The Origins of a Free Press in Prerevolutionary ... - Web Publishing

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the royal governor and to no surprise, the Governor’s Council charged Zenger with
seditious libel. Longstanding British common law principle, first established by the
infamous Star Chamber, defined seditious material as any published material
critical of the government that had a tendency to undermine the government or its
officers. No specific statute existed; rather it existed in common law, or legal
tradition. A judge, not a jury, would decide whether the material in question was
seditious. The truth or falsity of the statement was not relevant, in fact the truth of
such criticism could possibly exacerbate the legal travails. 47 Lawyer Andrew
Hamilton convinced the jury that they should acquit Zenger because the printed
material was true, and despite the judge’s instructions to the contrary, they did just
that. The Zenger case was not a formal legal precedent and did not firmly establish
truth as a defense in colonial courts, however the concept did make headway. As
David Copeland has noted, several subsequent seditious libel cases in Massachusetts
and South Carolina were consistent with the Zenger verdict. It is not simply the law
and the courts that control legal outcomes, but in the end, public opinion prevails. 48
This important advance of the concept of freedom of the press allowed for greater
criticism of the government.
Truth as a defense for seditious libel also made headway in colonial Virginia.
Printer Parks was prosecuted in 1750 for publishing a libel about a member of the
House of Burgesses. This newly-elected representative had a criminal past that had
nearly been forgotten. Someone wrote in the Virginia Gazette that some years
earlier the man had been convicted of stealing sheep. Although the name of the
47 The English judge in the 1731 trial of Richard Francklin ruled that the truth of what he
published in the Craftsman was not relevant to his charge of seditious libel. Levy, Emergence of a
Free Press, 11-12. See Ibid., 127 for the common law rule that truth worsened the libel, as truth is
more likely to provoke the libeled party to revenge, thus breaching the peace.
48 Robert W. T. Martin, The Free and Open Press: The Founding of American Democratic Press
Liberty, 1640-1800 (Albany: New York University Press, 2001), 47-60. See for example, Nord,
Communities of Journalism, 65-76 and Levy, Emergence of a Free Press, 6-8, 37-45, and 127-131.
Copeland, Idea of a Free Press, 161, Alison Olson, “The Zenger Case Revisited: Satire, Sedition
and Political Debate in Eighteenth Century America,” Early American Literature 35 (2000): 224.