The Zenger Trial
Partisanship, not freedom of expression, framed the case.
In the 265-plus years since the verdict, the Zenger trial has assumed a place of importance in understanding the development of freedom of the press in America, in the demand by Americans for the First Amendment to the Constitution and in the courage of printers to fight evil and corrupt government. That is how the writers of America’s first media histories wrote of the event and that is how it is remembered by many—even though recent scholarship has complicated the story by properly placing the trial in the context of its times.
The trial of John Peter Zenger had little to do with freedom of the press in colonial America. It had much to do with political control and partisanship in New York. In 1735, freedom of the press served as the means to an end. When political controversies arose and were discussed in newspapers, printers often surrounded potentially volatile articles with essays on the liberty of the press. Printers felt the articles protected them by pointing out the importance of free expression in a free society.
Zenger’s trial lawyer, Philadelphia attorney Andrew Hamilton, however, based his defense of the German immigrant printer on the idea that truth negated a charge of libel—even though British law stated that truth made no difference and, indeed, made the libel worse because it could not be refuted. People have a right, Hamilton argued, to criticize their government. The significance of the Zenger trial, then, lies in its proposal in court that truth should be given voice and not punished, an idea that had been debated in America and England since the 17th century, and in the proposal that juries, not judges, should decide whether libels occurred. Even though Hamilton’s defense did not change the law, it did become, according to one colonist writing in the Pennsylvania Gazette three years later, “better than the law, it ought to be law, and will always be law wherever justice prevails,” because the jury recognized its own power and the power of the truth.
In 1733, zenger was a struggling printer in New York. Like many others in colonial America who had come before him and would come after, he learned his profession as an apprentice. As a “printer’s devil” for New York printer William Bradford, Zenger set type and printed on a press that was nearly identical to the one invented by Johannes Gutenberg in 1455. The workday ran according to the sunlight. Lead type was set into frames, locked into the press, inked and pressed onto paper made of cloth. Print shops aimed at producing 250 pressings per hour, and, usually, if this goal could not be met, no one was paid. When Zenger opened his print shop in 1726, he was no rival to his former master, Bradford, the colony’s official printer. Bradford received all of the colonial government’s printing business, and he published New York’s only newspaper, the Gazette. Zenger, meanwhile, struggled to make a living by publishing stationery and a variety of pamphlets and books.
The roots of the controversy that sent Zenger to jail for libel were buried deep in the partisan politics of New York, which gained new intensity when Gov. John Montgomerie died in 1731. Naming a new governor was the crown’s responsibility, and it often took more than a year for news of a governor’s death to reach England and for a new governor to be named and assume office. In the interim, the senior member of the colony’s provincial council served as governor; in New York, that was Rip Van Dam, a 72-year-old Anglo-Dutch merchant. Van Dam had been a member of the council for nearly 30 years. Interim governors received governor’s pay until the governor arrived from England. Often, the interim set aside half the pay to give to the newly appointed governor, but in Van Dam’s case, the council decided that the whole salary should be Van Dam’s, probably out of deference to his age, council seniority and service to the colony.
When William Cosby arrived in New York and assumed the governorship, he demanded a pay raise and half of Van Dam’s salary. The colony gave the new governor the pay increase, but contrary to custom Van Dam did not surrender half of the pay he had earned as interim governor, a decision initially backed by the council. Gov. Cosby brought suit and arranged for the colony’s Supreme Court to sit in judgment of the case.
The move pitted the colony’s two political factions against each other. On one side was Gov. Cosby and those who supported him—the Cosby party. On the other side was Chief Justice Lewis Morris and a number of influential people, including lawyers James Alexander and William Smith, who opposed the governor—the Morris party. The two lawyers argued that the court should not hear Cosby’s petition. Justice Morris, Cosby’s political opponent, naturally, agreed. As a result, Cosby removed Justice Morris from the court, which elevated the controversy to a new level.
The Morris party looked for a way to sway public opinion against Gov. Cosby. Pamphlets and broadsides were possibilities, but letters and essays in a regularly published newspaper, they knew, would be better. Bradford would never print criticism of Cosby in his Gazette because it would endanger his status as the colony’s official printer, which amounted to a government subsidy. The Morris party thus needed a new newspaper.
When the Morris party contacted Zenger and offered to finance a newspaper for him, he agreed. Zenger (who never truly mastered English and whose spelling of the day of his paper’s publication as “Munday” for its entire run stands out even in the idiosyncratic orthography of the 18th century) became the mechanic—the person responsible for overseeing the setting of type and the printing of the New-York Weekly Journal. Alexander and Smith served as the editors and chief opinion writers. In the second and third Weekly Journals, they inserted an essay on the significance of freedom of the press signed by “Cato,” which recalled for New Yorkers the 1720s’ English libertarians John Trenchard and Thomas Gordon, who wrote on the rights of Englishmen. Americans often borrowed the name Cato when they wrote on issues that focused on basic rights. From the beginning, then, it appeared that the Weekly Journal was about freedom of the press. But espousing press freedom was one way printers in the 18th century protected themselves when political controversy was about to become the central focus of newspaper articles. Many printers espoused impartiality in printing, believing that both sides of issues should be given voice. For some, the rationale for an open press may have been financial; controversy produces increased readership and paper sales. But there was also a growing belief in 18th-century America that all ideas needed to be heard. If printers could be jailed every time a political leader or influential individual believed himself to be slandered in print, printers would lose their livelihood, and Americans would not have an open avenue for discussion. Calls for liberty of the press, therefore, were generally designed to protect printers when their subject matter might be considered controversial, not to champion a concept of freedom of expression that was slowly evolving and would continue to evolve for the next two centuries.
During the next year, the Weekly Journal repeatedly attacked Gov. Cosby. It called the governor a French sympathizer for allowing a ship, Le Cæsar, into New York harbor. Britain and France, old enemies, had already fought two wars in North America. The Weekly Journal charged that Cosby assisted the French in gaining military information about the city by allowing the ship into the harbor under the pretense of obtaining provisions for starving settlers on Cape Breton. The charge was tantamount to calling the governor a traitor.
A series of unsigned letters in the Weekly Journal—a standard 18th-century practice to protect the writers, along with the use of pseudonyms—attacked abuses of power by Gov. Cosby’s administration. When the Cosby party complained, Alexander and Smith inserted more of Cato’s letters on the value of freedom of the press in the Weekly Journal. “Whoever would overthrow the Liberty of the Nation,” the paper declared, “must begin by subduing the Freeness of Speech; A Thing terrible to publick Traytors.”
By November 1734, Gov. Cosby had had enough of the attacks in the Weekly Journal. He ordered four particularly offensive issues of the paper confiscated and burned in public. The next week, the Weekly Journal boldly proclaimed, “Only the wicked Governours of Men dread what is said of them.”
Gov. Cosby immediately signed orders for Zenger’s arrest for seditious libel, which meant he printed material that undermined the authority of government. The paper missed its next publication because Zenger was in jail. At his hearing, the court set Zenger’s bail at £400. Zenger could not afford the excessive bail, but the wealthy Morris party could. They chose, however, to leave Zenger behind bars: he was worth more as a martyr to the harsh practices of a tyrannical governor than as a printer. Zenger remained in jail until his August trial, but the paper continued to publish with Zenger’s wife, Anna, and apprentices doing the work.
Although the Morris party would not bail Zenger out of jail, it did intend to provide him with counsel in court. Alexander and Smith planned to represent the printer; they began Zenger’s defense by questioning the impartiality of two judges sitting on the court to hear the case because both were staunch supporters of Cosby. As a result of their petition to have the two recused from the case, Alexander and Smith were disbarred. The court appointed another lawyer, John Chambers, who held a government job thanks to an appointment from Cosby, to defend Zenger.
To Chamber’s credit, he fought a plan to have the jury in the case chosen from a list of Cosby party members. Instead, Chambers successfully insisted that the jury be chosen from all eligible New York landowners. Chambers’ persistence for a nonpartial jury probably made as much difference as the defense presented by Hamilton. At trial, all the prosecution needed to do was prove that Zenger published the material considered libelous. If the jury affirmed that fact, Zenger would then be judged guilty.
When it came time for Zenger’s defense, it was not Chambers who rose in the courtroom but Andrew Hamilton. Hamilton was considered by most to be the best trial lawyer in the colonies. When Alexander and Smith were disbarred, they contacted Hamilton about assuming the role of counsel for Zenger when the printer went to court. The 59-year-old Hamilton admitted that Zenger printed the tracts in question, but he did not stop there. He said that lack of governmental approval did not necessarily make a publication libelous and then added two significant points. First, Hamilton said a jury and not a judge should decide the libelous nature of material. Second, and contrary to the chief justice’s instructions, he insinuated that truth negated libel. “They are notoriously known to be true,” Hamilton said of the facts surrounding the Weekly Journal’s accusations to the jury. “Therefore in your justice lies our safety.”
The jury ensured Zenger his safety and found him not guilty after deliberating for only a short time. Zenger was freed and went back to publishing the Weekly Journal. Two years later, the Morris party gained control of the New York political machinery with a convincing victory at the polls. Zenger’s effort in helping Morris, Alexander, Smith, Van Dam and others in their fight against Gov. Cosby’s administration was not forgotten. Zenger became the colony’s official printer, with all the access to government printing jobs that the position entailed.
Future generations would find the story of the Zenger case a significant chapter in the story of freedom. While the Zenger trial may have reflected growing American thought on the role of the press and on libel, it did not spark an immediate reaction in the colonial press. Only a few brief statements may be found in papers other than those of New York concerning the controversy. Alexander’s and Smith’s disbarment, for example, found its way into two newspapers, but Zenger’s name was never mentioned. The trial’s results appeared only in Zenger’s newspaper and in a pamphlet that he himself published. Discussion of the trial in the press did not occur until 1737 and 1738 when the decision was attacked by a writer in a Barbados paper and the Pennsylvania Gazette printed responses.
And what happened in Zenger’s court case did not immediately change the law concerning libel. Even though the case became a major topic of discussion in England in the years after the trial, British law did not give juries the power to decide libel cases until 1792 and did not recognize truth as a libel defense until 1843. New York law did not validate truth as a libel defense until 1821.
The verdict in the Zenger trial did, however, echo growing sentiment in America that people had the right to criticize their government and that using courts to punish printers or anyone else who did so was improper. Few printers from 1735 on in colonial America faced seditious libel charges. In revolutionary-minded Boston from 1765 on, crown-appointed leaders were continually vilified in print, but no charges of seditious libel could ever be obtained. As legal historian Leonard Levy pointed out, “The law of seditious libel simply had no meaning any longer.”
The trial of John Peter Zenger has been proclaimed as an example of courage in which a single printer faced the powerful political machinery of the time and remained in jail for the honor of freedom of the press. Zenger, of course, did not want to stay imprisoned; he simply had no choice. This does not mean that courage was not a part of the story. Gov. Cosby knew that Alexander and Smith were writing the inflammatory letters about him, but the governor could not prove it since nothing in the Weekly Journal was signed. Only Zenger’s name appeared on the newspaper. And Zenger had to know that arrest for printing the letters that attacked the governor was possible; his mentor, the printer Bradford who ultimately sided with the Court party, had once been jailed in Pennsylvania for printing views contrary to the government’s. Bradford surely told Zenger this story as the young immigrant worked as Bradford’s apprentice.
Zenger’s paper offended not just the governor but his supporters. One of Cosby’s staunchest devotees on the provincial council, Francis Harison, threatened to beat Zenger if he caught him on the streets. Zenger took the threat seriously and began to wear a sword in public. Alexander and Smith also lived under a threat they presumed to be from Harison, who was assigned by the governor to write pro-Cosby articles for the Gazette. In an unsigned note left on Alexander’s door in February 1734 were the words, “I swear by God to poison all your tribe so surely, that you shan’t know the perpetrator of the tragedy.” Alexander and Smith believed Harison wrote the warning, even though the council said that Harison was incapable of such deeds.
The Zenger trial was but one of the many political power struggles that took place in colonial America. Those in power generally supported stricter press control; that is why Cosby clamped down on the Weekly Journal and that is why, during the 1770s patriots used boycotts, intimidation and outright violence to silence Tory printers, even as both groups of printers championed freedom of the press from the pages of their newspapers. A fear of power in a national government led to the Bill of Rights. Even though Zenger’s trial was never mentioned during the debates surrounding the Constitution or the First Amendment, perhaps the trial—or what the trial said about truth, libel and printing—had somehow become a part of America’s consciousness. Surely newspapers had become a part of the fabric of American life. Perhaps, too, episodes such as that of the trial of John Peter Zenger unwittingly paved the way for freedom of the press and even pluralism because they helped acclimate people to a society where political dispute and criticism became commonplace.
David Copeland is an associate professor of mass communication at Emory & Henry College and author of Colonial American Newspapers: Character and Content and Debating the Issues in Colonial Newspapers (September 2000).