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No country values free expression more highly than does the United States, and no case in American history stands as a greater landmark on the road to protection for freedom of the press than the trial of a German immigrant printer named John Peter Zenger. On August 5, 1735, twelve New York jurors, inspired by the eloquence of the best lawyer of the period, Andrew Hamilton, ignored the instructions of the Governor's hand-picked judges and returned a verdict of "Not Guilty" on the charge of publishing "seditious libels." The Zenger trial is a remarkable story of a divided Colony, the beginnings of a free press, and the stubborn independence of American jurors.
Background
The man generally perceived to be the villain of the Zenger affair, William Cosby, arrived in New York on August 7, 1731 to assume his post as Governor for New York Province. Cosby quickly developed a reputation as "a rogue governor." It is almost impossible to find a positive adjective among the many used by historians to describe the new governor : "spiteful," "greedy," "jealous," "quick-tempered," "dull," "unlettered," and "haughty" are a sample of those that have been applied.
Within a year after arriving on American shores, Cosby embroiled himself in a controversy that would lead to Zenger's trial and ultimate acquittal. The man with whom Cosby chose to pick his first fight, Rip Van Dam, was the seventy-one-year-old highly respected senior member of the New York provincial council. Cosby demanded that Van Dam turn over half of the salary he had earned while serving as acting governor of New York during the year between Cosby's appointment and his arrival in the colony. The hard-headed Van Dam agreed--providing that Cosby would split with him half of the perquisites he earned during the same time period. By Van Dam's calculations, Cosby would actually owe him money--over £4000.
Governor Cosby responded in August 1732 by filing suit for his share of Van Dam's salary. Knowing that he had no chance of prevailing in his case if the decision were left to a jury, Cosby designated the provincial Supreme Court to sit as a "Court of Exchequer" (without a jury) to hear his suit. Van Dam refused to roll over, and had his lawyers challenge the legality of Cosby's attempt to do an end-run of the colony's established jury system. The decision on the legality of Cosby's creation of the new court fell to the three members of the Supreme Court itself, and in April 1733 it voted 2 to 1 to uphold Cosby's action. Cosby wrote a letter to the dissenting judge, Chief Justice Lewis Morris, demanding that he explain his vote. Morris did so, but to Cosby's great displeasure, his explanation appeared not in a private letter to the Governor, but in a pamphlet printed by John Peter Zenger. Cosby "went ballistic," removing Morris as Chief Justice and replacing him with a staunch royalist, James Delancey.
Cosby's action of firing Morris intensified the growing opposition to his administration among some of the most powerful people in the colony. Rip Van Dam, Lewis Morris, and an energetic attorney named James Alexander organized what came to be known as the Popular Party, a political organization that would constitute a serious challenge to Cosby's ability to govern.
Cosby attempted to maintain his grip on power by employing Francis Harison--a man called by historians Cosby's "flatterer-in-chief" and "hatchetman"--to become censor and effective editor of the only established New York newspaper, the New York Gazette. Harison defended Cosby both in prose and strained verse, such as this poem that appeared the Gazette's January 7, 1734 issue:
Cosby the mild, the happy, good and great,
The strongest guard of our little state;
Let malcontents in crabbed language write,
And the D...h H....s belch, tho' they cannot bite.
He unconcerned will let the wretches roar,
And govern just, as others did before.
James Alexander, often described as the "mastermind" of the opposition, decided to take the unprecedented step of founding an independent political newspaper. Alexander approached John Peter Zenger who, along with William Bradford, the Gazette's printer, was one of only two printers in the colony, with the idea of publishing a weekly newspaper to be called the New York Weekly Journal. Zenger, who had made a modest living the past six years printing mainly religious tracts, agreed. In a letter to an old friend, Alexander revealed the Journal's mission: "Inclosed is also the first of a newspaper designed to be continued weekly, chiefly to expose him [Cosby] and those ridiculous flatteries with which Mr. Harison loads our other newspaper which our Governor claims and has the privilege of suffering nothing to be in but what he and Mr. Harison approve of."
