The Epic of New York City (21 page)

Slowly the English language was replacing the Dutch tongue, but only a minority of New Yorkers could read and write. This didn't matter too much because those who could read passed along the news to the illiterate, and soon they had news aplenty. Zenger basked in his sudden fame, but his backers never let him forget that they had set him up in business to attack the Cosby administration.

Many of the
Journal's
articles needling the governor and the court party were actually written by leaders of the people's party. Zenger, however, was legally responsible for all copy in his paper. James Alexander, who had served as Van Dam's attorney, apparently provided most of the satirical stories. The second issue of the
Journal
included an article on freedom of the press—at a time when such a concept was virtually unknown. Indeed, most editors in England spent almost as much time in jail as they did in their printing shops.

The
Journal's
attack was a diversified one. It printed logical arguments to appeal to thoughtful men. It indulged in witticisms, satires, parodies, squibs, ballads, lampoons, and verbal caricatures. Issue after issue contained mock advertisements about strayed animals that New Yorkers recognized as lackeys of the governor. The sheriff was represented as “a monkey of the larger sort, about four feet high” which had “lately broke his chain and run into the country.” The city recorder was described as “a large spaniel, of about five feet five inches high,” that “has lately strayed from his kennel with his mouth full of fulsome panegyrics.” The
Journal
even said flatly, “A governor turned rogue does a thousand things for which a small rogue would deserve a halter.” Week after week after week the attack continued until Governor Cosby and his sycophants were nearly driven mad.

Finally, acting for the governor, Chief Justice De Lancey called
the attention of the grand jury to two “scurrilous ballads” in Zenger's paper. The ballads were ordered burned by the hangman. Next, the Cosby-dominated council declared that four issues of the
Journal
contained “many things tending to sedition and faction, and to bring his Majesty's government into contempt, and to disturb the peace.” These, too, were ordered burned by the hangman near the pillory on the east side of what is now City Hall Park.

Council members directed city magistrates and aldermen to attend this ceremony. They refused. Even the hangman balked. The sheriff, who had been ridiculed in the
Journal,
had to command one of his slaves to burn the papers. At this disgraceful rite, held on November 2, 1734, the only people present were some British soldiers and a few of the governor's toadies.

Cosby and the council now asked the assembly to help prosecute Zenger, but the stiff-necked assembly members tabled the request. Attorney General Richard Bradley then filed an information charging seditious libel, and on November 17 the printer was arrested, marched to City Hall, and locked in a cell on the third floor. For three days he was held incommunicado, and for one week his
Journal
was silenced. The townspeople, 10,000 strong, seethed with excitement and indignation. Plainly the arrogant governor intended to force them to bow down to his will.

Alexander and Smith, who had represented Van Dam, assumed the defense for Zenger and had him brought before Chief Justice De Lancey on a writ of habeas corpus. They also submitted an affidavit arguing that since Zenger was worth no more than 40 pounds, except for his clothes and tools, moderate bail should be set. Instead, the judge placed bail at 400 pounds for Zenger and at 200 pounds each for two bondsmen. The sum probably could have been raised by Zenger's wealthy backers, but they may have hoped to dramatize the case by allowing him to languish in jail.

Their strategy worked. Receiving permission to speak to his wife and assistants through a hole in his prison door, Zenger dictated articles for his revived paper. His lawyers argued in court that Chief Justice De Lancey was not qualified to preside over Zenger's forthcoming trial. They declared that the wording of De Lancey's commission proved it had been granted by the governor “during pleasure” instead of “during good behavior,” the proper phrasing of King's Bench commissions. The frontal attack so infuriated the judge that
he shouted at the audacious attorneys, “You have brought it to the point, gentlemen, that either we must go from the bench or you from the bar!” Then he disbarred both men. They protested unavailingly, and New Yorkers seethed.

Month after month passed, and still John Peter Zenger crouched by the hole in his iron door, dictating diatribes. These were read with relish by men frequenting the Black Horse Tavern on William Street. Glasses of ale and rum were drunk in honor of the stubborn prisoner.

Finally, on August 4, 1735, Zenger's trial began. It was a hot sultry day, and sweat poured down the faces of spectators jammed into the courtroom. Most business came to a halt in the city that opening day, for people sensed that at long last they were locked in open combat with their tyrannical British overlords.

After disbarring Alexander and Smith, Chief Justice De Lancey had appointed attorney John Chambers to represent Zenger. Chambers was an able lawyer, but he didn't care to become a martyr. In behalf of Zenger he entered a plea of not guilty. Attorney General Bradley opened for the Crown, accusing the printer of publishing newspaper items that were “false, scandalous and seditious.” Chambers countered weakly.

At this point an impressive, handsome, bewigged man arose from his seat among the spectators and said to the chief justice, “May it please your honor, I am concerned in this cause on the part of Mr. Zenger, the defendant.” He identified himself as Andrew Hamilton.

Andrew Hamilton? He was the most famous lawyer in all America! Born in Scotland, he had emigrated to this country, had settled in Philadelphia, and had become first attorney general of Pennsylvania and then speaker of that colony's assembly. Hamilton was as renowned for his polished manners as for his ice-cold logic. Now the governor's henchmen and benchmen realized they had a fight on their hands. Although the Philadelphia lawyer did not supplant Chambers as Zenger's attorney, he ran the show for the defense from that moment on. The only people not surprised by Hamilton's appearance were Zenger's backers, who had planned the maneuver and kept it a deep secret.

In a clear and silvery voice Hamilton made a few introductory remarks, ending with these words: “I do, for my client, confess that he both printed and published the two newspapers set forth in the
information, and I hope in so doing he has committed no crime.” Thereupon Attorney General Bradley declared that the jury must decide in favor of the king.

“By no means!” cried Hamilton. “It is not the bare printing and publishing of a paper that will make it libel. The words themselves must be libelous—that is, false, scandalous and seditious—or else my client is not guilty.”

In those days the common law held that the greater the truth, the greater the libel. Pointing this out, the attorney general argued that the truth of a libel was no defense and could not be admitted as evidence. He was backed up by the chief justice, who said to Hamilton, “The law is clear. You cannot justify a libel.” Hamilton, however, insisted that he would prove the truth of the statements published by Zenger and declared that it was the right of the jury to decide the intent of publication. By this line of attack Hamilton showed that he intended to air the delinquencies of New York's royal administration. He went on:

All that hot summer of 1735 the trial of John Peter Zenger raged in the packed and stifling City Hall courtroom, while Philadelphia watched and Boston watched and even London watched, and men everywhere oppressed by British tyranny harkened to a new hope and took heart. Minds were stirred as seldom before, while new horizons seemed to unfold with each utterance of the silver-tongued Andrew Hamilton. Once and for all, this trial destroyed the notion that government officials are immune from criticism. It created a climate of civil disobedience. It marked the beginning of a movement for independence.

At last, in a courtroom throbbing with silence, except for his pulse-quickening voice, the Philadelphia lawyer delivered his memorable summation, saying in part:

The moment Hamilton finished speaking, spectators jumped to their feet. They cheered. They applauded. The chief justice bellowed and pounded for order. The jury retired and then returned after only a few minutes of deliberation. The foreman of the jury was asked to announce the verdict. In a firm voice he said, “Not guilty.”

Never before in the history of the city had there been such shouting, thumping, stamping, whistling, clapping, and cheering in a courtroom. Strangers hugged one another, women wept, and one judge threatened to jail the leader of the demonstration; but nothing could quell this tribute to the champion of liberty, Andrew Hamilton. His face flushed with joy, he resisted attempts to raise him upon the shoulders of yelling men, who wanted to carry him from the courtroom in triumph. Zenger beamed and shook the many hands thrust toward him.

To the printer's surprise and disappointment he was marched back upstairs to his prison cell, where he had to spend one final night until money was collected to pay for his keep during his imprisonment. Thus, he missed the victory banquet for his defender held that evening in the Black Horse Tavern.

This was a public testimonial for Hamilton, paid for by the city corporation, with liquor flowing in abundance and everyone pressing close to the guest of honor. The new mayor, Paul Richard, gave the principal address and then presented Hamilton with a gold box that contained a scroll bestowing on him the freedom of the city. After the banquet Hamilton was escorted to a ball, attended by citizens fighting the administration of Governor Cosby. The next day, as Hamilton left for his home in Philadelphia, he was accompanied to his
barge by a crowd waving banners and cheering. A cannon boomed a final salute.

Zenger's acquittal was the world's first great victory for freedom of the press. However, it was not an end, but a beginning. A half century passed before the British government enacted into law the precedent established in this case: the right of a jury in seditious libel to pass on the truth of the matter published. Not until 1805 did the New York State legislature uphold the principle of freedom of the press, and not until 1821 was this principle incorporated into the state's constitution.

Yet long after Zenger and Hamilton had died, the American statesman Gouverneur Morris declared, “The trial of Zenger was the germ of American freedom—the morning star of that liberty which subsequently revolutionized America.”

The Zenger case also gave us a figure of speech that has lasted to the present day: “as sharp as a Philadelphia lawyer.”

 

Chapter 9