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
By January, 1734, the Gazette entered the newspaper war by responding to the attacks appearing in the Journal. Defending their position, the Journal contributors wrote that a free press was a safeguard in a constitutional monarchy so as to bring the public an awareness of activities of "an impudent monster in iniquity, in order to arouse his conscience to what is proper, and, if unsuccessful in such an endeavor, to rouse his fear by showing him his deserts, sting him with shame, and render his actions odious to all honest minds."
Bradford’s paper responded that ordinary men as well as printers were responsible for the harmful effects of their speech, therefore, it was "the abuse not the use of the press that is criminal and ought to be punished. The Journal answered with an argument seeking the abolition of legal penalties for libel. This newspaper skirmish continued for two months before Cosby determined to take some action. At Cosby’s request, Chief Justice James De Lancey charged the Grand Jury in January, 1734, on the law of libel and sought an indictment for such seditious libels which had been placed in circulation. The jurors, knowing to what material De Lancey alluded, refused to return such an indictment. Therefore, the Chief Justice tried again in October.
Between the months of January and October, 1734, Lewis Morris’s supporters won control of the New York City municipal government and (John Peter) Zenger had published two broadside songs glorifying the election victories. At the October Grand Jury session, De Lancey sought an indictment against the two "scandalous" songs. While the Grand Jury obliged him, jurors went on to say that they did not know who were the authors, the printer or the publisher of the songs.
Cosby then turned to the Council and Assembly in his effort to silence the Journal. Four issues of the paper were placed before the two bodies for an action requesting the public burning of the papers. The Council agreed, but the Assembly balked. With the Assembly’s refusal to act on this request, Cosby relied on his cohorts in the Council to support him. On November 2, 1734, the Council determined that four issues of the Journal were, indeed, seditious and should be publicly burned, that an award be offered for the discovery of the authors and, that " Zenger the printer thereof be by order of this Board taken into custody by the Sheriff and committed to prison."
The charges of libel lodged against Zenger stemmed, therefore, from the publication of broadsides lampooning the Governor and his cronies following a Morrisite victory in the New York City municipal elections held in the early months of 1733. These charges had no relationship to the events of October, 1733, and the local by-election which had been held in Westchester County.
With Zenger imprisoned on November 17, 1734, the Morrisites determined to defend the right to have their anti-Cosby statements published by naming (James) Alexander and (William) Smith as Zenger’s attorneys while the two Morrises determined to argue their positions before Crown officials in England. The attorneys pressed to have Zenger released on low bail since the printer swore that his possessions included perhaps some £40 and "the tools of his trade and his wife and children’s wearing apparel excepted." Chief Justice De Lancey, who had ordered Zenger jailed, then set bail at £400. Unable to raise such a sum, Zenger languished in prison for eight months while his case dragged on. The Zenger trial had all the earmarks of a political battle. The defense attorneys attacked the Governor’s method of bringing Zenger to court, questioned the validity of the commissions issued to the two Supreme Court judges, De Lancey and Philipse, and questioned their authority to sit as a Court of Common Pleas.
It is not too surprising to learn that the jury found for the defendant in view of an extremely unpopular Governor. The hero of the day was the attorney Alexander Hamilton, who had assumed the defense after the two original lawyers had been disbarred by the Chief Justice. While Hamilton was being feted, Zenger remained in jail pending his final release.
The Zenger case, contrary to the writings of 19th Century historians, did not produce a change in the libel laws and so-called freedom of the press. As the eminent legal historian Stanley Nider Katz stated: "Zenger and his associates, it becomes clear, were neither political democrats nor radical legal reformers. They were, in fact, a somewhat narrow-minded political faction seeking immediate political gain rather than long-term governmental or legal reform. Nor was the case itself a landmark in the history of law or of the freedom of the press…." 9
The struggle for political control between Governor Cosby and Lewis Morris produced, as one of the reactions to this struggle, the creation of The New York Weekly Journal. The subsequent court procedures to silence that newspaper were again related to the political power struggle. Also, as part of the overall effort at retaining a powerful voice in government, Lewis Morris sought a seat in the Assembly, so as to create another power base. The only political link between the Assembly by-election of 1733 and Zenger’s Journal was that both were used as political tools by the Morrisite faction in New York politics.
Where does St. Paul’s National Historic site come into focus within this political context? The current church structure dates from 1763 and has no bearing upon earlier events related to the political quarrels. However, its location on the former Village Green does have historical significance in a totally different context. At that by-election in 1733, when the group of Quaker voters were denied voting privileges by the Cosby appointed sheriff on the basis that they would not swear to the worth of their holdings, the Quakers then petitioned for the right to affirm rather than swear upon voting. They were successful in their petitions and, in June 1734, the legislature granted the people "called Quakers residing within this Collony The same privileges Benefits and Indulgences as by the Laws and Statutes now remaining of force in that part of Great Britain called England…" 10
The struggle for political power between Crown appointed governors and the elite of New York had begun long before William Cosby came on the scene. This same conflict would continue well after Cosby’s death in 1735, and certainly was a component factor in New York’s movement for political independence from Great Britain.
|9||James Alexander. A Brief Narrative of the Case and Trial of John Peter Zenger Pinter of the New York Weekly Journal, ed. by Stanley Nider Katz (Cambridge, MA, 1963), 1.|
|10||Colonial Laws of New York, 5 Vols. (Albany, NY 1894-1896) II, 828-30|