William Cosby Vs. Lewis Morris (Zenger Trial):
A Chapter in the Struggle Between Crown Appointees and the
Local Aristocracy for Political Control in Colonial New York
Prior to William Cosby, New York had been governed by John Montgomerie, whose term of office, from 1728 to 1731, has been characterized by a contemporary as one in which "party differences seemed over and everything seemed to promise an easier administration than any governor had ever met with in this place." 4 Cosby would soon learn how exaggerated was that statement.
Upon Montgomerie’s death in July, 1731, senior councilor, Rip Van Dam, assumed the role of acting governor pending the arrival of a new governor. According to William Cosby’s instructions, he was authorized to seek half of the governor’s salary paid to Van Dam during the thirteen months while Van Dam was filling that role. Van Dam, a Dutch-speaking native of Albany, declared that if Cosby was entitled to half the salary he had been receiving, then Van Dam was equally entitled to half the compensation Cosby had received since his initial appointment in England. Cosby then instituted legal action to recover the half salary.
The immediate legal issue concerned which court, then sitting in New York, had jurisdiction to hear such a case. If he instituted suit in a civil court, requiring a jury, the local jury may very well have been prejudiced against a recently arrived Irish governor. Cosby, as governor, also served as a chancery court judge and, therefore, could hear his own case. Seeking a solution, Cosby turned to the province’s Supreme Court and asked that court to sit as an exchequer court hearing the case in equity. This was a questionable legal maneuver. Such a procedure may not have produced a legalistic issue if it had not at first been raised by a highly unpopular governor. His advisors thought that such an action was perfectly proper. This set the stage for a confrontation.
On April 9, 1733, three judges of the Supreme Court…Chief Justice Lewis Morris, and Associate Justices James DeLancey and Frederick Philipse …sat to hear the case. Van Dam shrewdly chose as his attorneys James Alexander and William Smith, who argued the legality of the court structure. Attorney General Richard Bradley appeared for the Governor. When Bradley sought to argue the merits of the monetary claim and opposed Smith’s and Alexander’s contention that the court lacked jurisdiction, Chief Justice Morris intervened by reading a prepared statement questioning the validity of the court procedure. When James De Lancey sided with Bradley the following day, Morris left the courtroom. The case was never directly resolved following this action by Morris. As Cadwallader Colden would assert: "Mr. Van Dam gain’d his end by means of the popular discontents (,) for the Governor & Judges both found it might be dangerous to their persons to proceed…." 5
Furious at Lewis Morris, Governor Cosby suspended him from his position as Chief Justice and named James De Lancey to serve in his place. Not only had Morris openly challenged the Governor in the court proceedings, but he subsequently published, and had distributed, his legal opinion regarding Cosby’s actions. Morris contended that it took an act of the provincial legislature to create a court of exchequer, and the arbitrary removal of judges at the discretion of a crown official was a direct challenge to New York’s inhabitants "in their Liberties and Properties, under Judges who must be entirely at the Disposal of a Governeur …that thinks himself above the restraint of any Rules by those of his own will." 6
Having been thrust out of his important court position, Lewis Morris then sought political revenge against Governor Cosby and the two judges who had not supported his legal position. Morris found his opportunity in a by-election for an Assembly seat from Westchester County held on October 29, 1733.
William Willet, the incumbent, suddenly died, thereby vacating a seat in the Assembly. At the same time, Lewis Morris, Jr., was running for election from the borough of Westchester. Since both the Phiipse and De Lancey families were not only major landowners in Westchester County, but had become stalwart supporters of Governor Cosby, the stage was set for a political confrontation.
The Cosbyites then determined to support an opposition candidate, William Forster, a local schoolmaster who was associated with the Society for the Propagation of the Gospel in Foreign Parts. The election was scheduled to occur on the village green at Eastchester on October 29, 1773. This set the stage for a political contest between aristocratic leaders seeking to maintain major political positions within the province. The voters, meanwhile, consisted primarily of tenants who were recruited to support their landlords’ political agendas.
Morris arrived in Eastchester early that morning accompanied by some 180 supporters. There they were joined by an additional group of 70, adding to a previous group of 50 who had arrived on the prior day, so as to insure that the election would not be held prematurely. "Three hundred strong. Morris and his supporters formed themselves into a column and rode around the town green three times, preceded by two trumpeters, three violinists, and a freeholder bearing a banner inscribed "King George, Liberty and Law". This slogan signified Morris’ desire to identify himself with the Pulteney-Bolingbroke Patriot Coalition in England. Just as the Patriots were struggling to preserve the English constitution against the ravages of Walpolean corruption, it implied, so also was Morris laboring to protect the rights and liberties of New Yorkers against Cosbyite tyranny." 7
Hours later, William Forster arrived with some 170 followers led by Lewis Morris’ former court colleagues, De Lancey and Philipse. The two groups marched around, each carrying banners relating to English political issues of the day, to corruption associated with the Walpole administration and to taxation issues. Morris’ supporters assumed that he would be declared the winner on the basis of a larger number of supporters without undergoing the actual polling process. But this was not to be. The sheriff, who was a Cosby appointee, Nicholas Cooper by name, called for a poll and then attempted to disqualify thirty-eight Quaker Morrisite supporters because they refused to swear they owned enough property to vote. Polling then proceeded for over nine hours, after which Morris was declared the winner, having received 231 votes to Forster’s 151.
At the close of the election, Forster offered his congratulations to Morris and stated that it was his hope that Morris would not, in the future, hold against him his candidacy at that election. Morris retorted that it was his belief that the "Sheriff was put upon against his Inclination; but that he was highly blamable…making so violent an attempt upon the Liberty of the People." When his followers cheered Morris for his response to the Sheriff, Morris scolded them for such a boisterous display. He and his followers then went off to New York City where they celebrated his victory at the Black Horse Tavern. Morris assumed his seat in the Assembly on November 1st, only to have Cosby adjourn that body until April, 1734.
New York’s official printer at that time was William Bradford, publisher of a weekly newspaper, the New York Gazette. Bradford was provided with all the government’s business in the form of notices and legislative reports. Bradford, in the past, had as an apprentice, a Palatine German youth, John Peter Zenger. Arriving in New York in 1710, at the age of thirteen, Zenger had found himself apprenticed to Bradford, when, upon his father’s death, his mother determined to have her son learn a trade. Zenger would remain as an apprentice with Bradford some eight years, after which he went to Maryland as the public printer. Unsuccessful in this endeavor, he returned to Bradford’s shop and then launched his own business in 1726. He was a struggling printer when Lewis Morris and James Alexander determined to use his press for their political purposes. The main goal for them was to paint William Cosby and his administration in the blackest terms.
The process began with the Cosby-Van Dam trial when both Rip Van Dam, using James Alexander’s writing skill, and Lewis Morris had tracts printed presenting their legal positions. The next step was to create a newspaper presenting their points of view. The New York Weekly Journal first appeared on November 5, 1733.
The chief writers were James Alexander, Cadwallader Colden, and both Lewis Morrises. Colden would later declare: "The Writers in that paper exposed the Actions of Governors party in the worst light they could place them and among other well wrote papers published several that could not be justified and of which perhaps the Authors upon more cool reflexion are now ashamed for in some of them they raked into mens private Weaknesses and secrets of Families which had no Relation to the publick." 8
Writing anonymously, using the form of letters to the editor, the contributors hurled charges against Cosby and his supporters, while carefully avoiding prosecution for seditious libel. Cosby was described as a monkey, and they continually harped on his avariciousness, land dealings and upon those with whom he was associated. It did not take long for Cosby to complain to the Board of Trade that James Alexander was "at the head of a scheme to give all imaginable uneasiness to the government by infusing into and making the worst impressions on the minds of the people. A press supported by him and his party began to swarm with the most virulent libels."
|4||James Alexander to Alured Popple, December 4, 1733, as quoted in Stanley N. Katz. Newcastle’s New York: Anglo-American Politics, 1732-1753 (Cambridge, MA, 1968), 62|
|5||Cadawalader Colden. History of Governor William Cosby’s Administration and of Lieutenant Governor George Clarke’s Administration through 1737. The New York Historical Society, Collections Lxviii (1935), 302-03|
|6||As cited in Katz, Newcastle’s New York, 67|
|7||Eugene R. Sheridan. Lewis Morris, 1671-1746: A Study in Early American Politics (Syracuse, NY, 1981) 156|
|8||As quoted in Katz Newcastle’s New York, 75|