Once upon a time, a very powerful but thin-skinned New York politician took offense at newspaper reports critical of the corruption and bullying conduct surrounding his office and so he ordered the editor of the paper to be jailed, charged him with libel, and publicly burned the offending papers. Contemporary political fiction? Premise of the latest Netflix mini-series? Nope – an actual historical event that sowed the seed that would eventually flower into the First Amendment of the U.S. Constitution guaranteeing freedom of the press.
The newspaper in question was New York City’s second published newspaper, the New York Weekly Journal, which started as an oppositional paper to the Colonial English administration of the British royal governor of New York and New Jersey (1732-1736), Irish-born William Cosby (yes, I kid you not, a Bill Cosby was once the governor of New York!) Cosby sort of stumbled into his position when his predecessor, John Montgomerie, unexpectedly died three years into his term, necessitating an acting governor to be named (Rip Van Dam) before Cosby could assume the office; when Cosby arrived in New York from his previous appointment as governor of Minorca (a small island in the Mediterranean off the coast of Spain), he immediately demanded a thousand pounds from the NY Assembly (relocation expenses were even a thing back then, apparently) and he then sued Van Dam for half the salary Van Dam had collected as acting Governor. Van Dam’s lawyers (William Smith and James Alexander) persuaded NY’s Chief Justice, Lewis Morris, to throw out the suit and so Cosby responded by removing Morris from the bench and naming a more amenable chief justice, James De Lancey (yes, the same De Lancey that gave us the name for Delancey Street, which runs through where his estate once stood in the Lower East Side.)
Cosby’s actions were seen by New Yorkers at the time in the context of Cosby’s political alliance to the powerful Robert Walpole back in England (considered the first “prime” minister of Great Britain); the underlying political issues in early 18th century England are a bit convoluted, but suffice it to say that Cosby’s venal and autocratic behavior spurred many of the Colonists in NY (especially merchants and laborers) to support the publication of a newspaper that would lambast and satirize Cosby’s administration and challenge the media monopoly the Crown enjoyed with the heretofore sole NY newspaper, the loyalist New-York Gazette, edited by William Bradford. John Peter Zenger was recruited to be editor of the new Weekly Journal; Zenger was a German immigrant who had previously apprenticed at Bradford’s Gazette.
Over the course of a year, anonymous and pseudonymous authors lambasted Cosby and his NY allies in issue after issue, condemning the corruption, incompetence, election fraud, and influence peddling they regarded as rampant in essays, ballads, and stinging ads (some things never seem to change in politics!) While Bradford remained personally neutral during much of the events leading up to and during the Zenger case, his Gazette did publish rejoinders and their own sharp attacks against the colonists who were behind the Weekly Journal.
In November 1734, things had finally become too much for Cosby and, with De Lancey acting as his judicial puppet, he ordered Zenger to be jailed with bail set at what was then the astronomical sum of four hundred pounds. While Zenger was in jail and his supporters (included the aforementioned Lewis Morris, William Smith, and James Alexander) prepared for his defense, Cosby ordered in January, 1735, that four particular editions of the New York Weekly Journal be publicly burned and an award of fifty pounds be offered for anyone who exposed the identity of any of the published authors. (Interestingly, the actual publication of the New York Weekly Journal was not disrupted during the eight months that Zenger was behind bars since his wife, Anna, took up the job of editing and printing the paper.)
In typical tyrannical fashion, Cosby tried to thwart the judicial proceedings by having De Lancey not only deny the challenge of legality Zenger’s lawyers, Smith and Alexander, put before the court but he actually had them charged with contempt and disbarred in April, 1735, and assigned a loyalist lawyer to “defend” Zenger instead. Luckily for Zenger, his supporters were able to enlist the most renowned trial attorney in the Colonies at that time to defend Zenger by his trial date in August of the same year—Andrew Hamilton of Philadelphia (no relation whatsoever to Alexander Hamilton.)
Zenger was charged with “seditious libel.” At that time, one was guilty of libel if the Court could establish to a jury that the defendant had merely published any material that undermined the authority of the government, regardless of whether the material was true or false. Hamilton took the audacious and rather risky tact of conceding that, by those standards, Zenger had indeed published such material; but, he went on to argue, the actual truth or falsehood of the material in question must be considered when judging whether this was libel or not (“…the truth is a defense against libel.”) This was an unprecedented legal claim that transcended the Zenger case and would become a precedent for the relationship between the press and the government; indeed, Hamilton said to the jury:
“…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 consequences affect every freeman that lives under a British government on the main of America. It is the best cause. It is the cause of liberty.”
On August 18th, De Lancey urged the jury to disregard Hamilton’s line of reason and stick instead to the letter of the law and find Zenger guilty of seditious libel; the jury deliberated for only a few moments and returned to the courtroom with its verdict: not guilty! The court erupted in cheers! Zenger’s supporters then hurried Hamilton to the Black Horse Tavern (no longer exists, I’m afraid) to toast and fete him (Zenger himself was led back to his cell and awaited his supporters to raise the funds to pay for his room and board while he was a prisoner!)
Eventually, an account of the proceedings of the trial were published by Zenger’s press the next year in 1736, A Brief Narrative of the Case and Trial of John Peter Zenger, written by James Alexander, which would become the most sensational book published yet in America (popular both in the colonies and in England itself.) Cosby died of tuberculosis in March of 1736 and was buried in an unmarked grave in St. Paul’s Chapel (Broadway & Vesey Street.) Zenger would go on to be appointed the official public printer for New York and New Jersey and would continue to publish the New York Weekly Journal; but he died in poverty of food poisoning (rabbit, I have read) and was believed to have been buried in an unmarked grave in the Trinity Church Cemetery (Broadway & Wall Street.)
The legacy of this historic trial on the enshrined idea of freedom of the press is manifest – can you imagine a craven politician today brazen enough to threaten the press for having the temerity to criticize a public figure like Cosby did? Given our traditions here in NYC and in this country, it should seem unthinkable.
The trial itself took place on the site where the Federal Hall National Memorial stands on Wall Street, the same site that witnessed the inauguration of George Washington as our first president. The original building that served as both the colonial City Hall and the first capitol building after the Revolution was demolished in 1812; but before it was demolished, it was appropriately enough the site where the Bill of Rights was introduced in the First Congress. The Greek-revival building that stands at the site now was built in 1842 and designed by Ithiel Town and Alexander Jackson Davis; the very famous J.Q.A. Ward statue of George Washington stands on the steps of the building to greet American and foreign visitors. To learn more about the rich history of this place, take one of my River-to-River walking tours of Lower Manhattan.