December 1971 | Volume 23, Issue 1
The law was against the poor printer. The governor wanted his scalp. His attorneys were disbarred. Could anything save him—and free speech?
On the morning of August 4, 1735, a cross section of New York’s ten thousand citizens clustered outside the city hall at the corner of Wall and Nassau streets. English and Dutch, men of all classes and trades, waited and argued tensely. Carts bounced over the paving blocks. The midsummer morning light slanted down on white sails in the harbor and on the spire of Trinity Church a block away. Here and there in the crowd readers scanned the pages of a fourpage paper entitled The New-Tork Weekly Journal, Containing the freshest Advices, Foreign, and Domestick .
In a few moments, in a courtroom inside the hall, the publisher of that controversial weekly would go on trial for his freedom. It was not only those in the immediate assembly who sensed the drama of the contest that was about to unfold. Throughout New England, from Boston to Philadelphia, and even in London, men of awareness had long discussed the political and intellectual issues that now were about to collide as the government sought to imprison a littleknown German-born printer: the right of citizens to criticize their rulers versus the claims of public order and safety. It was a tense moment in the unending battle for freedom of speech and press that is by no means quiescent today.
Meanwhile, the tensions created by this first major confrontation in America between government and the press had kept growing, dividing public opinion not only in New York but in other colonies as well. New York, however, was the storm center. Zenger’s paper was the voice of a faction in the colony’s politics. On his side were most middle-class New Yorkers, most residents of Quaker or Dutch extraction, and most longestablished freeholders —independent owners of land and property. Hostile to him were members of the so-called Court Party—wealthy merchants whose interests lay in trade with England, colonial bureaucrats, and peripheral followers of the incumbent governor of New York, William Cosby. It was this official’s personality and behavior that had thrown the city into turmoil.
When Cosby arrived in New York to assume the office of governor by appointment of King George it on August i, 1732, he ignited the fuse of events that exploded at the Zenger trial three years later. Prior to his coming, the mood of the colony was so tranquil that one of the city’s most distinguished lawyers, James Alexander, predicted that Cosby would enjoy an easier administration than any previous governor of New York. People knew that he was an AngloIrish aristocrat, a close friend of the Duke of Newcastle, an army colonel, and brother-in-law to the Earl of Halifax. These facts had preceded him during the year that elapsed between his appointment and his actual disembarkation in New York Harbor. The cause of the delay, as he let it be known, was his protracted fight to procure the defeat of a sugar bill that would favor southern plantation owners at the expense of the middle colonies. So a trusting and grateful populace was there to welcome him warmly as he set foot ashore.
It did not take long, however, for Cosby to reveal his offensive characteristics. The first to emerge were his unbridled temper and arrogance. The day after his arrival he ordered his coachman to horsewhip a farmer who was driving a loaded wagon with his wife seated beside him, because the man did not yield the right of way to Cosby’s carriage with instant, deferential speed.
The prime force that smouldered within this essentially rather stupid and only half-educated man, however, was avarice. What New Yorkers did not know at first was that in his last post as governor of the Mediterranean island of Minorca he had ruthlessly confiscated the property of a Spanish merchant, sold the property at auction, retained the proceeds, secreted the papers to cover his theft, and denied the injured merchant his right of appeal. News of the affair eventually got back to England, and despite Cosby’s powerful connections, his crime was too flagrant to be ignored. He was ordered to reimburse his victim, fined 10,000 for his misconduct, and removed from his post in Minorca. Yet Cosby somehow managed to obtain other appointments, culminating in his important post as governor of New York, which he avowedly looked upon as an opportunity to “repair his fortunes.”
Only a few knew of the Minorca episode, however, and in the first days of Cosby’s administration the New York assembly voted him a salary of 1,500, plus a special gratuity of 750 for his alleged services in obtaining repeal of the sugar bill. When news of the assembly’s appropriation was reported to Cosby, he flared in fury at what he considered the frugality of the award (though by the King’s instructions he was forbidden to accept any gifts from the assembly) and roared violently, “Damn them! Why did they not add the shillings and pence!” Meekly the assembly raised the amount of the gift to 1,000.
Repeatedly, Cosby took arbitrary action without asking for the assembly’s authorization or advice; he practiced nepotism (appointing his son to a sinecure office as “Secretary of the Jerseys” at an annual stipend of 450); he sold various local jobs at his disposal, attempted to rig elections, ignored instructions from London, and eventually, as will be seen, tampered with the courts.
The many diffuse antagonisms Cosby had built up congealed suddenly in a single, concrete clash over the issue of “Van Dam’s salary.” Between the death of the governor who preceded Cosby and the time of the new appointee’s arrival, the powers of the office were in the hands of Rip Van Dam, senior member of the pro- vincial council. Van Dam, who came from an old Dutch family, had served capably and honestly, and the grateful council had awarded him the full gubernatorial salary for his service. In the past, some—but not all- such acting governors had given half of their salaries to the official incumbent for whom they were substituting. Cosby demanded that Van Dam follow this uncertain precedent. But the old gentleman refused, unless compelled by due course of law.
Cosby at once sought just such compulsion. But no jury in New York was likely to find in favor of the unpopular governor. So he resorted to a bit of complex legal chicanery that would altogether eliminate the presence of jurors. He decreed that the three-justice supreme court of the colony should sit on the case as “Barons of the Exchequer,” a court of equity. The verdicts of such courts were given by judges alone. Van Dam’s attorneys, two of the ablest lawyers in New York, at once prepared to defy Cosby and challenge the jurisdiction of the reconstructed court. James Alexander and William Smith, long-time friends and political allies, were both legal scholars and forceful, articulate men. Alexander owned the largest law library in the American colonies and was a founder of the American Philosophical Society. Smith held both Bachelor’s and Master’s degrees from Yale (where he had distinguished himself in the classics) and was a founder of Princeton College.
When the Van Dam case came up for argument before the supreme court in April, 1733, the presiding justice was Lewis Morris, a man of great intellectual power, an owner of extensive lands in what is now part of the Bronx, and one of the most respected and politically powerful personages in America. He had served as chief justice since 1715 and later would become the first governor of New Jersey. In the litigation now before him, Morris ruled in favor of Van Dam, denying that the supreme court had jurisdiction in equity cases and attacking the propriety and legality of Cosby’s maneuver. The two other judges were James De Lancey and Frederick Philipse. Both were young and inexperienced, sons of self-made businessmen who represented the powerful mercantile clique in New York’s assembly, and both refused to concur with Morris.
Outraged by such upstart opposition, the senior justice promptly rebuked the two, left the courtroom, and, in an unusual step, released the text of his opinion for publication, together with some comments on Cosby’s public character. And thus the battle lines were drawn. Cosby swiftly wrote to London accusing the chief justice of bias, intemperate drinking, unreliability, and all-round inefficiency. Then, in August, he summarily dismissed Morris from the supreme court. In his place the governor appointed the callow but tractable Justice De Lancey.
Morris became, overnight, leader of an anti-Cosby faction that embraced many of the freeholders and professional people in the colony, among them such distinguished men as Gerardus Stuyvesant, Philip Livingston, and Cadwallader Golden. Their allies extended up the Hudson Valley as far as Albany. When, in the autumn of 1733, Morris and his son ran for the assembly, both were elected by strong majorities. More- over, in October of 1734, Morrisite candidates were to win every seat but one in New York City’s common council.
Secure in their political base, Morris and his supporters began an all-out war, by pamphlet and oratory, to effect the recall of Cosby, whom they assailed as an unprincipled and corrupt tyrant. And then they sought out a relatively new medium, a façade behind which a writer could discreetly remain anonymous, namely, a newspaper. But New York’s only newspaper at that time was the New York Gazette , owned by William Bradford, and Bradford, who held an official monopoly as public printer, was not disposed to lose it by publishing criticisms of the administration.
But John Peter Zenger was a printer, too. He had, in fact, been indentured to Bradford as an apprentice, and after a journeyman’s sojourn in Maryland, had been Bradford’s partner for a year. In 1726 he had set up his own small, struggling printshop in Smith Street, near Maiden Lane. His spelling, syntax, and grammar were unreliable, and his typography left much to be desired. Nevertheless, he did own a working printing press, and this asset, whose value was quite evident to the Morris supporters, led them to back Zenger in the founding of The New-York Weekly Journal , referred to by historian Stanley N. Katz, an authority on Zenger, as “America’s first party newspaper.”
Issue No. 1 of the Journal appeared on November 5, 1733, bearing Zenger’s imprimatur. It featured as its main story the election of Lewis Morris and his son to the assembly against the opposition of Cosby, whose appointed sheriff had used every device to disqualify pro-Morris voters. From its debut the Journal enchanted a readership accustomed only to the bland columns of the Gazette, for its anonymous writers- Alexander, Smith, and the Morrises —wielded the sharpest and most erudite pens in the province. Although it provided some foreign news (with a dateline about ten weeks old) and reported ship arrivals and departures, the Journal regularly devoted its first two pages to a “letter” addressed to Mr. Zenger that was in essence an editorial on local affairs.
It was Alexander, Van Dam’s gifted attorney, who gave Zenger’s paper its basic tone. He and his fellow contributors dipped into the past, quoted from the classics, cited the essays of Addison and Steele, and composed original diatribes against Cosby and his so-called Court Party. Some weeks they applied a touch of sly, ironic innuendo, as in one article that discussed the cabalistic significance of certain letters of the alphabet. It pointed out that the letter C appeared to bring bad luck to New York as well as tu England, as demonstrated in history by Charles i, Cromwell, Charles n, and Lord Cornbury, a predecessor of Cosby’s whose governorship had thrown the colony of New York into turmoil.
Colored by sharp criticism and outspoken dissent, the Journal pursued a course that was bold, indeed reckless, in the light of contemporary libel laws—so rigorous that any printed comment casting disfavor on the government, whether justified or not, could subject both author and publisher to fine and imprisonment.
It cannot be proved in retrospect that the Journal was preparing a challenge, a test of freedom of the press. But it did address the issue at once. In its second and third issues it ran “letters” emphasizing the value of free criticism of government officials. A bad minister was an “impudent Monster in Iniquity,” declared one of these, who might not “immediately be come at by ordinary Justice.” But “let him yet receive the Lash of Satyr... and if he has no Conscience, rouse his Fear . . . sting him with the Dread of Punishment, cover him with Shame, and render his Actions odious to all honest Minds,” and he might be brought down. At the least, such exposures of highly placed administrators would make them cautious, and this alone made “Liberty of the Press not only consistent with, but a necessary Part of the Constitution itself.” (The author’s reference was to the unwritten constitution of England.)
The Journal went on to assert that not only were truthful attacks on wicked officials indispensable to good government, but even the possibility that a free press would give currency to false accusations was to be accepted as risk of freedom. ”... very few good !Ministers can be hurt by Falsehood, but many wicked Ones by seasonable Truth.” The “mischief” that a few might meet with by calumny was nothing to what king and people might suffer “by a shameful, cowardly Silence under the Tyranny of an insolent, rapacious, infamous Minister.” Mere inconvenience was rather to be endured than total destruction. For, “The Loss of Liberty in general would soon follow the Suppression of the Liberty of the Press. . . .”
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.”
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.
As Chambers uttered the last syllables of his mild peroration, an elderly and imposing gentleman rose dramatically from a bench at the rear of the courtroom and announced that he wished to participate in Zenger’s defense. An ember of hope and excitement glowed in the bloc of Zenger supporters. Members of the Court Party looked questioningly toward the bench. Unknown to all, including Zenger, Alexander and Smith had communicated, after their disqualification, with perhaps the best legal mind in America: Andrew Hamilton, former attorney general of Philadelphia, former speaker of the Pennsylvania assembly, former vice-admiralty judge, a member of London’s Gray’s Inn, an independent in politics and religion, and versatile enough to have been one of the architects of Independence Hall. In the later colonial period, the term “Philadelphia lawyer” would be a high compliment to a member of the bar, and it is possible, though not provable, that Hamilton was the prototype and that the phrase originated with the Zenger case.
When he walked down the aisle of the courtroom to defend Zenger, Hamilton seemed a strong and dominant figure in comparison with the startled young justices on the bench. Some years later the son of William Smith recalled, in a history of New York, “He had art, eloquence, vivacity, and humor, was ambitious of fame, negligent of nothing to ensure success, and possessed a confidence which no terrors could awe.”
Like many lawyers, Hamilton had perhaps a bit of the actor in him, and it may have been this trait, combined with a touch of gout, that caused him to limp down the aisle and disarm the uncertain judges with an air of overpowering venerability. The Zenger case had appealed to his own political disposition. He had been a friend of Alexander’s; and when he received a call for help, he agreed without hesitation to make the long trip to New York.
Upon his unexpected appearance, Cosby supporters waited expectantly for De Lancey to expel Hamilton from the chamber, as he had disbarred Alexander and Smith. But Hamilton’s prestige and assurance of manner may have disconcerted the young chief justice. He conferred briefly with his associate justice, Philipse, and then rapped for the hearing to begin.
Attorney General Bradley was about to call his first witness to testify that Zenger and no other man had published the libellous papers when Hamilton interceded and astonished the court by an amiable declaration. “I’ll save Mr. Attorney the Trouble of examining his Witnesses to that Point; and I do (for my Client) confess, that he both printed and published the two News Papers set forth in the Information, and I hope in so doing he has committed no crime.”∗
∗Hamilton’s remarks at the trial, as well as those of other participants, are not derived from a court transcript but are taken from A Brief Narrative of the Case and Trial of John Peter Zenger (1736), prepared by James Alexander and Andrew Hamilton a few months after the trial. This work, often reprinted, was one of the most renowned American publications in the eighteenth century.
Quite probably taken aback by Hamilton’s concession, the attorney general, after a moment of hesitation, turned to the bench and said, “Then, if Your Honour pleases, since Mr. Hamilton has confessed the Fact, I think our Witnesses may be discharged; we have no further Occasion for them.”
“If you brought them here,” said Hamilton, “only to prove the Printing and Publishing of these News Papers, we have acknowledged that, and shall abide by it.”
At this point Zenger’s journeyman and two sons, and a few other witnesses subpoenaed by Bradley, were discharged and there was silence in the courtroom for some time.
“Well Mr. Attorney,” De Lancey finally said, “will you proceed?”
“Indeed, Sir,” responded the prosecutor, “as Mr. Hamilton has confessed the Printing and Publishing these Libels, I think the Jury must find a Verdict for the King; for supposing they were true, the Law says that they are not the less libellous for that; nay indeed the Law says that their being true is an Aggravation of the Crime.”
Hamilton instantly demurred. “Not so neither, Mr. Attorney,” he exclaimed, “there are two Words to that Bargain. I hope it is not our bare Printing and Publishing a Paper that will make it a Libel: You will have something more to do, before you make my Client a libeller; for the Words themselves must be libellous, that is, false, scandalous , and seditious or else we are not guilty.”
The adjectives touched off a semantic and legal debate. For if the only restraint on the press was not prior licensing but the law of libel, that law was strict. It was designed to prohibit what an English judge, in a later case ( Dean of St. Asaph ‘s case, 1784) had called “written censure upon public men for their conduct as such, or upon the laws, or upon the institutions of the country.” Nor did it matter whether the words were true or false. In short, any man could say or write what he chose, but he could be penalized if his words were judged, under the broad umbrella, to be libellous. In England the common law courts of King’s Bench had taken over such cases by 1735, and in New York, where English common law was binding, criticism of Governor Cosby could theoretically be punished as severely as criticism of King George n in England.
That was Bradley’s line of argument. Quoting from the specimens of political comment in the Journal that, by earlier English precedents, were clearly libellous, the attorney general added that he did not know what could be said in defense of a man who had so notoriously scandalized the governor and other officers of the government, when all knew that government was entitled to “great regard and reverence . . . both under the law and the gospel.” If this was not libel, he added, he did not know what was.
To this Hamilton replied, “May it please Your Honour, I agree with Mr. Attorney, that Government is a sacred Thing, but I differ very widely from him when he would insinuate, that the just Complaints of a Number of Men, who suffer under a bad Administration, is libelling that Administration. Had I believed that to be Law, I should not have given the Court the Trouble of hearing any Thing that I could say in this cause.”
Hamilton then began his assault on the major precedent, cited by both Chief Justice De Lancey and Bradley. In 1606, during the oppressive reign of James i, the Court of Star Chamber, composed of Crownappointed judges who sat in secret, held, in the case of de Libelhs Famosis , that statements could be libellous even if true. This thesis had prevailed on both sides of the Atlantic for more than a century, and it was Hamilton’s determination to shoot it down. His opening salvo was directed at Bradley’s selection of supportive cases from the hated Star Chamber tribunal, abolished in 1641.
“I was in hopes,” said Hamilton, “as that terrible Court, where those dreadful Judgments were given, and that Law established, which Mr. Attorney has produced for Authorities to support this Cause, was long ago laid aside, as the most dangerous Court to the Liberties of the People of England that ever was known in that Kingdom that Mr. Attorney . . . would not have attempted ... to make their Judgments a Precedent to us. For it is well known, that what would have been judg’d Treason in those Days for a Man to speak, I think, has since, not only been practiced as lawful, but the contrary Doctrine has been held to be Law.”
Declining to argue the merits of Star Chamber precedent, the attorney general went back to what he insisted was the nub of the matter. “The Case before the Court is, whether Mr. Zenger is guilty of Libelling His Excellency the Governor of New-York , and indeed the whole Administration of the Government? Mr. Hamilton has confessed the Printing and Publishing, and I think nothing is plainer, than that the Words in the Information are scandalous, and tend to sedition, and to disquiet the minds of the People of this Province . And if such Papers are not Libels, I think it may be said, there can be no such Thing as Libel.”
Hamilton at once leaped on a significant omission. “May it please Your Honour; I cannot agree with Mr. Attorney. For tho’ I freely acknowledge, that there are such Things as Libels, yet I insist at the same Time that what my Client is charged with, is not a Libel; and I observed just now, that Mr. Attorney in defining a Libel made use of the Words, scandalous, seditious, and tend to disquiet the people; but (whether with Design or not I will not say) he omitted the Word false. ”
Bradley brushed this aside. “I think I did not omit the Word false , ” he declared. “But it has been said already, that it may be a Libel notwithstanding it may be true.” That was precisely what Hamilton wanted to dispute, and the debate crackled briskly for a few moments.
That was enough to bring in Chief Justice De Lancey to reiterate the law. “You cannot be admitted, Mr. Hamilton , to give the Truth of a Libel in Evidence. A Libel is not to be justified; for it is nevertheless a Libel that is true.”
Hamilton was ready with a long list of citations and an argument that ridiculed the idea of “the greater the truth, the greater the libel": “I know it is said, That Truth makes a Libel the more provoking, and therefore the Offense is the greater, and consequently the Judgment should be the heavier . Well, suppose it were so, and let us agree for once, That Truth is a greater Sm than Falsehood ; Yet as the Offenses are not equal ... is it not absolutely necessary that [the judges] should know, whether the Libel is true or false , that they may by that Means be able to proportion the Punishment? For, would it not be a sad Case, if the Judges, for want of a due Information, should chance to give as severe ajudgment against a Man for writing or publishing a Lie, as for writing or publishing a Truth? And yet this . . . as monstrous and ridiculous as it may seem to be, is the natural Consequence of Mr. Attorney’s Doctrine, That Truth makes a worse Libel than Falsehood , and must follow from his not proving our papers to be false, or not suffering us to prove them to be true .”
De Lancey not only remained unmoved but resorted to judicial fiat, and, it may be guessed from the words used, some exasperation. Once more he announced : “Mr. Hamilton, the Court is of Opinion, you ought not to be permitted to prove the Facts in the Papers,” and read the supporting citation from a law book before him. When Hamilton tried to persist, he was brusquely cut down.
DE LANCEY: “Use the Court with good Manners, and you shall be allowed all the Liberty you can reasonably desire.”
Zenger’s supporters felt their spirits wane. It seemed clear that the great lawyer’s effort had failed. Stripped of power to distinguish truth from falsehood, the jury could return no other verdict than Guilty. Yet Hamilton showed no sign of chagrin. He had one more maneuver to try- unprecedented, hazardous, one that might possibly lead to disbarment, possibly prison.
Calmly, he said: “I thank Your Honour,” and turned to the jurors. “Then, Gentlemen of the Jury, it is to you we must now appeal, for Witness, to the Truth of the Facts we have offered and are denied the Liberty to prove; and let it not seem strange, that I apply myself to you in this Manner, I am warranted so to do both by Law and Reason. . . . were you to find a Verdict against my client, you must take upon you to say, the Papers referred to in the Information, and which we acknowledge we printed and published, are false, scandalous and seditious ; but of this I can have no Apprehension. You are citizens of New-York ; you are really what the Law supposes you to be, honest and lawful men . . . . And as we are denied the Liberty of giving Evidence, to prove the Truth of what we have published, I will beg Leave to lay it down as a standing Rule in such Cases, That the suppressing of Evidence ought always to be taken for the strongest Evidence . ”
What Hamilton was now doing was to appeal over the heads of the chief justice and the attorney general and urge the jury to ignore the court’s order, determine the truth of the Journal ’s charges, and find Zenger innocent of libel if indeed the accusations had merit. After a few more verbal exchanges with Bradley, this became clear. For when De Lancey repeated once more: “No, Mr. Hamilton; the Jury may find that Zenger printed and published those Papers, and leave it to the Court to judge whether they are libelous,” Hamilton was almost blunt: “I know, may it please Your Honour, the Jury may do so; but I do likewise know they may do otherwise. I know they have the Right beyond all Dispute to determine both the Law and the Fact, and where they do not doubt of the Law, they ought to do so. This of leaving it to the Judgment of the Court, whether the Words are libellous or not in Effect renders Juries useless. ...” And as he swept onward in his argument, Hamilton went beyond the issues of Cosby and his enemies. He moved toward a general defense of freedom of speech. He declared that “all the high Things that are said in Favour of Rulers, and of Dignities, and upon the side of Power, will not be able to stop People’s Mouths when they feel themselves oppressed. . . .” And he even harked back to the English revolt against the Stuarts, quoting “a great and good Man” whom he did not name, to the effect that “ the Practice of Informations [prosecutions without grand-jury indictments] for Libels is a Sword in the Hands of a wicked King and an arrant Coward to cut down and destroy the Innocent . ”
That was enough to bring Bradley up sharp. “Pray Mr. Hamilton,” he warned, “have a Care what you say, don’t go too far neither, I don’t like those Liberties.” Blandly Hamilton backed away: “Sure, Mr. Attorney, you won’t make any Applications; all Men agree that we are governed by the best of Kings.” And smoothly, he moved into a lengthy, moving, and still painfully timely discourse in defense of “a Right which all Freemen claim . . . they have a right publickly to remonstrate the Abuses of Power in the strongest Terms, to put their neighbours upon their Guard against the Craft or open Violence of Men in Authority, and to assert with Courage the Sense they have of the Blessings of Liberty, the Value they put upon it, and their Resolution at all Hazards to preserve it as one of the greatest Blessings Heaven can bestow.”
De Lancey and Bradley apparently sat without interruption as the powerful attorney eloquently developed his theme of the ineluctable necessity of free speech, while ranging easily for examples through recent British and ancient Roman history.
Two centuries ago, he noted, heretics were burned at the stake for uttering unorthodox theological doctrines, but in 1735 a man could criticize the church with impunity. ”... it is pretty clear,” said Hamilton with deliberate irony, “That in New-York a Man may make very free with his God, but he must take special Care what he says of his Governour.” The Attorney General, he continued, seemed to feel that “ Government is a sacred Thing; That it is to be supported and reverenced; It is Government that protects our Persons and Estates; That prevents Treasons, Murders, Robberies, Riots, and all the Tram of Evils that overturns Kingdoms and States, and rums particular Persons ; and if those in the Administration, especially the Supream Magistrate, must have all their Conduct censured by private Men, Government cannot subsist. This is called a Licentiousness not to be tolerated. It is said, That it brings the Rulers of the People into Contempt, and their Authority not to be regarded, and so m the End the Laws cannot be put into Execution . ”
Throwing all caution aside, Hamilton approached the end of his plea by advising the jurors that earlier English cases established that “ the Judges, how great soever they be, have no Right to Fine, imprison, or punish a Jury for not finding a Verdict according to the Direction of the Court . And this I hope is sufficient to prove, That Jurymen are to see with their own Eyes, to hear with their own ears, and to make use of their own Consciences and Understandings, in judging of the Lives, Liberties or Estates of their fellow Subjects. . . . Gentlemen the danger is great. ... A proper Confidence in a Court is commendable; but as the Verdict (whatever it is) will be yours, you ought to refer no Part of your Duty to the Discretion of other Persons. If you should be of Opinion, that there is no Falsehood in Mr. Zenger ’s Papers, you will, nay (pardon me for the Expression) you ought to say so. ... It is your Right to do so, and there is much depending upon your Resolution, as well as upon your Integrity.”
“Power,” the Philadelphia attorney said (or later recalled saying), “may justly be compared to a great River, while kept within its due Bounds. . . both beautiful and useful; but when it overflows its Banks, it is then too impetuous to be stemmed, it bears down All before it and brings Destruction and Desolation wherever it comes. If then this is the Nature of Power, let us at least do our Duty, and like wise Men (who value Freedom) use our utmost Care to support Liberty, the only bulwark against lawless Power.” Drawing on a reserve of histrionic ability, he alluded to his age, his “weight of many years” and “great infirmities of body,” yet declared that he was ready to go anywhere to combat efforts to “deprive a People of the Right of remonstrating . . . [against] the arbitrary Attempts of Men in Power.” Undoubtedly having the jurors in his spell at that point, he launched into a historic and deservedly much-quoted finale.
”... the question before the Court and you Gentlemen of the Jury, is not of small nor private Concern; it is not the Cause of the poor Printer, nor of New-York alone, which you are now trying: No! It may in it’s Consequence, affect every Freeman that lives under a British Government on the main of America . It is the best Cause. It is the Cause of Liberty; and I make no Doubt but your upright Conduct, this Day, will not only entitle you to the Love and Esteem of your Fellow-Citizens; but every Man who prefers Freedom to a life of slavery will bless and honour You, as Men who have baffled the Attempt of Tyranny; and by an impartial and uncorrupt Verdict, have laid a noble Foundation for securing to ourselves, our Posterity, and our Neighbours, That, to which Nature and the Laws of our Country have given us a Right,—the Liberty- both of exposing and opposing arbitrary Power (in these Parts of the World, at least) by speaking and writing Truth.”
Andrew Hamilton bowed, returned to his bench, and sat down. Angry and almost inarticulate, De Lancey addressed the jury. “The great pains Mr. Hamilton has taken to show how little Regard Juries are to Pay to the Opinion of the Judges ... is done, no doubt, with a Design that you should take but very little Notice of what I might say upon this Occasion.” Nevertheless, it was all quite clear. “The only Thing that can come in Question before you is, whether the Words as set forth in the Information make a Lybel. And that is a Matter of Law, no Doubt, and which you may leave to the Court.” A moment later, when De Lancey had concluded, Hamilton rose to humbly beg pardon: “I am very much misapprehended, if you suppose what I said was so designed.” Hamilton had no wish to be in contempt of court. He may also, as he settled back to wait for the verdict, have realized that he had brilliantly achieved his task—to get around the law, which was plainly against Zenger, and mobilize the jury’s hostility to Cosby.
The jurors retired. In ten minutes they announced that they had reached a verdict. The court was recalled to order. Justice De Lancey may well have looked pleased, obviously convinced that the jurymen had wasted no time discussing complexities of free speech and the libel code. Hamilton’s lengthy discourse on the power and duty of juries to evolve new interpretations of the law had been wasted rhetoric.
The clerk faced the jury and asked if the defendant, John Peter Zenger, had been guilty of publishing the libels as charged. The foreman, one Thomas Hunt, a mariner, rose to his feet and announced the verdict: “Not Guilty.”
An eruption of cheers and laughter shook the crowded courtroom. The initial chaotic outburst was quickly coordinated into three united huzzas for the defendant, three for Hamilton, three for the jury. Reactions to the outburst varied with-the political orientation of the observer. One conservative historian reported that two justices on the bench turned pale with terror at the clamor. The record shows that De Lancey pounded his gavel for order and rebuked the crowd for its demonstration.
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.
Yet despite the lag in the law, the fact remains that Alexander’s account of the trial and Hamilton’s eloquent peroration to the jury were printed widely throughout the intervening years and caused a furor wherever thoughtful men met—from Barbados to the Inns of Court. They went through fourteen editions in this country alone before 1791. And the Zenger trial was referred to repeatedly during the drafting of the First Amendment to the Constitution. As early as 1738 an English barrister, quoted by a correspondent in Benjamin Franklin’s Pennsylvania Gazette, declared, “If it is not law it is better than law, it ought to be law, and will always be law wherever justice prevails. ”
Quite apart from Hamilton ‘s brilliant victory, it should not be overlooked that John Peter Zenger, the humble printer, inarticulate and merely a mechanical aide to his intellectual contributors—the virtually unseen eye of the storm of political and philosophical controversy that raged around him—had also established a precedent of great importance by his silence, his refusal to divulge the identities of the men whose words he published. Ever since, journalists have looked back upon Zenger as the father of their most cherished and inviolable privilege—the right to protect the sources of their information, a right they must constantly fight for to this day.
The importance of the Zenger trial was not underestimated by the Founding Fathers m 1776. In the words of Gouverneur Morris: “The trial of Zenger in 1735 was the germ of American freedom, the morning star of that liberty which subsequently revolutionized America. ”