History of Journalism in the United States/Chapter 5

by George Henry Payne

CHAPTER V

PRINTING IN NEW YORK—THE ZENGER TRIAL

Early political divisions—Oppression by the Conquerors—Foundation for the Whig party—William Bradford invited to the colony—New York Gazette, the first paper—Maladministration of Governor Cosby—Zenger brings out the Journal—Attacks government—His arrest and trial—Andrew Hamilton's great speech—Its importance in the history of the country.

While the printing press did not appear in New York Colony until some years after there had been presses in Massachusetts—and even in Pennsylvania, a colony settled after New York—there was, in the Dutch settlement, greater encouragement for a free press than in either of the other two, at least in the beginning. This was partly due to the fact that, when the Dutch colony had been taken over by the English, there had grown up two parties more equally divided than was the case in any of the other colonies—parties divided somewhat as the Whigs and the Tories later were. The governing class was arrogant, inasmuch as the government represented the conquerors; on the other hand, the governed class in the colony of New York, representing some of the rich burghers and old Dutch families, was not as docile as the laboring and governed class of other colonies. Having been, in former days, the rulers of the colony, and therefore accustomed to public discussion, its members were quick to use the printing press to air their grievances.

An early evidence of liberality in the new colony is shown by Benjamin Fletcher, who, when he became Governor of New York in 1692, realized that both Massachusetts and Pennsylvania had advanced more rapidly in this direction than had New York, and therefore caused to be passed by the assembly a law which was practically an invitation to William Bradford of Philadelphia to set up his printing press in New York. In 1696 Fletcher reprinted an issue of the London Gazette which contained an account of the engagement with the French preceding the peace of Ryswick.^[1]

As early as 1668, Governor Lovelace, the second English Governor, had expressed a desire to have a printer in the colony, and he tried to get one from Boston.^[2] Following the accession of James the Second, one of the first instructions given to Governor Dongan in 1686 was to see that no one did any printing without first obtaining a license. With the brighter prospects which followed the Revolution of 1688, Governor Fletcher had the Council pass, on March 23, 1693, the resolution above referred to, by which "the sum of £40 current money of New York per annum for his salary" was offered to any printer who would settle in the colony and print the Acts of Assembly.^[3]

Bradford, tired out with continual wrangling with the authorities in Pennsylvania, accepted this offer, as we have seen, and the following October the first warrant for his press was issued.

Although the printer had been invited by a representative of the government, it was not long before those opposed to the interests of the Grown attempted to use the press. Two years after Bradford was established, the Assembly asked permission of the Governor "to print their journal," a request that resulted in the House being dissolved. But while Fletcher was in power, Bradford's course was prosperous and smooth, and continued so until Fletcher was succeeded by the Earl of Bellomont, who, being a reformer, believed in low salaries and much work.

A clash came after the Earl had had a long conference with the Indians—"the greatest fatigue I ever underwent in my whole life," he wrote. "I was shut up in a closed chamber with sixty Sachems who, besides a stench of bear's grease with which they plentifully daubed themselves, were continually either smoking or drinking drams of rum—for eight days." He decided that this heroic performance justified a printed report. Bradford, however, refused to print it, as he considered it a private diary and not a public paper coming within his contract. Bellomont retaliated by charging Bradford with neglecting his duty, and appointed one Abraham Gouverneur in his place. Bradford won, however, by anticipating the advice of Comte de Buffy: "Take good care of yourself; be persuaded that if you will only let your adversary die before you, it is he, not you, who has lost the case." Bellomont died before he was able to do any serious damage to Bradford, or to diminish his influence and lessen his power in the colony.

We have told in the previous chapter how the printer increased his business and how he sought, when his son Andrew became of age, to start the young man's career in Rhode Island, finally establishing him in Philadelphia in 1712. Following the new movement of the day, and imitating Andrew in Philadelphia, at the age of sixtytwo Bradford established the first newspaper in New York; in 1728, having a paper in Philadelphia owned by his son and one in New York owned by himself, he purchased a large paper factory in Elizabethtown and thus rendered both establishments independent of the British manufacturers. Bradford edited his own paper until he was eighty years of age, when he retired, transferring it to James Parker, by whom it was conducted after 1743.

Bradford's very partisanship had its usefulness to the opponents of the Colonial Government, and when the crisis came,—as it did over a mere matter of salary—it was from his office and by his apprentice, John Peter Zenger, that the most effective blow was struck at the despotism of the government.

Between the death of Gk)vemor Montgomery, on June 30, 1731, and the arrival of Governor Cosby on September 18, 1732, Rip Van Dam, the senior member of the Council, occupied the executive chair. Over a dispute as to who should receive the fees of the office, which amounted to about £6000, the Governor pro tern, and Cosby went to court. In order to carry his case, the Governor removed Chief Justice Morris and appointed James DeLancey in his place, an act of arrogance that caused a great deal of acrimony among the colonists. Cosby showed his contempt for them in other ways, calling them, in an official report, "A lazy, good-for-nothing crowd, filled with the spirit of insubordination,"^[4] who were drawing their inspiration, he declared, from trouble makers in Boston. The opposition decided to have their own paper, and on the isth of November, 1733, they brought out the first number of the New York Weekly Journal under the auspices of John Peter Zenger, an apprentice of Bradford, who had come to him as a poor young immigrant.

The records of Zenger's life are very meager. He was one of a large number of Palatines who were sent to America in 1710 by Queen Anne. His mother, his sister, and his younger brother arrived with him, the father of the family having died on shipboard. After serving an apprenticeship of eight years with Bradford, Zenger went to Maryland to try his fortunes there, but met with little success. For a few years he struggled at his trade; he joined in partnership with Bradford in 1725, but the partnership must have been of short duration, as there is only one book extant showing the imprint of their joint names. In 1726 Zenger, a poor, struggling German printer, started in business for himself. His shop was of small size and he printed a few political tracts and a number of unimportant books, principally theological in character and written in Dutch. In 1730 he printed the first arithmetic published in the colony.

In the very first issue of the New York Weekly Journal there appeared an article on the liberty of the press which was used as the text for many others, all filled with direct allusions to Cosby and his conduct. Several numbers were condemned by Cosby to be burned as containing "Scurrilous, Scandalous and Virulent Reflections,"—these were numbers 7, 47, 48 and 49.^[5] The first of these was largely taken up with a bold and vigorous criticism of the Governor for permitting a French man-o'war to enter New York Harbor—ostensibly for the purpose of provisioning, but more likely in order, the Journal asserted, to spy upon the works and fortifications of New York. These numbers also contain critical mention of the fact that the Governor invited but a few members of the Council to sit in session with him on matters of State, and that these invariably were his appointees and favorites. Numbers 47, 48 and 49 were primarily taken up with the publication of an anonymous letter, purporting to be from a New Jersey settler who undertook to criticize and hold up to ridicule "the Nullity of Law" in New York Province and the maladministration of Governor Cosby.

As a result of these attacks, Cosby issued a proclamation offering a reward of £50 for the discovery of the author of said "Scandalous, Virulent and Seditious Reflections," and on Sunday, November 17, 1734, Zenger was arrested on a charge of libel.

When brought before the Chief Justice on November 20th, his bail was fixed at £800, which he was unable to raise, but he was finally allowed to have pen, ink, and paper, which he had been previously denied. For the next nine months, Zenger edited his paper in jail.

It has been said that Zenger deserved little credit for his fight for a free press, as he was a poor printer without much education and the articles that did all the damage were written by wealthy and cultivated gentlemen of the period.^[6] It is to be sincerely hoped that this was not so, in view of the fact that the important and wealthy men who took part in Zenger's fight allowed him, for nine months, to languish in jail because of their failure to raise the amount of his bail. Zenger was really a strong, courageous citizen, who, while he may not have written some of the learned articles in his paper, was the one who stood for them, showing a great deal more character and vigor than the anonymous, if educated, contributors. It is a sad comment on their gentle descent that they allowed another man to go to jail for what they had written.

In the first issue after his arrest Zenger apologized for missing an issue, on the ground that, not only had he been without peii, ink, and paper, but he had been held incomunicado. He promised them "by the liberty of speaking to my servants through the hole of the door of the prison to entertain you with my weekly journal as formerly," and this he did until the trial took place, on August 4, 1735.

1735 When the trial came up Zenger's counsel, William Smith and James Alexander, denied the competency of Chief Justice DeLancey and of Judge Phillips who sat with him, which objections were treated by DeLancey as contempt of court, and both lawyers were excluded, by another order, from further practice.

To the amazement of the court and of Cosby's party, when the case finally came to trial Andrew Hamilton, the celebrated lawyer of Philadelphia—the ablest attorney in the colonies, and a warm personal friend of Benjamin Franklin—walked into court to defend Zenger.

Hamilton is said to have been eighty years of age at this time, and he was known throughout the colonies as a man of great ability. There was a romantic mystery about him. It was known that Hamilton was not his real name. It was said that he had fled from Europe after having killed some one of importance in a duel. He was unquestionably of gentle blood, but whatever the cause of the mystery, he carried his secret to the grave. He had acquired a handsome practice and much wealth in the colonies, and in 1712 had gone to England; where he was admitted to the bar. On one of his trips to Europe he sailed with Benjamin Franklin.

The appearance of Hamilton dumfounded the Cosby adherents. He opened the case by offering to prove the truth of the statements in the alleged libel. This was overruled by DeLancey, who, as an appointee of Cosby, was naturally on the side of the Governor. As a matter of fact, though, the law as it then stood was on the side of the Chief Justice.^[7]

From the time of the Star Chamber there had been little addition to, or development of the law with regard to seditious offenses. It was under the law as laid down by Lord Chief Justice Holt that Zenger was being tried: "If people should not be called to account for possessing the people with an ill opinion of the government, no government can subsist. For it is necessary for all governments that the people should have a good opinion of it."^[8]

This was still the law of England, and necessarily of the colonies. It is said that a great deal of the vivacity and energy used at that time in cases where the liberty of the press was concerned, was due to the fact that the lawyers realized the insecurity of the legal foundation of that liberty.^[9] We have seen how William Bradford was tried under this law, but in his case the jury was instructed to find whether the papers printed by Bradford tended to weaken the hands of the magistrates as well as to find whether Bradford printed it. "Comme la virite, Verreur a ses heros."^[10]

The law had already been tested and accepted in the colonies. In 1702 Colonel Nicholas Bayard was charged with alleged libels which were not put in evidence but which were declared to contain charges that "the hottest and ignorantest of the people were put in places of trust," and on this verbal statement Colonel Bayard was sen tenced to be hanged, drawn and quartered. The sentence, however, was not carried out.

Hamilton, therefore, approached his trial knowing well that he must acquit Zenger, not by the law, but by the feeling in the community—the growing feeling among human beings that the law was wrong.

It was to this feeling that he appealed—in a larger sense it was to the yet unborn feeling of Nationalism that he addressed himself, and in this connection alone his speech is one of the important documents in the history of the rise of the American republic. But it was a novel doctrine that he enunciated; even to those whose interest he espoused it must have come with a shock when he declared, "What strange doctrine is it to press everything for law here which is so in England!"

That Hamilton appreciated, as did those who were back of Zenger in his fight, that it was not a local matter, or a personal vindication that was sought, is shown by one of the concluding paragraphs:

"The question before the Court, and you, gentlemen of the Jury, is not of small or private concern; it is not the cause of a poor printer, nor of New York alone, which you are trying. No! it may, in its consequences, affect every freeman that lives under a British government, on the main of America."

He ridiculed the assumption that power must always be protected. It was a beautiful river while it was kept within bounds, but when it overflowed its banks, it bore down all before it and brought destruction and desolation wherever it went. Liberty was the only bulwark against lawless power, which in all ages had sacrificed the blood of the best men that had ever lived to its wild and boundless ambition.

"I hope to be pardoned, Sir, for my zeal upon this occasion: it is an old and wise caution that 'when our neighbor's house is on fire, we ought to take care of our own.' For though, blessed be God, I live in a government where liberty is well understood, and freely enjoyed; yet experience has shown us all (I'm sure it has me) that a bad precedent in one government is soon set up for an authority in another; and therefore I cannot but think it mine, and every honest man's duty that (while we pay all due obedience to men in authority) we ought at the same time to be on our guard against power, wherever we apprehend that it may affect ourselves or our fellow-subjects."

Hamilton pleaded that he was unequal to such an undertaking, that he labored under the weight of many years, and that he was borne down with great infirmities of body. But old and weak as he was, he declared it to be his duty, if required, to go to the utmost part of the land, if his service would be of any use to stop persecutions set on foot by the government, to deprive people of the right of remonstrating and complaining against the arbitrary actions of men in power.

It was usual, he continued, for men who injured and oppressed the people, men who provoked them to cry out and complain, to use those very complaints as the foundation for new oppressions and persecutions:

"It is the best cause; it is the cause of Liberty; and I make no doubt but your upright conduct, this day, will not only entitle you to the love and esteem of your fellowcitizens, but every man, who prefers freedom to a life of slavery, will bless and honor you, as men who have baffled the attempt of tyranny; and, by an impartial and uncorrupt verdict, have laid a noble 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 in these parts of the world at least, by speaking and writing truth."

In a short time the jury came in with a verdict of "Not guilty," and "there were three huzzas in the hall," writes the triumphant Zenger in his own account of the trial, "which was crowded with people; and the next day I was discharged from my imprisonment."

The freedom of the city was conferred upon Hamilton by the corporation of the City of New York, and he was escorted to his sloop with drums and trumpets, when he was about to return to Philadelphia.^[11]

Not only on this side of the ocean, but in London, the case attracted wide attention. It was printed in New York, Boston and London. The Pennsylvania Gazette of May II, 1738, published the following letter from its London correspondent:

"We have been lately amused with Zenger's trial which has become the common topic of conversation in all the Coffee Houses, both at the Court End of the Town and in the City. The greatest men at the Bar have openly declared that the subject of Libels was never so well treated in Westminster Hall, as at New York. Our political writers of different factions, who never agree in anything else, have mentioned this trial in their public writings with an air of Rapture and Triumph. A Goliath in learning and politics gave his opinion of Mr. Hamilton's argument in these terms: 'If it is not law it is better than law, it ought to be law and will always be law wherever justice prevails.' The trial has been reprinted four times in three months, and there has been a greater demand for it, by all ranks and degrees of people, than there has been known for any of the most celebrated performances of our greatest Geniuses. We look upon Zenger's advocate as a glorious asserter of public liberty and of the rights and privileges of Britons."

"It is, however, worth remembering, and to his honor," said Horace Binney, "that he was half a century before Mr. Erskine, and the Declaratory Act of Mr. Fox, in asserting the right of a jury to give a general verdict in libel as much as in murder, and in spite of the Court, the jury believed him and acquitted his client." ^[12]

The view of Judge Cadwalader^[13] is more appreciative:

" Reform, through legislation, may be effected with little difficulty as compared with administrative reformation of jurisprudence without legislative aid. The Advocate who can effect the latter, especially where political considerations are involved, must be a mental giant. One great excellence of the system of trial by jury is that it affords the means of gradually producing such, reformations without revolutionary peril. Propositions in this argument, which were, strictly speaking, untenable as points of Anglo-American Colonial law, prevailed, nevertheless, at that day, with the jury. These propositions have been since engrafted permanently upon the political jurisprudence of this continent. If that speech to the jurors who acquitted Zenger had never been uttered, or had not been reported, the framers of the Constitutions of the several states might not have been prepared for the adoption of provisions like that of the Seventh Section of the Declaration of Rights in Pennsylvania."

The immediate effect of the trial was to increase Zenger's popularity and the prestige of his paper, although there was no visible evidence of this in such things as increased advertising. But the effect of his stand may be seen in the plea by William Bradford in his journal,^[14] that it was not true, as Zenger had said in his paper, that Bradford published only such news as the government permitted him to print, nor was it true that he submitted his news to the Governor before printing. He declared that he was a free and independent citizen, printing the news wherever he found it, making mistakes occasionally, he admitted, but that was -the fault of his informants. He protested that the object of the Zenger attacks, as far as he was able to understand them, was "to deprive me of my bread; for who will buy my papers if they can be induced to believe that I have a constant respect to (or am constant publisher of) Falsehood and Dislike to Truth," showing the shrewd old printer in an amusing light, for he was then well along in life, with printing establishments in Philadelphia and New York, a paper mill in New Jersey, and no real need to worry about his living or who would buy his papers.^[15]

On the other hand, sixteen years later, Zenger having died in 1746 and the paper having passed into the hands of his son, a real need had fallen on a family that a grateful community should have rewarded; at least to the point of preventing such a pitiful plea as that made by John Zenger, the son—"I have worn my clothes threadbare "waiting for delinquent subscribers, some of whom, he laments, are as much as seven years behind.

The trial of Zenger was the forerunner of the great struggle of the Revolution, no less an authority than Gouverneur Morris admitted. It was the greatest battle fought on this side of the water for a free press and

a greater journalism. It was, however, no more than a continuation of the fight of lone Benjamin Harris; and, like Harris, like James Franklin, who had fought a similar but less conspicuous battle, we find Zenger, his work done, passed, forgotten.

1. Hudson, Journalism in the United States, 50.
2. Wallace, Address on William Bradford, 60.
3. Council Minutes, vi, 182.
4. New York Documents, v, 937.
5. Number 7, December 17, 1733.
   Number 47, September 23, 1734.
   Number 48, September 30, 1734.
   Number 49, October 7, 1734
6. Rutherford, John Peter Zenger.
7. Lewis, Great American Lawyers, i, 32.
8. Howell's State Trials, xiv, 1128.
9. Stephen, History of the Criminal Law of England, ii, 349.
10. Lewis, Great American Lawyers, i, 35.
11. Fiske, Dutch and Quaker Colonies in America, ii, 25.
12. Pennsylvania Magazine—Leaders of the Old Bar of Philadelphia, xiv, 7.
13. Pennsylvania Magazine, xvi, 18.
14. March 28, 1736.
15. See Appendix, Note B.