Reminder to DJT--John Peter Zenger, Freedom of the Press, and the Precious Right to be Obnoxious

 

Philadelphia lawyer Andrew Hamilton making his dramatic appeal to the jurors in the John Peter Zenger Libel Trial.

August 4 is often considered the birthday of Freedom of the Press in the United States.  On this day in 1736 the original Philadelphia lawyer, Andrew Hamilton, successfully persuaded a New York jury to acquit John Peter Zenger of a charge of seditious libel for printing criticisms of Royal Governor William Cosby.  It was no easy feat. 

Cosby stacked the deck against the German-born printer by hand picking loyal toadies to sit on the special two-judge court that conducted the trial and then caused both of Zenger’s original lawyers to be disbarred for objecting to the irregularity.  

                        

                                New York Royal Governor William Crosby's armor did not protect his thin skin from the sting of criticism.

Zenger was a master printer who was hired by the owners of the New-York Weekly Journal to produce the paper.  He was listed as printer and editor, but the editorial content of the publication was controlled by political opponents of the Governor including James Alexander, a leading lawyer, former Attorney General for both New York and New Jersey and a member of the powerful Governor’s Council for both colonies.  Alexander anonymously wrote scathing denunciations of Governor Crosby printed each Monday. 

The unpopular Governor was infuriated.  He was turned down by the Provincial Assembly when he asked for permission to conduct a public burning of copies of the Weekly Journal.  Instead, he ordered Zenger arrested and jailed, although it is unclear whether the printer even shared the views of his employers.  In short, Zenger was a fall guy for Alexander and his fellow Whig opponents of the governor.  

German born printer John Peter Zenger was the fall guy for the real authors of articles castigating the Governor in the New York Weekly Journal.

But Zenger was up for the game.  He dictated an account of his arrest through a hole in the door of his jail cell to his wife and his apprentices set up and distributed it in an edition of the Weekly Journal.  Alexander and another prominent lawyer, William Smith, agreed to represent Zenger.  When they objected to Cosby’s stacked court, they were disbarred.  Naturally, no other local members of the bar were eager to take their place.  

The newspaper and the criticism that got its printer into trouble.

The case came to the attention of another printer, Benjamin Franklin of Philadelphia.  Franklin had a natural interest in freedom of the press and as Postmaster General of the Colonies he was in an unusually good position to be kept on top of developments far and wide.  He was also the acknowledged leader of the Philadelphia business and professional community.  Franklin recruited Hamilton, the leading member of the Pennsylvania Bar to accept Zenger’s case on a pro bono basis. 

Hamilton, like Alexander, was Scottish emigrant with a Jacobean past.  In court, he took a daring approach.  The presiding judges already warned jurors to disregard Hamilton’s “slanders” and render a verdict of guilty based on his charge of printing false, scandalous, and malicious articles about the Governor.  

                        

Philadelphia lawyer Andrew Hamilton for the defense.

Hamilton readily admitted to the facts.  Zenger had indeed printed and distributed the articles as charged and under the law, he acknowledged, that was sufficient for conviction of libel.  In defense, he argued that the articles if libelous, were none-the-less true.  His offer to produce evidence of their truth was squelched by the Judge. 

But in a magnificent summation he called upon the jurors to recognize the truth of the charges on the basis of their own experience of affairs in the colony.  “The question before the court and you, gentlemen of the jury, is not of small nor private concern,” Hamilton pleaded. “...No! It may in its consequences affect every free man that lives under a British government on the main of America. It is the best cause of liberty...” 

Then he shocked the jury—he called upon them to vote for acquittal because the prosecution was a manifest injustice whatever the letter of the law read.  And the jury bought it.  They brought in a unanimous verdict for acquittal.  It was the first instance of jury nullification in North American history.  

The verdict was popular in New York and across the Colonies and Hamilton became widely celebrated.  The Common Council of New York City awarded him the freedom of city, and a group of prominent residents contributed to the production of a 5½-ounce gold box that was presented to him as a lasting mark of their gratitude.  The box remained a family heirloom, but replicas are still given out by the Philadelphia Bar Association to their out-going Chancellor, a position once held by Hamilton.  

                                       

                                                        The title page of the first London edition of Zngler's account of his trial including transcripts.

Zenger published a verbatim account of the trial as A Brief Narrative of the Case and Trial of John Peter Zenger and then quietly returned to his trade and continued printing the Weekly Journal.  He died in 1746 at the age of 49. 

Governor Cosby did not last so long.  He died of tuberculosis in Albany in March 1736. 

George Clarke was elevated to acting Royal Governor until a permanent replacement, George Clinton, took office in 1743.  Clarke restored Alexander and Smith to the Bar and reappointed Alexander to his Council. 

Alexander resumed his career becoming leading Whig in provincial politics of both New York and New Jersey.  In 1743 he became a co-founder with Franklin of the American Philosophical Society and in 1751 helped establish King’s College (now Columbia University.)  He died full of honors in 1756. 

Writing after the American Revolution, Gouverneur Morris observed that the “trial of Zenger in 1735 was the germ of American freedom, the morning star of that liberty which subsequently revolutionized America.”

The True Story of That Socialist The Pledge of Allegiance

 

                             Rev. Francis Bellamy, a Christian socialist and author of the original version of the Pledge of Allegiance. 

On September 8, 1893 a Pledge of Allegiance crafted by Francis Bellamy for the popular children’s magazine Youth’s Companion, where the Baptist minister was on staff made its first appearance.  He was not only a Christian, but also a socialist and first cousin of the utopian socialist Edward Bellamy, whose novel Looking Backwards was one of the most influential books of the late 19th Century.

Pledges of allegiance were still controversial in those days.  After the Civil War former Confederates who wanted their civil rights restored had to swear allegiance to the Union.  Even as late as the 1890 the most un-reconstructed of the old veterans were still refusing to do so.

Bellamy hoped to include the younger generations of Southerners in a new mood of national reconciliation.  But he also wanted to include the children of waves of immigrants then flooding American cities making a new pledge of inclusiveness in their new nation.  He originally wanted to include the words equality and fraternity in the pledge to make that clear, but his editors feared that their inclusion would be resisted by school authorities in the South where equality would be viewed as an endorsement of Black rights just as Jim Crow laws were undoing the last shreds of Reconstruction.  In the North business interests likewise might object to fraternity—brotherhood—for its identification with French Revolution and as possible support for labor unions which often styled themselves as Brotherhoods.

Moreover, there was already a Pledge of Allegiance of sorts in wide circulation and use.  Five years earlier retired Rear Admiral George Balch who served as auditor to the New York Board of Education introduced a simple one line pledge and distributed thousands of classroom flags with the explicit intent of Americanizing immigrant children in public schools.  Balch pledge was widely used in New York City and was spreading with the official endorsement of the Grand Army of the Republic and the Daughters of the American Revolution.  The pledge read:

We give our heads and hearts to God and our country; one country, one language, one flag!

Bellamy and his editors considered the Balch pledge, “Too juvenile and undignified.”  Besides, they had a specific event in mind in which children across the country would say the new Pledge on one day.

 

The Pledge tapped an orgy of patriotic fervor triggered by the 400th anniversary of Christopher Columbus's New World land fall on display at the World Columbian Exposition in Chicago.  Due to construction delays the fair did not open until 1893. 

The Pledge of Allegiance was first trotted out for Columbus Day 1892. The pledge as Bellamy drafted it was published in the magazine without attribution.  But it was promoted heavily to its 500,000 readers and endorsed by the National Education Association.  President Benjamin Harrison was prevailed upon to declare it part of the national Columbus Day observances of the 400 anniversary of the Italian navigator’s alleged discovery of the New World.  

 

Bellamy's simple original manuscript for his Pledge. 

On October 12, 1893 children across the country recited the following brief pledge in conjunction with ceremonies at the World Columbian Exposition in Chicago at the opening of school:

I pledge allegiance to my flag and the republic for which it stands: one nation indivisible with liberty and justice for all.

It could be said in 12 second flat.  As prescribed in the magazine, the children faced a flag being held by the teacher and held their right arms straight out, palms down in what became known as the Bellamy Salute.        

                                                                                                                                                   

A turn of the 20th Century classroom of immigrant children recite the pledge using the stiff arm Bellamy Salute.  Asian children in the class hint at a West Coast school.    

Although intended as a onetime event, it turned out to be so popular that some schools began using the pledge at the opening of assemblies, concerts, and sporting events.  Others made it a weekly or daily practice.  The hyper patriotism accompanying the Spanish American War and World War II spread the practice further.

Meanwhile the Blach pledge continued in use, although after the DAR switched its endorsement to Bellamy, that one began to seriously pull ahead. 

Unfortunately for Bellamy, his hopes that the pledge would be inclusionary were dashed almost from the beginning.  Many interpreted it as a litmus test for Americanism—meaning native, White Protestants.  In some schools the children of non-citizen immigrants were forbidden from participating.  Elsewhere those whose religion was thought to preclude the recitations of oaths were debarred.  In the segregated schools of the South, white children often recited the pledge, but those in Black schools often did not lest they get the idea that they would ever have the rights of citizens.

Tinkering with the original words was meant to make these things clear.  In 1923 an outfit called the National Flag Conference changed the words from “my flag,” to “The Flag of the United States” so that ignorant immigrant children would not believe they were saluting the flag their home countries.  A year later, still unsatisfied, they it changed to “The Flag of the United States of America.”  After the 1923 Conference the GAR joined the newer American Legion in officially supporting the modified Bellamy pledge which pretty well killed remaining pockets of Blach loyalists.

So things stood until the U.S. entered World War II.  That was why Congress was in session on December 28, 1942 instead of taking their customary leisurely holiday break.  It was on that day that they finally stopped tinkering with amendments to the Flag Code which had been adopted earlier in June.  Of course, there were some minor changes to the pledge which was officially renamed the Pledge of Allegiance to the Flag.

The June ’44 amendment to the Flag Act codified the words:

 

I pledge allegiance to the flag of the United States of America, and to the republic for which it stands, one nation indivisible, with liberty and justice for all.

The change made in December at the suggestion of President Franklin D. Roosevelt substituted the hand over the heart for civilians for the stiff armed Bellamy salute, which then had an uncomfortable resemblance to the salute used by the Nazis. 

 

During World War II the Bellamy Salute was scrapped because of its resemblance on the fascist salute and the words "of the United States of America" were added.  

Changes were not over.  During the post-war Red Scare complaints were rising that the pledge did not defend American values against Godless Communism.  Louis A. Bowman, a chaplain for the hyper-patriotic Sons of Liberty first inserted the words under God into the pledge in 1948. 

The following year Catholic Bishops, eager to prove that Catholics could be “real Americans” and concerned with attacks on the Church in the zone of Soviet influence in Europe and in parts of China under People’s Army control, began a campaign to have the additional language officially adopted.

Despite appeals to President Truman and resolutions introduced in Congress, no amendment to the words was made.

 

 President Dwight D. Eisenhower shored up his shaky support from the right wing of his own party and rarely united Protestant and Catholic leaders by inserting "Under God" into the pledge and using religious language in his address to the nation.

Freshly minted President Dwight Eisenhower had a problem.  Despite his enormous personal popularity as a World War II hero and easy election victory, the right wing of his own party distrusted him for coziness with the Soviets during the War.  Notoriously indifferent to religion, he had come under attack as an atheist.  To combat the latter problem, Ike allowed himself to be baptized a Presbyterian, although neither his public practice of worship nor the general lack of God language in his speeches changed much. 

But on Lincoln’s Birthday, 1954 his ceremonial duties included attending worship at the New York Avenue Presbyterian Church in Washington, where Lincoln had also made occasional public displays of unfelt piety. The Rev. George MacPherson Docherty took advantage of his captive audience by launching into a sermon calling for the inclusion of the religious language in the pledge because Lincoln had apparently inserted the words under God in the Gettysburg Address as delivered.

 

When the words "under God"  were added in 1954 schools were sent materials like these with the subliminal message that the revised Pledge which were wrapped in traditional imagery that inferred it had roots with the Founding Fathers. 

Eisenhower recognized an opportunity to prove his Americanism and his Christianity.  The next day he forwarded a message to Congress asking for the wording of the pledge be changed.  It passed through Congress like an Ex-Lax milkshake.  Ike was able to sign it into law with a flourish on June 14, 1954—Flag Day.

Civil libertarians have opposed the additional language ever since.  Many court challenges have been filed, but none have yet succeeded.  The best that they were able to accomplish was to allow children who could not in good conscience recite the pledge to excuse themselves without penalty. 

 

On one hand Civil Libertarians have objected to the use of "Under God" in Public Schools and compulsory participation.  On the other near riots have erupted at some school board meetings when children were allowed to recite the pledge in Spanish or other languages.  

The controversy, and the feeling that daily recitation was cutting into instructional time, has made about half the states drop the pledge or make it a local option.  In keeping with court decisions the rest of the states “encourage” children to participate in the pledge which now reads:

 

I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all.

One suspects the whole thing is not what Francis Bellamy had in mind.