ZENGER TRIAL

ZENGER TRIAL. Although appointed governor of the New York and New Jersey colonies in 1731, Colonel William Cosby did not arrive until 1732. In the interim, New York politician Rip Van Dam served as acting governor of New York and Lewis Morris did the same for

the New Jersey colony. Both collected the governor's salary. Shortly after Cosby arrived, he sought to recover half the governor's salary from each of his predecessors. His suit in 1733 against Van Dam ended abruptly when New York's chief justice, Lewis Morris, ruled that New York's supreme court justice could not act as an equity court to hear Cosby's case. Cosby summarily removed Morris, replacing him with James De Lancey, a young politician allied with Cosby.

In November 1733, Morris and his allies James Alexander and William Smith hired John Peter Zenger to publish an anti-Cosby newspaper—the New York Weekly Journal, which was the first opposition paper in America. The paper attacked Cosby with satire, humor, and irony, as well as serious essays on politics and government. Through innuendo, but not by name, the paper compared Cosby to a monkey and suggested he was tyrant. In January 1734, New York Chief Justice De Lancey urged a grand jury to indict Zenger for libel, but that body refused. In November 1734, a sheriff arrested Zenger, but again the grand jury refused to indict him. Nevertheless, in January 1735, the prosecutor charged Zenger with the misdemeanor of libel. Zenger's attorneys, James Alexander and William Smith, challenged the legality of De Lancey's appointment as chief justice, and De Lancey responded by disbarring both lawyers.

De Lancey appointed a pro-Cosby lawyer to represent Zenger, but when the trial began in July 1735, Andrew Hamilton of Philadelphia, the most famous attorney in the colonies, represented Zenger. The traditional defense in a libel case was to argue that the defendant did not actually publish the material. To the shock of everyone present, Hamilton, using a brief largely written by Alexander, admitted that Zenger had published the allegedly libelous newspapers, but then argued that Zenger should be permitted to prove the truth of his publications. This claim ran counter to English law, which held that a defamatory publication was libelous, whether true or not, and that, in fact, "the greater the truth [of the libel], the greater the scandal." Speaking directly to the jury, Hamilton attacked this theory, noting that it came out of the repressive star chamber during the reign of England's King James I. Hamilton argued that the significant political differences between England and America called for a different law of libel, and thus he urged the jury to give a general verdict of not guilty. De Lancey instructed the jury to follow the traditional English practice in libel cases, and hold Zenger guilty of publication, leaving it to the Court to determine if the publication was libelous. The jury ignored De Lancey and acquitted Zenger.

The jury's verdict did not change the law of libel in America or Britain, but it became a political force, putting colonial governors on notice that American juries would be supportive of those printers who attacked the largely unpopular royal officials. In the 1790s, both Britain and America adopted the twin principles of James Alexander's brief: that truth should be a defense to a libel and that juries should decide both the law and the facts of a case.

BIBLIOGRAPHY

Finkelman, Paul, ed. A Brief Narrative of the Case and Tryal of John Peter Zenger: Printer of the New York Weekly Journal. St. James, N.Y.: Brandywine Press, 1987.

PaulFinkelman

See alsoCivil Rights and Liberties ; Libel .