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| John Peter Zenger trial |
John Zenger (1680–1746), a German-born printer working in New York City, found himself at the center of a political brawl in 1732 by printing a letter from New York Supreme Court chief justice Lewis Morris.
The letter was a minority opinion in the case of Governor William Cosby against respected and elderly statesman Rip Van Dam, who had acted as governor for almost a year awaiting Cosby’s arrival from England to begin his term.
Cosby insisted on receiving his salary for that time, and Van Dam refused. Since no court in New York would yield the decision Cosby wanted, he constructed a “Court of Exchequer” from the colony’s Supreme Court, and instructed it to decide his case without a jury.
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Although two of the judges found for Cosby, under intense pressure, the third, Lewis Morris, dissented and, after being replaced by Cosby, circulated his opinion in the form of a pamphlet printed by Zenger.
Although Zenger knew that printers were held responsible for their work, his newspaper, the New York Weekly Journal, continued to publish songs, cartoons, and articles critical of Cosby and his activities, including taking money from the New York Assembly and violating the colony’s laws by attempting to rig an election for assemblymen against Lewis Morris.
A rival paper, the New York Gazette, controlled by Cosby’s supporter, Francis Harison, rebutted these charges as libelous and untrue. Cosby pressured the Supreme Court to get an indictment against Zenger as a libeler, but two grand juries, noting that Zenger had not written the material, refused to bring charges.
Frustrated, the governor entered into a conspiracy to bring down Zenger, ordering a Supreme Court bench warrant issued on information filed by his attorney general, Richard Bradley.
Unable to pay the £800 bail, Zenger remained under arrest for eight months in the Old City Jail as an object of much sympathy and support, much of it stirred by his wife’s continuing publication of the Journal.
The case finally came to trial in August 1735. The governor intended to have the case tried by his handpicked Supreme Court justices Delancey and Philipps alone, but Zenger’s lawyers objected successfully.
Cosby and his conspirators then attempted to select a jury pool composed of Cosby’s employees and supporters, but Judge Delancey, horrified at this transparent manipulation of the system, refused to comply. Cosby then attempted to disbar Zenger’s attorneys, but was thwarted when the famous Philadelphia lawyer Andrew Hamilton agreed to act on Zenger’s behalf.
Prosecuted by Attorney General Bradley, who accused Zenger of seditious libel against Governor Cosby, the printer adopted a unique defense at Hamilton’s insistence: Zenger would not contest the fact that he printed the materials, but would claim that it could not be libel because they were true.
Bradley pointed out that the libel law of New York did not recognize truth as a defense against a charge of libel, but Hamilton countered with the argument that the law ought to allow the complaints of men who had been oppressed or wronged to be aired publicly. Although this had no legal support in the colony, Hamilton could turn to the jury and ask for nullification of an unjust statute.
In his closing remarks, Hamilton spoke not of Zenger as an individual, but as the representative of the press, and asked them to vote in favor of a free press unrestricted by arbitrary government. Delancey instructed the jury to find Zenger guilty, which, under the law, he was, but they returned with a “not guilty” verdict.
This single nullification did not change New York law, but it sent a clear message that the people of the colony, and, by extension, those of the other British colonies in the Americas, would not tolerate unjust prosecutions by corrupt government, and that they valued an independent press in which to circulate their views.
Despite the powerful conspiracy brought to bear by Cosby, and his misuse of the judicial and electoral system, Zenger and his case triumphed to become a bulwark against other conspiracies and restrictions on journalism.
