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The Case of John Peter Zenger
The law was against the poor printer. The governor wanted his scalp. His attorneys were disbarred. Could anything save him—and free speech?
December 1971 | Volume 23, Issue 1
Only a few knew of the Minorca episode, however, and in the first days of Cosby’s administration the New York assembly voted him a salary of 1,500, plus a special gratuity of 750 for his alleged services in obtaining repeal of the sugar bill. When news of the assembly’s appropriation was reported to Cosby, he flared in fury at what he considered the frugality of the award (though by the King’s instructions he was forbidden to accept any gifts from the assembly) and roared violently, “Damn them! Why did they not add the shillings and pence!” Meekly the assembly raised the amount of the gift to 1,000.
Repeatedly, Cosby took arbitrary action without asking for the assembly’s authorization or advice; he practiced nepotism (appointing his son to a sinecure office as “Secretary of the Jerseys” at an annual stipend of 450); he sold various local jobs at his disposal, attempted to rig elections, ignored instructions from London, and eventually, as will be seen, tampered with the courts.
The many diffuse antagonisms Cosby had built up congealed suddenly in a single, concrete clash over the issue of “Van Dam’s salary.” Between the death of the governor who preceded Cosby and the time of the new appointee’s arrival, the powers of the office were in the hands of Rip Van Dam, senior member of the pro- vincial council. Van Dam, who came from an old Dutch family, had served capably and honestly, and the grateful council had awarded him the full gubernatorial salary for his service. In the past, some—but not all- such acting governors had given half of their salaries to the official incumbent for whom they were substituting. Cosby demanded that Van Dam follow this uncertain precedent. But the old gentleman refused, unless compelled by due course of law.
Cosby at once sought just such compulsion. But no jury in New York was likely to find in favor of the unpopular governor. So he resorted to a bit of complex legal chicanery that would altogether eliminate the presence of jurors. He decreed that the three-justice supreme court of the colony should sit on the case as “Barons of the Exchequer,” a court of equity. The verdicts of such courts were given by judges alone. Van Dam’s attorneys, two of the ablest lawyers in New York, at once prepared to defy Cosby and challenge the jurisdiction of the reconstructed court. James Alexander and William Smith, long-time friends and political allies, were both legal scholars and forceful, articulate men. Alexander owned the largest law library in the American colonies and was a founder of the American Philosophical Society. Smith held both Bachelor’s and Master’s degrees from Yale (where he had distinguished himself in the classics) and was a founder of Princeton College.
When the Van Dam case came up for argument before the supreme court in April, 1733, the presiding justice was Lewis Morris, a man of great intellectual power, an owner of extensive lands in what is now part of the Bronx, and one of the most respected and politically powerful personages in America. He had served as chief justice since 1715 and later would become the first governor of New Jersey. In the litigation now before him, Morris ruled in favor of Van Dam, denying that the supreme court had jurisdiction in equity cases and attacking the propriety and legality of Cosby’s maneuver. The two other judges were James De Lancey and Frederick Philipse. Both were young and inexperienced, sons of self-made businessmen who represented the powerful mercantile clique in New York’s assembly, and both refused to concur with Morris.
Outraged by such upstart opposition, the senior justice promptly rebuked the two, left the courtroom, and, in an unusual step, released the text of his opinion for publication, together with some comments on Cosby’s public character. And thus the battle lines were drawn. Cosby swiftly wrote to London accusing the chief justice of bias, intemperate drinking, unreliability, and all-round inefficiency. Then, in August, he summarily dismissed Morris from the supreme court. In his place the governor appointed the callow but tractable Justice De Lancey.
Morris became, overnight, leader of an anti-Cosby faction that embraced many of the freeholders and professional people in the colony, among them such distinguished men as Gerardus Stuyvesant, Philip Livingston, and Cadwallader Golden. Their allies extended up the Hudson Valley as far as Albany. When, in the autumn of 1733, Morris and his son ran for the assembly, both were elected by strong majorities. More- over, in October of 1734, Morrisite candidates were to win every seat but one in New York City’s common council.
Secure in their political base, Morris and his supporters began an all-out war, by pamphlet and oratory, to effect the recall of Cosby, whom they assailed as an unprincipled and corrupt tyrant. And then they sought out a relatively new medium, a façade behind which a writer could discreetly remain anonymous, namely, a newspaper. But New York’s only newspaper at that time was the New York Gazette , owned by William Bradford, and Bradford, who held an official monopoly as public printer, was not disposed to lose it by publishing criticisms of the administration.