Gotham_ A History of New York City to 1898 - Edwin G. Burrows [129]
In April 1735, Smith and Alexander made their first move on Zenger’s behalf by challenging the legality of Cosby’s commissions to De Lancey and Philipse. De Lancey found them in contempt, ordered them disbarred, and assigned John Chambers, a skilled attorney but one of Cosby’s men, to represent Zenger instead. Shrewdly, Alexander then enlisted the help of Andrew Hamilton of Philadelphia—the best trial attorney in the colonies. Hamilton’s decision to participate in Zenger’s defense changed everything.
Zenger’s trial began in August 1735. Hamilton’s strategy, from a strictly legal point of view, was extremely risky. As the English common law then stood, “seditious libel” meant simply the publication of any material undermining the authority of government. The truth or falsity of such material was irrelevant; juries were to determine only whether, as charged, it had been made public and referred to the persons or institutions in question. Hamilton conceded that Zenger’s articles were malicious, seditious, and scandalous—which should have ended the matter then and there. But in a dazzling appeal to “reason” and “natural rights,” Hamilton argued that truth must be accepted as a defense against the charge of libel. What was at stake, he told the jury, was nothing less than the right of a free people to criticize their rulers. “It is not the cause of a poor printer, nor of New York alone, which you are now trying. No! It may in its consequences affect every freeman that lives under a British government on the main of America. It is the best cause. It is the cause of liberty.”
The New-York Weekly Journal, December 17, 1783. Ten months after it appeared, this issue was burned by order of Cosby and the provincial council. (© Collection of The New-York Historical Society)
Hamilton’s oratory carried the day. Despite De Lancey’s insistence that they stick to the law, the jurors took only minutes to acquit Zenger of all the charges against him. The crowded courtroom burst into cheers, and the jubilant Morrisites marched the Philadelphia lawyer off to the Black Horse Tavern (at what is now the corner of William Street and Exchange Place) for a feast. Shortly thereafter, the Common Council hailed Hamilton for “his learned and generous defense of the rights of mankind, and the liberty of the press” and made him a freeman of the corporation. Additional plaudits followed as word of the verdict percolated throughout the Anglo-American world, moved along by James Alexander’s Brief Narrative of the Case and Trial of John Peter Zenger, which came off Zenger’s press in 1736. Often reprinted on both sides of the Atlantic, it was probably the most famous book yet published in America.
No one imagined that Zenger’s acquittal set a legal precedent for the elimination of restrictions on the press—it was an instance of jury nullification, not a judicial opinion—and indeed decades would pass before printers in either America or Great Britain were safe from official scrutiny. What made the case so significant to contemporaries, rather, was that it sent a clear warning to judges and prosecutors that the law of libel was out of step with popular sentiment and that they could no longer rely on juries to shield government from public censure. In doing so, moreover, the Zenger verdict endorsed assumptions about relations between “the people” and their rulers long familiar to readers of Cato’s Letters or the Craftsman—that executive power tends to expand at the expense of liberty, and that to protect themselves, freemen must be able to speak their minds without fear of official retribution.
“SUCH A STRUGLE I NEVER SAW”
Although the Morrisites had won an important