) wife.5
Freedom of Speech:
The King vs John Peter Zenger
i of
Richard Cicale examines the Zenger trial and the affect it had on freedom of the press in America
fe wa
almost any printed criticism of the
Cosby was appointed, the former
I d t h e l IN THE UNITED STATES, the concept
government was considered a
governor of the Island of Minorca.
HenryJ of freedom of speech and freedom
crime, and few publishers were
Fsf the press is so fundamental, it
Cosby chose to remain in England
brave enough to risk imprisonis often taken for granted. From
for another 13 months, while in
ment by printing something that
New York a government official
/[ore wa Watergate to Whitewater, Amerimight irk a government official.
named Rip Van Dam governed in
cans expect their news media to
\t <
By the early 18th century,
his place. When Cosby finally
freely report on the controversial
.3
with the political tensions
arrived in New York in 1732, he
ill and; issues surrounding their governbetween the
ment and political
demanded half the pay Van Dam
colonies and
earned while acting as governor.
,Mor leaders.
; : , While certain
England
rising,
Van Dam refused and Cosby
EKT
limits on press freestirrings from
promptly sued. During the subsefjj
the public were
dom have sometimes
quent court proceedings, one of ,
heard to end
been deemed necesthe judges hearing the case, Chief
the governsary in times of
Justice Lewis Morris, ruled
national crisis, most
ment's
control
against Cosby. In retaliation, the
NEW-YORK,
Americans never
of the press.
governor removed Morris from
:i-fif;
x':.', '
..
• ' ..'-v.. ..: .'.
.
In 1731, a
question the basic
office.
HH.
For 1'aiHTis'o am! Fcr,lR>ii!ir-, ;•. I'JBEL
agiuiir the Guvermuair;
'•:->::'-•
chain of events
premise that a free
These acts, along with other
';• ' . - , . . . - . ' • • • , • . ' ' . - . .,
"-''--- • '•'
- . '.',.
'
started that
press is crucial to a
instances of questionable governfree society. This
ing, infuriated Cosby's critics,
•Ssw>sra5K:^isp;^«a«s5;-K-s-i=- would push
^™-™^^^:--^;^ some New
wasn't always the
who wished to make public what
;,•*,*>£
case, however.
.In early colonial
times, freedom of the
press as a legal right
did not exist and a
newspaper publisher
could be fined or
even thrown in jail
for writing a critical
story about a government official
— even if the story was proven to
jHans Hoi-; be true.
sire pin-.;
One of the first and most sigsferthe*: nificant events that helped change
aid.
this state of affairs occurred in
|d queefti 1735 in colonial New York. The
Wear as incident — which set the stage for
future events that shaped the
nje, More j right to free speech in the US —
Was
•;•; involved an ordinary German
Top left, cover of the book that told the story of the precedent-setting trial, said
of
1 immigrant, many of New York's
to have been written by one of Zenger's attorneys in 1752. Above, the courtelite and some nasty politics.
room drama is captured in this illustration from the period.
JJuly 15||
The Deatlvof a Governor and the
York powerbrokers, frustrated
they saw as the governor's tyranRafter- Birth of a Newspaper
with timid news reporting, into
nical actions.
|e.;faith;"| The newspapers of pre-revolution
action and set off one of the definHowever, the only newspaper
America were a dull affair, conSjfcblic
ing moments in American journalin town at the time was the New
servant sisting mostly of advertisements
ism history.,
York Gazette, a loyal organ of the
?nd reprints of European news
It all started with the death of
Cosby administration. To counter
reports. The main impediment to
the colonial governor of New
the pro-government bias of the
a.more vibrant press was governYork. To take his place, William
Gazette, Cosby's critics, led by Van
mental censorship. In those days,
•H
History Magazine December/January 2006 — 13
FAMOUS TRIALS
Dam, Judge Morris and the wellknown lawyer James Alexander,
decided to start their own journal.
They called their newspaper The
New-York Weekly Journal and hired
a German immigrant named John
Peter Zenger to print it.
Although Zenger didn't write
any of the articles that would soon
land him in jail.— the Journal's
anti-government articles were
written by the paper's intellectual
backers — as its publisher he was
legally responsible for everything
the paper printed.
The first issue of the Journal,
which appeared on 5 November
1733, accused Cosby of harassing
voters and immediately turned
the placid, predictable newspaper
world of New York into a venue
for a furious political brawl.
Another issue covered the
governor's oppressive behavior —
"We see men's deeds destroyed,
judges arbitrarily displaced, new
courts erected without consent of
the legislature by which... trial by
jury is taken away when a governor pleases."
Since public criticism of a government
official was extremely
rare, readers followed
the frequent attacks
with delight. Cosby,
however, was
enraged. The governor's first act of retribution was
questionable in both
its efficacy and its
public relations
impact — he had several of the Journal's
more damning issues
publicly burned.
Things grew more
serious when on 17
November 1734,
Zenger was arrested
and jailed on charges
of seditious libel.
The Trial of John Peter Zenger
With Zenger in jail and his wife
taking up the work of publishing
the Journal, Alexander and the rest
of his allies set about planning
Zenger's defense. It wasn't going
to be easy.
The charge of seditious libel
was based on English legal preceweak", Hamilton agreed to risk \s reputa
dents prohibiting statements that
could incite the public against the
controversial case that seemed j
government. Under this legal tradoomed from the start. The trial;
dition, the prosecution would
took place at City Hall and woul|
only have to prove that Zenger's
open and close in one day, 4
newspaper had published the artiAugust 1735.
cles in question. There could be no
With Hamilton arguing for '
consideration by the jury of
defense, few in the courtroom
whether the statements were true
doubted there would be drama,;
or libelous. This put Alexander,
but no one could have predicted;]
the lawyer's
who acted as
first words,
Zenger's
lawyer, in the
which
almost untenamounted to;
able position of
admission that;
defending
his client had j
indeed cor
someone who
had published
ted the allege
the evidence of
offense. "Ido|
his guilt in his
confess that h§tjud
-B.,_____=—
.
own newsboth
printed mam
^
''
.
:
- w
K
.
.
Mv;w;|j^
paper.
and
publishect|rep
£Tji^
^cI i-&6&,- :
Zenger's
'
'
'
the papers setjfjur
._
fate grew even
forth in the sffsini
'
darker after
[indictment]. "4|tim
Alexander was
Over the gaspsjffre<
disbarred early
of the court, ?gre
^of.. Airomej ." «T&r«i'-mj'- 'Proof*' 'of my
'
-'
in the pre-trial
Hamilton con-!|urd
proceedings for
tinued, "I do
;v;:;::iSM^^vU,;.3:
hope in so
doing he has
committed no;;ind
crime." ' 1
This
|EGodelighted the ;| out
prosecutor, wjpanc
Top, a page from
knew that the|
Zenger's New York
Weekly Journal news- jury was only:!
paper, following the required to
decide on
trial and Zenger's
landmark Not Guilty whether Zeng
verdict. In the article, had publishe
Zenger thanks a
the criticisms/!
lengthy list of partici- regardless of
pants including his
their truthful-/|yoi
solicitors and jury
ness. It seemed!
members. Left, a
to most people! c
painting depicting
in the courtthe case's various
room that,'
lawyers, judges and
Zenger's i
jury members.
lawyer had JUEJ
arguing with the judge. This
admitted this point the jury had1
forced Zenger's defenders to
no option but to convict.
quickly find another lawyer brave,
Hamilton, however, was:
or reckless, enough to take the
finished. Citing precedents d;
case. They decided to aim high
back to Magna Carta and in wordfwh.
and prevailed upon the most
that brought cheers from the :
famous attorney of the day,
tators, Hamilton derided the '.
Philadelphia lawyer Andrew
and insisted that truth was indety
Hamilton. Although he was 60
at the heart of whether Zenger § flee
and described himself as "old and
was guilty of seditious libel. The
14 — History Magazine December/January 2006
T
J
1
:
fed
trial
ino
irritated judges angrily admonshort time and, to no one's surished Hamilton "to use us with
prise, found the defendant not
good manners" and reminded
guilty.
him that he was not permitted to
Zenger was set free after
offer truth as a defense against
spending most of the previous
libel.
year in jail and would continue
The judges were on firm legal
publishing the Journal until his
footing here and Hamilton knew
death at 66 years of age. Hamilton
it. At this point, Hamilton's task
spent the rest of his days as a
was no longer to argue in
judge, dying on 4 August 1741, six
Zenger's defense, but to argue
years to the day after the Zenger
against the fairness of the law
under which he was charged.
The notion of what the press
could publish in a free society
was now the focus of the case.
Zenger became a footnote to
his own trial.
Hamilton's strategy was
to go over the heads of the
judges and prosecutor and
appeal directly to the public,
represented by the men of the
jury. This was a wise move,
since popular opinion at the
time greatly favored increased
freedom of the press. With
great flair, scathing irony and
unfailing logic, Hamilton
framed the case against the
lowly German immigrant as
an assault on the jury's —
indeed all citizens' — liberty.
In a thinly veiled dig at
Governor Cosby, Hamilton
outlined the inherent right
and natural inclination of people to truthfully criticize a
government official who
"brings his personal failings,
but much more his vices, into
A minute book page from 4 August 1735,
his administration." This
detailing the trial of The King vs John Peter
brought a bald threat from the
Zenger.
prosecutor, who warned
Hamilton to "have a care what
trial. As for the unfortunate Govyou say, and don't go too far."
ernor Cosby, things did not
Undeterred, Hamilton conimprove after his bitter disapcluded his address by likening the
pointment over the verdict. He fell
trial to a clash between liberty and
ill that winter and died the followtyranny, with the men of the jury
ing March, with the stain of the
on the front lines of this battle.
Zenger affair still very much on
his reputation.
"The question before the Court
and you, Gentlemen of the Jury, is
Psychological Impact
not of small or private concern. It
is not the cause of one poor
The historical legacy of the Zenger
trial is a momentous one but a
printer, nor of New York alone,
complex one as well.
which you are now trying. No! ...
While most citizens rejoiced
Every man who prefers freedom
over the verdict, many others
to a life of slavery will bless and
worried about the detrimental
honor you as men who have bafeffects that could follow when
fled the attempt of tyranny..."
popular sentiment trumps the law,
The jury deliberated for a
as it did in the Zenger verdict.
The legal effects of the trial
were also murky. On the most
basic level, the trial was only an
isolated victory for Zenger and his
supporters, with no actual legal
precedents being set. In fact, it's
very likely that the Zengerites
would have again felt the wrath of
the governor's office had Cosby
not died so soon after the trial, he
not being one to take such a
defeat quietly.
The importance of the
Zenger case lies instead with
its great psychological impact
on the early American consciousness.
In a broad sense, the
Zenger case proved that the
colonists could successfully
rebel against British laws they
considered unfair and unnatural. In this respect, Zenger's
acquittal would foreshadow
events such as the Boston Tea
Party of 1773 and the Revolutionary War itself.
More fundamentally
though, it showed how powerful the yearning for a free
press and free speech was to
the colonists. Hamilton's plea
was one of the earliest and
most eloquent expressions of
the.right to criticize the government without fear of retribution. Hamilton's words and
the popular support for the
verdict would later be a
tremendous influence and
inspiration to the founders of
the new nation.
It is fitting then, that New
York's City Hall, the site of John
Peter Zenger's trial, would later
become Federal Hall, site of the
signing of the Bill of Rights in
1789, which prohibited the
abridgement of "freedom of
speech, or of the press."
Further Reading:
• Putnam, William Lowell. John
Peter Zenger and the Fundamental
Freedom (North Carolina: McFarland & Company, 1997).
• Zenger, John Peter. A Brief Narrative of the Case and Tryal of John
Peter Zenger, Printer of the New York
Weekly Journal (New York:
^^
Brandywine Press, 1997).
dUl
History Magazine December/January 2006 —15