In Spring 2017, the SAGU History department hosted the seminar “Beginnings: Life, Culture and Politics in Early America.” Topics included the birth of the American Navy, Breaking the Glass Ceiling, The Electoral College, America’s Military Bands and many more. David Onyon discusses the Zenger trial, which was a remarkable story of a divided Colony, the beginnings of a free press and the stubborn independence of American Jurors.
Good morning, so as we look today the freedom of expression is a fundamental right in the United States. These expressions are encapsulated in the first amendment as my students know; religion, assembly, petition, press, and speech. Perhaps no case though in American history stands as a greater land mark on the road to the protection of freedom of the press than the trial of a German immigrant printer named John Peter Zenger.
On five August 1735, 12 New York jurors inspired by the eloquence of the best lawyer of the period Andrew Hamilton, ignored the instruction of the governor’s hand picked judges and returned a verdict of not guilty on the charge of publishing seditious libels. The Zenger trial is a remarkable story of a divided Colony, the beginnings of a free press and the stubborn independence of American Jurors.
The man generally perceived to be the villain of the case is William Cosby who arrived in New York on seven August 1731 to assume his post as the royal Governor of the New York province. Cosby quickly developed a reputation as a rogue governor. It’s almost impossible to find a positive adjective among many used by historians to describe the new governor. Words like spiteful, greedy, jealous, quick tempered, dole, unlettered and hotty are just a sample that have been applied to him.
Prior to his appointment in New York, Cosby had been the governor of the Mediterranean Island of Manorca. While in power, he appropriated revenues, confiscated property for private use, falsified records until the Manorcans forced his recall. Appointed as the governor of New York in 1731, he spent the next 13 months between his appointment and departure for the new world leaving office spoils for Manorca.
When he arrived, Cosby fully intended to use his new position to swindle the money from the colonialists and replenish his depleted funds. Within a year, after arriving on American shores, Cosby became embroiled himself in controversy. This would lead to Zenger’s trial and ultimate acquittal. Cosby bullied the New York assembly into awarding him a gift of £1,000 for his alleged efforts in London to secure the repeal of British legislation that was detrimental to colonial sugar interests.
He then set his sights on this man, Rip Van Dam; a highly respected 71-year-old assembly man who had served as the interim governor. Cosby demanded that Van Dam turn over half of the salary that he had earned while serving as acting governor of New York during the year between his appointment and his arrival. Van Dam refused. Cosby then responded on August 1732 by filing for his share of Van Dam’s salary. Knowing that he had no chance of prevailing in this case if it was left to a jury, Cosby designated the provincial supreme court to sit as a court of exchequer or a court without a jury to hear his suit.
Van Dam refused to roll over and his lawyers; James Alexander and William Smith challenged the legality of Cosby’s attempt to do an endrant of the colony’s established jury system. The decision on Cosby’s creation of the new court felt the three members of the Supreme Court itself and in April 1733, it voted 2:1 to uphold Cosby’s action. Cosby wrote a letter to the dissenting judge, Chief Justice, Luis Morris and demanded that he explain his vote.
Morris did so but to Cosby’s great displeasure, his explanation appeared not in a private letter to the governor but in a pamphlet printed by John Zenger. Cosby went ballistic removing Morris as Chief Justice and replacing him with a staunch loyalist named James De Lancey. Peter Zenger had printed very few items of mildly anti-administration material but it was this letter in 1733 of Morris’s ruling against the governor that deeply involved him in this political turmoil.
Following Morris’s statement, a series of leaflets exposed Cosby’s administration came off at Zenger’s press. Cosby’s actions of firing Morris intensified the growing opposition to his administration amongst some of the most powerful people in the colony. Rip Van Dam, Louis Morris, and attorneys James Alexander and William Smith became the leaders of this new popular party. A political organization that would constitute a serious challenge to Cosby’s ability to govern.
Peter Zenger’s printing operation became New York’s first People’s press. Cosby attempted to maintain his grip on power by employing Francis Harrison. A man called by historians as Cosby’s flatterer in chief and his hatchet man to become the censor and effective editor of the only established New York newspaper; The New York Gazette. Harrison defended Cosby both in pros and strained verse such as this poem that appeared in the gazette’s seven January 1734 issue. Cosby the mile, the happy, good and great. The strongest guard of our little state let malcontents in crabbed language writes though they cannot bite. He unconcerned will let the wretches roar and govern just as others did before.
James Alexander the attorney is often described as the mastermind of the opposition. He decided to take the unprecedented step of founding an independent political newspaper. Alexander approached Zenger who along with William Bradford, the gazette’s printer was one of the only two printers in the colony with the idea of publishing a weekly newspaper that would be called the ‘New York Weekly Journal.’
Zenger, who’d made a modest living in the past six years printing religious tracks agreed. A letter to an old friend Alexander revealed the journal’s mission. Enclosed is also the first of a newspaper design to be continued weekly. Chiefly to expose Cosby and those ridiculous flatteries with which Mr. Harrison Loads or other newspaper which our governor claims and has the privilege of suffering nothing to be in it what he and Mr. Harrison approve of.
It’s then on five November 1733 that Zenger published the first issue of the weekly journal. The issue included a detailed account of the victory the previous week of Louis Morris as a popular party candidate for the assembly men for Westchester. Morris won the election despite the best efforts of Cosby to rig the election against him by having the Sheriff disqualify all Quaker voters based on the idea that Quakers only affirmed rather than swore an oath that was required for all voters.
The election story certainly written by Alexander, included this description of the Sheriff’s intervention. “The Sheriff was deaf to all that could be alleged on that side and notwithstanding that he was told by both the late chief justice and James Alexander, one of His Majesty’s Council and Counselor’s at law and by one William Smith, Counselor at law that such a procedure of disqualifying the Quakers for affirming rather than swearing was contrary to law and a violent attempt upon the liberties of the people.” He still persisted in refusing the said Quakers to vote.
No doubt to the surprise and disappointment of Cosby, Morris won the election with a Quaker vote. The journal’s story of Morris’s election being celebrated with a general field of guns for merchant vessels and loud acclamation of the people as he walked the streets conducted to the Black Horse Tavern where a handsome entertainment was prepared for him. Conversely, Bradford’s gazette did not even mention that there had been an election.
Subsequent issues of the journal in addition to editorializing about other dubious actions of the governor contained re-in-defenses of the right to publish, authored by Alexander such as this offered on the second issue. The loss of liberty in general would soon follow the suppression of the liberty of the press for it’s an essential branch of liberty. Perhaps it’s the best preservative of the whole. Even a restraint of the press would have a fatal influence.
No nation ancient or modern has ever lost a liberty of freely speaking, writing or publishing their sentiments before we’ve lost that liberty in general and became slaves. Attacks varied from light satire in the journal to harsh condemnation. The paper called Cosby nero, a rogue, our affliction from London and a fellow only one degree better than an idiot. The Journal was sold for three shillings per quarter. Grew rapidly in circulation and greatly strengthened the popular support of the movement.
Cosby put up with the journal for about two months then he decided that it must be shut down. The first efforts to silence the journal occurred in January 1734, when Chief justice De Lancey asked a grand jury to return indictments based on the law of seditious libel. The jury refused. De Lancey tried again with the next grand jury in October. He presented the grand jurors with broad sides and scandalous verse from Zenger’s journal.
The juror’s claim in the authorship of the allegedly libels material could not be determined and again they refused to return an indictment. Then Cosby brought hard, political pressure to bear against the counsel to do something. In the name of His Majesty’s counsel four issues of John Peter Zenger’s journals entitled, ‘The New York Weekly journal’ were ordered to be burned by the common hangman or whipper near the pillar of the city. It was further ordered that the Mayor and magistrates of this city would have witnessed this burning.
Francis outlined plans for a great burning and gave directions on this ceremony but something went wrong. Nearly all the collected copies of the four condemned issues disappeared and neither city officials or citizenry showed up at the hour scheduled for the affair. Even the hang man was missing. Only Harrison, the Sheriff, and the Sheriff’s slave were there with a few soldiers standing off at a distance. Harrison gave the order
The sheriff’s slave set four copies of the Journal to fire and Harrison and the sheriff which the Journal referred to as Cosby spaniels stood in the empty street watched the little blaze while New Yorkers laughed about Cosby’s folly. Then in an effort to get around the grand jury’s refusal to indict Cosby ordered his attorney general Richard Bradley to file an information before justice to De Lancey and Felipe’s. Based on the information the Justice issued a bench warrant for the arrest of John Peters Zenger and on 17th November 1734 the sheriff arrested Zenger and took him to the New York’s old city hall where Zenger laid in his jail for the next eight months. The Weekly Journal was not published the next day on 18 November it would be the only issue missed in its publishing history.
The next week with the help of Zenger’s wife Anna the journal resumed publication with an issue that included Zenger’s apology for missing last week’s printing. As you were last week disappointed of my journal I think an incumbent I made them publish my apology which is, “On the Lord’s day the 17th I was arrested taken and imprisoned in the common jail of this city by virtue of a warrant from the governor, the honorable Francis Harrison and others in the council, where upon I was put under such restraint that I had not the liberty of pen, ink or paper, or to see, or speak with people until my complaint to the Honorable Chief Justice at my appearing before him.
It’s discounted that proceeding and therefore I have had since that time the liberty of speaking through the hole of the door to my wife and servants by which I no doubt you will think me sufficiently excused for not sending my last week’s journal and hope for the future by the liberty of speaking to my servants through the hole of the door of my prison to entertain you with my weekly journal as formally.”
While Zenger was held in the jail on the third floor of New York City Hall, James Alexander and William Smith immediately came forward to defend him and after their demand that he be freed under a writ of habeas corpus failed, they requested his release on bail. The judge whom these applications had to be made was the governor’s man, James De Lancey. De Lancey asked Zenger how much he was worth and their printer replied, “No more than £40.” so the Court promptly set bail at £800. The Journal told the public about Zenger’s illegal arrest and cruel bail and announced that Zenger’s lawyers Alexander and Smith had been disbarred by Chief Justice De Lancey when they objected to the two man court that Cosby had hand selected to try the case.
Jury selection began on the 29th of July 1739 and once again Cosby attempted to influence events by having his henchmen Francis Harrison produce a roll of potential jurors that included non freeholders, men presumed to be sympathetic to the governor. This departure from normal procedures was too much even for Cosby’s hand-picked judges who sitting behind an ornate bench in scarlet robes hung their white wigs rejected the ruse and quickly 12 different jurors were selected. The trial opened on the fourth of August on the main floor of the New York City Hall with Attorney General Bradley reading of the information filed against Zenger. Bradley told the jurors that Zenger’s being seditious person and a frequent printer and published a false news and seditious libels-see fake news is still around-had wickedly and maliciously devised to traduce, scandalize and vilify governor Cosby and his ministers.
Bradley said that the libeling has always been discouraged as a thing that tends to create differences among men, ill blood among the people and often times great bloodshed between the two parties. As the trial commenced, the courtroom was packed and there was no doubt about the sympathy of the observers being with the defendant, but Zenger’s position seemed most precarious with Alexander and Smith disbarred and the British common law and previous court decisions against him.
John Chambers, Zenger’s court appointed lawyer made a brief opening statement. He based his defense largely on the premise that the journal’s printer should not be a held accountable for the paper’s editorial policy. There seemed little remaining in the case except for the prisoner who still stubbornly refused to name the authors to be found guilty. Then, suddenly things changed. In the rear of the courtroom an elderly elegant, attired, magnificently wigged gentleman, arose and walked towards the judge’s bench. With great dignity, he informed the court that he was present to act on behalf of the accused publisher.
Now a few of the spectators may have recognized this man but every member of the court knew who he was-Andrew Hamilton. No relation to the $10 founding father but he was a member of the Pennsylvania Council and the Philadelphia Assembly and he was the most famous lawyer in all the colonies. Now following Hamilton’s surprise announcement, the prosecution’s three witnesses were sent home and there was a long silence. Finally Bradley spoke, as Mr. Hamilton has confessed in the printing and publishing of these libels, the jury must find a verdict for the king, for supposing they were true the law says they are not less liable for that, they indeed the law says they are being true is an aggravation of the crime. Bradley proceeded to offer a detailed and generally accurate account of the state of the law of seditious libel at the time supporting his conclusion that the truth of libel is no defense.
Hamilton rose to argue that the law ought not to be interpreted to prohibit the just complaint of a number of men who suffered under a bad administration. He suggested that the Zenger case was of transcendence importance. From what Mr. Attorney has just now said to what Hamilton argued that this prosecution was directed by the governor and the counsel and from the extraordinary appearance of the people of all conditions which I observe in the court upon this occasion.
I have reason to think that those in the administration have by this prosecution something more in view. That the people believe they have a good deal more at stake than I apprehended. Therefore as it is become my duty to both plain and particular in this case, I beg leave to beseek the patience of the court. Then Hamilton argued that the libel law of England ought not to be the libel law of New York.
His arguments might have been well received by the jurors but Hamilton had almost no law to support his position that the truth should be a defense against the charge of libel. Not surprisingly Chief Justice De Lancey ruled that Hamilton cannot present the evidence of truth and the statements contained in the Zenger’s Journal. Quote, “The law is clear that you cannot justify a libel. The jury may find that Zenger printed and published those papers then they must leave to the court to judge whether they are libelous,” end quote. In response to De Lancey’s ruling, Hamilton revealed the true nature of his defense strategy-jury nullification. “I know it may please your honor the jury may do so but I do likewise know that they may do otherwise. I know they have the right beyond all disputes to determine both the law and the facts, and where they do not doubt of the law, they ought to do so. Leaving it to the judgment of the court whether the words are libelous or not, in effect renders juries useless and to say no worse in many cases but this I shall have occasion to speak by and by.”
Now Hamilton’s lengthy summation of the jury still stands as an eloquent defense not just of a German born printer but as a free press. It is a natural. It is a privilege. I will go farther-it is a right to which all free men claim that they are entitled to complain when they are hurt. They have a right to publicly remonstrate against the abuses of power in the strongest terms to put their neighbors upon their guard against the craft or open violence of men in authority and to assert with courage the sense that they have the blessings of liberty, the value they put on it, and the resolution at all hazards to preserve it as one of the greatest blessings heaven can bestow.
The loss of liberty to a generous mind is worse than death. Yet we know that there have been those in all ages for the sake of preferment or some imaginary honor have freely lent a helping hand to oppress nay to destroy their country. This is what every man who values freedom ought to consider. He should act by judgment and not by affection or self interest. For where those prevail, no ties of either country or kindred are regarded. As upon the other hand the man who loves his country prefers its liberty to all other considerations, well knowing that without liberty life is a misery. I hope to be pardoned sir for my zeal upon this occasion while we pay all due obedience to men in authority. We all at the same time to be upon our guard against power wherever we apprehend that it may affect ourselves and our fellow subjects.
You see that I labor under the weight of many years and I am bowed down and with great infirmities of body, the 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 services could be of any use in assisting. To quench the flame of prosecutions upon informations set on foot by the government to deprive the people of the right of remonstrating and complaining of the arbitrary attempts of men in power.
Now De Lancey seemed unsure of how to react to Hamilton’s eloquence. He instructed the jury that its duty under the law was clear, that there were no facts to decide. It was not to judge the law. De Lancey all but ordered the jury to return a verdict of not guilty. “The great pains,” De Lancey argued, “Mr. Hamilton, is taken to show how little regard juries are to pay the opinions of judges and is insisting so much upon the conduct of some judges and trials of this kind is done no doubt with a design that you should take very little notice of what I might say upon this occasion. I shall therefore only observe to you that as the facts or words of the information are confessed, the only thing that can come in question before is whether the word set forth in the information make a libel, and that is a court matter of law no doubt and which you may leave to the court.”
The jury withdrew. Ten minutes later, they returned. The clerk asked the court for the jury foreman Thomas Hunt to state the verdict. He responded, “Not guilty.” There followed hoozahs and shouts of joy from the crowd of spectators. De Lancey demanded order even threatening spectators with arrest and imprisonment, but the celebration continued unabated. Defeated, De Lancey left the courtroom. Anti-administration supporters hosted a congratulatory dinner for Andrew Hamilton at the Black Horse Tavern. Zenger was not present. He was still in jail the following morning when they paid all of his fines.
The next day though, on the start of Hamilton’s return trip to Philadelphia, a grand salute of cannon fire was fired in his honor. Now, the Zenger trial established no new law with respect to libel. In unmistakable terms, it signaled the public’s opposition to such prosecutions. Concern about likely jury nullification, discourage prosecutions and the press, freedom in America began to blossom. A half century after Zenger’s trial as members of the first congress debated the bill of rights, one of the Constitution’s principal drafters and the great grandson of Luis Morris, Governor Morris, writes of the Zenger case. The trial of Peter Zenger in 1735 was the germ of American freedom, the morning star of that liberty, which subsequently revolutionized America. Thank you very much.
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