Wednesday, August 4, 2010

The Libel Trial of John Peter Zenger

Today marks the anniversary of one of the most important legal cases in American history—the trial of New York City printer John Peter Zenger. Two hundred and seventy-five years ago today, on August 4, 1735, Zenger stood trial for libeling New York’s colonial governor, William Cosby. Zenger’s lawyer, Andrew Hamilton—who’d been imported from Philadelphia to defend the printer—persuasively argued that truth was a defense against libel, making history.

Zenger came to America from Germany in 1710 and was apprenticed to New York City’s only newspaper publisher, William Bradford, who printed
The New York Gazette. After an eleven-year apprenticeship, Zenger struck out on his own, moving to Maryland. However, he had little luck there and ultimately moved back to New York where he eked out a living printing tracts and pamphlets.

In 1731, New York’s governor, John Montgomerie, died suddenly; a year later William Cosby arrived as his replacement and immediately stuck his nose into the thick of the city’s divisive political scene. Ticked off that Rip Van Dam, the interim governor, had been collecting a salary that Cosby deemed his own, Cosby sued. Two-thirds of the colony’s high court ruled in Cosby's favor; the Chief Justice, Lewis Morris,* voted against the governor and Cosby had him removed from the bench. Morris and his allies (who came to be known as the Popular Party or “Morrisites”) needed to find an outlet for their disdain for the governor. Since Bradford’s ­
Gazette was firmly controlled by the crown, they hired Zenger to produce the New York Weekly Journal as a mouthpiece for the Morrisites.

(As an example of the Gazette’s pro-Cosby editorializing, check out this couplet: “Cosby the mild, the happy, good and great/The strongest guard of our little state.”)

After a slew of increasingly bitter attacks on Cosby (most probably penned by Lewis Morris’s ally James Alexander), the governor decided to fight back. Because the articles were written anonymously—and because a publisher is ultimately responsible for the material he prints—it was Zenger who was arrested in November 1734 and charged with seditious libel. Throughout the winter of 1734-35, Zenger languished in jail while his wife, Anna, continued to print the
Journal. In order to strengthen his hand, Governor Cosby had Zenger’s lawyers disbarred and then tried to handpick the jurors for Zenger’s trial. (This latter tactic, at least, was rejected by the court.)

Finally, on August 4, Zenger was brought to trial. The prosecution presented their case to the jury and the new Chief Justice, James Delancey, and then Andrew Hamilton rose for the defense. After acknowledging that the case against Zenger was factually accurate—Zenger freely admitted to printing the attacks on Governor Cosby—Hamilton argued that precisely because it was fact it therefore couldn’t be libel. When Delancey and the prosecutors pointed out that truth didn’t come into play when considering seditious libel, Hamilton then turned to the jury to attempt to get them to nullify the law by voting not guilty. As Hamilton eloquently stated to the jury:
“Power may be justly compared to a great river which, while kept within its bounds is both beautiful and useful, but when it overflows its banks, is then too impetuous to be stemmed, it bears down on all before it and brings destruction and desolation wherever it goes.”
Despite Chief Justice Delancey’s instructions to the jury that, in essence, told them to ignore Hamilton, they agreed with Hamilton and found Zenger not guilty, thus establishing truth as a defense against libel, an argument that ultimately became part of the foundation of the First Amendment rights guaranteed in the Constitution.

Zenger died in 1746 (Anna continued to publish the
Journal after his death) and is reputedly buried in an unmarked grave in the churchyard at Trinity, Wall Street. His former boss, William Bradford, has a prominent grave marker in the same cemetery—and it has a typo. Bradford was born in 1663; his grave stone says 1660.

* Morris’s great-grandsons were active in the Revolutionary era: Gouverneur penned the Preamble to the Constitution and Lewis signed the Declaration of Independence.


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Read more about Colonial New York inInside the Apple: A Streetwise History of New York City.

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