Brown Undergraduate Law Review -- Vol. 2, No. 1 (Fall 2020)

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THE ZENGER JURY: A MECHANISMOF LEGITIMIZING POPULARDISSENTJordan Kei-RahnABSTRACTThe present text explores the act of jury nullification during the seminal American libel case Crown v. John Peter Zenger.This 1735 trial involved a printer?s publication of grievances against a royal colonial governor, William Cosby. Thedecision in this trial reshaped libel law which previously did not differentiate between veritable or false claims, therebyallowing for open critique of government officials. In order to understand the significance of the Zenger jury?snullification, this text will discuss the evolution of libel laws, from those of the Salian Franks to the more applicableEnglish concept of scandalum magnatum, establishing that such later constructs existed to preserve social stratificationand elite superiority. Systems of jury instructions, which limit a jury?s ability to render decisions based on theirinterpretation of the merits of a particular law, served to preserve socioeconomic hierarchies. Therefore, the Zenger jury?sdecision to acquit the accused libeler reflects the general populous?s desire to prevent elite condemnation of truecriticisms. In establishing this commitment, this text will also show that the jury successfully applied their ownreconceptualization of libel laws, thus beginning the process of incorporating popular sovereignty into the judicial sphere.Brown Undergraduate Law Review34
The Zenger Jury: A Mechanism of Legitimizing Popular DissentIn the 21st century, most American citizens possess the incorporation of popular sovereignty into judicialcapacity to criticize government officials, business moguls, proceedings. 5and even religious figures without fear of reprisal.However, the liberty to openly air one?s grievances isrelatively nascent. Indeed, even into the mid-18th century,English common law expressly forbade any criticisms thatcould potentially damage an individual?s reputation,allowing for those who felt insulted to sue their critics forCase BackgroundIn the summer of 1731, Royal Governor William Cosbyarrived in New York City with a questionable track recordof corrupt behavior. Unbeknownst to American colonists atthe time, Cosby had been removed from his previousseditious libel. 1 2 The former notion of seditious libelposition as governor of Minorca for arbitrarilydisregarded the veracity of individuals?complaints, insteadprioritizing and perpetuating the honor and dignity ofprimarily elite citizens or officials. For centuries,government figures, from lowly customs officers to theEnglish monarch himself, successfully used this legalmechanism to avoid accountability to their constituencies. 3This remained the status quo until August 5, 1735, when acolonial jury, opposing legal precedent and the explicitinstructions of the presiding judge, acquitted the defendantin the landmark trial Crown v. John Peter Zenger. Zenger,an independent printer, had published a letter denouncingthe corrupt behavior of New York?s royal governor,William Cosby. 4 The jury?s decision created a novelprecedent in libel cases, originally proposed by Zenger?sattorney, Andrew Hamilton: a truthful, genuine criticismcould not constitute a criminal action. Scholars largelyview this trial as a seminal moment for freedom of thepress. However, such a drastic pivot from traditional caselaw represents a broader underlying significance: theexpropriating the cargo of Spanish merchants, nearlyleading to an international crisis regarding reciprocalproperty rights. Instead of earning the king?s rebuke,Cosby received a promotion, owing to his connections andfamilial ties to British noblemen. 6 However, his actions inAmerica only showed the persistence of his disreputablebehavior: on his first day in New York, Cosby whippedand beat his carriage driver for accidentally giving up theright-of-way. 7 A short way into his tenure, Cosby?stendencies toward avarice, nepotism, and abuse led thepublic to view him as the ?rogue governor,? a manignoring his duties and responsibilities to the colonists. 8In attempting to exploit the wealth of distinguished NewYork Councilman Rip Van Dam, Cosby created his ownpolitical opposition, igniting the proverbial Zenger trialpowder keg. Van Dam served as interim governor beforeCosby arrived; Cosby demanded half of the actinggovernor?s salary, arguing that Van Dam had only servedas a proxy for Cosby, and thus did not deserve full1. Larry Elridge, ?Before Zenger: Truth and Seditious Speech in Colonial America, 1607?1700,? American Journal of Legal History 39, no. 3 (July1995): 337?339.2. Seditious libel will be discussed further below. Libel is a defamatory verbal or published comment; seditious conveys that such defamation isdangerous or damaging to the government or public good.3. Albert Alschuler and Andrew Deiss, ?A Brief History of the Criminal Jury in the United States,? University of Chicago Law Review 61, no. 3(1994): 874.4. Walker Lewis, ?The Right to Complain: The Trial of John Peter Zenger,? American Bar Association Journal 46, no. 1 (1960): 27?29.5. Although no records exist pertaining to jury deliberations, analysis of Hamilton?s argumentation, in conjunction with contemporaneous events inpolitical philosophy and American governance, offers insight into the trial?s conclusion. Given this information, Zenger?s acquittal reflected thejury?s desire to encourage and protect colonial criticism against genuinely abusive British bureaucrats as epitomized by Governor Cosby.6. Lewis, 27-28.7. Lincoln Barnett, ?The Case of John Peter Zenger,? American Heritage 23, no. 1 (December 1971): 2.8. Ibid.Brown Undergraduate Law Review35
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