Chapter I: Front Matter

_The liberty of the press is a subject of the greatest importance, and in which every individual is as much concerned as he is in any other part of liberty._

_New York Weekly Journal_
November 12, 1733

THE TRIAL OF
Peter Zenger

EDITED AND WITH AN INTRODUCTION AND NOTES BY
Vincent Buranelli

_Washington Square
New York University Press
1957_

© 1957 by New York University Press, Inc.
Library of Congress catalogue card number: 57-6370
Manufactured in the United States of America

Numb. XVI.

THE
New-York Weekly JOURNAL.

_Containing the freshest Advices, Foreign, and Domestick._

_MUNDAY_ February 18, 1733.

Mr. _Zenger_;

_I beg you will give the following Sentiments of_ CATO, _a Place in your_ weekly Journal, _and you’ll oblige one of your Subscribers_.

Without Freedom of Thought, there can be no such Thing as Wisdom, and no such Thing as public Liberty, without Freedom of Speech, which is the Right of every Man, as far as by it he does not hurt or controul the Right of another: And this is the only Check it ought to suffer, and the only Bounds it ought to know.

This sacred Privilege is so essential to free Governnments, that the Security of Property, and the Freedom of Speech always go together; and in those wretched Countries where a Man cannot call his Tongue his own he can scarce call any Thing else his own. Whoever would overthrow the Liberty of a Nation must begin by subduing the Freeness of Speech; a Thing terrible to publick Traytors.

This secret was so well known, to the Court of King _Charles_ the First, that his wicked Ministry procured a Proclamation to forbid the People to talk of Parliaments, which those Traytors had laid aside.

To assert the undoubted Right of the Subject, and defend his Majesty’s legal Prerogative, was called Disaffection, and punished as Sedition.

That Men ought to speak well of their Governours, is true, while their Governours deserve to be well Spoken of, but to do publick Mischief without Hearing of it is only the Prerogative and Felicity of Tyranny a free People will be shewing that they are so, by their Freedom of Speech.

The Administration of Government, is nothing else but the Attendance of the Trustees of the People upon the Interest, and Affairs of the People. And it is the Part and Business of the People, for whose Sake alone all publick Matters are or ought to be transacted, to see whether they be well or ill transacted; so it is the Interest, and ought to be the Ambition of all honest Magistrates, to have their Deeds openly examined and publickly scanned.

Freedom of Speech is ever the Symptom as well as the Effect of good Government. In old _Rome_ all was left to the Judgment and Pleasure of the People, who examined the public Proceedings with such Discretion, and censured those who administred them with such Equity and Mildness, that in the Space of three Hundred Years, not five public Ministers suffered unjustly. Indeed whenever the Commons proceeded to Violence, the great ones had been the Agressors.

Guilt only dreads Liberty of Speech, which drags it out of its Lurking Holes and exposes its Deformity and horror to to[sic] Day light; the best Princes have ever incouraged and promoted freedom of Speech they know that upright Measures would defend themselves and that all upright Men would defend them. _Tacitus_ speaking of the Reign of good Princes says with extasy; _A blessed Time, when you might think what you would, and Speak what you Thought_.

I doubt not but old _Spencer_ and his Son who were the chief Ministers and Betrayers of _Edward_ the Second would have been glad to have stopt the Mouths of all the honest Men in _England_. They dreaded to be called Traytors because they were Traytors. And I dare say Queen Elizabeths

Preface

In this book you will find the reasons for the fame of Peter Zenger and Andrew Hamilton. You will also find the reason why James Alexander deserves mention as the third member of a great trio. Zenger was the central figure of a colorful and influential historical event—his trial for seditious libel. Hamilton was the champion who won him his freedom. The place of Alexander in all this is virtually unknown, and yet without him Hamilton’s fame would be cut in half, while Zenger would not merit even a footnote in the histories of America, of democracy, or of journalism.

Alexander edited the _New York Weekly Journal_. That simple fact means that he was the first American editor to practice freedom of the press systematically and coherently, and the first to be justified legally. The defense of Zenger’s person was a defense of Alexander’s philosophy of journalism. The victory engineered by Hamilton was the result of a courtroom campaign along lines laid down by Alexander.

Perhaps it would be too strong to say that the genius behind the _Journal_ was our greatest editor, but it would be hard to name one of equal importance. If we believe, as we do, that freedom of the press is essential to our civilization, surely we ought to give due recognition to the first American to say so and to act effectively. For this Scottish immigrant of the eighteenth century taught his adopted land the first law of sane journalism: that the news is to be reported on the basis of factual accuracy, and that censorship by the authorities is to be resisted as far as is consistent with national security and the interests of society.

The introduction to the text of the trial is based on a series of articles by the author, published in the following journals:

“Peter Zenger’s Editor,” _American Quarterly_, VII (1955), 174-81.
“Governor Cosby’s Hatchet-Man,” _New York History_, XXXVII (1956),
26-39.
“The Myth of Anna Zenger,” _William and Mary Quarterly_, XIII (1956),
157-68.
“The Meaning of the Zenger Case,” _Social Studies_, January, 1957.
“Governor Cosby and His Enemies,” _New York History_, XXXVII (1956),
365-87.
“The Architect of Our Free Press,” _Social Education_, XX (1956),
311-13.

For permission to use material from these articles, thanks are due to the respective editors and to the following societies: American Studies Association, New York State Historical Association, Institute of Early American History and Culture, and National Council for the Social Studies. The author also wishes to thank Mr. H. V. Kaltenborn, without whose Fellowship the research would never have been undertaken, much less published.

Foreword by H. V. Kaltenborn

My desk encyclopedia allots the subject of this book these two brief sentences: “Zenger, John Peter (1697-1749), American journalist, born Germany. His acquittal in libel trial helped further freedom of press in America.”

That represents a very sober acknowledgment of the fact that the Zenger case established highly important precedents and is a landmark in the history of the free press among the English-speaking peoples of the world. With all this it is something of an anomaly that Peter Zenger never learned to write good English. He was not a newspaper editor, but only a printer who published the writings of others in an effort to earn an honest living. It was the incidental cause he served, rather than his professional work, that brought him his enduring fame.

He began his career as a printer’s apprentice. He worked for William Bradford, the only printer in New York. Zenger became Bradford’s partner, but soon established a business of his own, and since Bradford published the weekly newspaper that supported the British governor, it was only natural that those prominent members of the colony who opposed the governor should contract with Peter Zenger to print and publish a weekly paper for the opposition. Governor Cosby, whose word was law in the British colony of New York, was an arbitrary individual. As a personal representative of the British king he ran things pretty much as he pleased. His arbitrary acts helped create an opposition known as the Popular Party. Zenger’s weekly became the organ for this party. Like other colonial newspapers of that day, it printed foreign news, literary essays, so called poetry, and a small amount of advertising. But its most interesting contents were the political articles attacking Governor Cosby and the actions of his administration. All these editorial comments were written by prominent members of the opposition party, but they were always signed with pen names.

Zenger’s was the only name associated with the new opposition journal. Governor Cosby knew very well that Zenger was only the printer and had nothing to do with the paper’s policy. He also knew that James Alexander, a brilliant leader of the political opposition, wrote or edited most of the articles that were critical of the Cosby administration. But the law, then as now, places responsibility on those who publish a libel—not upon those who write it. As a newspaper reporter, I myself once profited by that distinction. The _Brooklyn Daily Eagle_ had to defend a one hundred thousand dollar libel suit for an article I had written. The leader of a religious sect that had its headquarters in Brooklyn was selling what it called Miracle Wheat. I exposed the one dollar a pound charge for this wheat as a fraud upon the public. That gave me the interesting task of helping the _Eagle’s_ lawyers prove with the help of agricultural experts the truth of my printed assertion. For today, as in the days since Peter Zenger’s trial, the truth of the libelous allegations mitigates damages and justifies the libel.

It was not until the trial of Peter Zenger that his extremely able lawyer created the notable precedent that the truth must be accepted as justification for a libel and in mitigation of whatever damages might have been suffered by the plaintiff. In the _Brooklyn Eagle_ Miracle Wheat case the libel was clear and the court so instructed the jury, which promptly brought in a verdict of six cents for the plaintiff. This justified the _Eagle_ and humiliated the sellers of Miracle Wheat.

The Peter Zenger trial established one other notable precedent for libel cases. This was that the jury before which he was tried had the right not only to pass upon the fact but also the law in the case. The logic and eloquence of Zenger’s attorney persuaded the jury that it had the right to determine how and to what extent the letter and spirit of the law could and should be applied in the Zenger case.

It is an interesting fact that the entire preceding history of the freedom of the press among English-speaking peoples played its part in the Zenger trial. The writings of Milton, Locke, Swift, Steele, Addison, and Defoe were all quoted to justify the freedom with which Zenger’s newspaper voiced its criticism of Governor Cosby and the way he governed.

This willful executive first attempted to have Zenger indicted by a grand jury, but the jury refused to act. Then he ordered Zenger’s paper to be burned by the public hangman, and it was duly burned, though not by the hangman. Finally the Governor secured the issue of a warrant for Zenger’s arrest and the printer was put in jail on a charge of seditious libel. Zenger’s journal missed a single issue. Then, thanks to his wife, it appeared every Monday while Zenger was in jail. Zenger’s wife, Anna Catherine, took over the print shop and saw that the paper was published. She didn’t write the contents any more than her husband, but she never complained that the printer’s family was suffering for others.

Nowadays it is a Constitutional right that “Excessive bail shall not be required,” but in Zenger’s day there was no such rule. His bail was so high that neither he nor his friends could meet it. The fact that he was put in jail also helped sway public opinion in Zenger’s favor.

The record of the Zenger trial as it is developed in this book is one of the notable case histories of American jurisprudence. Andrew Hamilton, Zenger’s able attorney, made such a case for his client that it attracted attention not only in the colonies but in England. New York voted him the freedom of the city.

Governor Cosby did not long survive the rebuke he suffered by Zenger’s acquittal. And here is a curious fact worth recalling: Andrew Hamilton, whose notable defense of Peter Zenger has become an imperishable part of the history of our free press, was also the architect of Independence Hall in Philadelphia. The Hall still stands and so does the decision in the Zenger case, both symbolizing enduring monuments to freedom.

Contents

Preface iii
Foreword by H. V. Kaltenborn v
Part One. Introduction 1
1. The Causes of the Trial 3
i. Peter Zenger 3
ii. A Colonial Feud 5
iii. Governor Cosby 8
iv. The Governor and His Enemies 10
v. The Administration Newspaper 16
vi. An Opposition Newspaper 22
vii. Freedom of the Press 30
viii. A Newspaper War 32
ix. Zenger Goes to Jail 35
x. Van Dam’s Indictment of the Governor 40
xi. Morris on the London Front 44
xii. Cosby’s Defeat 47
xiii. Andrew Hamilton 49
2. The Meaning of the Trial 52
3. The Text 68
Part Two. The Trial 77
1. Dramatis Personae 79
2. Preliminaries 80
3. Pleading 93
4. Aftermath 133
Appendix I: _The New York Weekly Journal_ Covers an Election 135
Appendix II: Zenger’s Lawyers on the Behavior of His Judges 139
Appendix III: James Alexander on Freedom of the Press 141
Notes to the Introduction 144
Notes to the Text 145
Suggestions for Further Reading 147
Index 151

Part One. Introduction

1. The Causes of the Trial

I. Peter Zenger

Of all the personalities involved in the Zenger case, none eludes investigation so much as the man who gave his name to it. There are irritating lacunae in the biography of John Peter Zenger, and no artist ever found him worthy of sketch or portrait (at least none has survived), so that we do not even know his face. But this lack of information is by no means crippling to the historian of the period. If we would prefer to know more about Peter Zenger, the plain truth is that half a dozen other men were of more consequence than he in the establishment of a free press in New York. He was neither the editor of his newspaper nor even a principal writer for it during its great days; his function hardly went beyond that of the mere printer. He became famous almost by accident, famous as a symbol rather than as a motivating force. We can, therefore, “place” him with the less difficulty, and the data to hand are sufficient for that.

He was a German immigrant, a native of the Rhenish Palatinate, where he was born in 1697. His family brought him to the New World in 1710, and that same year he was apprenticed to William Bradford, the only printer then at work in New York, and one of the top men of his trade in the Colonies. Bradford’s establishment was a good school for any apprentice, for it graduated a whole series of printers who became famous in their own right, the best remembered of whom was the master’s son, Andrew Bradford, who competed with Benjamin Franklin for the publishing trade in Philadelphia.

Peter Zenger’s indentures were for eight years, during which time he toiled at the Bradford press, beginning at the bottom as a typical ink-stained printer’s devil and working his way up in the profession that Bradford liked to call “the art and mystery of printing.” Peter never became a refined practitioner, for one reason because his grasp of the English language remained defective, but he came out of his training as skilled as many others in the field, and he was obeying a sound instinct when, his indentures up, he decided to strike out for himself as an independent.

During the years 1719-22 he wandered through the Colonies looking for a place to set up a permanent business. He married Mary White of Philadelphia, and had a son, John Zenger, who was a printer after him. His most ambitious venture took him to Maryland, where he became a citizen and was granted the right to publish the Colony’s laws, proceedings, minutes, etc. What happened then is uncertain; perhaps it was just that his plans did not work out; perhaps the death of his wife was the crucial thing; for some reason he decided to abandon his Maryland career and return to New York. There he married his second wife, Anna Catherine Maulin, a native of Holland, and settled down for good.

In 1725 he joined William Bradford in a brief partnership, so brief that they published only one book jointly before splitting up, for what reason we do not know. The next year Peter Zenger went into business for himself, thus becoming the second printer in New York, and the first rival of his former master.

There was room for two. Bradford, the official printer, worked for the Governor, the Council, and the Assembly. He was an honest man, but understandably reluctant to jeopardize his position by turning out anything of which his patrons might disapprove. That was where Zenger came in. Proprietor of a second-class printing shop, cut off from government work, he could keep his head above water in only one way, by taking the trade of New Yorkers who had some motive for avoiding the official press, especially those who were dissatisfied with the situation in either Church or State and wanted to say so. For six years he supplemented his staple output (mainly religious tracts) with critical pamphlets and open letters. Gradually the logic of his predicament pushed him into the position of “official” printer to those writers whose material Bradford could not, or would not, touch.

Such was Zenger’s status in the fall of 1732 when affairs in New York began to boil up into a political crisis that first involved him as a partisan in a duel of contending factions, and ultimately landed him in jail.