Conceived in Liberty Volume 2 - Ludwig von Mises Institute

indeed for a despotically inclined jury, and juries have proved to be guardians
of freedom only if the particular defendant happens to have been supported
by public opinion (as in the Zenger case). Moreover, allowing each jury
to decide the law in each particular case prevents the formation of a uniform
law code so essential to the orderly administration of justice. Each jury
would then be deciding the law of the case on its arbitrary whim, and no
citizen could know in advance whether his utterances or writings would
be libelous or not.
Furthermore, the Zenger case did not establish either of its two major
contentions, narrow as they were, in English or in American law. English
law did not accept the power of juries to judge guilt until 1792, or truth as
a defense until 1843. In America, the chief justice of New York was still
maintaining that truth did not constitute a defense against seditious libel as
late as 1804.
Finally, perhaps the most important reason for belittling the importance
generally given to the Zenger case is the fact that royal judges were not the
major threats to freedom of the press in the colonial era. The main threat
was the use of parliamentary privilege by which the Assembly or the
governor-and-Council "tried" and punished the seditious libeler without
benefit of jury. Trials for seditious libel at court were few and far between
in the colonial period. It was in fact the very rarity of the phenomenon that
gave the Zenger case its fame. Far more important were the actions of the
legislature. As Dean Levy writes:
The traditionally maligned judges were . . . virtually angels of self-restraint
when compared with the intolerance of community opinion, . . . the tyranny
of governors . . . acting in a quasi-judicial capacity with their councils . . .
[and especially] the popularly elected Assembly. That the law bore down so
harshly on verbal crimes in colonial America was the result of inquisitorial
propensities of the nonjudicial branches which vied with each other in
ferreting out slights on the government. The law of seditious libel . . . was
enforced in America chiefly by the provincial legislatures exercising their
power of punishing alleged breaches of parliamentary privilege. . . . The
[common-law courts] gathered a very few seditious scalps and lost as many to
acquittals; but the Assemblies, like the House of Commons which they
emulated, needing no grand jury to indict and no petty jury to convict, racked
up a far larger score.*
The Zenger case thus made virtually no impact on the legislative oppression
of the press even in New York, let alone in the other colonies.**
Furthermore, from 1745 on, the Assembly consistently prohibited the
*lbtd., p. 20.
**Clyde Duniway, author of the standard history of the freedom of the press in Massachusetts,
notes that the Zenger case had no effect on the law or practice of that colony
(Clyde A. Duniway, The Development of Freedom of the Press in Massachusetts [New
York: Longmans Green & Company, 1906], p. H3»).
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