor was appointed by the governor); in September 1734, after ten months of journalistic back and forth, the Morrisites won control of the council.
Cosby decided it was time to silence his critic. His weapon was the doctrine of seditious libel, expounded in Britain early in the seventeenth century. Any statement that held the government or its personnel up to contempt might cause riot or rebellion and was therefore considered criminal.
If the law gave Cosby a weapon, it also gave him an obstacle. In October Chief Justice DeLancey, acting at Cosby’s behest, addressed the grand jury—the body responsible for bringing cases to trial. He asked them to consider the problem of seditious libels: “They are arrived to that height, that they call loudly for your animadversion.”5 The grand jury, however, refused to act. Ordinary New Yorkers, it seemed, sympathized with Zenger.
In November Cosby did what Peter Stuyvesant would have done at first, ordering, via the governor’s council, four issues of the Weekly Journal to be burned and Zenger imprisoned. He was confined in the town jail, which was located in the basement of city hall, a newish building on Wall Street. His bail was set at four hundred pounds, a punishing sum (his net worth at the time was forty pounds). At first, he was forbidden to see, or even write notes to, anyone, but after a week he was allowed pen and paper and visits (through a hole in his cell door) with his wife. By this means he kept the Weekly Journal going while he awaited trial.
Alexander and Smith now shifted from being Zenger’s contributors to being his lawyers. In April 1735 they appeared in court to argue before Chief Justice DeLancey that he be removed from the case. They challenged the commission under which he acted as Morris’s replacement, which stated that he was to serve at Governor Cosby’s “pleasure.” Yet the customary tenure for English judges was service during “good behavior”—meaning that they served for life, so long as they committed no crimes. The good behavior standard guaranteed their independence. A judge who only served at pleasure would do the bidding of whomever had been pleased to appoint him.
Questioning DeLancey’s right to preside over his own courtroom was an aggressive gambit. The chief justice responded with an even more aggressive one—disbarring Alexander and Smith.
When Zenger petitioned the court for someone to represent him, DeLancey was fair-minded enough to assign him another lawyer, John Chambers. Chambers set about his task conscientiously, but no lawyer in New York was as good as Alexander or Smith, and so Zenger’s supporters looked to Philadelphia for help.
The help they summoned was Andrew Hamilton, a Scotsman who had settled in America at the end of the previous century. He made his mark as an advocate when he was still in his twenties. “[He is] an ingenious man,” an acquaintance wrote, “and, for a lawyer, I believe a very honest one.”6 He had honed his skills at the Inns of Court in London, handled cases for the Penn family, proprietors of Pennsylvania and Delaware, and was elected speaker of the Pennsylvania Assembly. By 1735 he was considered the best lawyer in British North America. James Alexander had known him professionally for years.
Chief Justice DeLancey scheduled Zenger’s trial for August. It was held in city hall; Zenger was brought upstairs from his cell to attend it. Despite the summer heat, DeLancey and the lawyers labored under the shoulder-length horsehair wigs worn in English courtrooms (sixty years later Thomas Jefferson would compare the look to “rats peeping through bunches of oakum,” or rope fiber).7
The jurors were sworn in: twelve male property owners picked from a list generated by the clerk of the court. Chambers had done his best work for Zenger in the jury selection process: the first list of potential jurors had been packed with Cosby supporters—tradesmen he dealt with, political allies who had lost their seats on the Common Council to Morrisites. Chambers asked for, and got, a second list of random men.
The attorney general of the colony, Richard Bradley, a Cambridge-educated lawyer, opened the case against Zenger. He wrapped Cosby in royal robes. “His Excellency the Governor of this province… is the King’s immediate representative here.” “Defendant Zenger,” on the other hand, was a dangerous disturber of the peace. The Weekly Journal had “greatly and unjustly scandalized” the governor; such attacks on officialdom, if unchecked, “create differences among men, ill blood among the people,” and even “great bloodshed between the party libeling and the party libeled.”8
Chambers, opening for the defense, began by poor-mouthing himself, admitting his “inabilities” as a lawyer but declaring that they would be counterbalanced by his client’s innocence. This was good courtroom theatrics, and Chambers went on to outline a cautious but plausible legal strategy based on the Weekly Journal’s reliance on indirection and innuendo: who, really, was the object of its attacks? “For general[itie]s are uncertain, and no one can tell who are meant.”9 Perhaps Zenger had printed harsh things, but was Cosby in fact his target?
Andrew Hamilton then took over from Chambers, and what he said startled the court. He announced that he would save the prosecution “trouble” by admitting that his client had published the material it considered so scandalous. Hamilton said nothing about mistaken identity. He seemed to have given up before he began.
In an account of the case written afterward by Zenger himself, he noted “there was silence in the court for some time.”10 DeLancey broke it by asking Bradley to elaborate on his opening statement. The attorney general explained the law of seditious libel and appealed for good measure to St. Paul (Acts 23:5): “For it is written, thou shalt not speak evil of the ruler of thy people.”
Hamilton in reply said that he agreed that government was sacred. But he denied that “the just complaints of… men who suffer under a bad administration” could be considered libelous.11
Although Hamilton had offered to save the prosecution trouble, he was willing to take considerable trouble himself. He was sounding the first note of an argument that the law of libel, as it was then understood, was too broad: government could, and should, be criticized if what its critics said of it were true. He would ring the changes on this thought in an oration, interrupted by occasional dialogue with DeLancey or Bradley, of almost thirteen thousand words. (In comparison, recent presidential inaugural addresses average two thousand words.)
If DeLancey had been older or more experienced, he would have cut off the prolific defense attorney. But Hamilton had been in courtrooms longer than DeLancey had been alive, and he easily outmaneuvered the young chief justice. When DeLancey rebuked him for statements he considered legally inadmissible, Hamilton responded politely and made the same point later or in some other way. Hamilton meant to make a case and put on a show, and he would not be deterred.
He aimed his first shot at Cosby’s pretensions, as expounded by Bradley. “Is it not surprising,” Hamilton asked, “to see a subject, upon receiving a commission from the King to be a governor of a colony in America, immediately imagining himself to be vested with all the prerogatives belonging to the sacred person of his Prince?” Because kings were untouchable, were their colonial appointees? Hamilton used the king as a club to knock Cosby down, simultaneously playing the roles of a royalist and a mugger. But even as he mocked the governor, he goaded his audience: “it was yet more astonishing to see that a people can be so wild as to allow of and acknowledge these prerogatives and exemptions, even to their own destruction.”12 Upstarts do not arise in a vacuum; the passivity of the people enables them.
Hamilton challenged the reigning doctrine of seditious libel by attributing it to the Star Chamber, a royal court of appeals that became increasingly capricious and heavy-handed under the Tudors and Stuarts; it was abolished on the eve of the English Civil War and made a byword for oppression. “That terrible Court,” Hamilton called it, was “where those dreadful judgments were given and that law established which Mr. Attorney [general] has produced for authorities to support his cause.”13 Later, Hamilton called a particular feature of current libel law—launching prosecutions, like Zenger’s, without the approval of grand juries—“a child if not born, yet nursed up and brought to full maturity, in the Court of Star Chamber.” DeLancey tried to embarrass Hamilton by citing a prosecution without grand jury in a medieval case long before the Star Chamber came into existence, whereupon Hamilton embarrassed him by giving a detailed sketch of that very case and explaining that it offered no precedent for what Cosby and DeLancey were doing to Zenger now.14 He all but said, Don’t argue legal history with me, young man.
Hamilton praised the institution of the jury (and appealed to the self-esteem of the jurors sitting before him). “You are citizens of New York,” he told them; “you are really what the law supposes you to be, honest and lawful men.… In your justice lies our safety.” And again: “Jurymen are to see with their own eyes, to hear with their own ears, and to make use of their own consciences and understandings in judging of the lives, liberties or estates of their fellow subjects.”15 Jurors were not bit players in the drama of a trial but major actors.
What Hamilton wanted the jurors in Chief Justice DeLancey’s courtroom to see and hear was a political truth: that a free press was a necessary defense of freedom. Governors, appointed by the sovereign, were formally immune to popular displeasure, but the elected members of every colonial assembly and council since Jamestown were not, and they had the power to advise or stymie overweening governors. But suppose a governor, using bribes or threats, had his colony’s elected officeholders under his thumb? (Governor Cosby did not have the Common Council of New York under his thumb, but Hamilton ignored that.) When officeholders were unresponsive, what recourse against misgovernment did the people have? Hamilton answered: “It is natural, it is a privilege, I will go farther, it is a right which all freemen claim… to complain when they are hurt; they have a right publicly to remonstrate the abuses of power… to put their neighbors upon their guard against the craft or open violence of men in authority, and to assert with courage the sense they have of the blessings of liberty.”16 He went on, “Were this liberty to be denied then the next step” would be to make the people slaves. For what was slavery but “suffering the greatest injuries and oppressions without the liberty of complaining; or if they do [complain], to be destroyed, body and estate, for so doing?”17
Complain and complaining are not neutral descriptive words; they can imply peevishness, ill temper, bad character. “’Tis the voice of the sluggard: I heard him complain, ‘You have waked me too soon, I must slumber again,’” wrote Isaac Watts in a popular book of poems for children. But Hamilton, in a bold reversal, made complaint a cornerstone of liberty.
He scattered memorable observations in passing. “Power,” he said at one point, “may justly be compared to a great river [which], while kept within its due bounds, is both beautiful and useful; but when it overflows its banks, it is then too impetuous to be stemmed, it bears down all before it and brings destruction and desolation wherever it comes.”18 In the northern reaches of the colony, the Hudson and Mohawk Rivers flooded regularly, and within living memory a hurricane had raked the colony, punching a channel through Fire Island; New Yorkers understood his imagery.
Hamilton took Bradley’s invocation of religion and stood it on its head. “We well know that it is not two centuries ago that a man would have been burnt as a heretic for owning such opinions in matters of religion as are publicly wrote and printed at this day.” But in New York the Flushing Remonstrance and John Bowen had intervened. “In taking these freedoms in thinking and speaking about matters of faith or religion, we are in the right.” Then, Hamilton lodged the stinger. “From which I think it is pretty clear that in New York a man may make very free with his God, but he must take special care what he says of his governor.”19 Liberty was not just for the conscience or even for public worship; it was for secular man and his political situation.
Hamilton himself invoked historical heroes of liberty, one Roman, one English. Lucius Junius Brutus overthrew Rome’s last king, then approved the execution of two of his own sons who had plotted a royal restoration. John Hampden, a member of Parliament during the reign of Charles I, was tried for refusing to pay a tax on the grounds that the king had levied it illegally; Hampden later died in battle during the English Civil War. These were formidable heroes: two rebels, one who gave his life, another who took the lives of his sons. There was an implied threat here: push free men too far and this is what they will do. The attorney general’s opening statement had held up the specter of bloodshed; Hamilton’s closing statement warned, don’t bring it on.
Hamilton’s peroration was masterly. “I am truly very unequal to such an undertaking,” he began. “I labor under the weight of many years.” Hamilton was fifty-nine years old, but ill health made him look older. “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 [defending] the right of remonstrating (and complaining too)”—that word again—“of the arbitrary attempts of men in power.” He continued,
Men who injure and oppress the people under their administration provoke them to cry out and complain; and then they make that very complaint the foundation for new oppressions and persecutions.
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 consequence affect every freeman that lives under a British government on the main[land] of America.
It is the best cause. It is the cause of liberty. [By your] impartial and uncorrupt verdict, [you will] have laid a noble foundation for securing to ourselves, our posterity, and our neighbors that to which nature and the laws of our country have given us a right: the liberty, both of exposing and opposing arbitrary power… by speaking and writing the truth.20
Attorney general Bradley seems to have suspected the power of Hamilton’s summation, for he tried deflating it with mockery. Hamilton, he replied, “had gone very much out of the way, and had made himself and the people very merry.”21 He directed the jury’s attention instead to the law and to the interpretation of it that would be given by the chief justice; the chief justice then did the same.
The jury retired for what Zenger later called “a small time.”22 When they returned, they gave their verdict: not guilty. The courtroom audience burst into cheers; the next day Zenger walked free after nine months in jail.
A twentieth-century biographer of Andrew Hamilton wrote that the jury roll of the Zenger trial was “a list that should be honored permanently!”23 Here are their names: Hermanus Rutgers, Stanly Holmes, Edward Man, John Bell, Samuel Weaver, Andries Marschalk, Egbert van Borsom, Thomas Hunt (foreman), Benjamin Hildreth, Abraham Keteltas, John Goelet, and Hercules Wendover. These ordinary people had done an extraordinary thing.
The trial and the verdict were an intersection of the top and the bottom of colonial society: two grandees, Cosby and Morris, started the fight; a crack lawyer, Hamilton, was hired to wage it; and twelve random men settled it.
Hamilton had accepted no fee for his performance; the occasion was payment enough. But the Common Council awarded him the keys to the city, delivered in a solid gold box, inscribed with suitable mottoes: NON NUMMIS—VIRTUTE PARATUR (Won Not by Money, but Virtue) read one.
Governor Cosby died of tuberculosis in 1736, and Lewis Morris’s faction made a big push in the elections for the colony’s assembly in the following year. “The sick, the lame, and the blind were all carried to vote,” wrote one contemporary.24 Morris and his son, Lewis Jr., were elected to the assembly, which made Lewis Jr. Speaker; Zenger was named official printer.
The popular tide crested, then withdrew. The acting governor, George Clarke, who had been secretary of Cosby’s governing council, instituted a few changes on which the Morrisites had campaigned: most important was holding assembly elections not when the governor called them but at scheduled intervals. The interval chosen was three years. The people would have their say not at the governor’s whim but regularly and frequently.
The elder Morris and his allies were rewarded (others might say, bought off). Alexander and Smith were reinstated as lawyers. The wheels of empire, turning in London, made Morris himself royal governor of New Jersey in 1738. This plum job got him out of New York, and he held it until he died in 1746. Leaderless, the Morris party in New York withered away. Lewis Morris, it turned out, was a populist in the most limited sense: he cared about oppression when it was directed at one person, himself. John Peter Zenger also died in 1746; his family carried on the Weekly Journal a few years more.
Hamilton had died at home in Philadelphia in 1741. A Latin elegy celebrated his defense of Eboracumque novum (New York) and Zenger; it ran in the Philadelphia Gazette, a newspaper owned and operated by the transplanted Bostonian Benjamin Franklin.25
Hamilton’s vision of freedom of the press was limited to true statements; falsehoods might still bring down the law’s wrath. Even this partial defense of freedom of the press rested on shaky legal foundations. Hamilton had argued the law as he believed it should be, ignoring what it manifestly was. The jury’s verdict was a fluke, a one-off. Seditious libel continued to be a crime in New York until 1804, when another Hamilton—Alexander, no relation to Andrew—gave his last major speech as a lawyer in defense of an accused journalist. “The office of a free press,” Alexander Hamilton said, is “to give us early alarm and put us on our guard against the encroachments of power.”26 This Hamilton lost this case, but his argument persuaded the legislature to change the law the following year.
Yet Andrew Hamilton’s great performance in 1735, and the brave response of the jurors to it, had consequences nevertheless. Hamilton had told the jury in his peroration that “your upright conduct this day” would “entitle you to the love and esteem of your fellow citizens” and the “honor” of “every man who prefers freedom to a life of slavery.” So it happened. A year after Zenger was freed, he published A Brief Narrative of the Case and Trial of John Peter Zenger, including notes compiled by James Alexander and the text of Hamilton’s argument, supplied by Hamilton himself. A Brief Narrative circulated throughout the English-speaking world—reprinted in Boston and London, attacked by a pamphleteer in Barbados (probably the royal attorney there). To all but the Caribbean critic, Zenger, his defenders, and the jurors who freed him became symbols of liberty.
There was a special consequence in America. The upright conduct of the New York jury laid down a marker, and a model, for what other colonial juries would do in similar cases. Since the law of seditious libel could not be enforced, colonial authorities, with few exceptions, gave up trying to enforce it. As a result the press in colonial America flourished.
There were additional reasons for a burgeoning newspaper culture here: a widespread population called for numerous newspapers; Benjamin Franklin, as a trainer of printers, worked to satisfy the demand far beyond Philadelphia (and, as a business partner, shared in their profits). But the light hand of the law made America’s colonial press the freest in the world.
Its liberty nourished more than political liberty. Books of sermons and other religious works poured off American presses, vastly outnumbering political pamphlets throughout the eighteenth century. The Zenger trial did not start the flood but helped ensure that it would continue.
Half a century later, Gouverneur Morris, a grandson of the elder Lewis, would call the Zenger verdict “the morning star” of liberty in America. He spoke from family pride. But he was right.27