  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 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 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 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 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. 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 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 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 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 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
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 |
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