Zenger Trial (1735)

The Zenger trial is a landmark in the history of civil liberties, although its impact on civil liberties has been disputed by scholars. John Peter Zenger was a German immigrant who arrived in New York City in 1710 and ultimately became a printer. In November 1733, Zenger began publishing the New York Weekly Journal, the first opposition newspaper in American history. The paper was founded after a group of disgruntled politicians mounted a challenge to the administration of Sir William Cosby, the New York colony’s new governor. This group included the former chief justice of the colony, Lewis Morris, the former acting governor, Rip Van Dam, and two leading lawyers, William Smith and James Alexander.

The controversy began in 1732 when Cosby arrived in New York some thirteen months after he had been appointed governor of the colony. During the interim Van Dam had been acting governor of the colony. When Cosby arrived, the legislature voted him a bonus equal to almost all of the salary that he would have been paid had he been in the colony for the previous year. In addition, there was a large accumulation of fees and other emoluments that were waiting for Cosby. Unsatisfied with this amount, Cosby demanded that Van Dam turn over half the salary he had collected while Cosby had been in England. Van Dam refused do to this, and Cosby then asked the New York Supreme Court to sit as an exchequer court so that he could sue Van Dam. Exchequer courts did not use juries or follow common law rules, and were thus seen as arbitrary tools of the government. When the case came before the Court, Chief Justice Morris summarily ruled that it could not sit as an exchequer court and dismissed the case. He then published his opinion, which Cosby correctly saw as an attack on him. A few days later, Cosby fired Morris and replaced him with James DeLancey, a young judge with little experience, but a reliable ally of Cosby.

Morris, Van Dam, and Van Dam’s attorneys, Smith and Alexander, then organized an anti-Cosby political faction, and quickly won seats in the colonial legislature and the New York City government. They also hired Zenger to publish his paper, which continuously attacked Cosby and his administration. The Weekly Journal was humorous, satirical, and philosophical. The paper ridiculed Governor Cosby through innuendo and satire while at the same time reprinting high-level discourses on philosophy, political theory, and the lessons of history. The Weekly Journal also provided an articulate defense of the idea of a free press.

Cosby tried to have Zenger indicted for seditious libel, but no grand jury would bring an indictment, although one did order that certain issues of the paper be burned. Cosby was corrupt, venal, and obnoxious. Most New Yorkers hated him, and Zenger’s paper had great popular support. Finally, in November 1734 the governor had Zenger arrested and jailed while the colony brought his paper before yet one more grand jury. Zenger could not afford the high Bail that Chief Justice DeLancey demanded. His supporters, Morris, Van Dam, and Alexander, could have posted the Bail, but did not because they assumed that Zenger would be released in December when the grand jury ceased to sit. They were correct in understanding that the grand jury would not indict him. But, on the last day of the grand jury, the attorney general charged Zenger with seditious libel by information. This procedure avoided a grand jury indictment, but only allowed Zenger to be tried for a misdemeanor.

At the first hearing in the case, Zenger’s attorneys, Smith and Alexander, challenged the right of DeLancey to sit as a justice because of the way he had been appointed. Shortly after this, DeLancey disbarred both men and appointed John Chambers, an ally of Cosby, to defend the printer. At the next stage of the proceedings, the sheriff brought in a list of potential jurors that included a number of Cosby’s friends and people who did business with him, including his baker, tailor, shoemaker, and candlemaker. Even though he was an ally of Cosby, Chambers exposed these irregularities because he clearly wanted to win his case, as most lawyers do. In this sense, Chambers may have been the first ‘‘civil liberties lawyer’’ in America, defending a client he did not agree with in a free speech case.

The trial did not take place until August 1735. By this time, Zenger had been in jail for more than eight months. At the time, the legal issues in libel cases were divided between the judge and jury. The jury determined if the allegedly libelous paper was published or written by the defendant—that is, the jury determined the ‘‘facts’’ of the case. The judge decided if the paper or writing was actually libelous—the ‘‘law’’ of the case. Truth was not considered a defense to a libel charge, and in fact, English courts had asserted that the ‘‘greater the truth, the greater the libel’’ on the theory that true statements that undermined support for the government are more dangerous than false ones. The traditional defense to the libel charge was that the defendant was not the publisher, or that the defendant may have printed the offensive publication, but did not actually know what was in it.

As the trial opened, Zenger had a new attorney, Andrew Hamilton, of Philadelphia, the most famous lawyer in the colonies. Working from a brief written by James Alexander, Andrew Hamilton offered a surprise defense. Hamilton began by admitting that Zenger had published the newspapers, but argued that what he published was true, and therefore not libel. He then offered to prove the truth of everything in the paper. The prosecutor objected that truth was not a defense, and in the end the judge sustained this position but not before Hamilton was able to argue in court that truth ought to be a defense. The judge directed the jury to convict Zenger of publication, since he had admitted that, and leave the issue of libel up to the judge. Hamilton told the jurors that they had the right to issue a general verdict of not guilty, which the judge could not overrule. The jurors followed Hamilton’s advice, and Zenger was acquitted. A year later Zenger published A Brief Narrative of the Tryal of John Peter Zenger, which was, in fact, written by James Alexander.

The Zenger case has long stood as monument to a free press. Zenger criticized the government and a jury of citizens acquitted him of libel. But, in fact the long-term legal significance of the case is less certain. This was a decision by a jury in a colony distant from England. It had no value as a legal precedent, and was vigorously attacked by legal experts in England and some of the other colonies. Zenger was clearly guilty under the existing law of libel. His acquittal was a form of jury nullification, in that the jury knew that he was guilty under the law, but the jury did not like the law. A runaway jury in a faraway colony could not change the law of England.

However, as a political precedent and a historical precedent, the Zenger trial was enormously important. After Zenger’s case, no governor in the American colonies ever dared to bring a libel case against a colonial printer. There was simply no hope of winning. By the time of the American Revolution, the Zenger case was etched in the minds of the patriots as an example of how arbitrary government could trample the liberties of Americans. A number of provisions of the Constitution and the Bill of Rights fight their roots in the Zenger case. The case highlighted the need for an independent judiciary that served during the good behavior, rather than at the pleasure, of the governor. Thus, the U.S. Constitution provides life terms for judges. The case underscored the value of grand jury indictment, to prevent the government from trying its enemies. The Fifth Amendment would do just that. Zenger sat in jail for over eight months because the politically motivated judge demanded such a high Bail. The Eighth Amendment addressed that issue. Zenger’s lawyers were disbarred because they insulted the judge. The Sixth Amendment right to counsel helps prevent that. The sheriff tried to stack the jury, but the Sixth Amendment provides for an impartial jury. Finally, of course, Zenger was prosecuted for publishing attacks on the governor; the First Amendment presumably prevents such prosecutions.

Zenger’s demand that truth be a defense to libel is still part of American law. However, during the sedition crisis of 1798 Americans learned that truth was not always clear, and that one man’s truth, especially in politics, was another’s libel. Thus, in New York Times Co. v. Sullivan (1964), the Supreme Court could find that the press could publish false statements about politics and not be subject to libel, as long as the false statements were not intentional or published with reckless disregard for the truth.

The history of Zenger—indeed what we might call the myth of Zenger as a great victory for freedom of the press—has served as a guidepost for advocates of liberty in England and the United States. Zenger published his narrative of the case in 1737. It was reprinted in England in 1765 during the controversy over free speech and press surrounding John Wilkes. During and immediately after the Revolution, printers republished the Zenger narrative. During the debates over the ratification of the Constitution opponents of the Constitution talked about Zenger’s case in the context of the lack of a bill of rights. In 1799, during the sedition act crisis, Zenger’s narrative was once again reprinted. It would reappear on the eve of World War II, and during the McCarthy witch-hunt days of the 1950s. In New York Times v. Sullivan, Justice Arthur Goldberg would cite Zenger’s case for the idea that a free press was essential to a democracy. The modern court has also cited it for the importance of the right to counsel. The case and the Zenger Narrative remain a monument to the value of a vigorous press and fair trials in a free society.

PAUL FINKELMAN

References and Further Reading

• Paul Finkelman, ed. A Brief Narrative of the Tryal of John Peter Zenger. New York: Brandywine Press, 1997.

Cases and Statutes Cited

• New York Times Co. v. Sullivan, 376 U.S. 254 (1964)