William Bradford published Manhattan’s first newspaper, the New York Gazette, on November 16, 1725. According to F.L. Mott’s American Journalism, it was two pages long. Each page was ten by fifteen inches with two columns of text, “chiefly foreign news from three to six months old, state papers, lists of ships entered and cleared, and a few advertisements.” There were no illustrations. Its weekly circulation ranged from 300 to 350 copies.
John Peter Zenger would publish its first competitor. Born in Germany in 1697, he arrived in 1710 as a bonded apprentice to Bradford. Zenger served Bradford for eight years, learning the printer’s trade while repaying his passage. Later he opened his own printing shop.
On Aug. 1, 1732 Col. William Cosby became captain general, vice admiral, and governor in chief of His Majesty’s Province of New York and the Jerseys. The Colonel had needs. He demanded 1,000 pounds sterling from the Governor’s Council for lobbying services in London. Cosby also demanded that Rip Van Dam, the Council president, split the salary Van Dam had received while serving as acting governor and then sued for the money. Van Dam’s attorneys, James Alexander and William Smith, persuaded Chief Justice Lewis Morris to dismiss the suit. Cosby, in a fit of rage, replaced Morris with the “young and arrogant” James De Lancey.
The Morris family was wealthy, powerful, and proud. With other “gentlemen of the landed interest,” they organized against Cosby. In the fall of 1733, at a special assembly election, Morris crushed his Cosbyite opponent. Parenthetically, their campaigns largely consisted of treating voters to free drinks on Election Day, a tradition worth reviving.
On November 5, 1733 the Morrisites unleashed the New York Weekly Journal, edited and published by Zenger. Its articles attacked Cosby as an idiot, a Nero, a rogue and a lawbreaker, “tyrannically flouting the laws of England and New York.” The paper accused him of “incompetence, influence peddling, corruption, collusion with the French, election fraud, and tyranny.” It also exposed his padded expense accounts, mysterious dealings in government-owned lands, and greed for every imaginable perquisite. The Morrisites won the September 1734 city elections. On Sunday, November 17, 1734 Cosby ordered Zenger’s arrest for seditious libel. Seditious libel was the publication of statements intended to arouse the people against the government by either bringing it into contempt or exciting dissatisfaction. Truth was no defense to the charge. The hangman publicly burned the paper. Chief Justice De Lancey set bail far beyond Zenger’s means, requiring his imprisonment until trial.
The arrest prevented the paper’s publication on November 18. A week later, the Journal appeared with a front page apology:
As you last week were Disappointed of my Journall, I think it Incumbent upon me, to publish my Apoligy which is this. On the Lord’s Day, the Seventeenth of this instant, I was Arrested, taken and Imprisoned in the common Gaol of this Citty, by Virtue of a Warrant from the Governour 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, till upon my Complaint to the Honourable the Chief Justice, at my appearing before him upon my Habia Corpus on the Wednesday following. I hope for the future by the Liberty of Speaking to my Servants thro’ the Hole of the Door of the Prison, to entertain you with my weekly Journal as formerly.
Anna Zenger, John Peter’s wife, thereafter published the Journal, becoming New York’s first woman editor and publisher.
On April 15, 1735 Alexander and Smith appeared as Zenger’s counsel before Chief Justice De Lancey, challenging the court’s legality by arguing that Cosby’s appointment of De Lancey was unlawful. De Lancey held both lawyers in contempt, disbarred them and ejected them from the courtroom. He then appointed the honest and competent John Chambers as Zenger’s counsel, who took care of loose ends left behind by Alexander and Smith, such as entering a plea of not guilty.
On August 4, 1735, before a packed courtroom, the Attorney General opened for the prosecution, arguing the Governor, “the King’s immediate representative here, is greatly and unjustly scandalized [as a] person that has no regard to law or justice.”
Then, to nearly everyone’s surprise, an elderly man strode to the defense table and bowed to the Chief Justice. Andrew Hamilton, born in Scotland around 1676, had arrived in America, like Zenger, an indentured servant. He practiced law in Pennsylvania, where he had been attorney general and was presently speaker of the assembly-also a practicing engineer, architect and builder. (Hamilton’s most famous structure is Independence Hall.) Now he would argue his most famous case.
The Attorney General had used canned language in his pleadings, which charged Zenger with publishing “a certain false, malicious, seditious, and scandalous libel.” Each adjective thus became an element of the crime, requiring each to be proven at trial. Hamilton initially offered to concede that Zenger had printed and published the articles. The Attorney General claimed Hamilton was admitting libel: “I think nothing is plainer than that the words in the information are ‘scandalous, and tend to sedition, and to disquiet the minds of the people’ of this Province. And if such papers are not libels, I think it may be said there can be no such thing as a libel.”
Hamilton replied, “I must insist that what my client is charged with is not a libel; and I observed just now that [the Attorney General] in defining a libel omitted the word false.”
The Attorney General said, “But it has been said already that it may be a libel notwithstanding it may be true.”
Hamilton now had his opening. “We are charged with printing and publishing a certain false, malicious, seditious, and scandalous libel. This word false must have some meaning, or else how came it there? No, the falsehood makes the scandal, and both make the libel. [The Attorney General] has only to prove the words false in order to make us guilty.”
The Attorney General seemed irritated: “We have nothing to prove; you have confessed the printing and the publishing.”
Hamilton riposted, ” We will prove those very papers that are called libels to be true.”
Now, the Chief Justice interjected, “You cannot give the truth of a libel in evidence.”
Hamilton briefly discussed the law of seditious libel, arguing that the cases creating the doctrine all involved false statements, making falsehood an element of the crime. He then distinguished the common law of England and of the colonies. An act punishable as seditious libel in England might not be in New York, for colonials enjoyed greater liberty than Englishmen.
Finally, Hamilton argued the jury’s inherent power to judge the law as well as the facts and refuse to convict if the law is unjust, a doctrine called jury nullification. He discussed a 1670 case, involving William Penn’s arrest for breaking the laws establishing the Church of England as the only lawful religion, by preaching a public sermon on Quakerism. At trial, Penn freely admitted preaching. The judge directed the jury to find Penn guilty. Four jurors voted to acquit. The judge ordered them jailed without food or water. After four days, they still voted to acquit. The judge fined them and ordered them imprisoned until they paid the fines. One juror, Edmund Bushell, sought a writ of habeas corpus. The Lord Chief Justice of England ordered the jurors’ release, ruling they could not be punished for their verdict. It followed that defendants were entitled to trials before a jury unintimidated by the government.
As great defense lawyers will, Hamilton redefined the issue at trial from whether Zenger was guilty of libel to whether a free people might criticize their rulers.
The question before the Court and you gentlemen of the Jury, is not of small or private concern, it is not the cause of a poor Printer of New York alone, which you are now trying; No! It may in its consequence affect every Freeman that lives under the British government on the main of America. It is the best cause. It is the cause of Liberty; and I make no doubt but that your upright conduct this day will not only entitle you to the love and esteem of your fellow citizens; but every man who prefers freedom to a life of slavery will bless and honor you as men who have baffled the attempt of tyranny; and by an impartial and uncorrupt verdict, have laid a noble foundation for securing to ourselves, our posterity, and our neighbors that to which nature and the laws of our country have given us a right; that liberty, both of exposing and opposing arbitrary power by speaking and writing the Truth.
After the Attorney General closed for the government, De Lancey instructed the jury. Their role, he said, was merely determining whether the statements had been published and, if so, whether they referred to the persons or institutions described in the charges. The truth of the statements was irrelevant and immaterial.
Zenger later wrote:
The Jury returned in about Ten Minutes, and found me Not Guilty; upon which there were immediately three Hurra’s of many Hundreds of People in the presence of the Court.
Forty Morrisites hauled Hamilton to dinner at the Black Horse Tavern, near William Street and Exchange Place. The next morning, as Hamilton sailed for Philadelphia, “he was saluted with the great Guns of several Ships in the Harbour, as a public Testimony of the glorious Defense he made in the cause of Liberty.”
After Gov. Cosby’s death in 1736, John Peter Zenger became public printer of the Province of New York. He published the Journal until he died on July 28, 1746.
Jury nullification-“non-cooperation with injustice,” as Clay S. Conrad of the Cato Institute called it-flourished until the last century. Jurors routinely refused to enforce the Alien and Sedition Act, the Fugitive Slave Act, and Prohibition as unjust laws. In 1895, the United States Supreme Court held that trial courts need not inform jurors of this prerogative. Today, a trial judge would hold Hamilton in contempt for attempting to advise the jury of it.
New York Press, June 12, 2001
February 5, 2009 No Comments