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 responsibility of deciding the law—that is, of giving the verdict, instead of merely identifying the printer of the supposedly libelous material. He argued that juries are of little use if they do not perform this function, since there is no reason for jurors to participate in any trial except that as local citizens they are supposed to be familiar with the facts pertinent to the case. He asked the Zenger jurors simply to declare what they knew to be the truth, that “Zenger’s paper” had correctly described the New York administration under which they all lived and suffered. In other words, he appealed to the twelve men in the jury box to take the decision away from a governor-controlled court.
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 issued critical pamphlets about things they objected to. The New York Weekly Journal changed criticism from intermittent to permanent. The newspaper appeared regularly every week, always crammed with information about the officials of New York, and drawing its material from dozens of plain citizens as well as from a steady “staff” of anti-Cosbyites. Because of the Journal’s popularity, a whole section of the people received a constant diet of critical journalism that showed them how influential their approval or disapproval was.
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 kind of justice that resistance to crown officials was always wrong, that it had no real basis in American legal development or political experience: the Brief Narrative of the Case and Tryal of John Peter Zenger was always there to give the lie to the proposition. When resistance became really outspoken in the time of Adams and Otis and Hancock, its leaders could thank Peter Zenger as one of their forerunners who helped generate the mental atmosphere in which revolutionary ideas could grow, thrive, and spread.
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.