John Peter Zenger Trial: 1735
John Peter Zenger Trial: 1735
Name of Defendant: John Peter Zenger
Crime Charged: Seditious libel
Chief Defense Lawyers: Andrew Hamilton and John Chambers
Chief Prosecutor: Richard Bradley
Judge: James De Lancey
Place: New York, New York
Date of Trial: August 1735
Verdict: Not guilty
SIGNIFICANCE: By accepting truth as a legitimate defense in a libel case brought against a newspaper editor by a public official, the jury laid the foundations of freedom of the press in America later codified in the Bill of Rights.
Arguably the single most significant political trial ever held in an American courtroom took place in New York City in 1735, well before the colonies fought for and gained independence. The defendant was a printer charged with the crime of seditious libel for publishing items in the New York Weekly Journal that skewered and taunted the greedy royal governor of the colony of New York and his judicial appointees. John Peter Zenger's acquittal deeply and firmly planted the roots of freedom of the press in American soil by overthrowing the orthodox legal view that the publication of stinging criticism or ridicule of public officials was, at the very least, a threat to law and order and, at the worst, treason, and thus worthy of severe punishment as "seditious libel."
Fifty years later, American statesman and diplomat Gouverneur Morris described the verdict in this case as "the morning star of liberty which subsequently revolutionized America." Embedded in the Declaration of Independence and in the Bill of Rights of the U. S. Constitution, which Morris helped write, are the basic freedoms for which Zenger and his allies fought.
Zenger's Attack on the Royal Governor
Zenger hardly seemed destined to play a pivotal role in American history. He appeared an ordinary enough man, his career a struggling and undistinguished one until he reached his middle years. Born in the German Palatinate, Zenger emigrated to America in 1710 as a boy of 13. The following year he was accepted as an apprentice by William Bradford, the British colony's royal printer, who enjoyed a monopoly on government printing. By 1725, he became Bradford's partner in the colony's official newspaper, New York Gazette, but that year he decided to go into business for himself. Zenger eked out a living until 1733 printing religious pamphlets, supplementing his income by playing an organ in church.
What set Zenger's fate in motion was the arrival in New York from England of a new royal governor, William Cosby. While it is not certain that Cosby was a thief, he was unquestionably a grasping and tactless man who demanded huge sums in payment from the New York colonial council for his services. He even attempted to force the prior interim governor, Rip Van Dam, to turn over half the salary he had been paid. When Van Dam refused, Cosby instituted a claim against Van Dam, to whose cause rallied a sizable number of the colony's wealthier gentlemen.
To propagandize their contempt for Cosby—a sentiment as prevalent among the masses as among the rich—and knowing they could expect no help from Bradford's Gazette (not if Bradford wanted to continue to be royal printer), Cosby's enemies turned to Zenger, offering to finance a newspaper for which Zenger would act as editor-publisher. Zenger's Weekly Journal made its first appearance November 5, 1733, and, unlike the Bradford paper, was hardly dry reading. With many of the scorching editorials written by a Van Dam ally, attorney James Alexander, the Journal quickly got attention, particularly for its mock advertisements. In one of them, Francis Harrison, a Cosby lackey, was described as "a large Spaniel, of about 5 feet 5 inches high … lately strayed from his kennel with his mouth full of fulsome panegyrics," or lavish praise for his master. The sheriff found himself described as a "monkey … lately broke from his chain and run into the country." Song sheets stronger in their invective than their meter or rhyme followed. ("The petty-fogging knaves deny us rights as Englishmen. We'll make the scoundrel raskals fly, and ne'er return again.")
None of this set well with Cosby and his friends—one of whom threatened Alexander's wife—and, on November 2, 1734, Cosby ordered that four issues of Zenger's paper be burned by the common hangman. The hangman refused. The sheriff then "delivered the papers into the Hands of his own Negroe" who set the bonfire.
Cosby Strikes Back
Fifteen days later, Zenger was arrested, charged with "presenting and publishing several seditious libels … influencing [the people's] Minds with Contempt of his Majesty's Government." Zenger was confined to the dungeon of the old city hall, which housed the courts, on 400 pounds bail, an amount easily two or three times Zenger's annual revenue from the newspaper. (It was the bail placed on Zenger that later influenced the writing of the Eighth Amendment of the U.S. Constitution, forbidding excessive bails and fines.)
Cosby's next step was to disbar Zenger's lawyers, William Smith and James Alexander, when they argued against the bail and challenged the commission of Chief Justice James De Lancey, a Cosby appointee. Appointed to defend Zenger—who missed producing only one issue of his newspaper while in prison, dictating editorials to his wife through the dungeon door—was John Chambers, a conscientious enough fellow but one who belonged to the Cosby party.
Despite jury lists that seemed rigged in Cosby's favor, eventually a panel was obtained that contained seven New Yorkers of Dutch descent, among whom anti-British feeling was strong. Even so, the prosecution was confident of victory. Most legal opinion of the time held that defamatory words equated libel, regardless of the truth or falsity of the words. Under the law, as interpreted by Cosby's attorney general, Richard Bradley, it was solely up to the judge, a Cosby appointee and crony, to decide if the articles were seditious and defamatory. The jury's role was limited to determining if Zenger was "guilty" of publishing the articles in question. Since the printer never denied this, the jury's verdict seemed a foregone conclusion.
Unknown to the Cosby forces, Zenger's friends had not been idle. As a result of their endeavors, a 59-year-old man was sitting in the audience as the trial began. Now he arose, and to the dismay of the judge and prosecutor, identified himself as Andrew Hamilton of Philadelphia, the most famous trial lawyer in the colonies. It was Hamilton's role in the Zenger trial that inspired the phrase, "When in trouble, get a Philadelphia lawyer."
Defense attorney Chambers, in a difficult spot, gladly deferred to Hamilton. From the start, Hamilton admitted Zenger had printed the papers, but observed that for a libel to be proved it must be both false and malicious. "It is a right," said Hamilton, "which all freemen claim, and are entitled to, to complain when they are hurt; they have a right publicly to remonstrate against abuses of power in the strongest terms, to put their neighbors upon their guard against the craft or open violence of men in authority"—a function for a newspaper to perform—"and to assert with courage the sense they have of the blessings of liberty."
Prosecutor Bradley vigorously contested Hamilton's argument, insisting on defining libel as words that were "scandalous, seditious, and tend to disquiet the people." To no one's surprise, Judge De Lancey sided with Bradley, declaring, "You cannot be admitted, Mr. Hamilton, to give the truth of a libel in evidence." Challenged by Hamilton, the chief justice, testily quoting from a British court ruling, declared, "The greater appearance there is of truth in any malicious invective, so much the more provoking it is." Although Hamilton quickly pointed out that the quote came from one of the notorious secret trials of religious dissenters held by the Star Chamber (a former oppressive English court), De Lancey was unmoved and the ruling stood, barring Hamilton from calling witnesses who would testify to the truth of the Weekly Journal's articles, testimony that Royal Governor Cosby very much wanted to avoid.
Hamilton's Appeal for Press Freedom
Since he was unable to present his evidence, Hamilton's only chance to acquit his client was through his summation to the jury. He began by pointing out that "the suppression of evidence ought always to be taken for the strongest evidence." Warming to his subject, he denounced the inequities of "corrupt and wicked magistrates," the evils of the Star Chamber and its forbiddance of trial by jury. Liberty, he declared, is our "only bulwark against lawless power." Closing his argument, Hamilton declared:
I am truly very unequal to such an undertaking on many accounts. And you see I labor under the weight of many years, and am borne down with great infirmities of body; yet old and weak as I am, I should think it my duty, if required, to go to the utmost part of the land where my service could be of any use in assisting to quench the flame of persecutions upon informations set on foot by the government to deprive a people of the right of remonstrating of the arbitrary attempts of men in power. Men who injure and oppress the people under their administration provoke them to cry out and complain; and then make that very complaint the foundation for new oppressions and prosecutions.… Gentlemen of the jury, … it is not the cause of a poor printer, nor of New York alone, which you are now trying. No! It may in its consequences 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 you and honor you, as men who have baffled the attempt of tyranny.
This spellbinding summation, one of the most famous and memorable in legal history, emboldened jurymen and spectators alike. As Zenger himself later noted: "The jury withdrew, and in a small time returned, being asked by the clerk whether they were agreed of their verdict, and whether John Peter Zenger was guilty of printing and publishing the libels in the information aforementioned, they answered by Thomas Hunt, their foreman: Not Guilty. Upon which there were three huzzas in the hall, which was crowded with people and the next day I was discharged from imprisonment."
Zenger Verdict's Legal Impact
Zenger quickly published the transcript of the trial, and his and other printings—one by Benjamin Franklin—soon spread the story of the trial throughout the American colonies and to England. While cheered by many people on both sides of the Atlantic, legal authorities and public officials were slow to accept the verdict as a binding legal precedent. It took the British Parliament until 1792, with the passage of the Fox Libel Act, to formally give juries the right to consider truth, not just publication, in seditious libel cases.
Although freedom of the press was enshrined in the American Bill of Rights, the bitter political battle between Federalists and Republicans after independence was won from Britain sparked seditious libel cases against newspapers in several states. In the 1803 prosecution of a scurrilous Federalist editor, Harry Croswell, for libeling President Thomas Jefferson, a devoutly Republican Justice Morgan Lewis ordered the jury to rule strictly on the fact of publication and banned evidence on the truth of the libel. Another Hamilton—Alexander—appealed to the New York Supreme Court to overturn the jury's guilty verdict and order a new trial, basing his argument on the Zenger case. Although the court split two-and-two on the issue, thus in effect denying the appeal, the eloquence of Hamilton's argument won over public opinion, and the prosecution dropped the proceedings against Croswell. The legal principles enunciated by Hamilton and repeated in the written opinion of Supreme Court Justice James Kent were incorporated into the New York Constitution of 1821.
Through the powerful oratory of both Hamiltons and the courage of Zenger's jurors, the right to free speech—to a free press—was established, and the importance of the right to trial by jury as a safeguard against oppressive government recognized.
—Edward W. Knappman
Suggestions for Further Reading
Buranelli, Vincent. The Trial of John Peter Zenger. Westport, Conn.: Greenwood Press, 1975.
Fleming, Thomas J. "A scandalous, malicious and seditious libel." American Heritage (December 1967): 22-7, 100-06.
Goebel, Julius and T.R. Naughton, Law Enforcement in Colonial New York. New York: Commonwealth Fund, 1944.
Hopkins, W. Wat. "John Peter Zenger." In A Biographical Dictionary of American Journalism, edited by Joseph P. McKerns. Westport, Conn.: Greenwood Press, 1989.
Konkle, B.A. The Life of Andrew Hamilton, 1676-1741. Philadelphia: National Publishing Co., 1941.
Morris, Richard. Fair Trial. New York: Alfred A. Knopf, 1952.
Rutherford, Livington. John Peter Zenger, His Press, His Trial, and a Bibliography of Zenger Imprints. New York: Arno Press, 1904.
Schuy ler, L. R. Liberty of The Press in The American Colonies Before The Revolutionary War. New York: T. Whittaker, 1905.
"John Peter Zenger Trial: 1735." Great American Trials. . Encyclopedia.com. (March 24, 2019). https://www.encyclopedia.com/law/law-magazines/john-peter-zenger-trial-1735
"John Peter Zenger Trial: 1735." Great American Trials. . Retrieved March 24, 2019 from Encyclopedia.com: https://www.encyclopedia.com/law/law-magazines/john-peter-zenger-trial-1735