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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
As weeks passed, the Journal subtly veered from these bold but general statements to specific and only slightly veiled assaults on Cosby and his cronies. Its writers employed three forms—satire, reportage of facts, and comment. Within the framework of its time the Journal was unusuallydaring. Other publications often prudently sought advance clearance for their content, although this was not strictly necessary, since the custom of precensorship—of requiring a printer to secure approval and a license before he could set material in type—had expired in England in 1695 and was almost never used in the colonies. This freedom from advance clearance, in fact, was what an eighteenth-century Englishman understood “freedom of the press” to mean. But it was a limited liberty, since the printer was still liable to prosecution for seditious libel, namely, criticism that tended, in the words of English Chief Justice Holt in Rex v. Tutchm in 1704, “to beget an ill opinion” of the government or its officers. Such prosecutions were not uncommon and could carry drastic penalties. But the Journal disdained precautionary measures and went an independent way, reporting what it chose. In January, 1734, the Journal cast discretion to the winds and openly called Cosby a “rogue Governour"—one who did “a thousand Things for which a small Rogue would have deserved a halter.”
The rising tempo of attack did not go unnoticed, and in that same month Chief Justice De Lancey tried to persuade a grand jury to return an indictment against Zenger and his writers for seditious libel, but the jury declined to act. In September, however, when a city election brought resounding defeat to a ticket of Cosby supporters, printed pamphlets from Zenger’s press fluttered through the streets, broadcasting effusive ballads celebrating the returns. It was the dissemination of these verses, each set to a popular tune of the time, that triggered the Zenger trial. The sound of sedition is virtually inaudible today, but in Cosby’s domain it rang loud and clear. For example:
Such ballads, climaxing weeks of constant, impudent dissent in the columns of the Journal , seemed to provide Cosby with the final evidence of seditious libel. Under the law Zenger, as printer of the offensive doggerel, threatened provincial security, divided public opinion, and cast doubt on the credibility of the administration. Cosby decided to silence Zenger and the Morrisites once and for all. Hence, when the October grand jury convened a few days after the rain of ballads, De Lancey once again asked for a libel action, observing, “Sometimes heavy, half-witted Men get a knack of Rhyming, but it is Time to break them of it, when they grow Abusive, Insolent and Mischievous with it.” Once again the jurors demurred, protesting that they found it impossible to identify the author or publisher of the objectionable material.
Cosby now brought his personal power into play. He decreed a public burning of the ballads and, at a later date, of several especially obnoxious numbers of the Journal and ordered the mayor and all city magistrates to be witnesses. The magistrates not only refused to attend but denied Cosby the services of the common hangman, whom he had named as chief incinerator. As a consequence, the immolation of the four offending issues was performed on November 6 by the sheriff’s Negro slave in the lonely presence of the recorder and a handful of officers from the British garrison. Then Cosby struck at the printer himself.
On Sunday, November 17, 1734, Zenger was summarily arrested by the sheriff and locked in the common jail on the third floor of city hall. The charge specified that his paper, the Journal , contained many things “tending to raise Factions and Tumults, among the People of this Province, inflaming their Minds with Contempt of His Majesty’s Government, and greatly disturbing the Peace thereof.”