by Jill Lepore
On Tuesday, April 21, as on every other day the Supreme Court sat in session, Daniel Horsmanden, with his “Gentlemanlike Exterior,” arrived at City Hall in a wig and robe finer than he could well afford. He was, at age forty-seven, a decidedly portly man, whose rolling jowls were girdled by a stiff white collar just visible above his black robe. His wig, more gray than white, was parted at the middle and bulged out over his ears, like two cottony rabbit tails. He had a high, wide forehead; a long straight nose; thin, expressive brows, quick to arch; and a stare that was at once wounded and meant to intimidate.
At ten o’clock, the bell tolled once more, and the crier called out: “Oyes! Our sovereign lord the king does strictly charge and command all manner of persons to keep silence upon pain of imprisonment.” The Second Justice brought the court to order and began the process of impaneling a grand jury to investigate the fires. A year older than Horsmanden, Frederick Philipse looked younger; his almond-shaped eyes, half-lidded, peered out from a baby face, with flushed cheeks and full lips. Philipse cleared his throat and handed a writ to Sheriff William Jamison: “We Command you that you Cause to come before our Justices of our Supreme Court of Judicature . . . twenty four principal Freeholders of your Bailiwick to serve us and our Said City and County as Grand Jurors.”
Daniel Horsmanden, by Matthew Pratt. Oil on canvas. Courtesy of Art & Visual Materials, Special Collections Department, Harvard Law School Library.
Spectators eagerly watched Jamison, a man with “a homely carbuncle kind of a countenance with a hideous knob of a nose,” which he “screwd . . . into a hundred different forms while he spoke and gave such a strong emphasis to his words that he merely spit in one’s face att three or four foot’s distance, his mouth being plentifully bedewed with salival juice, by the force of the liquor which he drank and the fumes of the tobacco which he smoaked.”4 The sheriff apologized that he was only able to present seventeen men, not twenty-four. Although he had ordered citizens to serve—“answer to your names every Man at the first Call and save your Fines”—a few invariably failed to obey his summons, electing, instead, to pay a penalty of 13 shillings. The seventeen grand jurors stood up.
Next, the crier commanded silence on pain of imprisonment as the foreman, a merchant named Robert Watts, was sworn:
You as foreman of the Grand Inquest for the body of the City and County of New York, Shall Well and truly Enquire, and true presentment make, of all such matters and things, as Shall be Given you in Charge, his Majesty’s Counsel, your fellows, and your own, you Shall keep Secret, you Shall present no man for Envy, hatred, or malice, neither Shall you Leave anyone, unpresented, for Love, fear, favour Affection, or hope of Reward, but you Shall present things truly, as they Come to your knowledge, according to the best of your understanding, So Help You God.5
Any freeman over twenty-one with an estate valued at more than £30 was eligible to serve on a jury, but most of the men who took their oaths following Watts were prominent merchants who served on grand and petit juries again and again, like the Dutch trader Abraham Keteltass, who had served as a juror at John Peter Zenger’s trial in 1735.6 Nor were obvious conflicts of interest a bar to service; Winant Van Zant, whose dockside warehouse had burned to the ground on April Fool’s Day, was sworn, too. Even greater bias, after all, could be found on the bench: Philipse’s warehouse had been destroyed by a fire that his uncle’s slave, Cuffee, had been jailed on suspicion of setting.
The grand jury sworn, Philipse cleared his throat again and delivered his charge. “Gentlemen of the Grand Jury,” he began. “The many Frights and Terrors which the good People of this City have of late been put into, by repeated and unusual Fires, and burning of Houses, give us too much Room to suspect, that some of them at least did not proceed from mere Chance.” The court’s obligation was “to use our utmost Dilgence by all lawful Ways and Means to discover the Contrivers and Perpetrators of such daring and flagitious Undertakings.” Arson, Philipse reminded the grand jurors, “is Felony at Common Law,” and these particular fires were especially atrocious. “The Crime is of so shocking a Nature, that if we have any in this City, who, having been guilty thereof, should escape, who can say he is safe, or tell where it will end?”
Philipse could not have known it, but there would be no more warehouses burned, no more haystacks torched. The fires were over. But the investigation was just beginning. “My Charge, Gentlemen,” Philipse concluded, is “to present all Conspiracies, Combinations, and other Offences, from Treasons down to Trespasses.” It would take not days or weeks but months.7 And before it was over, the dungeon underneath City Hall would become as crowded, and as fouled, as the hull of a slave ship.
CITY HALL STOOD solid, stone upon stone, but the court that met inside its walls rested on a shaky foundation. In 1689, when the colony had been briefly without a government because of the Glorious Revolution in England, a German merchant and militia captain named Jacob Leisler had taken control of New York City and its fort and claimed the governorship by royal authority. In March 1691, when the real royally appointed governor, Henry Sloughter, finally arrived, Leisler and his son-in-law Jacob Milborne were tried for treason and sentenced to be hanged “by the Neck and being Alive their bodys be Cutt downe to the Earth and Their Bowells be taken out and they being Alive, burnt before their faces; that their heads shall be struck off and their Bodys Cutt in four parts.” But even as he oversaw the beheading of his gutted predecessor, Sloughter faced a judicial crisis: his royal commission gave him and his Council exclusive authority to constitute courts, while a set of supplementary instructions commanded him not to establish any courts “not before erected.” But since every court established under Leisler had been voided, there were no preexisting courts in New York. Lacking the authority to erect new courts himself, Sloughter turned to the General Assembly, which, in May 1691, passed the Judiciary Act, establishing a system headed by a Supreme Court, the highest civil and criminal court in the colony. 8
But of course this, too, violated Sloughter’s instructions, which had given only the governor and his Council, not the Assembly, the power to erect courts. At a time when the colony was still reeling from the bloody end of Jacob Leisler, no one bothered to complain. But just eight years later, the Assembly refused to renew the Judiciary Act, forcing a new governor to sign an ordinance authorizing the judiciary, which turned out to be a poor patch over what one legal historian has called the colony’s “constitutional abyss”: the 1691 Judiciary Act placed every successive governor and Assembly in a stalemate, with each insisting that it had the right to establish courts but neither willing to challenge the other.9
That stalemate survived until 1732, when reckless William Cosby arrived in New York. Determined to sue his predecessor, Rip Van Dam, for the salary he had received as interim governor, Cosby retained Joseph Murray and Daniel Horsmanden as his personal attorneys. It was by no means clear what court should hear his suit. If Cosby sued Van Dam in the Supreme Court, he would face a jury, and Cosby knew that no New York jury would find in his favor.10 Nor could Cosby file his suit in the Court of Chancery, since the governor, as chancellor, presided over that court, and he could hardly hear his own case.11 Instead, Murray and Horsmanden recommended that Cosby take the unusual step of ordering the Supreme Court to sit as a Court of Exchequer, a juryless equity court with jurisdiction over royal revenues.
When Cosby’s case came before the Supreme Court in April 1733, James Alexander and William Smith, serving as Van Dam’s attorneys, filed exceptions objecting to the authority of the court to sit in exchequer. Sixty-two-year-old Chief Justice Lewis Morris upheld the objection, but the young Second Justice James DeLancey dissented, supported by Philipse. Furious, Morris then delivered his “Opinion and Argument” to John Peter Zenger, who printed it as a pamphlet.12 In August, Cosby summarily dismissed Morris from the court; two days later, he elevated James DeLancey to Chief Justice, and Philipse to the second justiceship.
Promoted on the bench, DeLancey an
d Philipse were damned on the street. “Young delancy & Fred Philps have Lost a great deall of good Will by being in the Gov[ernor]s Interest,” Abigail Franks wrote to her son in London that fall. James Alexander complained that the “Chief Justice & Second Judge are both Young men of no Experience or practice in the Law & the Second Judge has no pretence to any kind of Learning.” Cadwallader Colden believed that DeLancey had accepted the office only out of “his Vanity love of power & the profits,” but that “his Ignorance” of the law meant that “every time he was under a necessity of speaking from the Bench he exposed himself to the Contempt of the Auditors So that through too great fondness of Honour he lost all respect & became pitifull to men of sense.”13
Meanwhile, Morris only gained favor, inspiring Cosby’s critics to consider further use of the power of print. One reason Morris had his Opinion published was that Cosby, otherwise, controlled the press. For most of the seventeenth century, New York lacked a printing press; royal instructions sent to the governor in 1686 had warned, “as great inconvenience may arise by the liberty of printing . . . you are to provide by all necessary Orders that noe person keep any press for printing, nor that any book, pamphlet or other matters whatever bee printed without your special leave & license.” That leave was first given in 1693, when thirty-year-old William Bradford was appointed “King’s Printer,” a position he held until 1742, earning £50 a year for printing the province’s laws, its Assembly proceedings, and assorted English reprints. When a young runaway apprentice named Benjamin Franklin came to New York looking for work in 1723, he stopped at Bradford’s printshop. Bradford, a “cunning old fox,” refused to hire him; he was well served by his workers, who included not only his twenty-six-year-old German apprentice, John Peter Zenger, but also slaves. In 1735, when Bradford was sixty-one, he began printing the city’s first newspaper, the New York Gazette. In it, he printed lists of ships in and out of port, foreign news extracted from other newspapers, speeches of the governor, and records of the votes of the Assembly. He wrote precious little of the newspaper’s editorial content. And any politically sensitive news in the Gazette was contributed by the Recorder.14
It was for publishing his Opinion, as much as for having it, that William Cosby punished Morris.15 But dismissing the Chief Justice did little to silence Cosby’s opponents, who were deeply influenced by political theorists like John Trenchard and Thomas Gordon: in Cato’s Letters, their set of essays published between 1720 and 1723, Trenchard and Gordon had argued that “freedom of speech . . . is inseparable from publick liberty.”
To exert that freedom in New York, Cosby’s critics turned to Zenger, who, after apprenticing with Bradford, had set up his own printing shop in 1726. In June 1732, two months before Cosby arrived in the colony, but after word of his appointment had reached New York, James Alexander had bought The History of the Art of Printing at Montgomerie’s library auction. By the fall of 1733, Alexander arranged for Zenger to begin printing an opposition newspaper, the New-York Weekly Journal, for which Alexander would supply essays and political commentary.16
While Alexander employed the art of printing against the new governor, Cosby, after dismissing Morris, continued to pursue his case against Van Dam in the courts. In the spring of 1734, the question of whether the Supreme Court could sit in exchequer was put to the Assembly.17 After hearing opposing arguments presented by Joseph Murray and William Smith, the Assembly, wisely, decided to do nothing, and Cosby was forced to drop his suit. Meanwhile, Recorder Francis Harison defended the governor in Bradford’s Gazette, and Alexander attacked him in Zenger’s Weekly Journal. Cosby ordered James DeLancey to secure grand jury indictments against Zenger for libel. In January 1734, DeLancey did as he was told, charging a grand jury: “If you, Gentlemen, do not interpose, consider whether the ill consequences that may arise from any disturbances of the public peace may not in part lie at your door?”18
Much to the dismay of Cosby and the frustration of DeLancey, the grand jury refused to return an indictment against Zenger. DeLancey waited until the October term, and tried again, charging another grand jury to return an indictment for libel, now specifically for two “scandalous” ballads printed by Zenger in September, whose excruciatingly bad verses included opinions on the constitutional crisis of the courts:
Exchequer courts, as void by law,
great grievances we call;
Though great men do assert no flaw
is in them; they shall fall.19
“Sometimes heavy, halfwitted men get a knack of rhyming,” DeLancey complained, “but it is time to break them of it, when they grow abusive, insolent, and mischievious.”
This time the grand jury returned the indictment but claimed that it was impossible to identify the author of the ballads, despite Cosby’s offer of a £50 reward. (Alexander had never signed any of his contributions, except with pseudonyms such as “Jeremy Anonymous,” and despite the Council’s offer of a reward, he was never named.) Cosby then asked the Assembly to order the newspapers to be burned, but the Assembly refused. Enraged, Cosby turned to his Council. In meetings on October 17 and November 2, 1734—at which the Council’s three Country Party members, Van Dam, Alexander, and Abraham Van Horne, were absent, Cosby having neglected to summon them—Clarke, Harison, DeLancey, and Horsmanden were appointed to a committee charged with pointing out “the particular seditious paragraphs” in Zenger’s paper.
Cosby’s Council, minus its opposition members, decided that Zenger should be arrested, that the governor should offer a reward for the discovery of the author of the essays in his newspaper, and that Zenger, as printer, and the author or authors, if they could be identified, should be prosecuted for sedition.20 In November, Cosby’s Council ordered the city’s common hangman to burn four especially incendiary issues of the Weekly Journal.
But while Cosby had easily manipulated DeLancey, Philipse, and his Council, he had far less influence among municipal officers. In response to Cosby’s order to burn Zenger’s papers, the city’s Cosby-hating Court of Quarter Sessions issued its own order, forbidding the common hangman, the sheriff, or any other member of the Corporation of the City of New York to destroy the newspapers. Whereupon the sheriff, John Symes, a Cosby appointee, ingeniously found someone, a legal non-person, who could light the match: Symes delivered stacks of the Weekly Journal “unto the hands of his own Negro” and ordered him to burn them.
DeLancey signed a warrant for Zenger’s arrest in January 1735. Since no grand jury was willing to indict the printer, Attorney General Richard Bradley filed charges against Zenger “on information,” a high-handed means by which a man could be prosecuted without an indictment. Zenger’s attorneys, James Alexander and William Smith, began preparing his defense. Now New Yorkers would discover whether the Supreme Court would protect their liberty, or make them slaves.
IN PREPARING FOR John Peter Zenger’s trial, Alexander intended to argue that the passages in the Weekly Journal were not libels because they in no way specifically impugned Cosby; instead, they were an attack on the power of New York’s governors, of all its governors, and on the rule of men and not of law. Notes Alexander prepared before the trial reveal that he intended to argue that even before Cosby’s arrival in 1732, “Judges, justices, sheriffs and coroners, in whose hands are our laws, our liberties and properties, were . . . appointed by the govr. alone contrary to the royal instructions, and consequently our lives, liberties and properties were at the mere will of a govr.” Turning, again, to the rhetoric of freedom and bondage, Alexander made notes to argue: “Before this Govr. came, I think no man will say but that this is a state of slavery, and so no libel on the present administration as charged.”21
Alexander never had the chance to introduce his argument. When Zenger’s trial opened on April 15, 1735, Smith and Alexander began by challenging the authority of DeLancey and Philipse on the grounds that the judges had been commissioned to serve “during pleasure” (meaning at the king’s pleasure, or at the pleasure of his agent
, the governor) when they should have been commissioned to serve “during good behavior,” an argument that asserted the independence of the judicial from the executive branch. But coming after Cosby’s dismissal of Morris and his promotion of DeLancey and Philipse, it was impossible for the judges not to see this move as a challenge to their qualifications for the bench and, even, as an assault on the integrity of the court itself. “The judges lost all temper at the tender of the exceptions,” Smith, Jr., wrote in his History.22 Stunned and outraged by this unexpected attack on his authority, a nervous DeLancey immediately adjourned the court.
The next morning, in a packed courtroom, DeLancey declared to Zenger’s attorneys: “You thought to have gained a great deal of applause and popularity by opposing this Court, as you did the Court of Exchequer; but you have brought it to the point that either we must go from the bench, or you from the bar.” In an act of astonishingly naive political miscalculation, the young Chief Justice ruled that Smith and Alexander be disbarred. (On hearing of this, Lewis Morris scoffed, “authority Shews the man.”) DeLancey silenced two of the city’s most learned and accomplished lawyers for their contempt in having denied “the legality of the judges their commissions . . . and the being of this Supreme Court.”
Alexander, unwilling to be silenced, immediately protested that “the exceptions were only to their commissions and not to the being of the Court,” and Smith pointed out that challenging the judges’ commissions did not itself imply a challenge to the court: “the Court might well exist though the commissions of all the judges were void.” Wary lest the wording of the disbarment be used against them, Zenger’s attorneys “prayed that the order might be altered” to delete the phrase “and the being of this Supreme Court.” DeLancey refused.23
