Conceived in Liberty Volume 2 - Ludwig von Mises Institute

egard to the laws." And the laws, let it not be forgotten, included punishment
of seditious libel and breach of parliamentary privilege. Indicative of
more reactionary opinion was an editorial in 1753 by a trio of prominent
young New York lawyers and friends of Parker. These lawyers—William
Livingston, John Morin Scott, and William Smith—radical republicans all,
averred that wherever a printer "prostitutes his art by the publication of
anything injurious to his country it is criminal ... it is high treason against
the state." Treason, of course, constituted a capital crime, in contrast to the
mere misdemeanor involved in seditious libel.
Thus, far from the Zenger case establishing freedom of the press in either
thought or action, we find New York opinion a generation later backsliding
to the pre-Zenger status quo. James Alexander's narrow advance for the
freedom of the press turned out to be an isolated spark rather than the
spearhead of a mighty move forward. During the remainder of the colonial
period, only Thomas Bollan (in 1766), an eminent lawyer in Massachusetts,
reached the modest height of Alexander's devotion to freedom of the press.
Nor were the points pressed by the Zenger defense original, as some
writers have stated. The principle of truth as a defense against libel was
taken by Alexander from the famous Cato's Letters written in the early 1720s
by two leading English liberals, John Trenchard and Thomas Gordon. The
argument that the jury should decide the law as well as the facts in seditious
libel was explicitly put forward in 1692 by William Bradford, defendant in
the first criminal trial for seditious libel in the colonies.* Moreover, Bradford's
trial judge was convinced by his argument and so instructed the jury,
which deadlocked on the issue. Bradford's successful example was followed
four years later in Massachusetts by Thomas Maule, a Quaker merchant,
who had published a book attacking tyranny in Massachusetts Bay. Maule
also succeeded and was acquitted by the jury, but on religious rather than
on freedom-of-the-press grounds.
The case of William Bradford highlights an ironic aspect of the Zenger
affair. Bradford was soon appointed royal printer by Governor Fletcher of
New York, who at that time was briefly in control of Pennsylvania. Bradford's
minimal devotion to freedom of the press, despite his own experiences,
is shown by his editorship of the very fawning and licensed New York
Gazette against which Zenger and his backers were rebelling. Bradford's
reaction to the arrest of Zenger was characteristic: he condemned the defendant
for publishing "pieces tending to set the province in a flame and to
raise sedition and tumults." A further irony is the earlier role of the presumed
champion of freedom of the press, Andrew Hamilton. In 1719, Bradford's
son Andrew founded the first newspaper in Philadelphia, the American Weekly
"•Bradford, the first printer to work in Pennsylvania, had been a member of the Keith
faction of dissident Quakers, and for printing Ke¡thian tracts he was charged with seditious
libel.
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