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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
Held incommunicado at first, Zenger was unable to get out an issue of the Journal that week. This threatened Cosby’s foes with the loss of their journalistic voice. Even though Zenger was able to resume publication, there was a chance of his being permanently silenced. Lewis Morris took off for London to argue Zenger’s case before officials of the Crown. James Alexander and William Smith applied on November 23 for a writ of habeas corpus to free Zenger on moderate bail, noting that the defendant had sworn he was not worth more than 40, excepting only the “tools of his trade and his wife and children’s wearing apparel.” Ignoring the arguments and affidavits, Chief Justice De Lancey harshly set bail at 400 plus two “sureties” (guarantors) who had to pledge 200 each, though no precedent in New York history sustained such judicial extortion. Unable to produce this, Zenger was remanded to jail. The question has been raised many times: Why did affluent men like Morris, Alexander, Smith, and Van Dam not come to the rescue of the printer who had served their cause so well? One speculation is that Zenger’s patrons decided that by letting him remain incarcerated, he would be seen as a martyr and symbolic victim of the tyranny they opposed.
As the court calendar crept leisurely through winter and spring, Zenger continued to hold weekly conversations with his wife and sons, and the Journal continued to appear under the direction of Alexander and Smith without interruption and without change in its editorial attitudes. At the opening of the supreme court’s spring term on April 15, Zenger’s lawyers made an audacious move by questioning on technical grounds the right of Justices De Lancey and Philipse to preside over a case on which their views were notoriously predisposed. For on signing the warrant for Zenger’s arrest in November, De Lancey had publicly and imprudently announced to spectators that “if a Jury found Zenger Not Guilty, they would be perjured.” De Lancey not only refused to allow the exceptions, but on April 16 he disbarred Alexander and Smith from further law practice in New York.
Zenger’s predicament had now become grave indeed. There were few lawyers in New York and none so able as Alexander and Smith. A prisoner without counsel, Zenger had no recourse but to petition the court to assign an attorney for his defense. De Lancey responded by naming John Chambers, a young man relatively competent but relatively inexperienced and a member of the Court Party. He pleaded Not Guilty for Zenger and requested an adjournment until the summer term in order to prepare his case. It was granted and Zenger stayed in jail.
When the trial finally opened on that August morning of 1735, few present expected an acquittal. As the crowd surged into the hearing room, there was only one bright element amid the general pessimism of the Zenger supporters. Overturning a bit of Cosbyite chicanery that would have packed the jury with men indebted to the Governor, they had induced Chambers to select a friendly jury. All were simple artisans, moreover, and apt to be opposed to Cosby’s aristocratic faction. Zenger’s friends knew that if the halfhearted defense counsel could develop any possible basis for acquittal, the jurors would thankfully seize it.
To open the trial the prosecutor, Attorney General Richard Bradley, cited passages from the Journal that had been deemed false, scandalous, malicious, and seditious at the time of Zenger’s arrest in November. Two particular issues had been singled out—those of January 28 and April 8, 1734. The earlier one had declared, in the italics and capitals that colonial printers delighted in using for emphasis: “ The People of this City and Province . . . think, as Matters now stand, that their LIBERTIES and PROPERTIES are precarious, and that SLAVERY is like to be entailed on them and their Posterity, if some past Things be not amended. ” The second cited the remark of an anonymous citizen who was fleeing to Pennsylvania: “ I think the Law itself is at an End ”—and, in an explosion of capitals, “ WE SEE MENS DEEDS DESTROYED, JUDGES ARBITRARILY displaced, new courts erected without consent of the legislature ... BY WHICH, IT SEEMS TO ME, TRIALS BY JURIES ARE TAKEN AWAY WHEN A GOVERNOUR PLEASES . . . [and] MEN OF KNOWN ESTATES DENIED THEIR VOTES . . . .”
Bradley then informed the jurors of their duty under a strict but solidly acceptable construction of the law. Their sole function was to determine whether John Peter Zcnger had published the offensive quotations. The question of libellousness, he said, was for the judges to determine. In legal parlance, the jury could find only as to the facts, but not the law.
When Bradley had concluded, Chambers arose and delivered a gentle and general disquisition on the nature of libel, expressing doubt that the prosecution could prove that a single individual had been libelled. In his presentation there was no hint of an aggressive defense of his client, but rather a plea of nolo contendere —of not disputing the accusation, but not acknowledging guilt.