The trial of John Peter Zenger was one of the spectacular events of
American history, involving as it did powerful personalities, factional
intrigue, a newspaper war, and a splendid courtroom scene in which low
chicanery mingled with high rhetoric. It boasted a shining hero and a
glowering villain. It passed through the dramatic sequence of conflict,
climax, and denouement. It had a happy ending.
Offhand you might think that the Zenger case could be nothing more than
that—a scintillating drama with a story-book finish, a tale worth
telling without sequel or epilogue. Yet it was one of the most
significant things that ever happened on this side of the Atlantic. It
was a center from which forces—legal, political, social,
constitutional—radiated throughout America, and from one generation to
another down to our own time.
The historian and the dramatist may rejoice at the event as such, but
the real importance of that trial of August 4, 1735, lies in what came
out of it. When Peter Zenger returned to his home instead of to his
prison cell, that very fact made him forever a focal point in the
development and philosophy of American democracy. The implications for
the future were more fundamental, varied, and far-reaching than any of
the men concerned could have dreamed. It is the implications that lift
the Zenger case out of the class of ordinary political prosecutions and
give it a transcendent meaning.
The trial was the first, and the most important, step toward freedom of
the press in America. Peter Zenger was accused of seditious libel simply
because his press had turned out, and was still turning out as he stood
in the dock, a newspaper with the impudence to criticize the Governor
and his administration. The _New York Weekly Journal_ was an astonishing
spectacle in the Colonies—a periodical that preached freedom of the
press as a fundamental right, and practiced its doctrine by reporting
the news as it saw fit.
Other newspapers might clear their material with the authorities, or at
least hedge in saying anything that could cause unpleasant
repercussions. The _Journal_ displayed no such self-restraint. It dwelt
on the Governor’s misdemeanors, alleged his incompetence, laughed at his
mistakes, spotlighted his attempts to cover up his shady dealings, and
more than suggested that he should be removed from office.
The _Journal_ overtly and even clamorously threw off subservience to the
Colonial government. It followed the lead of the British papers that had
already begun the battle for a free press, and carried the fight into
the American arena. Many evil and stupid men had been sent to the New
World as representatives of the crown, but until the Zenger era they
were able to keep the press sufficiently in line. It was the misfortune
of Colonel William Cosby, one of the worst and stupidest, to collide
with a newspaper that would not give way.
In charging Peter Zenger with seditious libel Cosby was acting in
accordance with an old habit of the official mind. Until a few years
previously, Colonial governors had been specifically commissioned to
censor the press, and the tradition still held that journalists had no
right to print anything of which the local executive disapproved. His
discretion was the criterion, just as the king’s was in Britain. He
could set down as “libelous” any report that caused him any uneasiness,
and impugn it as tending to excite sedition among the governed.
Thus the question of truth was beside the point when printers,
publishers, editors, and writers were being prosecuted. Indeed, veracity
might only aggravate the charge, for obviously unrest is most likely to
follow from a story about stupidity or criminality in government if the
news happens to be true. This thought gave rise to a whole theory
epitomized in the legal tag, “The greater the truth, the greater the
libel.” The journalist was caught coming and going—guilty if his story
was false, even more guilty if it was true.
Such a theory of seditious libel may sound paradoxical at first, but in
fact it had behind it a strong logic based on history. When the British
monarchy emerged as absolute during the reign of the Tudors, the
relation of king and people was that of master and servants, a relation
accepted by the nation almost without demur. Therefore, criticism of the
king was illegitimate and _ipso facto_ criminal, and the truth of such
criticism was at best inconsequential, at worst an exacerbation
threatening to cause a breach of the peace. Hence: “The greater the
truth, the greater the libel.”
But the law could not stop there, for British politics went through a
profound revolution during which Parliament wrested control of the
government from the king, who slipped steadily downward into the role of
servant to, rather than master of, his subjects. Parallel with this
development went a progressive rise in the power of the popular will,
one result of which was that criticism of king, ministry, and Parliament
became transmuted into an integral part of the British system. Now the
distinction was no longer between criticism and no criticism, but
between valid criticism and invalid criticism; and one acid test was
exactly the question of truth in the charges made. By the end of the
eighteenth century the change was virtually complete.
The law lagged a little in rewriting its rules. At the time of the
Zenger trial (1735) the situation was ambiguous, a fact that comes out
clearly in the pleading. Peter Zenger’s acquittal helped to resolve the
ambiguity along the lines of greater freedom.
Governor Cosby stood for the Tudor principle. He might have coined the
phrase, “The greater the truth, the greater the libel,” so well did it
suit him. His regime would not bear scrutiny, for he riddled it with
dubious, unethical, and illegal acts of various kinds—ignoring the rules
laid down in his instructions from the Board of Trade in London,
interfering with the elections and with the courts, boldly appropriating
money and land, insulting the people and the Assembly of the
Province—and he did not want such things to be aired, least of all in
the columns of a weekly that allowed him no respite as it appeared every
Monday with its reports about him and his circle of confederates. He
failed in every other attempt to silence the _Journal_, and then brought
the printer into a court of law to answer the charge of seditious libel.
So far everything was in order. But as soon as the trial got under way
things began to go wrong. Andrew Hamilton had come from Philadelphia to
speak for the defense; and he, with all the eloquence for which he was
famous, propounded the novel theory (novel for America, at least) that
freedom of the press is a basic need of society. He insisted that the
people have a right to know what their government is doing. He noted
that they should be able to complain when they have a grievance against
the government, and that a sure, easy, and speedy method of doing this
is for them to make their opinions known in the newspapers. He pointed
out the converse, that nothing of this is possible as long as the censor
can blue-pencil what he chooses, since the censor is, by definition, the
administration’s man, and does its bidding.
Above all, he drew a sharp line between truth and falsity in reporting
the news. Admitting that no one has a right to lie in print any more
than in speech, he successfully inserted into the minds of the jurors
the notion that an editor should be allowed to plead the authenticity of
a story as his justification for publishing it. He got them to agree
that the word “false” should be operative and indispensable in the kind
of seditious libel of which Peter Zenger stood accused.
Even Hamilton could not see how titanic an issue was joined. He was
primarily interested in the problem at hand—to get his client
acquitted—but the fact is that in speaking for his own time he was
speaking for all time. He would have been a prophet as well as a
philosopher if he had seen fully the parting of the ways at which he
stood, with the old censorship extending backward into the past, and the
new freedom pointing toward the future. It was merit enough that he saw
farther than any other man of his period, and that he stated the
argument for the emerging principle better than anyone else.
The full import of his victory in court is not yet exhausted, and very
likely never will be. As time passes we understand more exactly just how
great a blow it would have been if Governor Cosby had been able to kill
the magnificent pioneering experiment in independent journalism that the
_Journal_ was. We appreciate better than our ancestors the overwhelming
significance of the trial of Peter Zenger, that for the first time an
American practitioner of unfettered news coverage had won a complete and
avowed vindication through the orderly official process of a trial by
jury.
Ever since, newsmen have looked back on the Zenger case as the origin of
their most primordial right. If that right was not promptly conquered
everywhere in the Colonies, Peter Zenger had lit the train for a whole
series of delayed reactions. The trial touched off discussions about the
meaning of libel, showed that existing definitions were defective rather
than axiomatic, compelled the authorities to take more account of public
opinion before launching lawsuits against their opponents of politics
and journalism, and thereby saved other editors and printers from
following the old path that led nowhere except to prison.
James Alexander’s _Brief Narrative of the Case and Tryal of John Peter
Zenger_ was widely reprinted after Zenger himself had turned out the
first edition, and the text became a classical precedent to which anyone
faced with censorship could point. Americans still point to it when
freedom of the press is under discussion.
Present-day newsmen have a more professional reason for being grateful
to this Colonial printer. Throughout his imprisonment and trial he
maintained a steadfast silence about the identity of the men who wrote
the contents of the newspaper that he ran through his press; and he
thereby gave an enormous impetus to the thesis that a journalist has a
right to keep secret the sources of his information. Other printers
before Zenger had refused to divulge the names of their contributors,
and some achieved the crown of the semimartyr in consequence, but none
had ever been given the unanswerable backing of the courts.
Always the formal conditions of Zenger’s acquittal must be borne in
mind, for his triumph was not just a personal thing, or the wresting of
a momentary privilege from an indolent or interested official. It was a
legal precedent.
The Zenger case necessarily reflected on American politics. The
acquittal of the Defendant involved the condemnation of the Plaintiff,
which meant that Governor Cosby’s administration was found guilty of the
things with which the _Journal_ charged it. One more stumbling block was
thrown in the path of tyranny, one more support removed from dishonesty
in high places.
Cosby had hand-picked his judge to insure control of the court, but
never would this kind of illegality be repeated with the same
lighthearted contempt for criticism. Never again would any Colonial
governor try quite so recklessly and arrogantly to rig elections or to
seize land or to play the politician with his Council in order to create
within it a faction that would rubber-stamp his whims. These
misdemeanors had been condemned (by implication) in a cold legal
decision—and the Colonies would not forget.
The behavior of courts handling libel cases changed. When the New York
jury came in with a verdict of “Not guilty,” it did something that was
rather startling for the 1730’s. According to the traditional theory of
law, the business of jurors was to determine the fact of publication,
and to leave the verdict to the court. In this case, the jury should
have confined itself to deciding by whom the _Journal_ had been printed
and at whom the contents were aimed, after which its function would have
been fulfilled. The setup was ideal for Governor Cosby since he had his
henchman on the bench, Chief Justice James Delancey, all prepared to
render a verdict of “Guilty” as soon as the jury had agreed on the
undeniable (and undenied) fact that Peter Zenger was actually printer of
the newspaper.
Andrew Hamilton scrambled the neat pattern that Cosby had laid out. He
made his appeal directly to the jury, ostentatiously bypassing the
judges on the bench, presenting past instances in which jurors had taken
upon themselves the responsibility of deciding the law—that is, of
giving the verdict, instead of merely identifying the printer of the
supposedly libelous material. He argued that juries are of little use if
they do not perform this function, since there is no reason for jurors
to participate in any trial except that as local citizens they are
supposed to be familiar with the facts pertinent to the case. He asked
the Zenger jurors simply to declare what they knew to be the truth, that
“Zenger’s paper” had correctly described the New York administration
under which they all lived and suffered. In other words, he appealed to
the twelve men in the jury box to take the decision away from a
governor-controlled court.
Hamilton got his wish. The jury followed his advice, ignored a warning
from Chief Justice Delancey that the verdict was none of their business
and should be left to the court, and brought in a finding of “Not
guilty.” The immediate effect was the acquittal of Peter Zenger. But the
long-range effect was a change in the mutual relations of judges and
juries. Just as the principle, “The greater the truth, the greater the
libel,” became more and more implausible as time passed, so did the
notion that the proper function of the jury is to determine the “fact,”
that of judges to hand down the “law.” Jurors, like newsmen, were voted
a charter of independence at the same time that Peter Zenger was set
free.
The Zenger case assisted the rise of public opinion as a factor in
American life. The feeling of the inhabitants was never, of course,
completely inconsequential, and more than one governor had found himself
with a rebellion on his hands when he made himself too obnoxious, but in
Peter Zenger’s time the people were becoming increasingly restive and
impatient under maladministration. He made the attitude vocal as it
never had been before. Dissidents had habitually issued critical
pamphlets about things they objected to. The _New York Weekly Journal_
changed criticism from intermittent to permanent. The newspaper appeared
regularly every week, always crammed with information about the
officials of New York, and drawing its material from dozens of plain
citizens as well as from a steady “staff” of anti-Cosbyites. Because of
the _Journal_’s popularity, a whole section of the people received a
constant diet of critical journalism that showed them how influential
their approval or disapproval was.
Before long popular sentiment constituted a real power in the Colonies.
Governors became more reluctant to coerce opposition. Grand juries were
emboldened to make freer decisions when called on to indict editors. A
witness to the increased importance of the common man is Cadwallader
Colden. He became lieutenant-governor of New York, and as such a
defender of the crown’s prerogative; but he was a veteran of the Zenger
controversy, and in the midst of an even greater crisis (that following
the Stamp Act) he gave it as his considered opinion that to prosecute
newspapermen for libel would be very dangerous in view of the feeling
among the people. Journalists became bolder in their criticism, more
sure of themselves when they had public opinion with them.
The _New York Weekly Journal_ set the classic example of marshaling the
citizenry in serried ranks to support one point of view in politics, nor
does it, in this, have to take a back seat to any other news organ in
the history of American journalism. Sam Adams’ _Boston Gazette_ but
followed in the path already marked out by “Zenger’s paper,” which was
then, and still remains, a model of the art of diverting popular
sympathy from individuals and parties by making them look ridiculous or
criminal or both.
The participation of ordinary men and women in political discussions,
debates, and quarrels caused a rise toward the level of true democracy.
The _Journal_ proved the close connection between political freedom and
freedom of the press half a century before Jefferson laid down his
famous axiom on the subject, and a century before de Tocqueville
perceived that modern democracy cannot exist without the public forum of
the newspapers. By creating political journalism in the true sense, the
_Journal_ did as much, perhaps, as any other single agent to create the
American way of life. If we find censorship stifling today, we owe that
phenomenon of our moral physiology in no small degree to the battle that
was fought and won by Peter Zenger.
On the constitutional side, the Zenger case helped snap the leading
strings that bound the American Colonies to the mother country.
It made resistance to governors more respectable. Governor Cosby’s
defeat, like Peter Zenger’s vindication, was a legal precedent. At no
time was there any question of violence or armed insurrection (although
Cosby affected to believe the contrary in his letters to London). The
thing was fought out strictly through the judicial machinery of the
Province, with each side struggling to win over judges and juries. Cosby
lost because he could not control the one jury at the critical moment.
The decision was unassailable in any legitimate fashion, and Cosby was
_ipso facto_ legitimately discredited.
The outcome touched off reactions throughout the other Colonies. The
published account of the trial was hailed as a notable addition to the
documentation of freedom—something to be referred to whenever the
liberties of the subject were endangered. No longer could anyone claim
with any kind of justice that resistance to crown officials was always
wrong, that it had no real basis in American legal development or
political experience: the _Brief Narrative of the Case and Tryal of John
Peter Zenger_ was always there to give the lie to the proposition. When
resistance became really outspoken in the time of Adams and Otis and
Hancock, its leaders could thank Peter Zenger as one of their
forerunners who helped generate the mental atmosphere in which
revolutionary ideas could grow, thrive, and spread.
Resistance to governors led directly to resistance to the crown. Until
the time of the Zenger case, it had been conventional to solve American
problems by British experience, to look to the common tradition for both
principles and their correct application. After 1735 that procedure was
no longer to be accepted without quibble. Speaking to the jury, Andrew
Hamilton based his argument on the common sense notion that British law,
as such, could not always apply to America, because conditions in the
New World were in many respects unique, that in such cases our law would
have to develop its own rules and regulations.
Hamilton referred only to legal development since he was defending a
client in a court of law; but from his premise a political conclusion
could be drawn, namely, that government might not necessarily be
directly transferable either: if the Hanoverian monarchy, however
successful in Britain, could not rule satisfactorily the Colonial
democracy that was developing on this side of the Atlantic, then perhaps
something else should be put in its place. In Hamilton’s time the crown
itself was not yet suspect; it remained inviolate, the _sanctum
sanctorum_ of allegiance and veneration, when its representatives over
here were attacked with unmitigated animosity. Hamilton himself remarked
that the king differed from his officials in kind rather than merely in
degree.
Once, however, the authority of the king had been challenged, then
Hamilton’s appeal from British precedent to Colonial experience became
very much to the point. His efforts in behalf of liberty for New York
helped pave the way for liberty for America, the rebels of the 1770’s
drawing from his legal premise the political conclusion that lay
implicit in it. He enabled them to argue cogently that independence was
not a scandalous novelty but a natural issue of the American situation
in the face of an authority three thousand miles away.
The men of the Revolution were well aware of their indebtedness.
Gouverneur Morris spoke for them all when he delivered his famous
judgment that “The trial of Zenger in 1735 was the morning star of that
liberty which subsequently revolutionized America.”
Britain herself did not go unaffected by what had happened in the City
Hall of her New York Colony. As far as it concerned freedom of the
press, the Zenger case fell into place in a transition that had long
been developing in the classical home of libertarian ideas. The account
of the trial was reprinted there, and cited as an ideal of what British
journalists were striving for. In 1738 a London correspondent wrote to
Benjamin Franklin’s _Pennsylvania Gazette_ to say that Andrew Hamilton’s
address to the jury was causing something of a furor in the coffeehouses
where the gentry and the intelligentsia met, as well as among the
professional lawyers. The correspondent quoted one leader of the British
bar as saying of Hamilton’s argument, “If it is not law, it is better
than law, it ought to be law, and will always be law wherever justice
prevails.”
The two great principles—that truth may be used as a defense in libel
cases, and that the jury has a right to decide on both the “fact” and
the “law”—did eventually become legal for both Britain and America. The
process of formal acceptance took time, and the mother country divided
with her former Colonies the primacy of writing them into the lawbooks.
Britain gave the jury its proper function as early as 1792, with the Fox
Libel Act, whereas America had to wait for the Sedition Act of 1798; but
we admitted that veracity might be alleged in the Sedition Act, a right
which the British were without until Lord Campbell’s Act was passed in
1843.
The struggle for the two principles on both sides of the Atlantic is a
monument to the sagacity of Andrew Hamilton. No one could have won their
vindication at a single stroke against the inertia of old tradition and
habitual usage. But he defended them at the critical moment when change
had become a real possibility, and did it so powerfully as to give them
a forward drive that could not be stopped. Their triumph was therefore
his—at the remove of half a century and more.
The current of ideas set in motion by the Zenger case continued
throughout the nineteenth century, and became an integral part of
journalism as we know it. Libel suits did not diminish; on the contrary,
they increased; but they did not follow the lines of the Zenger
prosecution. They were mainly suits against “false, scandalous, and
malicious” statements in the newspapers, the growing number of such
cases reflecting the widening latitude within which editors worked. The
word “false” retained the significance that Andrew Hamilton had
attributed to it back in 1735. If the threat of the libel action still
hung over the heads of journalists (as it rightly did and does), it was
not the “libel” that Chief Justice James Delancey had tried to pin on
Peter Zenger.
The name of the Colonial printer did not, however, gleam as brightly as
it should have in the age of Bennett and Greeley and Raymond and Dana.
He was, if not forgotten, at least overlooked or ignored to a surprising
extent. Naturally he found a place in the volumes on his art—in Isaiah
Thomas’ _History of Printing in America_, a masterpiece that appeared in
1810, and in Charles Hildeburn’s _Sketches of Printers and Printing in
Colonial New York_ at the other end of the century (1895). The
astonishing thing is that no major work on the Zenger case was written
for more than a hundred and fifty years after it.
The twentieth century redressed the balance with Livingston Rutherfurd’s
_John Peter Zenger, His Press, His Trial and a Bibliography of Zenger
Imprints_ (1904), which, with all its defects, remains the only attempt
to treat Peter Zenger and his newspaper extensively and completely. With
its full reprint of the trial, it is the standard work on the subject.
The past fifty years have produced a mass of periodical essays, learned
monographs, and printed documents on the Zenger case; and, of course, we
can interpret the event more intelligently through our added experience
of how the press fares under tyrannies so abominable that they leave
Governor Cosby looking like a rather mild specimen of the juvenile
delinquent.
The memory of Peter Zenger was given a fillip in 1933, the year of the
bicentennial of the founding of the _New York Weekly Journal_. In
October a distinguished group of newsmen gathered at St. Paul’s Church
in Eastchester to commemorate the first issue of “Zenger’s paper”—that
being the place where the Popular party won the election (in spite of
Cosby’s attempt to rig it) that was the feature story on November 5,
1733. The New York Public Library participated in the celebrations of
1933 by giving an exhibition of its Zenger material. In January of 1934
Senator Borah read into the _Congressional Record_ the words from a
tablet which the New York Bar Association set up to the memory of Andrew
Hamilton: the inscription mentions how Hamilton came from Philadelphia
to defend Peter Zenger:
and thus early in the history of the colony of New York, in connection
with the events out of which the accusation arose, contributed to the
foundation and the subsequent establishment in the American Colonies
and the United States of America of the now cherished principles of
constitutional liberty, freedom of the press, independence of the
judiciary, independence of the bar, freedom of elections and
independence of the jury.
These words Senator Borah considered of such moment to the American
people and their government that they ought to be permanently enshrined
in the proceedings of the national legislature—and so they are.
Fittingly enough, New York City paid the final tribute to one of her
great sons. In 1953 was established the John Peter Zenger Memorial Room.
Located in the old Sub-Treasury Building, which stands on the site of
the City Hall in which Zenger was first imprisoned and then tried, the
Memorial Room depicts various scenes from the life and career of the
German immigrant who looms so large in the history of our journalism and
of our free institutions.
This tribute does not take Peter Zenger out of living history to place
him in a museum. Rather does it emphasize the truth that his memory will
never die as long as American democracy survives. Interest in his trial
should never flag if only because freedom of the press is not something
that can be taken for granted. In our time the Communist and Fascist
challenges have compelled us to go back to our national origins to
justify our way of life. That way of life stands or falls with the right
of journalists to criticize the government. We cannot afford to ignore
or slur over the printer and his colleagues who first insisted on
independence in publishing the news, put their principle into practice,
produced a great newspaper that magnificently vindicated them, defended
their newspaper in the teeth of official condemnation and judicial
indictment, and were so obviously in the right that a jury of their
fellow citizens upheld them in spite of a hostile court. Peter Zenger
was never more of a portent and a precedent than he is today.