ZENGER'S CASE (1735)

Had John Peter Zenger, the printer of the New-York Weekly Journal, attacked the provincial assembly of New York instead of its hated royal governor, he would have been summarily convicted at the bar of the house, jailed, and forgotten by posterity. But he was tried by a jury, brilliantly defended by a great lawyer, and saved for posterity by James Alexander's report of A brief Narrative of the Case and Tryal of John Peter Zenger (1736). Alexander, the editor of the paper which Zenger printed, probably wrote the articles that led to the prosecution and, as a lawyer, prepared the case for Andrew Hamilton.

Scalded by the paper's weekly articles against his administration, Governor William Cosby ordered an information against its printer for seditious libel;a grand jury had refused to indict, the assembly had refused to cooperate, and the local government, defending "liberty of the press," protested. Zenger, in other words, symbolized the popular party against a detested administration. Not surprisingly the jury acquitted him after brief deliberation, against the instructions of Chief Justice James DeLancey, who presided at the trial before the Supreme Court of Judicature.

The law was against Zenger. Both the prosecutor and the judge accurately informed the jury that seditious libel consisted of scandalizing the government by adversely reflecting on those entrusted with its administration, by publishing material tending to breed popular contempt for the administration, or by alienating the affections of the people for government in any way. Moreover, the truth of a libel magnified its criminality. But Hamilton's reply had greater appeal. If the people could not remonstrate against the oppressions and villainies of their governors, confining themselves always to truthful accusations, they would in no time lose their liberty and property. Hamilton did not repudiate the law of seditious libel; he argued, rather, that Zenger's statements being true were not libels. When the court rejected the proposition that truth should be a defense to a charge of seditious libel, Hamilton appealed to the jury over the court. He argued that the jury, like the press, was a bastion of popular liberty. It should ignore the court's instruction to return a special verdict on the question whether Zenger had, in fact, published the statements charged; a special verdict would leave to the court a ruling on the question of law whether those statements were criminal. Hamilton urged the jury, instead, to return a general verdict of "not guilty," thus deciding the law as well as the fact. The jury returned a general verdict of "not guilty."

The jury's general verdict was a safe way of striking at the unpopular governor and endorsing the right of the people, through the press, to criticize their government. The jury's verdict did not, however, alter the settled law. Not until the Sedition Act of 1798 (see alien and sedition acts) did truth as a defense and the power of the jury to render a general verdict in cases of seditious libel become part of American law; and, as the enforcement of that infamous statute showed, embattled libertarians came to discover that they should have repudiated the doctrine of seditious libel rather than grasp at Zengerian principles.

Leonard W. Levy
(1986)

(see also: New York Times v. Sullivan; People v. Croswell.)

Bibliography

Katz, Stanley Nider 1972 A Brief Narrative of the Case and Trial of John Peter Zenger … by James Alexander. Cambridge, Mass.: Harvard University Press.

Levy, Leonard W. 1960 Did the Zenger Case Really Matter? Freedom of the Press in Colonial New York. William and Mary Quarterly, 3d ser., 17:35–50.