The Trial of Peter Zenger

by Unknown

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.