A Brief Narrative of the Case and Tryal of John Peter Zenger

views updated

A Brief Narrative of the Case and Tryal of John Peter Zenger

Reprinted in Eyewitness to America

Published in 1997

Edited by David Colbert

". . . .Men who injure and oppress the people under their administration provoke them to cry out and complain; and then make that very complaint the foundation for new oppressions and prosecutions."

Freedom of the press is the liberty to publish information, regardless of content, without the approval or control of government agencies. It is considered one of the most important rights in a democratic society. During the colonial period, however, there was no freedom of the press. Throughout Europe publication of information was tightly monitored in order to suppress public criticism of religious leaders and monarchs (heads of kingdoms or empires). According to English law, which was also the law of the American colonies, criticism of the government in any form was considered to be a crime called seditious libel (inciting rebellion against government through unjust or untrue statements). Even if the information was deemed to be true, it could be found libelous. Judges usually decided whether or not printed material was seditious.

Freedom of the press was not a new concept in the seventeenth and eighteenth centuries. The issue came to light soon after the invention of the printing press in the late 1400s. Official censorship of published materials began in 1501 when Pope Alexander VI (1431–1503; the pope is the head of the Roman Catholic Church) required printers to submit all their work to the church for approval before publication. The pope took this step in order to prevent heresy (violation of church law), which was punishable by fine and excommunication (banishment from the church).

In England the struggle for freedom of the press began in the early 1500s when unauthorized publications offended the monarchy. In 1534 a royal proclamation (order issued by the king) declared that all printed materials had to be licensed before being published. During the 1660s prominent English intellectuals such as the poet John Milton (1608–1674) and the philosopher John Locke (1632–1704) argued for greater freedom of the press. Although censorship (examining printed materials) laws were abolished in 1695, tight restrictions on the press were continued through seditious libel laws.

In the early 1700s English critics John Trenchard and Thomas Gordon attacked the seditious libel laws and defended freedom of speech in a series of publications called Cato's Letters. An avid reader of Cato's Letters in the American colonies was James Alexander (1691–1756), the attorney general for New Jersey and New York (until 1738 these colonies shared the same government). Alexander was a political rival of William Cosby, the royal governor of New York. (A royal governor was appointed by the king of England.) In 1733 Alexander was joined by a group of lawyers, merchants, and other citizens to publish the New-York Weekly Journal. They intended the newspaper to be a political forum for colonists who opposed Cosby's administration. Alexander and his friends claimed that, in 1733, the governor had misused his power by dismissing Lewis Morris (1671–1746) as chief justice (principal judge of the colonial court) and replacing him with James De Lancey (1703–1760), a long-time Cosby ally.

The backers of the Journal hired German-born printer John Peter Zenger (1697–1746) to be the publisher of the newspaper. The first issue appeared on November 5, 1733. Since Zenger had not fully mastered the English language, he did not contribute any major articles. Most of the pieces, which accused Cosby of governing without the will of the people, were written by Alexander. Yet Zenger was responsible for every word that was printed because he was the publisher.

After the Journal had been running for nearly a year, the New York council, the group of men appointed to assist the royal governor in ruling the colony, decided to punish Zenger. They ordered the burning of four especially offensive issues of the newspaper and arrested Zenger. Showing a clear prejudice against the printer, the government set his bail (payment for freedom from imprisonment before a trial) at four hundred pounds (a sum of British money), plus two hundred pounds in bail insurance (money put aside in case bail money could not be raised). He could not raise the funds, so he remained in jail. For several days he was held in isolation, then he spent almost ten months behind bars. During this time Anna Zenger published the newspaper each week by smuggling her husband's instructions out of the jail.

Alexander and his colleague William Smith volunteered to represent Zenger in court. Zenger was put on trial for criminal libel in April 1735. Alexander and Smith immediately challenged the appointment of De Lancey, who was obviously loyal to Cosby, as the judge in the trial. The Cosby administration then disbarred (expelled from the legal profession) Alexander and Smith and delayed the case until the following August. Cosby also removed Alexander from his position on the governor's council. At that point Alexander and Smith turned to Andrew Hamilton (1676–1741), speaker of the Pennsylvania Assembly and the most prominent lawyer in the American colonies. When the trial resumed in August, Hamilton created a stir in the courtroom because no one knew he would be representing Zenger—he had been preparing for the trial in secret. Presenting the case for the New York government was Richard Bradley, the attorney general (chief legal officer). De Lancey was still the presiding judge.

Things to Remember While Reading A Brief Narrative of the Case and Tryal of John Peter Zenger:

The following excerpts from A Brief Narrative of the Case and Tryal of John Peter Zenger present the major arguments in the trial. The speakers are New York attorney general Richard Bradley, who argued the government's case against Zenger. Andrew Hamilton presented Zenger's defense, and James De Lancey (Mr. Chief Justice) was the judge.

A Brief Narrative of the Case and Tryal of John Peter Zenger

In opening arguments Bradley presented the government's case, saying that Zenger was guilty of making false or injurious statements about Cosby and his administration. According to Bradley, Hamilton admitted that Zenger had published statements that fit the definition of libel. In fact, he said, "if such papers are not libels,. . . there can be no such thing as libel." Hamilton responded to Bradley by claiming that although Zenger had indeed published statements that were offensive to Cosby, he had simply printed the truth. Hamilton also pointed out that Bradley had not accused Zenger of printing any false statements.

ATTORNEY GENERAL BRADLEY: . . . The case before the Court is, whether Mr. Zenger is guilty oflibelling his Excellency the Governor of New-York, and indeed the whole Administration of the Government. Mr. Hamilton has confessed the printing and publishing, and I think nothing is plainer, than that the words in the information [newspapers; evidence against Zenger] are scandalous, and tend tosedition, and todisquiet the minds of the people of thisprovince. And if such papers are not libels, I think it may be said, there can be no such thing as a libel.

MR. HAMILTON: May it please your Honour [Chief Justice]; I cannot agree with Mr. Attorney. For tho' I freely acknowledge, that there are such things as libels, yet I must insist at the same time, that what my client is charged with, is not a libel; and I observed just now, that Mr. Attorney in defining a libel, made use of the words scandalous,seditious, and tend to disquiet the people; but . . . he omitted the word "false.". . .

Libelling

Libelling: To make statements that are published without just cause and tend to expose another to public contempt

Sedition

Sedition: Incitement of resistance against lawful authority

Disquiet

Disquiet: Disturb

Province

Province: Colony

Seditious

Seditious: Disposed to arouse or take part in resisting lawful authority

De Lancey then stepped in, telling Hamilton that libel is never justified, whether it is true or not. But Hamilton would not give up.

MR. CHIEF JUSTICE: You cannot be admitted, Mr. Hamilton, to give the truth of a libel in evidence. A libel is not to be justified; for it is nevertheless a libel that it is true.

MR. HAMILTON: I am sorry the Court has so soon resolved upon that piece of law; I expected first to have been heard to that point. I have not in all my reading met with an authority that says, we cannot be admitted to give the truth in evidence. . . .

MR. CHIEF JUSTICE: The law is clear, That you cannot justify a libel. . . .

Finally Hamilton ignored De Lancey and turned to the jury. In a dramatic speech he told the jurors that the law required them, not the judge, to decide the case. He reminded them that as residents of the court jurisdiction ("neighbourhood") where the alleged crime took place, they had the best knowledge of the facts. He went on to say he had no fear that they would decide against his client because they were "honest and lawful men." Hamilton freely admitted that Zenger had printed libelous statements, but he knew the jurors would agree that truth was the real issue. Hamilton warned the jurors not to let the trial become a "Star-Chamber" (a secret court that violates the rights of an innocent person). The accusation of libel, he said, is a way for men in power to silence. He concluded by appealing to the jury to take a stand against oppression and defend the right to speak and write the truth.

MR. HAMILTON: I thank your Honour. Then, gentlemen of the jury, it is to you we must now appeal, . . . [you have been chosen from] the neighborhood where the fact [supposed libel] is alleged to be committed; and the reason of your being taken out of the neighborhood is, because you are supposed to have the best knowledge of the fact that is to be tried. And were you to find averdict against my client, you must take upon you to say, the papers referred to in the information, and which we acknowledge we printed and published, are false, scandalous, and seditious; but of this I can have noapprehension. You are citizens of New-York; you are really what the law supposes you to be, honest and lawful men; and, according to mybrief, the facts which we offer to prove were not committed in a corner; they are notoriously known to be true; and therefore in your justice lies our safety. And as we are denied the liberty of giving evidence, to prove the truth of what we have published, I will beg leave to lay it down as a standing rule in such cases, that the suppressing of evidence ought always to be taken for the strongest evidence; and I hope it will have that weight with you. . . .

It is true in times past it was a crime to speak truth, and in that terribleCourt of Star-Chamber, many worthy and brave men suffered for so doing; and yet even in that court, and in those bad times, a great and good man dared to say, what I hope will not be takenamiss of me to say in this place, to wit, the practice of informations for libels is a sword in the hands of a wicked King, and anarrant coward to cut down and destroy the innocent; the one cannot, because of hishigh station, and the other dares not, because of his want of courage, revenge himself in another manner.

ATTORNEY GENERAL BRADLEY: Pray Mr. Hamilton, have a care what you say, don't go too far neither, I don't like those liberties.

Verdict

Verdict: The decision reached by a jury at the conclusion of a trail

Apprehension

Apprehension: Fear

Brief

Brief: A concise statement of a client's case made out for the instruction of Counsel in a trial at law

Court of Star-Chamber

Court of Star-Chamber: A court set up by English kings to punish political opponents (1400s–1641); a term for unfair judicial proceedings

Amiss

Amiss: Misunderstood

Arrant

Arrant: Extreme

High station

High station: Upperclass; high social position

Zeal

Zeal: Enthusiastic

Precedent

Precedent: An act or instance that can be used as an example in dealing with similar situations

MR. HAMILTON: I hope to be pardon'd, Sir, for myzeal upon this occasion: It is an old and wise caution, that when our neighbour's house is on fire, we ought to take care of our own. For tho', blessed be God, I live in a government where liberty is well understood, and freely enjoy'd; yet experience has shown us all (I'm sure it has to me) that a badprecedent in one government, is soon set up for an authority in another; andtherefore I cannot but think it mine, and every honest man's duty, that (while we pay all due obedience to men in authority) we ought at the same time to be upon our guard against power, wherever we apprehend that it may affect ourselves or our fellow-subjects. . . .

. . . . Men who injure andoppress the people under their administration provoke them to cry out and complain; and then make that very complaint the foundation for new oppressions and prosecutions. I wish I could say there were no instances of this kind. But to conclude; the question before the court and you, gentlemen of the jury, is not of small nor private concern, it is not the cause of a poor printer, nor of New-York alone, which you are now trying; No! It may in its consequence, affect every freeman that lives under a British government on the main [continent] of America. It is the best cause. It is the cause of liberty; and I make no doubt but 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 honour you, as men who have baffled the attempt oftyranny; and by an impartial and uncorrupt verdict, have laid a noble foundation for securing to ourselves, ourposterity, and our neighbours, that to which nature and the laws of our country have given us a right—the liberty—both of exposing and opposingarbitrary power (in these parts of the world, at least) by speaking and writing truth. . . .

When the time came to reach a verdict, De Lancey instructed the jury to ignore Hamilton's argument because it was not based on the law. In fact, he said he ("the court") was better qualified than the jurors to decide "a matter of law." Ignoring De Lancey's instructions, the jury determined that Zenger's articles were based on fact and declared him not guilty.

MR. CHIEF JUSTICE: Gentlemen of the jury. The great pains Mr. Hamilton has taken, to show how little regard juries are to pay to the opinion of the judges; and his insisting so much upon the conduct of some judges in trials of this kind; is done, no doubt, with a design that you should take but very little notice of what I may say upon this occasion. I shall therefore only observe to you that, as the facts or words in the information are confessed: the only thing that can come in question before you is, whether the words, as set forth in the information, make a libel. And that is a matter of law, no doubt, and which you may leave to the court. . . .

Oppress

Oppress: Persecute in an unjust manner

Tyranny

Tyranny: Oppressive power

Posterity

Posterity: All future generations

Arbitrary

Arbitrary: Depending on individual discretion and not fixed by law

The Jury withdrew, and in a small time returned, and being asked by the clerk, whether they were agreed of their verdict, and whetherJohn Peter Zenger was guilty of printing and publishing libels in the information mentioned? They answered by Thomas Bunt, theirForeman, Not Guilty. Upon which there were threeHuzzas in the hall which was crowded with people, and the next day I was discharged from my imprisonment.

Foreman

Foreman: The spokesman for a jury

Huzzas

Huzzas: Expressions or shouts of acclaim often used to express joy

What happened next . . .

The Zenger trial verdict established truth as a defense against libel charges. It is considered the first significant victory for freedom of the press in America. The following year Hamilton wrote an account of the trial, which was published as A Brief Narrative of the Case and Tryal of John Peter Zenger (1736). His report was later issued in several editions and generated considerable interest in the American colonies and in Britain. In 1737 Zenger was appointed public printer for New York, and the next year he was awarded the same position in New Jersey. Although he had risen in his profession, he and his family continued to live in near poverty. Zenger died in 1746, leaving behind a wife and six children. Anna Zenger published the Journal until December 1748. John Zenger, one of the printer's sons from an earlier marriage, then managed the newspaper until it ceased publication in 1751.

Did you know . . .

After Zenger was arrested, court officials refused to carry out the Council's order to burn the four "libelous" issues of the New-York Journal. Finally the sheriff's African slave set fire to the newspapers.
The Zenger trial had a far-reaching impact on opposition to English control of the American colonies. Historians note that although the case did not change the law, it influenced the writing of the United States Constitution (1787). In 1789 the framers (composers) added ten amendments (changes or additions), called the Bill of Rights, that would guarantee individual liberties under the Federal government. Freedom of the press is one of the rights protected by the First Amendment, which states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right of people peaceably to assemble; and to petition the government for redress [corrections] of grievances [problems]."
At one point in the trial Hamilton warned the jurors not to let De Lancey turn the hearings into a "Court of Star-Chamber." Set up by English kings in the 1400s to punish political enemies, the Court of Star-Chamber was abolished in 1641. "Star chamber" then became a term for unfair judicial proceedings. An example of a star chamber was the Salem witch trials (see Mather-Cheever Account of the Salem Witch Trials). In the Salem trials the accused "witches" were not allowed to have attorneys and there was no jury. The panel of judges permitted the use of spectral evidence ("proofs" of evil spirits), which had no legal basis. The Salem judges had absolute power. They brought charges, called witnesses, heard testimony, determined guilt, ordered sentences, and carried out the executions of nineteen innocent people.