publication of the words deemed libellous, and urged the jury, even though the Court might decide otherwise, to consider the words for themselves, and put their own construction upon them. In closing, he said: “You see I labor under the weight of many years, and am borne down by many infirmities of body; yet old and weak as I am, I should think it my duty, if required, to go to the uttermost part of the land where my service could be of any use in assisting to quench the flame of prosecutions upon informations set on foot by the Government to deprive a people of the right of remonstrating, and complaining, too, against the arbitrary attempts of men in power. Men who oppress and injure the people under their administration provoke them to cry out and complain, and then make that very complaint the foundation for new oppressions and persecutions. The question before the Court is not of small or 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 consequences affect every freeman that lives under the British Government upon 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 entitle you to the love and esteem of your fellow-citizens, but every man who prefers freedom to a life of slavery will bless and honor you, as men who have baffled the attempts of tyranny, and by an impartial and incorrupt verdict have made a noble foundation for securing to ourselves and our posterity and our neighbors that to which nature and the laws of our country have given us a right- the liberty of both exposing and opposing arbitrary power, in these parts of the world, at least, by speaking and writing truth."

The prosecution replied, and the Court gave his charge against the prisoner; but Hamilton's eloquence proved irresistible, and the jury, after a few minutes' deliberation, brought in a verdict of "Not Guilty."

How this verdict was received by the citizens of New York who were present at Zenger's trial is related by an early historian of that State *:

Shouts shook the hall. The judges threatened the leader of the tumult with imprisonment, when a son of Admiral Norris declared himself the leader and invited a repetition of the huzzas. The judges had no time for a reply, for the shouts were instantly repeated, and Mr. Hamilton was conducted from the hall by the crowd to a splendid entertainment. The whole city renewed the compliment at his departure the next day. He entered the barge under a salute of cannon, and the corporation presented him with the freedom of the city in a gold box, on which its arms were engraved, encircled with the words, "Demersæ Leges, Timefacta Libertas, Hæc Tandem Emergunt."

Dr. John W. Francis states in his description of the city of New York (printed in the American edition of Brewster's Encyclopedia, and on page 400 of Hinton's History of the United States), that Gouverneur Morris told him that "the trial of Zenger in 1735 was the germ of American freedom the morning star of that liberty which subsequently revolutionized America."

The origin of the so-called Presbyterian, or liberal, party in New York, which first committed and then held that colony to the American cause during the Revolution, dates from the time of this trial; and its importance in forming and influencing public sentiment in the middle colonies is well indicated by the view of the trial generally taken by writers on the opposite side since that time.

In the memoir of Chief Justice James De Lancey, prepared by Edward F. De Lancey, and published in the Documentary History of New York, vol. iv., pp. 1037-1059, the Zenger case is referred to as follows:

About two years afterwards came on before the Supreme Court the famous trial of John Peter Zenger for a series of libels on the governor and chief officers of the colony. He was a printer by trade, in arrears to a small amount as collector of taxes in the city, and the Assembly had refused to allow him to discharge the small debt by doing public printing enough to cover it.

He subsequently published a small paper entitled the New York Weekly Journal, at the instance of the opposition, in which the libels complained of were published. His counsel were James Alexander and William Smith, the elder, the supposed authors of the libels, two gentlemen of ability and intellect, both politically opposed to Chief Justice De Lancey.

Aware that the law would certainly convict their client, they attempted to destroy the court by excepting to the commissions of the judges as invalid and illegal; though they knew them to be in the usual form, and such as their predecessors had always held, and under which they had acted for a number of years. Their objections, if valid, would have destroyed the court as well as the commissions, for it existed, not by force of any statute, as they contended, but by virtue of an ordinance of the governor and council, dated May 15, 1699. A formal denial of its existence deliberately made was therefore a gross contempt of court, and the Chief Justice from the bench warned the counsel of the consequences. But they persisted in tendering the exceptions, upon which the court made an order, striking their names from its rolls and excluding them from further practice. Zenger, being unable to procure other counsel, the court assigned him Mr. Joseph Murray, with whom the silenced lawyers associated Mr. Hamilton, of Philadelphia, who made so artful an address to the jury at the trial a few days afterwards that, in the words of one of their own [Tory] friends (Smith, History of New York, ii., 22), "when he left his client in those hands, such was the fraudful dexterity of the orator, and the severity of his invectives upon the governor and his adherents, that the jury, missing the true issue before them, they, as if triers of their rulers, rather than of Zenger, pronounced the criminal innocent because they believed them to be guilty."

Chief Justice De Lancey's course on this occasion has been much misunderstood, owing to the fact that the only report of the trial was that published by Zenger himself, written by the silenced lawyers, and printed, not in New York, but in Boston, in 1738, three years after the trial, which of course represents him in the worst possible light. Taking the facts of the case, however, as given even there, it would be difficult to point out any other course which the court could have taken consistently with its own dignity and self-respect.

At this period, and from these controversies and others allied to them, arose the two great parties which ever afterwards divided the people of the

province the one maintaining principles moderate and conservative; the other, those of a more radical tendency.

Both professed the strongest attachment and loyalty to the British constitution, and vied with each other in claiming and upholding all the rights of Englishmen.

In New York, as in some of the other colonies, the religious element entered largely into politics. In point of wealth and influence the Episcopalians were the leading denomination, the Dutch Reformed Church came next, and the Presbyterians last; while in point of numbers their positions were exactly reversed, the Presbyterians outnumbering the Dutch, and the Dutch the Episcopalians. The last, with most of the Dutch, chiefly belonged to the conservative party; while the remainder of the Dutch and the Presbyterians almost to a man were found in the ranks of the opposition.

Another and very striking peculiarity in the composition of the colonial parties was the remarkable preponderance of the wealth and social position of the province on the side of the conservatives [the Loyalist party of 1776]. In their ranks were found the Philipses, Van Cortlandts, De Lanceys, Bayards, Crugers, Wattses, Waltons, Van Rensselaers, Beekmans, Bleeckers, Barclays, Joneses of Long Island, Jays, Verplancks, Harrisons, and other substantial families; while in those of the opposition the Livingstons, Morrises, Alexanders, and perhaps the Smiths and one or two more were probably all that belonged to the same class.

Here, then, we find the contest for freedom of public utterance and the liberty of the press waged and won in America at least forty years before Lexington, and at a time when James Otis and Samuel Adams themselves were not long out of their swaddling clothes. Yet, concerning these things, the pages of so-called American histories, of the New England school, in nine cases out of ten are silent.

Finally, let us revert to a much earlier period and consider for a moment the founding in America of what, with civil liberty, is the twin support of the structure of all just and lasting governments, namely, the principle of religious freedom."

In Penn's colony liberty of worship was permitted from the beginning of his government. In Maryland and in one or two others of the southern colonies, for a short time at the beginning there was the same beneficent provision made by their laws or charters, but statutory enactment soon destroyed it. Outside of Pennsylvania and Rhode Island, at the beginning of the eighteenth century, the English Church had been established by law in most of the middle and southern governments, and the Congregational Church in those of New England. The Revolution of 1689 had brought to Britain, among other blessings, that of the Toleration Act, but its provisions had not yet been fully or definitely extended to the American colonies. Rev. Francis Makemie, the Scotch-Irish founder of American Presbyterianism, had come from County Donegal, Ireland, to the island of Barbadoes about 1683, and thence proceeded to the eastern shore of Maryland. There and along the Elizabeth River in Virginia he began to labor in establishing missionary stations among the Scotch and Scotch-Irish families who had settled

in those parts. In the course of twenty years he had helped to build up two or three church organizations in that territory, and in 1706 their ministers united with those of other churches of Maryland, Delaware, and Pennsylvania in forming the Presbytery of Philadelphia. After this organization had been made, Makemie undertook a journey to Boston. While on the way he stopped and preached in New York, and there the opportunity came to him for making that first fight against the encroachments of the English Church establishment in America, which resulted in restricting and minimizing its power forever afterwards.

After the adjournment of the Presbytery of Philadelphia, October 27, 1706, Francis Makemie took with him John Hampton and set out on his journey, probably to consult with the Boston ministers. They stopped at New York on their way. They were invited by the Puritans of the city to preach for them. The Consistory of the Dutch Church, in accordance with their generous custom, offered their church edifice for the purpose. But their kindness was frustrated by the refusal of Governor Cornbury to permit it. Makemie, therefore, preached, January 20, 1706-7, in the private house of William Jackson, in Pearl Street. The same day, John Hampton preached at Newtown, Long Island. On the following Tuesday, Makemie and Hampton went to Newtown intending to preach the next day, according to appointment; but they were there arrested on a warrant from Governor Cornbury, on the ground that they had preached without his permission. They were detained until March 1st, when they were brought before the Supreme Court on a writ of habeas corpus.

6

The charge against Hampton was not pressed, but Makemie was released on bail to appear for trial June 3d. He immediately returned to Philadelphia with Hampton for the meeting of the Presbytery of Philadelphia, March 22, 1707. From thence he writes to Benjamin Colman, of Boston:

Since our imprisonment we have commenced a correspondence with our rev. breth. of the ministry at Boston, which we hope according to our intention has been communicated to you all, whose sympathizing concurrence I cannot doubt of, in an expensive struggle, for asserting our liberty against the powerful invasion of Lord Cornbury, which is not yet over. I need not tell you of a picked jury, and the penal laws, are invading our American sanctuary without the least regard to the toleration, which should justly alarm us all.

The New England ministers immediately wrote to Sir Henry Ashurst, Sir Edmund Harrison, and other London agents, April 1, 1707:

Except speedy relief be obtained, the issue will be, not only a vast oppression on a very worthy servant of God, but also a confusion upon the whole body of Dissenters in these colonies, where they are languishing under my Lord Cornbury's arbitrary and unaccountable government. We do therefore earnestly solicit you, that you would humbly petition the Queen's Majesty on this occasion, and represent the sufferings of the Dissenters in those parts of America which are carried on in so direct violation of her

Majesty's commands, of the laws of the nation, and the common rights of Englishmen. (Hutchinson, History of the Province of Massachusetts Bay, 2d edition, London, 1768, ii., p. 125.)

Makemie returned to New York and sustained his trial. He was defended by three of the ablest lawyers in the province-James Reigniere, David Jameson, and William Nicholl, made an elaborate and convincing argument in defence of his own religious rights, and was acquitted on the ground that he had complied with the Toleration Act and had acted within his rights as a Presbyterian minister. He produced his license to preach under the Toleration Act in Barbadoes, and this was recognized as valid throughout the Queen's dominions. The claim of Cornbury, that it was necessary that he should have a special license from the governor of New York, was simply ridiculous. But, notwithstanding his acquittal, Makemie was obliged to pay the costs of the prosecution as well as the defence, amounting to the large sum of £83 7s. 6d. "This trial," says Professor Briggs, "followed by the bitter pursuit of the acquitted man on the part of the wrathful governor, was the culmination of a series of tyrannical acts which aroused the entire Puritan body of the colonies and of Great Britain to action. The arbitrary acts of Governor Cornbury were indefensible. He had exceeded his prerogative, transgressed the provisions of the Toleration Act, and violated the liberties of the Dissenters, and indeed twisted and perverted the royal instructions to himself. He even intermeddled with the missionaries of the Society for the Propagation of the Gospel in Foreign Parts, and gained the hostility of all the better elements in the Church of England." The New York Assembly, in April, 1707, remonstrated against Cornbury's actions, charged him with bribery, with encroachment on the liberties of the people, and finally expressed their determination to redress the miseries of their country. He was recalled, and in 1709 Lord Lovelace took his place.'

An account of Makemie's trial was first printed in 1707, and a second publication was made in 1755- The former account was reprinted in Force's Tracts in 1846 (vol. iv.), and the latter in Hill's American Presbyterianism (1839). For Makemie's argument, see Appendix D.

NOTES TO CHAPTER V.

1 Of this event, Gouverneur Morris said: "Instead of dating American liberty from the Stamp Act, I trace it to the persecution of Peter Zenger, because that event revealed the philosophy of freedom both of thought and speech as an inborn human right, so nobly set forth in Milton's Treatise on Unlicensed Printing."-Lossing, The Empire State, Hartford, 1888, p. 147. For Hamilton's argument, see Appendix C.

? The account of Zenger's trial was first printed in Boston in 1738, and passed through several editions, two of which appeared in London in 1738, and another in Lancaster, Pa., in 1756. See Documentary History of New York, vol. iv., p. 104.

3 The Scot in America, pp. 302-307.