Conceived in Liberty Volume 2 - Ludwig von Mises Institute

Cosby soon decided to strike back by moving against the vulnerable
Zenger. Twice he tried to obtain a grand-jury indictment for seditious libel
and twice the jury refused. He then ordered the public burning of the Journal
and, on November 17, 1734, the governor and Council ordered the summary
arrest of Zenger on the charge of seditious libel. Avoiding the need for a
grand-jury indictment, the government placed the bail at the enormous sum
of 400 pounds, forcing Zenger to remain in prison for nine months before
coming to trial. Futhermore, for protesting Cosby's packing of the court with
the two leading members of his faction—DeLancey and Philipse—the selfsame
court summarily disbarred his lawyers, James Alexander and William
Smith. The Morris faction now secured the venerable Pennsylvania lawyer
Andrew Hamilton, a stalwart of the proprietary party and patron of Benjamin
Franklin, to argue Zenger's case.
The struggle against Cosby was not at root a popular or liberal affair. But
in the Zenger case, it became transformed, for the already unpopular Cosby
was now generally hated, and the popular sympathies were all with the
defendant. On August 4, 1735, Andrew Hamilton won acquittal of Zenger
by the trial jury. Two things were significant about this decision. First, Hamilton
was able to persuade the jury to broaden its jurisdiction to cover the law
as well as the facts. The customary practice, insisted on by the court, had been
to limit the jury severely to deciding whether or not an item had been
published by the defendant. It was then supposed to be the judge's role to
decide whether the item was indeed libelous. Now Hamilton persuaded the
jury to broaden its powers so as to decide the guilt or innocence of the
defendant on the charge. Secondly, Hamilton defended the journal's articles
on the ground that they were true, and thus was able to establish a precedent
for truth as a valid defense against seditious libel. This contrasted to the
earlier despotic practice that "the greater the truth the greater the libel," since
then government was put into greater public disrepute.
These were legal advances to be sure, but they hardly justify the paeans
of praise that have been delivered for the Zenger decision. The important
point is that the root evil—the common law of seditious libel—remained
virtually intact. The jury is a protection against government judges, to be
sure. But juries too can be despotic and rule against the liberty of the person.
And truth as a defense is a very shaky reed, for in political criticism
there is no simple and precise method of demanding "truth." If X prints
the charge that Y is a tyrant, is this truth? And is a jury qualified to determine
its truth? Should it have the power to do so?* For here is a wide path
*James Alexander, the legal mastermind of the Zenger defense, along with Andrew
Hamilton, had conceded that "to infuse into the minds of the people an ill opinion of a
just administration, is a crime that deserves no mercy. . . ." But how could a defendant
be expected to prove the truth of the injustice of an administration, or a jury to decide?
See Leonard `W. Levy, Legacy of Suppression (Cambridge: Harvard University Press,
Belknap Press, l9¢O), p. 136.
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