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On November 5, 1733, Zenger published the first issue of the Weekly Journal. The issue included a detailed account of the victory the previous week of Lewis Morris as Popular Party candidate for assemblyman from Westchester. Morris won the election despite the best efforts of Cosby to rig the election against him by having the sheriff disqualify Quaker voters (expected to be heavily pro-Morris) on the ground that the Quakers only "affirmed" rather than swore the oath required at the time of all voters. The election story, almost certainly written by Alexander, included this description of the sheriff's intervention:
[T]he sheriff was deaf to all that could be alleged on that [the Quaker] side; and notwithstanding that he was told by both the late Chief Justice and James Alexander, one of His Majesty's Council and counsellor-at-law, and by one William Smith, counsellor-at-law, that such a procedure [disqualifying the Quakers for affirming rather than swearing] was contrary to law and a violent attempt upon the liberties of the people, he still persisted in refusing the said Quakers to vote....
No doubt to the surprise and disappointment of Cosby, Morris won the election even without the Quakers' votes. The Journal story told of Morris's election being celebrated with "a general fire of guns" from a merchant vessel and "loud acclamations of the people as he walked the streets, conducted to the Black Horse Tavern, where a handsome entertainment was prepared for him."
Subsequent issues of the Journal, in addition to editorializing about other dubious actions of the Governor, contained ringing defenses of the right to publish, authored by Alexander, such as this offered in the second issue:
The loss of liberty in general would soon follow the suppression of the liberty of the press; for it is an essential branch of liberty, so perhaps it is the best preservative of the whole. Even a restraint of the press would have a fatal influence. No nation ancient or modern has ever lost the liberty of freely speaking, writing or publishing their sentiments, but forthwith lost their liberty in general and became slaves.
Cosby put up with the Journal's attacks for two months before deciding that it must be shut down. The first effort to silence the Journal occurred in January 1734 when Chief Justice Delancey asked a Grand Jury to return indictments based on the law of seditious libel. The Grand Jury, however, refused. Delancey tried again when the next Grand Jury met in October. He presented the grand jurors with broadsides and "scandalous" verse from Zenger's Journal, but the jurors, claiming that the authorship of the allegedly libelous material could not be determined, again refused to return indictment.
Cosby responded to these frustrations by proclaiming a reward of fifty pounds for the discovery of the authors of the libels and by issuing an order that Zenger's newspapers be publicly burned by "the common hangman."
Then, in an effort to get around the Grand Jury's refusal to indict, Cosby ordered his attorney general, Richard Bradley, to file "an information" before Justices Delancey and Philipse. Based on the information, the Justices issued a bench warrant for the arrest of John Peter Zenger. On November 17, 1734, the sheriff arrested Zenger and took him to New York's Old City Jail, where Zenger would stay for the next eight months.
The Weekly Journal was not published the next day, November 18. It would be the only issue missed in its publishing history. The next week, with the help of Zenger's wife, Anna, the Journal resumed publication with an issue that included this "apology":
As you last week were disappointed of my Journal, I think it incumbent on me to publish my apology, which is this. On the Lord's Day, the seventeenth, I was arrested, taken and imprisoned in the common jail of this City by virtue of a warrant from the Governor, the honorable Francis Harison, and others in the Council (of which, God willing, you will have a copy); whereupon I was put under such restraint that I had not the liberty of pen, ink or paper, or to see or speak with people, until my complaint to the honorable Chief Justice at my appearing before him upon my habeas corpus on the Wednesday following. He discountenanced that proceeding, and therefore I have had since that time the liberty of speaking thro' the hole of the door to my wife and servants. By which I doubt not you will think me sufficiently excused for not sending my last week's Journal, and hope for the future, by the liberty of speaking to my servants thro' the hole of the door of my prison, to entertain you with my weekly Journal as formerly.
The enormous bail of £800 set for Zenger turned into an important tactical advantage for the imprisoned printer. As a result of his stream of "letters" from prison, an outpouring of public sympathy for his cause developed.
The Trial
Zenger's defense would fall to sixty-year-old Andrew Hamilton of Philadelphia, perhaps the ablest and most eloquent attorney in the colonies--though that was not the initial plan. James Alexander and William Smith initially undertook Zenger's defense, but both were disbarred in April 1735 by Chief Justice Delancey when they audaciously objected to the two-man court (consisting of Justice Delancey and Philipse) Cosby had hand-picked to try Zenger's case.
