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The Case of John Peter Zenger
The law was against the poor printer. The governor wanted his scalp. His attorneys were disbarred. Could anything save him—and free speech?
December 1971 | Volume 23, Issue 1
From the back benches an audacious voice retorted. It was a young naval officer, Captain Matthew Norris, Lewis Morris’ son-in-law. “Cheers,” he drawled impudently, “are customary on -such occasions.” Again shouts and huzzas rattled the windowpanes. The judges gathered their robes about them and swirled out in a vortex of juridical wrath.
That night forty prominent New Yorkers gave a dinner at the Black Horse Tavern on Smith Street in honor.of Andrew Hamilton, the Philadelphia lawyer who had defeated the Governor’s design. It was a noisy and intemperate evening for a man of his years, for ahead of him lay the long and rigorous journey down New York Harbor to Amboy, through the New Jersey forests, and thence down the Delaware River to the green, shady city of the Quakers. But there was one acid drop in the celebration. For John Peter Zenger, the protagonist, was not present to join the festivities. The city government refused to release him until the jail had been reimbursed for the expense of his maintenance during the eight and a half months of his confinement. It was not until the next day that his friends raised the money to pay the bill and Zenger emerged a free man.
Meanwhile, Hamilton embarked at the Battery to the cheers of admiring New Yorkers and the salvos of guns from sloops anchored at the mouth of the Hudson. As his ship vanished down the bay in the warm summer breeze and the last triumphant cannon rumbled to silence over the the salt marshes of New Jersey, John Peter Zenger, probably paler and thinner, walked out of jail and returned to his forms and ink Dots in the Journal office.
Zenger also returned to the controversies, which had continued to rage during his incarceration. Public hostility toward Cosby persisted and did not abate until his death almost a year later. Alexander and Smith were petitioning for readmission to the bar and finally won a quiet reinstatement. Through the remainder of 1735 and 1736, Zenger’s Journal remained the storm center of political conflict. But in the summer of 1737, Zenger’s friendship with Lewis Morris, Jr., son of the former chief justice and now speaker of the New York assembly, won him the appointment of public printer for the province of New York. And in the following year, when the elder Morris became governor of New Jersey, Zenger was awarded a similar commission for that province.
A forgetful and fickle public, however, allowed the Journal ’s circulation and advertising revenues slowly to decline. On August 4, 1746, a relatively recently begun paper called the New-York Evening Post printed a small obituary notice.
On Monday evening last, departed this Life, Mr. John Peter Zenger Printer, in the 49th Year of his Age. He has left a Wife and six Children behind, he was a loving Husband, and a tender Father, and his Death is much lamented by his Family and Relations.
For five difficult years Zenger’s widow and oldest son, John, Jr., did their best to carry on the paper. Periodic notices appeared, requesting subscribers who were unable to pay bills in cash to meet their obligations with hams, butter, cheese, or poultry. Finally, on March 18, 1751, the Journal lapsed into silence. It was an unspectacular end for a paper that had served so well the press of a republic still unborn.
Some historians say that the tynger case cannot truly be seen as establishing a legal precedent, inasmuch as trials and convictions for seditious libel continued to occur on both sides of the Atlantic until the end of the eighteenth century. And it has also been observed that Hamilton ‘s defense of Zenger was not good law. And indeed it was not. He defied existing law and came perilously close to contempt of court; a more experienced judge than De Lancey might have so ruled. But Hamilton was not practicing the law of his era, he was presaging the law of the future. As Professor ^echanah Chajfee, Jr., of the Harvard Law School, has written: “The victories of liberty of speech must be won in the mind before they are won in the courts.”
The two great principles set forth by Hamilton—the validity of truth as a defense of libel and the right of the jury to decide libellousness—did eventually become universal m the English-speaking world. In the United States they were embodied, curiously enough, in the antilibertarian Sedition Act of 1798. When that measure died, the federal government went out of the business of prosecuting libels altogether, but Hamilton’s principles were gradually extended to apply to the states. [See “A Scandalous, Malicious and Seditious Libel, ” A MERICAN H ERITAGE , December, 1967] In England the final incorporation of truth as a defense and the jury’s right to judge libellousness did not come until Lord Campbell’s Act of 1843.