I.

Introduction

Trial of John Peter Zenger, legal proceeding during the 1730s that helped form the political belief in the United States that citizens have the right to freely criticize their government. The case also fostered the idea of freedom of the press.

In 1735 a jury in colonial New York found German American newspaper publisher and printer John Peter Zenger not guilty of the crime of seditious libel—that is, the communication of information intended to cause dissatisfaction with the government or other authorities. In his newspaper, the New York Weekly Journal, Zenger had published articles criticizing the governor of the colony. The jury acquitted him on the grounds that what he had printed was true. Although the case did not create new legal precedent or immediately change the law of libel, it became the most important political trial of the period before the American Revolution (1775-1783). In 1736 Zenger published an account of the trial, bringing the arguments in favor of journalistic freedom to the attention of readers throughout the American colonies, as well as readers in other British colonies and in England.

II.

Political Background

William Cosby became governor of New York (which at the time included what is now New Jersey) in July 1731, but he did not arrive in the colony until August 1732. In the intervening period Rip Van Dam, a prominent New York politician, served as acting governor. Soon after his arrival Cosby demanded that Van Dam relinquish half the salary that he had collected while serving as acting governor. When Van Dam refused, Cosby decided to sue to obtain the money. However, Van Dam was a popular politician. Cosby, an outsider with little support within the community, did not have a good chance of winning before a hostile New York jury.

Instead of suing in a common law court and bringing his case before a jury, in March 1733 Cosby asked the New York Supreme Court to act as an equity court and hear the case. Equity courts do not use a jury and can ignore technical legal rules in favor of equity (fairness). Chief Justice Lewis Morris, a close ally of Van Dam, ruled that the Supreme Court could not legally sit as an equity court to hear Cosby’s case. He then adjourned the court before its other two justices, both allies of Cosby, could complain.

Cosby viewed Morris’s action as a political attack and a personal affront. He responded by removing Morris from his post as chief justice, even though this violated English law. He replaced Morris with a young and inexperienced judge, James De Lancey. Morris, Van Dam, and two other lawyer-politicians, James Alexander and William Smith, then organized a faction opposed to Cosby and hired Zenger to begin publishing an anti-Cosby paper.

In November 1733 Alexander began editing the New York Weekly Journal, which Zenger published. The paper was humorous, satirical, and philosophical. It ridiculed Cosby and his policies through innuendo and also presented high-level discussions of philosophy and history to defend the concept of a free press. The editors reprinted essays by contemporary political theorists that warned of the dangers of tyranny. The paper asserted that people could only protect their own liberties if newspapers were free to print the truth, even if the papers criticized the government.

III.

Legal Background

The crime of seditious libel combined two legal concepts. Sedition refers to conduct intended to create dissatisfaction with the government and those exercising authority. Libel is the communication of defamatory (damaging) statements. Thus if a person communicated damaging statements against the government, he or she committed seditious libel. A printer by trade, Zenger's role in the Weekly Journal was essentially technical. He did not write the articles. However, as the publisher he was responsible under the law of libel for the content of the paper.

At the time of Zenger’s trial a publisher could be convicted of libel, even if what he printed was true. This rule was based on the belief that all defamatory statements about the government were dangerous to its stability. The courts generally held that a truthful libel was a greater crime because it was more likely to be believed, and thus more likely to undermine the government.

IV.

The Trial

In January 1734 Chief Justice De Lancey unsuccessfully urged a grand jury—a body of citizens that determines whether sufficient evidence exists to charge a person with a crime—to indict Zenger for seditious libel. In October of that year a second grand jury agreed that certain issues of the Weekly Journal defamed the governor, but the jurors made no determination as to who had published them. The members of the grand jury undoubtedly knew that Zenger was the publisher of the paper, but they refused to acknowledge this because the paper’s opposition to the governor was popular with most New Yorkers. After the second grand jury failed to indict Zenger, the Governor's Council, a commission with both legislative and judicial functions, ordered that the offensive issues be burned and that Zenger be arrested. He was taken into custody on November 17, 1734.

Chief Justice De Lancey set Zenger's bail at £400, about ten times his net worth. Unable to pay this bail, Zenger remained in jail for nearly nine months. Zenger’s friends did not expect him to spend this much time in jail, because the grand jury was scheduled to convene only through January 1735 and they anticipated that it would not indict him. The grand jury did refuse to indict Zenger, but on the last day of the court term the prosecutor charged Zenger under another procedure, called an information. Unlike an indictment, an information did not result from the deliberations of a group of citizens; instead, it allowed the government to bring someone to trial at its own discretion. After being charged in January, Zenger’s arraignment—that is, the proceeding to determine whether there is sufficient information to proceed with a trial—was not held until April. James Alexander and William Smith represented Zenger at the arraignment but were disbarred by De Lancey after arguing that his commission as a judge was invalid.

De Lancey then appointed John Chambers, an ally of Governor Cosby, to represent Zenger. Despite his alignment with Cosby, Chambers ably defended Zenger in the proceedings prior to trial. Most significantly, Chambers prevented the sheriff from stacking the jury with friends of the governor. After his disbarment James Alexander traveled to Philadelphia, Pennsylvania, where he convinced Andrew Hamilton, the most distinguished lawyer in the colonies, to take Zenger's case. When the trial began in August 1735 Hamilton replaced Chambers as Zenger’s attorney.

The standard defense to a libel was to deny publication, asserting that whoever printed the materials, it was not the defendant. Hamilton immediately rejected this defense. He told the court that Zenger had in fact published the newspapers but argued that the jury had the legal right, and the power, to determine for itself if the newspapers were actually libelous. Furthermore, Hamilton argued that if the accusations in the papers were true, they could not be libelous.

Chief Justice De Lancey rejected Hamilton’s argument, instructing the jury to return a verdict of guilty on the grounds that Zenger had admitted he was the publisher of the newspapers. It would then be up to De Lancey to decide if the papers were libelous. After the judge’s instructions, Hamilton turned directly to the jurors and asked them to use their best judgment as 'citizens of New York' and 'honest and lawful men.' He declared that to convict Zenger of the crime the jury must find that the libelous matter was 'false, scandalous and seditious.' Hamilton asserted that the jury knew this had not been proven because the facts outlined in Zenger's paper 'are notoriously known to be true.' According to Hamilton, the liberty of Zenger, and by implication the liberty of all New Yorkers, rested with the jury.

The jury returned a verdict of not guilty, and Zenger went free. Although Zenger was undoubtedly guilty of seditious libel as that crime was understood at the time, the jury concluded that because the defamatory statements about Governor Cosby were true Zenger should not be convicted. Andrew Hamilton had discussed the law as he believed it ought to be under the conditions of colonial America, rather than as it was in England. The jury had agreed that a static, unchanging law was inappropriate for the colonies.

V.

Aftermath

Until the Zenger case, the jury in a seditious libel trial typically decided the factual question—whether the person charged with the crime had actually published the offending material. Judges reserved for themselves the legal question—whether the publication was actually libelous. This made a seditious libel prosecution different from virtually every type of criminal trial in Anglo-American law. Zenger's trial challenged the procedure of the times. In this case the jury, not the judge, ultimately decided if the publication was libelous.

In 1736 Zenger published an account of the case, entitled A Brief Narrative of the Case and Tryal of John Peter Zenger, Printer of the New York Weekly Journal. Although written as a personal narrative under Zenger’s name, James Alexander authored the book. The narrative contained the substance of Andrew Hamilton's argument and in many places was probably a word-for-word rendition of the trial. During the crisis leading to the American Revolution, as well as during the debates over the Constitution of the United States, the Bill of Rights, and the Sedition Act of 1798, Americans read the Zenger narrative and talked about his case. The account of the case was republished in England. By the early 19th century the law, in both England and America, incorporated the concepts that truth should be a defense to a libel prosecution, that the people had the right to criticize their leaders, and that a jury should determine both the law and the facts in libel cases.