Chapter VIII: A Newspaper War (1)

The _Journal_’s anti-Cosby campaign touched off the first of the many newspaper wars that have raged on the banks of the Hudson. As often as it attacked did the _Gazette_ rush to the rescue amid an acrimonious exchange of accusations and insults. Thus, referring to the sentiments of the people of New York toward their Governor:

The _Journal_. They think, as matters now stand, that their liberties
and properties are precarious, and that slavery is like to be entailed
on them and their posterity if some past things be not amended.[19]

The _Gazette_. Now give me leave to say what I have reason to believe
some of the people of this City and Province think in relation to that
paragraph in Zenger’s paper. They think it is an aggravated libel.[20]

In such a tone did New York’s two newspapers carry on their duel, one which concedes nothing to the later age of yellow journalism in its furious charges and countercharges of deceit, ignorance, calumny, and slander. The above onset and riposte stand out because the passage from the _Journal_ sounds like Alexander himself, while Governor Cosby agreed with the _Gazette_ that it was “libelous” and made it part of the formal indictment of Peter Zenger.

Both sides went at it hammer and tongs. In the _Journal_, where Cosby is called a “Nero,” his kept journalist is his “spaniel.” The _Gazette_ retorts with epithets like “seditious rogues” and “disaffected instigators of arson and riot,” and proposes that the name “Zenger” be turned into a common-noun synonym for “liar.”

The men behind the opposition newspaper made a point of referring to Harison obliquely in satirical mock “advertisements” like these:

A large spaniel of about five foot five inches high has lately strayed
from his kennel with his mouth full of fulsome panegyrics, and in his
ramble dropped them in the _New York Gazette_. When a puppy he was
marked thus (FH), and a cross in the middle of his forehead; but the
mark being worn out, he has taken upon him in a heathenish manner to
abuse mankind by imposing a great many gross falsehoods on them.
Whoever will strip the said panegyrics of their fulsomeness, and send
the beast back to his kennel, shall have the thanks of all honest men,
and all reasonable charges.[21]

The spaniel strayed away is of his own accord returned to his kennel,
from whence he begs leave to assure the public that all those fulsome
panegyrics were dropped in the _New York Gazette_ by the express
orders of his master; and that for the gross falsehoods he is charged
with imposing upon mankind, he is willing to undergo any punishment
the people will impose on him if they can make full proof in any Court
of Record that any one individual person in the Province (that knew
him) believed any of them.[22]

The writers of these squibs had measured their man perfectly. They could become furious, caustic, ironic or insulting—that is, _serious_—with the Governor and the rest of the men around him; but the proper approach to Francis Harison was through satire. From the _Journal_ he received a systematic dose of it.

For six months he absorbed the barbs of ridicule while maintaining an air of indifference. Finally, able to stand the badgering no longer, he whirled on his tormentors and attempted to repay them in their own coin:

Supposing another should turn the tables upon the authors of these
infamous and fictitious advertisements, how easily might it be done?
The real or imagined defects of the _Amsterdam Crane_, the
_Connecticut Mastiff_, _Phillip Baboon, Senior_, _Phillip Baboon,
Junior_, the _Scythian Unicorn_, and _Wild Peter from the Banks of the
Rhine_ might be enlarged upon, and placed in a most ludicrous
light.[23]

Since the crass and clumsy Harison was devoid of the slightest capacity for satire, he inevitably suffered when he picked up the weapon that was wielded so devastatingly by his enemies. The only interesting thing about this paragraph is that it identifies the men of the Popular party who contributed most to the _Journal_: Rip Van Dam, William Smith, Lewis Morris, Senior, Lewis Morris, Junior, James Alexander, and Peter Zenger.

The honors of combat obviously went to “Zenger’s paper.” It was not always fair, by a long shot—nor has any newspaper ever been when fighting a war with a rival. But Cosby and Harison and the Court party _in toto_ were too vulnerable for all the _Journal_’s broadsides to go astray. The Governor was hit over and over again. So was his editor. So were his other cronies.

They fought back in the _Gazette_, but they were always on the defensive, always incapable of getting a real attack going. Finally Cosby, boiling with rage, determined on something more practical than a war of words.

IX. Zenger Goes to Jail

The Governor paused long enough to see what could be done through the usual legal channels, with Chief Justice Delancey given the job of extracting a grand jury indictment for libel. That this attempt failed twice is indicative of the administration’s unpopularity. The jurors manifestly had determined from the start that they would do nothing, and though they were in no more doubt than Delancey about the identity of the principal men who wrote for the _Journal_, they used the “anonymity” of the affair as an excuse to avoid indicting anybody.

With the second grand jury failure, Cosby’s attention began to focus more intently on the newspaper and its printer. His next move was to order copies of the obnoxious periodical to be burned, which was done even though the Assembly and the magistrates refused to participate. Naturally the man in charge was the man maintained expressly for such purposes. Harison was all the more eager to perform the duty in that, besides the eternal ridicule the _Journal_ heaped on him, in one issue it had run a letter from the freeholders of Orange County thanking their assemblyman, Vincent Matthews, for making a vitriolic attack on him from the floor of the legislature. A copy from that issue was one of four earmarked for the flames.

The hatchetman’s first instinct was to adopt strong-arm methods. He therefore went around to Peter Zenger’s establishment, disburdened himself of some violent opinions (“more fit to be uttered by a drayman than a gentleman,” says Peter), and threatened to cane him on the street. That was why the printer took to wearing a sword whenever he went out—the sword that gave an excuse for much heavy sarcasm in the columns of the _Gazette_.

Harison did not overlook more indirect and devious methods of dealing with his critics. He sent a couple of his creatures, John Alsop and Edward Blagg, to Orange County to spread the story that the _Journal_ with the freeholders’ letter commending Matthews had been burned by the common hangman, and that the signers were to be rounded up and thrown into jail—a rumor that caused some trepidation among the solid citizens of the county.

Unfortunately Harison, misjudging the situation in his usual fashion, had jumped the gun a little too smartly. He counted on the hangman to do the job because he himself, as recorder of New York City, was supposed to persuade the magistrates to throw their authority behind the ceremonial burning. But when he met with them, he found himself in an atmosphere of chilly distrust, for they knew that Cosby was trying to kill legitimate opposition. Harison started to argue that there were sound British precedents for dealing thus with the _Journal_; was quickly shown up as grossly ignorant on that score (he put up the defense that he did not carry his lawbooks around with him); was roundly snubbed; and departed in a spasm of fury. The magistrates then forbade anyone within their authority, including the hangman, to have anything to do with the affair.

The _Journal_ was burned on schedule, with Harison presiding, but he had to bring in a slave to set the fire, and they were virtually alone in front of the City Hall as the flames rose. It was the most dismal fiasco of a career studded with fiascoes.

We can judge how heated the situation had become by reverting once more to that most percipient of contemporary witnesses, Cadwallader Colden:

One might think, after such aversion to this prosecution appeared from
all sorts of people, that it would have been thought prudent to have
desisted from farther proceedings. But the violent resentment of many
in the administration who had been exposed in Zenger’s papers,
together with the advantage they thought of gaining by his papers
being found libels by a Jury, blinded their eyes so that they did not
see what any man of common understanding would here have seen, and did
see.[24]

Governor Cosby was indeed blind. He was blinded by a baffled fury that had grown increasingly unreasoning as his hopes crumbled into nothingness. Instead of bowing to his will, his enemies were causing him grave embarrassment with his superiors, compelling him to a perpetual defense of his right to remain in his office. And locally they had made him a laughingstock. With cool impudence Morris and Alexander (these two above any) tormented him from behind the safeguard of an “anonymity” that fooled nobody, and was intended to fool nobody—least of all the victim of their attacks, for the dagger was honed to a fine edge precisely by Cosby’s awareness of who held it. The commanders of the Popular party were all very much at large, hurling their invectives at him and satirizing his attempts to retaliate.

The hunters had fenced in the tiger, and were baiting him from a safe distance, prodding him into a frenzy—until with a single bound he leaped on the one man who stood within reach.

Printer Peter Zenger had not even a specious “anonymity” between him and the Governor. The _Journal_ was “his” newspaper. Accordingly a warrant for his arrest went out from the Governor and the Council, and the sheriff arrested Zenger on November 17, 1734, and held him for trial on a charge of “seditious libel.” Harison, needless to say, was one of the councillors who signed the warrant; in fact, he is the only person mentioned by name as having done so in the well-known “apology” that Zenger printed in his newspaper on November 25:

As you last week were disappointed of my _Journal_, I think it
incumbent on me to publish my apology, which is this. On the Lord’s
Day, the seventeenth, I was arrested, taken and imprisoned in the
common jail of this City by virtue of a warrant from the Governor, the
honorable Francis Harison, and others in the Council (of which, God
willing, you will have a copy); whereupon I was put under such
restraint that I had not the liberty of pen, ink or paper, or to see
or speak with people, until upon my complaint to the honorable Chief
Justice at my appearing before him upon my habeas corpus on the
Wednesday following. He discountenanced that proceeding, and therefore
I have had since that time the liberty of speaking thro’ the hole of
the door to my wife and servants. By which I doubt not you will think
me sufficiently excused for not sending my last week’s _Journal_, and
hope for the future, by the liberty of speaking to my servants thro’
the hole of the door of the prison, to entertain you with my weekly
_Journal_ as formerly.

During all the printer’s imprisonment the _Journal_ failed of but that one issue. The credit for its punctual appearance every Monday thereafter belongs to his wife, Anna Catherine Zenger, who stepped into his shoes back at the shop. Anna Catherine has a real claim to fame for standing by her husband, a loyalty by no means insignificant in a woman with a family. She may have been emboldened by her ability to keep the press going in his absence, but even so it would have been a crushing blow if he had been given a harsh sentence as, for all she knew, might have been the outcome. The little evidence there is indicates that she never pressed him to give in and name the men who actually were responsible for the _Journal_. She must have known that the New York administration would gladly trade the printer for the editor, a comparatively minor figure for the archenemy—that is, Peter Zenger for James Alexander—but there is no record of her ever complaining that the Zenger family was suffering for someone else.

The Court party’s editor used the occasion for a show of mock sympathy with the Popular party’s printer. The _Gazette_ for December 9, 1734, has a reference to

the pretended patriots of our days, the correspondents of John Peter
Zenger, who are every hour undermining the credit and authority of the
government by all the wicked methods and low artifices that can be
devised, and which they flatter themselves are consistent with their
own safety. I am sorry they are so tenacious of their own as to
neglect that of their poor printer.

Harison had a fine time thinking up jibes like this. It would have been poetic justice if he had been around to suffer—with Governor Cosby and the rest of the Court party—through the acquittal Peter Zenger won so triumphantly on August 4, 1735. But by that time New York had become too hot for this particular member of the faction, and he was on the other side of the Atlantic.

The arrest of Peter Zenger was one of Cosby’s gross mistakes. No one in the Colony could miss the fact that he was bent on revenge, for the public bodies—Assembly, Common Council, grand juries—had all refused to have anything to do with proceedings that they recognized as strictly the Governor’s private affair. Nor could there be any doubt that his purpose was to silence a critic who had been uttering unpalatable truths. Popular feeling was exacerbated by the fact that Cosby’s vindictive wrath fell, not upon the powerful men of the opposite faction, but upon an insignificant German immigrant who plied the trade of printer in the city.

The way the thing was done added to the animosity that Cosby provoked. Zenger’s bail was placed at so high a figure that he could not meet it, his lawyers were disbarred for protesting against the Governor’s hand-picked court of Chief Justice James Delancey and Associate Justice Frederick Philipse, the prisoner had to linger in his cell for nine months before he was given his day in court, and Cosby tried for a packed jury in so blatant a way that his own chief justice had to disavow him. None of this could be kept secret; when the trial was finally held local sentiment had turned against the Governor to the point where he had only his closest friends with him.

X. Van Dam’s Indictment of the Governor

As the Zenger case developed step by step in New York, Cosby was being forced to a more energetic defense on the London front, where Van Dam was waging a pamphlet war against him, and where Morris was present in person.

Months before the newspaper war began Van Dam had resolved to keep the New York public and the London authorities informed of the way in which the Cosby suit for half of his salary was going, and he began to publish successive accounts, with Peter Zenger doing the printing for him just as for the rest of the Popular party. Zenger’s business got better as the political controversy got worse. In the summer of 1733 he turned out for Alexander and Smith their arguments against the validity of the equity court. Shortly afterward Van Dam gave him the job of handling two protests in which the stubborn old Dutchman expressed his personal indignation at the way he was being treated by the Governor.

These partial attacks on Cosby were followed by a general indictment, a full bill of particulars drawn up to expose him point by point with the most meticulous exactitude. Almost everything that could be alleged against him with any degree of plausibility at all was set down in Van Dam’s _Articles of Complaint_.

The apparent author was not the real one. Van Dam undoubtedly had a hand in formulating the charges, but the writing must have been due to someone else since Van Dam was not skillful with the pen. James Alexander springs to mind as the obvious candidate for the role of ghost writer, a suspicion that is strengthened by the accusations that Cosby leveled at both him and Morris. Nevertheless, Van Dam was responsible for the _Articles_, a fact on which he insisted with dogged self-righteousness.

The indictment is composed of 34 separate counts. Not all of them are watertight, for some descend into carping criticism about trivialities. One, for instance, accuses Cosby of accepting a gift of French wines from the commander at Louisbourg:

You received of the said Frenchman by way of present all of the said
brandy, claret and salad oil, which were carried into the fort and
lodged in your cellar; and this, I suppose, induced you to grant a
liberty to trade here, which you ought not to have done.[25]

Another charges that Cosby’s candidate in the Westchester election, William Forster, was “a known Jacobite,” an astonishing grievance in this context since James Alexander was himself a Jacobite, a veteran of the rising of 1715.

These are mere debaters’ points (at the most charitable estimation), and they prove that the leaders of the Popular party could be just as unscrupulous as the Governor when they put their minds to it. They did not disdain to use against him the weapons that he used against them. Too often the struggle has been painted in stark tones of black and white, when it was really a matter of degree, with neither side having a monopoly of either vice or virtue—which is to say little more than that we are dealing with the factional politics of real men rather than with the stereotypes of melodrama.

Again, some of the _Articles_ are of doubtful validity, as when Cosby is accused of destroying a deed given to the City of Albany by the Mohawks, and of permitting the French to map and sound New York harbor on the pretence of trading there. The Governor retorted that the deed was unjust to begin with, and that to have kept it in force would have driven the Indians into the arms of the French; and that trade with Louisbourg was legitimate and humanitarian because the garrison was close to famine.

But if a number of the _Articles_ have a dubious ring, others do make fundamental points. They mention the dismissal of Morris from the Supreme Court, the Van Dam lawsuit, and the attempt to rig the Westchester election. Several are devoted to Cosby’s contemptuous treatment of his Council:

You have, contrary to your instructions, displaced Judges, Justices of
the Peace, Sheriffs, etc., without the advice of Council.[26]

The Council being part of the legislature, as above, you have taken it
upon you (in order to influence their debates) to sit among them and
act as their President, though by your patent His Majesty has given
you a negative voice to prevent the passing of any law prejudicial to
His Majesty’s prerogative and the public good.[27]

Where the advice of the Council has been thought necessary you have
not given general summonses as usual, but have only summoned so small
a number as would constitute a quorum, in which you were sure of a
majority to carry such point as you thought proper, and by this method
seem to support your proceedings by the sanction of advice of
Council—when three makes a majority of such a quorum, and nine might
have been dissenting had they been summoned.[28]

You have taken it upon yourself to act as President of the Council in
receiving bills and messages from the General Assembly.[29]

By these methods you have rendered the Council useless in their
legislative capacity of being that check and balance in government
that His Majesty intended they should be.[30]

Van Dam’s _Articles of Complaint_ constituted a deadly blow at Governor Cosby, what with his Minorca past added to his present troubles in New York, nor was he slow to recognize the fact. We have already seen how he was warned by the Board of Trade because of reports in the _Journal_. Fearing the effect of the _Articles_ in London, he prompted his confederates of the Council to draw up for the Duke of Newcastle a point by point “refutation”—which does not, however, actually refute anything fundamental, for if it deals validly enough with the trivialities, it sedulously avoids, or else boldly denies, the facts about Cosby’s maladministration and misdemeanors. At the same time the Cosby councillors appended a note that gives the Court party’s version of the New York situation:

We have been, while we traced Mr Van Dam through a labyrinth of
detestable falsehoods, very often at a loss how to believe that a man
of his years could forge so many and so notorious scandals, but we are
to inform your Grace that the resentment, malice and revenge of some
of the wickedest men are thrown to his assistance. No government or
administration can please these restless minds. Nothing will satisfy
them but the power which they joyfully would exercise to the
destruction or ruin of their fellow subjects. We beg Your Lordship to
be assured that we know, and daily are made more sensible of, our
happiness under His Excellency’s administration.[31]

XI. Morris on the London Front

During the year 1734 the quarrel between Governor Cosby and his enemies went on, and then in December he learned that Lewis Morris had sailed for England. Things were becoming more tense. The two factions had met head-on in another election contest, that for the Common Council of New York City, and again the Governor had suffered a humiliating defeat. Smarting with resentment, and goaded by mounting fury, he had promptly turned around and thrown himself on the one man who was vulnerable: he had jailed Peter Zenger on the charge of “seditious libel.” If the printer should be convicted, that alone would justify Cosby, and compromise his opponents, in the eyes of the authorities. The leaders of the Zenger faction might join their printer in the city prison. At best, the opposition press would be muzzled, in which case the anti-Cosbyites would have to go outside New York to have their pamphlets printed, while their newspaper must be destroyed.

There was no time to lose. The plan to send a personal representative to London should be implemented, Lewis Morris being a satisfactory choice since he was already known in the British capital. Everything was done as secretly as possible, and Morris embarked clandestinely to prevent the Governor’s taking any countermeasures.

The strategy for him to follow had been worked out in consultations with his colleagues. We know the generalities of the case he was to make against the Cosby administration, and they are of special interest as indicating how the Popular party thought London should be approached. Here we find no trivialities such as those in the _Articles of Complaint_. Morris was to adhere strictly to criticisms that told:

At a consultation between James Alexander, William Smith, and Lewis
Morris Jun., as to the matters to be entrusted to Col. M—, it was
determined that he should exert himself to procure among other things:
The removal of the Governor if possible—his own restoration [to the
Supreme Court]—the dissolution of the then existing Assembly—the
removal of Francis Harison and Daniel Horsmanden from the Council of
New York—instructions to Gov. Cosby to pass such laws as a new
Assembly should conceive conducive to the welfare of the people, and
particularly an act for an annual or triennial Assembly, and some
others of a special character—to allow the Council to sit without him,
and that their advice and consent should be required in conformity
with his instructions—that the Governor should also be instructed not
to set himself above the law—to grant new charters to the cities of
New York and Albany—and that only by adhering to these directions
could he hope to be retained in office.[32]

Morris followed his instructions as well, apparently, as he could during almost two years in England. He was quickly disillusioned about the possibility of getting what he wanted. Being of a choleric and impetuous nature, he may have pressed his demands too warmly and eagerly; he may have been too obviously the partisan. But one reason why the recall of Cosby could not be achieved was that too many interests in London wanted him to stay where he was. In a letter to Alexander, Morris wrote:

Everybody here agrees in a contemptible opinion of Cosby, and nobody
knows him better, or has a worse opinion of him, than the friends he
relies on; and it may be you will be surprised to hear that the most
nefarious crime a Governor can commit is not by some counted so bad as
the crime of complaining of it—the last is an arraigning of the
Ministry that advised the sending of him.[33]

In order to placate Morris, it was suggested to him that he withdraw his indictment of Cosby in return for a promise that he himself should be appointed the first governor of New Jersey under a separate jurisdiction. He announced publicly his refusal of the offer (although some murmuring about his candor was heard when he received that office in 1738). On one point he was partially successful, that of his removal from the Supreme Court: a royal decree declared the reasons for it insufficient. But even so he was not reinstated. His mission to London was not a success. Perhaps the authorities, not at all enthusiastic about removing a governor to begin with, were swayed by Cosby’s accusations against Morris, such as:

Cabals were formed against the government, and a meeting of their
factious men is still held several nights in the week at a private
lodging which I have discovered, Alexander always present, and Morris,
till he lately fled privately for England, in great fear as ’tis
publicly reported lest the printer of their seditious libels should
discover him.[34]

The Governor certainly had some success with his London defense. He was, after all, the crown’s executive on the spot, and that alone would have given his pronouncements an authority denied to the greatest magnates of the Popular party. The burden of proof lay with them. That they thought they could meet the test is proved by the commission given to Lewis Morris. But, if the Board of Trade went so far as to censure Cosby, they obviously felt inclined to accept his version of what was going on in New York. To the Queen they reported:

Colonel Cosby acquaints us in his letter that the said Alexander and
his party have set up a printing press at New York, where the most
virulent libels and most abusive pamphlets published against the
Ministry and other persons of honor in England have been reprinted,
with such alterations as served to inflame the people against the
several branches of the legislature and the administration in that
Province.

That factious cabals are secretly held several times a week in New
York, at which Alexander is always present, as Morris was before his
coming privately to England....

Colonel Cosby further acquaints us that Rip Van Dam, Morris,
Alexander, and others of their party, appear by their behavior to be
disaffected to his Majesty’s government, and are daily exciting the
people to sedition and riot.[35]

This passage, written while Lewis Morris was there to agitate for the contrary, comes close to a real endorsement of Governor Cosby.

XII. Cosby’s Defeat

Ironically, it was drawn up just a few weeks after the Governor had been condemned in New York—condemned explicitly on the score of the printing press about which he fulminated to the Board of Trade.

The trial of the printer was the critical moment for all concerned, the leaders of both sides being as anxious about the outcome as was Peter Zenger himself. Cosby had done everything he could to ensure a verdict in his favor. The defense countered by bringing in the leading attorney of Philadelphia, perhaps of the colonies, Andrew Hamilton. The common people of the city thronged the galleries as the proceedings began.

What happened during that momentous August day is one of the moving, triumphant pages of American history. We can still feel, in reading the text of the trial, the emotional tremor that vibrated in the courtroom at the clash of two powerful forces. We can still follow Andrew Hamilton as he stalks his opponents like an implacable duelist with a rapier, pinking now one and now the other as they venture to challenge him. We can understand the hot befuddlement of Chief Justice Delancey and Attorney General Bradley when they found their prepared defenses useless against a kind of attack they never expected; we can understand their moral disintegration when the verdict went against them, and they had to think what to say when they reported to the governor’s mansion. How must they have felt when the crowd began a delirious demonstration to show its delight that Peter Zenger was a free man? How must they have felt, a few hours later, when they heard that Andrew Hamilton was being treated like a hero by the magistrates of the city?

Governor Cosby had suffered a crushing rebuke. His sword had turned into a boomerang. Having confidently looked for an end to the obnoxious newspaper, he found it justified in the most complete and unanswerable way—by the judgment of a group of men typical of those he governed. No longer was there any hope of silencing his critics, or of arguing with any kind of plausibility that they were guilty of seditious libel. His defense was shattered on both fronts, for New York was sure to have a moral for London. The trial he forced with such demanding arrogance undermined him, and a modest German printer became the symbol of his catastrophe—something the great Lewis Morris had been unable to engineer in face-to-face conferences with the British authorities.

The verdict seems to have broken Cosby’s will. Already a sick man, suffering from pneumonia, he made no attempt to rouse himself for a renewal of the battle that had gone on from the beginning of his administration. He had never collected the salary from Van Dam, he had lost the critical elections, Alexander was still unpunished, Peter Zenger was beyond his reach, and a free press was definitely established in New York. Cosby was defeated, and he knew it.

He did strike one last blow at the old enemy who had started the trouble: he suspended Rip Van Dam from the Council. Characteristically, the obstinate Dutchman refused to acknowledge the suspension, and challenged George Clarke, the next ranking member of the Council (and a Cosby man), for the executive power in New York.

William Cosby was, appropriately enough, the prime mover in the quarrel, but this time he was not personally involved, for he died—a discredited man, but still Governor of New York—on March 10, 1736.

XIII. Andrew Hamilton

The lawyer who won the acquittal for Peter Zenger was, like his friend James Alexander, a Scot. The year of Andrew Hamilton’s birth is a matter of some debate, an old story holding that he was in his eighties when he appeared in the New York courtroom, while later evidence makes him around 65 at that time. His life holds other mysteries. For one thing, we do not know why he left Scotland. It has been said that he was forced to flee after fighting a duel; again, the motive has been called political, which prompts the surmise that he was implicated in the 1715 Jacobite rising—a pleasing theory in that it allows us to imagine him and Alexander together on the same Scottish battlefield with no presentiment that their place in history lay twenty years ahead and three thousand miles away. We have too little evidence about this phase of Hamilton’s life to speak authoritatively about it.

There is even some doubt that he belonged to the Hamilton clan. When he arrived in America he went by the name of Trent. However, trouble back home would account for the pseudonym, and before long he reverted to Hamilton. Rivaling Alexander in the versatility of his talents, he rose to power as soon as opportunity beckoned. He married an affluent widow, founded a great landed estate in Maryland (“Henberry,” near Chestertown), went back to England to study law as a member of Gray’s Inn, and then entered Colonial politics to begin an illustrious career crowned by his appointment to the Council and his election to the Assembly of Pennsylvania.

From then on his name appears prominently in Pennsylvania business. He handled legal cases for the Penn family and helped draw up addresses to the crown. He gained a reputation for opposing arbitrary acts by the Governor, especially with reference to the courts, which put him right at home when he entered the Zenger trial.

Hamilton’s commanding personality had no little share in winning an acquittal for Peter Zenger. Knowing that Chief Justice Delancey would instruct the jury to leave the verdict to the court, Hamilton had to maneuver them in such a way as to make them see that they ought to ignore the instruction; and that required not only basic legal argumentation, an assured manipulation of both fact and logic, but also his own domination of the proceedings. His success was due to his courtroom presence added to his maintenance of the initiative from beginning to end. He could not afford to falter, nor did he.

By comparison, James Delancey looked like a tyro, which indeed he was—a young man, just 32, who moreover had gained his office under dubious circumstances, facing one whom he knew by reputation to be _the_ old master of their common profession. Reading between the lines of the trial we are compelled to infer that Delancey lost control partly because of his own inadequacy, and partly because his hostility toward Hamilton was tempered by a deferential respect due to superior knowledge, experience, ability, and prestige. It is just as easy to see how the spectacle of the Hamilton-Delancey duel swayed the jury, prompting them to act on the advice of the defense attorney rather than on the instruction of the chief justice.

Aside from this historic victory, Hamilton is memorable as the architect of Independence Hall in Philadelphia. When the Pennsylvania Assembly decided that it needed a new building, Hamilton was named as one of the Commission to look into the problem. He submitted a plan for site and structure, had it approved by the legislators, and then supervised the work. The result was the State House in which the Assembly met for the first time in 1736. It still stands, one of the most hallowed buildings in America; now it is known from its place in the Revolution as Independence Hall.

The Zenger verdict and Independence Hall—how many men in the history of America have two comparable monuments to their memory? Andrew Hamilton had done well the two major tasks entrusted to him when he died on August 4, 1741, exactly six years to the day after the trial of Peter Zenger.

2. The Meaning of the Trial

The trial of John Peter Zenger was one of the spectacular events of American history, involving as it did powerful personalities, factional intrigue, a newspaper war, and a splendid courtroom scene in which low chicanery mingled with high rhetoric. It boasted a shining hero and a glowering villain. It passed through the dramatic sequence of conflict, climax, and denouement. It had a happy ending.

Offhand you might think that the Zenger case could be nothing more than that—a scintillating drama with a story-book finish, a tale worth telling without sequel or epilogue. Yet it was one of the most significant things that ever happened on this side of the Atlantic. It was a center from which forces—legal, political, social, constitutional—radiated throughout America, and from one generation to another down to our own time.

The historian and the dramatist may rejoice at the event as such, but the real importance of that trial of August 4, 1735, lies in what came out of it. When Peter Zenger returned to his home instead of to his prison cell, that very fact made him forever a focal point in the development and philosophy of American democracy. The implications for the future were more fundamental, varied, and far-reaching than any of the men concerned could have dreamed. It is the implications that lift the Zenger case out of the class of ordinary political prosecutions and give it a transcendent meaning.

The trial was the first, and the most important, step toward freedom of the press in America. Peter Zenger was accused of seditious libel simply because his press had turned out, and was still turning out as he stood in the dock, a newspaper with the impudence to criticize the Governor and his administration. The _New York Weekly Journal_ was an astonishing spectacle in the Colonies—a periodical that preached freedom of the press as a fundamental right, and practiced its doctrine by reporting the news as it saw fit.

Other newspapers might clear their material with the authorities, or at least hedge in saying anything that could cause unpleasant repercussions. The _Journal_ displayed no such self-restraint. It dwelt on the Governor’s misdemeanors, alleged his incompetence, laughed at his mistakes, spotlighted his attempts to cover up his shady dealings, and more than suggested that he should be removed from office.

The _Journal_ overtly and even clamorously threw off subservience to the Colonial government. It followed the lead of the British papers that had already begun the battle for a free press, and carried the fight into the American arena. Many evil and stupid men had been sent to the New World as representatives of the crown, but until the Zenger era they were able to keep the press sufficiently in line. It was the misfortune of Colonel William Cosby, one of the worst and stupidest, to collide with a newspaper that would not give way.

In charging Peter Zenger with seditious libel Cosby was acting in accordance with an old habit of the official mind. Until a few years previously, Colonial governors had been specifically commissioned to censor the press, and the tradition still held that journalists had no right to print anything of which the local executive disapproved. His discretion was the criterion, just as the king’s was in Britain. He could set down as “libelous” any report that caused him any uneasiness, and impugn it as tending to excite sedition among the governed.

Thus the question of truth was beside the point when printers, publishers, editors, and writers were being prosecuted. Indeed, veracity might only aggravate the charge, for obviously unrest is most likely to follow from a story about stupidity or criminality in government if the news happens to be true. This thought gave rise to a whole theory epitomized in the legal tag, “The greater the truth, the greater the libel.” The journalist was caught coming and going—guilty if his story was false, even more guilty if it was true.

Such a theory of seditious libel may sound paradoxical at first, but in fact it had behind it a strong logic based on history. When the British monarchy emerged as absolute during the reign of the Tudors, the relation of king and people was that of master and servants, a relation accepted by the nation almost without demur. Therefore, criticism of the king was illegitimate and _ipso facto_ criminal, and the truth of such criticism was at best inconsequential, at worst an exacerbation threatening to cause a breach of the peace. Hence: “The greater the truth, the greater the libel.”

But the law could not stop there, for British politics went through a profound revolution during which Parliament wrested control of the government from the king, who slipped steadily downward into the role of servant to, rather than master of, his subjects. Parallel with this development went a progressive rise in the power of the popular will, one result of which was that criticism of king, ministry, and Parliament became transmuted into an integral part of the British system. Now the distinction was no longer between criticism and no criticism, but between valid criticism and invalid criticism; and one acid test was exactly the question of truth in the charges made. By the end of the eighteenth century the change was virtually complete.

The law lagged a little in rewriting its rules. At the time of the Zenger trial (1735) the situation was ambiguous, a fact that comes out clearly in the pleading. Peter Zenger’s acquittal helped to resolve the ambiguity along the lines of greater freedom.

Governor Cosby stood for the Tudor principle. He might have coined the phrase, “The greater the truth, the greater the libel,” so well did it suit him. His regime would not bear scrutiny, for he riddled it with dubious, unethical, and illegal acts of various kinds—ignoring the rules laid down in his instructions from the Board of Trade in London, interfering with the elections and with the courts, boldly appropriating money and land, insulting the people and the Assembly of the Province—and he did not want such things to be aired, least of all in the columns of a weekly that allowed him no respite as it appeared every Monday with its reports about him and his circle of confederates. He failed in every other attempt to silence the _Journal_, and then brought the printer into a court of law to answer the charge of seditious libel.

So far everything was in order. But as soon as the trial got under way things began to go wrong. Andrew Hamilton had come from Philadelphia to speak for the defense; and he, with all the eloquence for which he was famous, propounded the novel theory (novel for America, at least) that freedom of the press is a basic need of society. He insisted that the people have a right to know what their government is doing. He noted that they should be able to complain when they have a grievance against the government, and that a sure, easy, and speedy method of doing this is for them to make their opinions known in the newspapers. He pointed out the converse, that nothing of this is possible as long as the censor can blue-pencil what he chooses, since the censor is, by definition, the administration’s man, and does its bidding.

Above all, he drew a sharp line between truth and falsity in reporting the news. Admitting that no one has a right to lie in print any more than in speech, he successfully inserted into the minds of the jurors the notion that an editor should be allowed to plead the authenticity of a story as his justification for publishing it. He got them to agree that the word “false” should be operative and indispensable in the kind of seditious libel of which Peter Zenger stood accused.

Even Hamilton could not see how titanic an issue was joined. He was primarily interested in the problem at hand—to get his client acquitted—but the fact is that in speaking for his own time he was speaking for all time. He would have been a prophet as well as a philosopher if he had seen fully the parting of the ways at which he stood, with the old censorship extending backward into the past, and the new freedom pointing toward the future. It was merit enough that he saw farther than any other man of his period, and that he stated the argument for the emerging principle better than anyone else.

The full import of his victory in court is not yet exhausted, and very likely never will be. As time passes we understand more exactly just how great a blow it would have been if Governor Cosby had been able to kill the magnificent pioneering experiment in independent journalism that the _Journal_ was. We appreciate better than our ancestors the overwhelming significance of the trial of Peter Zenger, that for the first time an American practitioner of unfettered news coverage had won a complete and avowed vindication through the orderly official process of a trial by jury.

Ever since, newsmen have looked back on the Zenger case as the origin of their most primordial right. If that right was not promptly conquered everywhere in the Colonies, Peter Zenger had lit the train for a whole series of delayed reactions. The trial touched off discussions about the meaning of libel, showed that existing definitions were defective rather than axiomatic, compelled the authorities to take more account of public opinion before launching lawsuits against their opponents of politics and journalism, and thereby saved other editors and printers from following the old path that led nowhere except to prison.

James Alexander’s _Brief Narrative of the Case and Tryal of John Peter Zenger_ was widely reprinted after Zenger himself had turned out the first edition, and the text became a classical precedent to which anyone faced with censorship could point. Americans still point to it when freedom of the press is under discussion.

Present-day newsmen have a more professional reason for being grateful to this Colonial printer. Throughout his imprisonment and trial he maintained a steadfast silence about the identity of the men who wrote the contents of the newspaper that he ran through his press; and he thereby gave an enormous impetus to the thesis that a journalist has a right to keep secret the sources of his information. Other printers before Zenger had refused to divulge the names of their contributors, and some achieved the crown of the semimartyr in consequence, but none had ever been given the unanswerable backing of the courts.

Always the formal conditions of Zenger’s acquittal must be borne in mind, for his triumph was not just a personal thing, or the wresting of a momentary privilege from an indolent or interested official. It was a legal precedent.

The Zenger case necessarily reflected on American politics. The acquittal of the Defendant involved the condemnation of the Plaintiff, which meant that Governor Cosby’s administration was found guilty of the things with which the _Journal_ charged it. One more stumbling block was thrown in the path of tyranny, one more support removed from dishonesty in high places.

Cosby had hand-picked his judge to insure control of the court, but never would this kind of illegality be repeated with the same lighthearted contempt for criticism. Never again would any Colonial governor try quite so recklessly and arrogantly to rig elections or to seize land or to play the politician with his Council in order to create within it a faction that would rubber-stamp his whims. These misdemeanors had been condemned (by implication) in a cold legal decision—and the Colonies would not forget.

The behavior of courts handling libel cases changed. When the New York jury came in with a verdict of “Not guilty,” it did something that was rather startling for the 1730’s. According to the traditional theory of law, the business of jurors was to determine the fact of publication, and to leave the verdict to the court. In this case, the jury should have confined itself to deciding by whom the _Journal_ had been printed and at whom the contents were aimed, after which its function would have been fulfilled. The setup was ideal for Governor Cosby since he had his henchman on the bench, Chief Justice James Delancey, all prepared to render a verdict of “Guilty” as soon as the jury had agreed on the undeniable (and undenied) fact that Peter Zenger was actually printer of the newspaper.

Andrew Hamilton scrambled the neat pattern that Cosby had laid out. He made his appeal directly to the jury, ostentatiously bypassing the judges on the bench, presenting past instances in which jurors had taken upon themselves the responsibility of deciding the law—that is, of giving the verdict, instead of merely identifying the printer of the supposedly libelous material. He argued that juries are of little use if they do not perform this function, since there is no reason for jurors to participate in any trial except that as local citizens they are supposed to be familiar with the facts pertinent to the case. He asked the Zenger jurors simply to declare what they knew to be the truth, that “Zenger’s paper” had correctly described the New York administration under which they all lived and suffered. In other words, he appealed to the twelve men in the jury box to take the decision away from a governor-controlled court.

Hamilton got his wish. The jury followed his advice, ignored a warning from Chief Justice Delancey that the verdict was none of their business and should be left to the court, and brought in a finding of “Not guilty.” The immediate effect was the acquittal of Peter Zenger. But the long-range effect was a change in the mutual relations of judges and juries. Just as the principle, “The greater the truth, the greater the libel,” became more and more implausible as time passed, so did the notion that the proper function of the jury is to determine the “fact,” that of judges to hand down the “law.” Jurors, like newsmen, were voted a charter of independence at the same time that Peter Zenger was set free.

The Zenger case assisted the rise of public opinion as a factor in American life. The feeling of the inhabitants was never, of course, completely inconsequential, and more than one governor had found himself with a rebellion on his hands when he made himself too obnoxious, but in Peter Zenger’s time the people were becoming increasingly restive and impatient under maladministration. He made the attitude vocal as it never had been before. Dissidents had habitually issued critical pamphlets about things they objected to. The _New York Weekly Journal_ changed criticism from intermittent to permanent. The newspaper appeared regularly every week, always crammed with information about the officials of New York, and drawing its material from dozens of plain citizens as well as from a steady “staff” of anti-Cosbyites. Because of the _Journal_’s popularity, a whole section of the people received a constant diet of critical journalism that showed them how influential their approval or disapproval was.

Before long popular sentiment constituted a real power in the Colonies. Governors became more reluctant to coerce opposition. Grand juries were emboldened to make freer decisions when called on to indict editors. A witness to the increased importance of the common man is Cadwallader Colden. He became lieutenant-governor of New York, and as such a defender of the crown’s prerogative; but he was a veteran of the Zenger controversy, and in the midst of an even greater crisis (that following the Stamp Act) he gave it as his considered opinion that to prosecute newspapermen for libel would be very dangerous in view of the feeling among the people. Journalists became bolder in their criticism, more sure of themselves when they had public opinion with them.

The _New York Weekly Journal_ set the classic example of marshaling the citizenry in serried ranks to support one point of view in politics, nor does it, in this, have to take a back seat to any other news organ in the history of American journalism. Sam Adams’ _Boston Gazette_ but followed in the path already marked out by “Zenger’s paper,” which was then, and still remains, a model of the art of diverting popular sympathy from individuals and parties by making them look ridiculous or criminal or both.

The participation of ordinary men and women in political discussions, debates, and quarrels caused a rise toward the level of true democracy. The _Journal_ proved the close connection between political freedom and freedom of the press half a century before Jefferson laid down his famous axiom on the subject, and a century before de Tocqueville perceived that modern democracy cannot exist without the public forum of the newspapers. By creating political journalism in the true sense, the _Journal_ did as much, perhaps, as any other single agent to create the American way of life. If we find censorship stifling today, we owe that phenomenon of our moral physiology in no small degree to the battle that was fought and won by Peter Zenger.

On the constitutional side, the Zenger case helped snap the leading strings that bound the American Colonies to the mother country.

It made resistance to governors more respectable. Governor Cosby’s defeat, like Peter Zenger’s vindication, was a legal precedent. At no time was there any question of violence or armed insurrection (although Cosby affected to believe the contrary in his letters to London). The thing was fought out strictly through the judicial machinery of the Province, with each side struggling to win over judges and juries. Cosby lost because he could not control the one jury at the critical moment. The decision was unassailable in any legitimate fashion, and Cosby was _ipso facto_ legitimately discredited.