This second trial took place in May, 1701, and included, beside the Captain, nine other mariners charged with piracy, in that "they feloniously did steal, take and carry away the said merchant ship _Quedagh Merchant_ and the apparel and tackle of the same ship of the value of four hundred pounds of lawful money of England, seventy chests of opium, besides twenty bales of raw silk, a hundred bales of calico, two hundred bales of {178} muslins, two hundred and fifty bales of sugar and three bales of romels."

Kidd's defense was that the ships captured were sailing under French pa.s.ses and therefore lawful prizes according to the terms of his commission. These pa.s.ses, he said, had been delivered into Bellomont's hands. But the Court made no effort to procure these pa.s.ses or to inquire further into the matter. The jury was out for a short time only and brought in their verdict against or for the mariners separately. All but three were found guilty. In addressing them the Court said: "You have been tried by the laws of the land and convicted and nothing now remains but that sentence be pa.s.sed according to the law. And the sentence of the law is this: You shall be taken from the place where you are and be carried to the place from whence you came and from thence to the place of execution and there be severally hanged by your necks until you be dead. And may the Lord have mercy on your souls!"

Captain Kidd was hanged at Execution Dock on May 23, 1701. Thus ended the most famous pirate of the age. His career so impressed the popular imagination that a host of legends sprang up concerning him and his treasure ship, while {179} innumerable doleful ballads were written setting forth his incredible depravity. Yet it is curious to consider that, had he died a few years earlier, he would have pa.s.sed away as an honored citizen of New York and would have been buried with pomp and circ.u.mstance and the usual laudatory funeral oration.

[1] Bellomont was commissioned Governor of Ma.s.sachusetts and New Hampshire, as well as of New York.

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CHAPTER XI

COLONIAL GOVERNMENT IN THE EIGHTEENTH CENTURY

While Captain Kidd was still on the high seas and pirates were still infesting the lower Hudson, the Earl of Bellomont arrived in New York (in April, 1698), accompanied by his wife and his cousin, John Nanfan, who had been appointed Lieutenant-Governor. The citizens greeted the new Governor with every demonstration of delight. The corporation gave a public banquet and offered a eulogistic address. Bellomont on his part entered into his task with enthusiasm. In the new a.s.sembly called in 1699, he spoke of the disorder prevailing in the province, left as it was with a divided people, an empty treasury, ruined fortifications, and a few half-naked soldiers. He spoke of the ill repute of New York as a rendezvous for pirates and said: "It would be hard if I who come before you with an honest heart and a resolution {181} to be just to your interests, should meet with greater difficulties in the discharge of His Majesty's service than those who have gone before me." He declared it his firm intention that there should be no more misapplication of the public money, a veiled attack upon Fletcher's grants of land and privileges which had become a public scandal. He would, he said, pocket none of the money himself nor permit any embezzlement of it by others and promised exact accounts to be laid before the a.s.sembly "when and as often as you require." The a.s.sembly pa.s.sed a vote of thanks and voted a six years' revenue. Apparently everything was auspicious; but the seed of discord was already sown by Bellomont's early espousal of the Leislerian cause, which was in effect the cause of the common people.

In the Ecclesiastical Records of the State an account of the disinterment and reburial of the mutilated remains of Leisler and of his son-in-law Milborne shows the determination of Bellomont to make what reparation was possible, in addition to the removal of attainder, for the injustice done. The doc.u.ment closes with these words:

Yesterday, October 20, [1698] the remains of Commander Jacob Leisler and of Jacob Milborne [eight years and {182} five months after their execution and burial] were exhumed, and interred again with great pomp under our [new] Dutch Church [in Garden Street]. Their weapons and armorial ensigns of honor were there [in the Church] hung up, and thus, as far as it was possible, their honor was restored to them. Special permission to do this had been received by his Honor's son, Jacob Leisler, from his Majesty. This gave unutterable joy to their families and to those people who, under him, had taken up arms for our blessed King William. With this circ.u.mstance we trust that the dissensions which have so long hara.s.sed us, will also be buried. To this end our Right Honorable Governor, my lord the Earl of Bellomont, long wished for by us, is exerting his good offices. He tries to deal impartially with all, acting with great fairness and moderation. He has begun [his administration] by remembering the Lord G.o.d; for he has ordered a day of solemn fasting and prayer throughout the whole land. In a proclamation of great seriousness, he has exhorted the inhabitants earnestly to pray for these things [peace among the people] to the Divine Majesty. We hope the Lord will bestow his gracious blessings and grace, upon your Reverences, with all our hearts.

This proceeding on the part of Bellomont, combined with the appointment to office of prominent Leislerians and the dismissal of some of their opponents, arrayed at once a formidable body of important citizens against him. Their numbers were augmented by the people who had profited by {183} unlawful privileges won from Fletcher and now stripped from them by Bellomont; but the Governor pursued his course undaunted either by the threats or by the taunts cast against him as a partner of the pirate, Captain Kidd. So beloved was Bellomont by the people and so strongly intrenched by influence in the Government at home that he could probably have carried through the reforms which he had at heart; but his untimely death in 1701, after a brief rule of three years, put an end to all his far-reaching schemes for the good of the colonies.

His death was followed by a condition approaching civil war between the followers of Leisler and their foes. In 1702 Queen Anne, who had recently ascended the throne, appointed as Governor her relative, Edward Hyde, Lord Cornbury. He suppressed the Leislerians and exalted the aristocratic party, thereby restoring order but at the same time bringing odium upon his cause by his personal vices. Cornbury was a type of everything that a colonial governor should not be, a scamp, a spendthrift, and a drunkard. Relying upon his relationship to Queen Anne, he felt himself superior to the ordinary restraints of civilization. He took bribes under guise of gifts, was addicted to all {184} forms of debauchery, and incidentally proved as foolish as he was wicked, one of his amus.e.m.e.nts, it is said, being that of parading the streets of New York in the evening, clad in woman's attire. His lady was as unpopular as he and it is said that when the wheels of her coach were heard approaching the house of any of the wealthy citizens of New York, the family was hastily set to work hiding the attractive ornaments to which her ladyship might take a fancy, as she had no compunction in asking for them as a gift. In an expedition to Albany in 1702, Cornbury's vanity led him to decorate his barge with brilliant colors, to provide new uniforms for the crew, and generally to play the peac.o.c.k at the expense of the colony. Rumor placed the sum of his debts at 7000. Moreover he was charged with the embezzlement of 1500 of government money.

A long-suffering community finally demanded the recall of Lord Cornbury and demanded it with the same insistence which was to make itself felt in revolution in the last half of the century. As is usual with sovereigns when any right is demanded with sufficient firmness, Queen Anne was graciously pleased to withdraw Lord Cornbury in 1708. On the arrival of his successor, Cornbury was placed {185} by indignant creditors in the charge of the sheriff, and was held in custody until the news of his succession to the earldom of Clarendon reached the colony. The library, furniture, and pictures of the Queen's cousin were sold at auction, while the ex-Governor skulked back to England to make the best possible showing as to his appropriation of public moneys to private uses. We can picture him wiping his eyes in pathetic deprecation, as he exclaimed: "If the Queen is not pleased to pay me, the having the Government of New Jersey, which I am persuaded the Queen intended for my benefit, will prove my ruin!"

Lord Lovelace, Cornbury's successor, demanded a permanent revenue. But recent experience had taught the colonists to hold the financial power in their own hands and they consented only to an annual appropriation, thus making the salary of the Governor dependent on his good conduct.

What would have been the result of this clash of interests will never be known, since Lord Lovelace died on May 5, 1709, the same day on which the act was pa.s.sed.

Major Richard Ingoldesby, Leisler's old enemy, now came into power and held the reins for a few months, until mismanagement of an expedition {186} against Canada caused such indignation that he was withdrawn and Robert Hunter became Governor in 1710. Although of humble Scotch parentage he had risen to prominence in English society, numbering Swift and Addison among his friends and being married to Lady Hay, whose influence had procured for him successive positions of importance which culminated in this appointment.

With a view to encouraging the production of naval stores and obtaining a profit for the English Government, Hunter brought over at the expense of the Crown several thousand Palatines, German inhabitants of the Rhine valley harried by the French, thereby adding another alien element to the cosmopolitan population. The British Government appropriated the sum of 10,000 for the project and agreed not only to transport the emigrants but to maintain them for a time in return for their labor. These Palatines settled on both banks of the Hudson in four villages on lands belonging to Robert Livingston, and in three on those belonging to the Crown and situated on the west side of the river.

Authorities differ so widely in respect to the treatment of these German immigrants that it seems only fair to present both sides. One shows {187} Hunter working in the interest of the English Government against that of the colony and represents the movement as a clever plan on the part of the Governor to stimulate the production of tar and turpentine, to contribute to the government income, and to prevent the manufacture of wool, linen, and cotton goods, which at that time were largely bought in England. When Hunter found that the income did not meet the outlay, it is said, he notified the newcomers that they "must shift for themselves but not outside the province."

On the other hand, the Governor a.s.serted that dwellers in the lower Palatinate of the Rhine, when driven from their homes by the French, begged the English Government to give them homes in America; that Queen Anne graciously agreed that the Palatines should be transported to New York at the expense of the English with the understanding that they were to work out the advance payment and also the food and lodgings provided by the State and by Livingston; but that the Palatines proved lazy and failed to carry out their contract.

All accounts agree, however, in describing the hard lot of these unfortunate exiles. Their ocean voyage was long and stormy with much fatal {188} illness. The sites selected for their settlements were not desirable. The native pine was found unsuited to the production of tar in large quant.i.ties. They soon discovered that they would never be able to pay for their maintenance by such unprofitable labor.

Moreover, the provisions given them were of inferior quality; and they were forced to furnish men for an expedition against Canada while their women and children were left either to starvation or to practical servitude. In this desperate situation some of the Palatines turned from their fellow Christians to the native savages, and their appeal was not in vain. The Indians gave them permission to settle at Schoharie, and many families removed thither in defiance of the Governor, who was still bent on manufacturing tar and pitch. But the great majority remained in the Hudson valley and eventually built homes on lands which they purchased.

The climate of New York disagreed with Hunter, and his mental depression kept pace with his physical debility. After six years of hopeless effort, he was obliged to admit the failure of his plans to produce naval stores. In 1710 he reported of the locality that it "had the finest air to live upon; but not for me"; again he says that {189} Sancho Panza is a type for him, since that in spite of every effort to do his duty no dog could be worse treated. It is easy to understand that a member of the Pope-Swift-Bolingbroke circle in England should have found the social atmosphere of early New York far from exhilarating; and it is equally easy to comprehend that the pioneers of the New World resented his mismanagement of the campaign of 1711 against Canada and his a.s.sertion of the English Government's right to tax the colonists without the consent of the colonial Governments. But perhaps Hunter and the people appreciated each other more than either realized, for when he took leave in 1719 his words were warmly affectionate and his address embodied the exhortation: "May no strife ever happen amongst you but that laudable emulation who shall approve himself the most zealous servant and most dutiful subject of the best of Princes." And in response to this farewell address the colony of New York a.s.sured Governor Hunter that he had governed well and wisely, "like a prudent magistrate, like an affectionate parent," and that the good wishes of his countrymen followed him wherever he went.

It would be pleasant to dwell on this picture of {190} mutual confidence and regard, but the rude facts of history hurry us on to quite different scenes. William Burnet, son of the Bishop of Salisbury, continued the policy of his predecessor, it is true, and lived on unusually amicable terms with the a.s.sembly. He identified himself with the interests of the province by marrying the daughter of a prosperous Dutch merchant and by prohibiting the fur trade between Albany and Canada; yet even Burnet clashed with the a.s.sembly on occasion. And when after an interval William Cosby became Governor, the worst abuses of executive power returned, fomenting quarrels which reached a climax in the famous Zenger trial.

The truth was that no matter how popular a governor might be, clashes were bound to occur between him and the representatives of the people whom he governed, because they represented divergent interests. The question of revenue was an ever-recurring cause of trouble. Without adequate funds from the home Government, the Governor looked to the a.s.sembly for his salary as well as for grants to carry on the administration of the province. No matter how absolute the authority conferred by his commission and his instructions, the Governor must bow to the lower {191} house of the provincial Legislature, which held the purse strings.

Under Sloughter, Fletcher, Bellomont, and Cornbury the a.s.sembly had voted revenues for a term of years. But when Cornbury appropriated to his own uses 1000 out of the 1800 granted for the defense of the frontiers and when in addition he pocketed 1500 of the funds appropriated for the protection of the mouth of the Hudson, the a.s.sembly grew wary. Thereafter for four successive years it made only annual appropriations, and, wiser still by 1739, it voted supplies only in definite amounts for special purposes. Short-sighted the a.s.sembly often was, sometimes in its parsimony leaving the borders unprotected and showing a disposition to take as much and to give as little as possible--a policy that was fraught with grave peril as the French and Indian War drew on apace.

The growing insubordination of the province gave more than one governor anxious thought. Governor Hunter wrote warningly to friends in England: "The colonies are infants at their mother's b.r.e.a.s.t.s and will wean themselves when they become of age." And Governor Clinton was so incensed by the contumacy of the a.s.sembly that he said bluntly: "Every branch of this {192} legislature may be criminal in the eyes of the law, and there is a power able to punish you and that will punish you if you provoke that power to do it by your behaviour. _Otherwise you must think yourselves independent of the crown of Great Britain!_"

{193}

CHAPTER XII

THE ZENGER TRIAL

Among the children of the Palatines imported by Governor Hunter in 1710 was a lad of thirteen by the name of John Peter Zenger. Instead of proceeding to the Palatine colony, his widowed mother and her little family remained in New York. There Peter was bound apprentice to William Bradford, then a well-known printer, for a term of eight years, at the end of which time he set up an office of his own. He evidently found himself hard pressed for the means of living, since one finds him in 1732 applying to the consistory of the Dutch Church of New York and proposing that, since he had so long played the organ without recompense, he might take up a voluntary subscription from the congregation and that the members of the consistory should head the paper as an example to others. The consistory agreed to allow him provisionally the sum of six pounds, New York {194} currency, to be paid by the church masters and promised that they would speak with him further on the subject of his seeking subscriptions in the congregation, a favor for which John Peter was duly grateful.

Governor William Cosby, as he drove in his coach on a Sunday to Trinity Church, or as he walked in stately raiment, attended by a negro servant who carried his prayer-book on a velvet cushion, could have little dreamed that the young printer striding past him on his way to play the organ in the old Dutch Church was destined to be the instrument of His Excellency's downfall; but the time was not far off when this David, armed only with a blackened type of his printer's form, was to set forth against this Goliath. All flaming convictions have a tendency to cool into cant, and "the Freedom of the Press" has so long been a vote-catching phrase that it is hard nowadays to realize that it was once an expression of an ideal for which men were willing to die but which they scarcely hoped to achieve.

When Colonel Cosby, former Governor of Minorca, came over the seas in 1732, to become Governor of New York, he brought with him a none too savory reputation. All that he seemed {195} to have learned in his former executive post was the art of conveying public funds to private uses. His government in New York sustained his reputation: it was as high-handed as it was corrupt. He burned deeds and strove to overthrow old land-patents, in order that fees for new ones might find their way into his pocket. "Cosby's Manor," a vast tract of land in the Mohawk Valley, bore testimony to the success of his methods in acquiring wealth.

Upon the death of Cosby's predecessor, John Montgomerie, in 1731, Rip van Dam, as president of the Council, had a.s.sumed control of the affairs of the province until the arrival of the new Governor. At the close of his term, which had lasted a little more than a year, the Council pa.s.sed warrants giving Rip van Dam the salary and the fees of the office for the time of his service. When Cosby appeared he produced an order from the King commanding that the perquisites of the Governor during the interregnum be equally divided between him and Van Dam. On the authority of this doc.u.ment, Cosby demanded half of the salary which Van Dam had received. "Very well," answered the stalwart Dutchman, "but always provided that you share with me on the same {196} authority the half of the emoluments which you have received during the same period."

The greedy Governor maintained that this was a very different matter.

Nevertheless he was somewhat puzzled as to how to proceed legally with a view to filling his purse. Since he was himself Chancellor, he could not sue in chancery. He did not dare to bring a suit at common law, as he feared that a jury would give a verdict against him. Under these circ.u.mstances Cosby took advantage of a clause in the commissions of the judges of the Supreme Court which seemed to const.i.tute them Barons of the Exchequer, and he therefore directed that an action against Van Dam be brought in the name of the King before that court. The Chief Justice, who had held office for eighteen years, was Lewis Morris. Van Dam's counsel promptly took exception to the jurisdiction of the court and Morris sustained their plea, whereupon Cosby removed Morris as Chief Justice. Cosby's party included De Lancey, Philipse, Bradley, and Harrison, while Alexander, Stuyvesant, Livingston, Cadwallader Golden, and most of the prominent citizens, supported Van Dam. The people of New York were now awakening to the fact that this was no petty quarrel between two men as to which {197} should receive the larger share of government moneys, but that it involved the much larger question of whether citizens were to be denied recourse to impartial courts in the defense of their rights.

The only paper published in the province, the _New York Weekly Gazette_, established in 1725, was entirely in Cosby's interest, and the Van Dam party seemed powerless. They determined, however, to strike at least one blow for freedom, and as a first step they established in 1733 a paper known as the _New York Weekly Journal_, to be published by John Peter Zenger, but to be under the control of far abler men. Morris, Alexander, Smith, and Golden were the princ.i.p.al contributors to the new paper, and in a series of articles they vigorously criticized the Governor's administration, particularly his treatment of Van Dam. The Governor and Council in high dudgeon at once demanded the punishment of the publisher. They asked the a.s.sembly to join them in prosecuting Zenger, but the request was laid upon the table. The Council then ordered the hangman to make a public bonfire of four numbers of the _Weekly Journal_; but the mayor and the aldermen declared the order illegal and refused to allow it to {198} be carried out. Accordingly the offending numbers of the _Journal_ were burned by a negro slave of the sheriff in the presence of Francis Harrison, the recorder, and some other partizans of Cosby, the magistrates declining to be present at the ceremony. Whatever satisfaction the Governor and his adherents could gain from the burning of these copies of the _Journal_ was theirs; but their action served only to make them both more ridiculous and more despicable in the eyes of the people.

Not long after this episode Zenger was arrested upon order of the Council and thrown into the jail, which was at that time in the City Hall on the site of the present United States Sub-Treasury building on Wall Street. Zenger was denied the use of pens, ink, or paper. The grand jury refused to indict him. But Cosby's attorney-general filed an "information" against Zenger for "false, scandalous, malicious and seditious libels."

Public interest was now transferred from Van Dam to Zenger, and the people saw him as their representative, robbed of his right of free speech and imprisoned on an "information" which was in form and substance an indictment without action of a grand jury. Months elapsed while Zenger was kept in prison. His counsel, Smith and Alexander, {199} attacked two judges of the court before which he was to be tried, on the ground that they were irregularly appointed, the commissions of two of them, Chief Justice De Lancey and Judge Philipse, running "during pleasure" instead of "during good behavior" and having been granted by the Governor without the advice or consent of his Council.

The anger of the judges thus a.s.sailed was expressed by De Lancey, who replied: "You have brought it to that point, gentlemen, that either we must go from the bench or you from the bar," wherewith he summarily ordered the names of the two distinguished lawyers stricken from the list of attorneys.

This was obviously a heavy blow to Zenger, as the only other lawyer of note in New York was retained in the interests of Cosby and his faction. But Zenger's friends never ceased their determined efforts in his behalf, and Smith and Alexander remained active in counsel if not in court. Meanwhile the judges appointed an insignificant attorney, John Chambers by name, to act for Zenger and fancied that their intrigue was sure of success.

The trial came on before the Supreme Court sitting on August 4, 1735, De Lancey acting as Chief Justice, Philipse as second judge, and {200} Bradley as attorney-general. Chambers pleaded "not guilty" on behalf of his client; but to the throng who crowded the court-room to suffocation, Zenger's case must have looked black indeed. There was no question that he had published the objectionable articles, and according to the English law of the day the truth of a libel could not be set up as a defense. It was even some years later that Lord Mansfield upheld the amazing doctrine that "the greater the truth the greater the libel." A part of the importance of the Zenger trial lies in its sweeping away in this part of the world the possibility of so monstrous a theory.

A great and overwhelming surprise, however, awaited the prosecutors of Zenger. The secret had been well kept and apparently every one was amazed when there appeared for the defense one Andrew Hamilton, a citizen of Philadelphia, of venerable age and the most noted and able lawyer in the colonies. From this moment he became the central figure of the trial and his address was followed with breathless interest. He touched upon his own age and feebleness with consummate tact and dramatic effect:

You see that I labour under the weight of years, and am borne down with great infirmities of body; yet, old and {201} weak as I am, I should think it my duty, if required, to go to the utmost part of the land, where my service could be of use in a.s.sisting to quench the flame of prosecutions upon _information_ set on foot by the government, to deprive a people of the right of remonstrating (and complaining too) of the arbitrary attempts of men in power. Men who injure and oppress the people under their administration provoke them to cry out and complain, and then make that very complaint the foundation for new oppressions and prosecutions. I wish I could say there were no instances of this kind. But to conclude: 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 consequence 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, and I make no doubt but your upright conduct this day will not only ent.i.tle you to the love and esteem of your fellow-citizens, but every man who prefers freedom to a life of slavery will bless and honour you, as men who have baffled the attempt of tyranny, and by an impartial and uncorrupt verdict have laid a n.o.ble foundation for securing to ourselves, our posterity, and our neighbors, that to which nature and the laws of our country have given us a right--the liberty both of exposing and opposing arbitrary power ... by speaking and writing _truth_!

With scathing irony he fell upon the theory that truth was no defense for libel:

{202} If a libel is understood in the large and unlimited sense urged by Mr. Attorney, there is scarce a writing I know that may not be called a libel, or scarce any person safe from being called to account as a libeller; for Moses, meek as he was, libelled Cain, and who is it that has not libelled the devil? For according to Mr. Attorney, it is no justification to say that one has a bad name. Echard has libelled our good King William; Burnet has libelled among others, King Charles and King James; and Rapin has libelled them all. How must a man speak or write, or what must he hear, read, or sing? Or when must he laugh, so as to be secure from being taken up as a libeller? I sincerely believe that were some persons to go through the streets of New York nowadays and read a part of the Bible, if it were not known to be such, Mr. Attorney, with the help of his innuendoes, would easily turn it into a libel. As for instance, the sixteenth verse of the ninth chapter of Isaiah: _The leaders of the people cause them to err, and they that are led by them are destroyed_. But should Mr. Attorney go about to make this a libel, he would treat it thus: "The leaders of the people (innuendo, the governor and council of New York) cause them (innuendo, the people of this province) to err, and they (meaning the people of the province) are destroyed (innuendo, are deceived into the loss of their liberty)," which is the worst kind of destruction. Or, if some person should publicly repeat, in a manner not pleasing to his betters, the tenth and eleventh verses of the fifty-sixth chapter of the same book, there Mr. Attorney would have a large field to display his skill in the artful application of his innuendoes. The words are, "His watchmen are all blind, they are ignorant; yes, they are greedy dogs, that {203} can never have enough." But to make them a libel, there is according to Mr. Attorney's doctrine, no more wanting but the aid of his skill in the right adapting of his innuendoes. As for instance, "His watchmen (innuendo, the governor's council and a.s.sembly) are blind; they are ignorant (innuendo, will not see the dangerous designs of His Excellency); yea they (meaning the governor and council) are greedy dogs which can never have enough (innuendo, enough of riches and power)."