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.