In 1732, King George II of Great Britain appointed William Cosby Governor of the Provinces of New York. In the thirteen months that elapsed between Cosby’s appointment and his arrival in New York, the President of the Province’s Council, Rip Van Dam, served as interim Governor. When Cosby took office, he and Van Dam quarreled over the division of the salary and fees, and the matter came before the New York Supreme Court of Judicature in the case of Cosby v. Van Dam (1733).
English law distinguished between the actions that could be taken before the courts of common law and those that were actions in equity. The dispute between Cosby and Van Dam was over an accounting, the redress for which was an action in equity. Because the Governor was ex officio Chancellor and there is a principle of law that no person can judge his own cause, Cosby could not bring an action in equity. Undaunted, the Governor started legal proceedings against Van Dam in the common law Supreme Court of Judicature, not by a common law action, but by a bill in equity. He based his action on the theory that both the ordinances under which the New York Supreme Court of Judicature operated and the commissions under which the court’s justices were appointed, authorized the judges to sit as Barons of the Exchequer. Cosby’s bill in equity had two purposes. First, he sought to avoid a common law jury trial because he feared that the jurors would favor Van Dam. His second objective was to ensure that the case would be decided by Justices Frederick Philipse and James De Lancey, who together constituted a majority of the Supreme Court of Judicature and who, he believed, would view his arguments favorably. The defendant, Van Dam, was represented by William Smith and James Alexander, two of the most eminent lawyers of the time. They argued that the Supreme Court of Judicature had no power to proceed in equity.
The decision in favor of Governor Cosby announced before a crowded court by Justices Philipse and De Lancey, did not meet with public approval. Chief Judge Lewis Morris dissented from the decision and in a written opinion, stated that the Supreme Court of Judicature did not have equity jurisdiction. Morris asserted that because the King of Great Britain could not create a court of equity without the consent of parliament, he could not delegate that power to a provincial governor. Morris’s opinion traced the history of judicial power in the Province, and concluded that only the legislature could create courts and set limits on their jurisdiction.
Governor Cosby demanded the written opinion from Morris. Morris complied, but also arranged to have the opinion printed and publicly distributed, accompanied by a letter in which he stated: “If judges are to be intimidated so as not to dare to give any opinion, but what is pleasing to the Governor, and agreeable to his private views, the people of this province who are very much concerned both with respect to their lives and fortunes in the freedom and independency of those who are to judge them, may possibly not think themselves so secure in either of them as the laws of his Majesty intended they should be.”
The Governor was enraged by Morris’s publication of his dissenting opinion, and he summarily removed Chief Judge Morris from office. Morris had been Chief Judge of the Province for almost 20 years and his removal intensified the growing opposition to Cosby’s administration. The New York Gazette, the Province’s only newspaper, was allied with the Cosby administration and published articles supporting the Governor. Morris, Alexander and Smith founded the Province’s first independent newspaper, the New-York Weekly Journal and hired John Peter Zenger, one of the Province’s two skilled printers, to print the paper. Alexander became the editor and through articles, satire and lampoons, the paper accused the Cosby administration of tyranny and violation of the people’s rights. Alarmed, the Cosby administration tried to shut the paper down and “crush the egg out of which might spring the serpent of sedition and revolution.” The authorities charged Zenger with seditious libel and the case, Crown v. Zenger, became a landmark of 18th century colonial jurisprudence.
Donald A. Ritchie. American Journalists: Getting the Story. New York (1997)
Paul Finkelman. Politics, the Press, and the Law: the Trial of John Peter Zenger in American Political Trials Michal R. Belknap (ed). (1994)