經(jīng)典案例:The Trial of John Peter Zenger

No country values free expression more highly than does the United States, and no case inAmerican history stands as a greater landmark on the road to protection for freedom of thepress than the trial of a German immigrant printer named John Peter Zenger. On August 5, 1735, twelve New York jurors, inspired by the eloquence of the best lawyer of the period,Andrew Hamilton, ignored the instructions of the Governor's hand-picked judges and returneda verdict of "Not Guilty" on the charge of publishing "seditious libels." The Zenger trial is aremarkable story of a divided Colony, the beginnings of a free press, and the stubbornindependence of American jurors.

Background

The man generally perceived to be the villain of the Zenger affair, William Cosby, arrived in NewYork on August 7, 1731 to assume his post as Governor for New York Province. Cosby quicklydeveloped a reputation as "a rogue governor." It is almost impossible to find a positiveadjective among the many used by historians to describe the new governor : "spiteful," "greedy," "jealous," "quick-tempered," "dull," "unlettered," and "haughty" are a sample ofthose that have been applied.

Within a year after arriving on American shores, Cosby embroiled himself in a controversy thatwould lead to Zenger's trial and ultimate acquittal. The man with whom Cosby chose to pickhis first fight, Rip Van Dam, was the seventy-one-year-old highly respected senior member ofthe New York provincial council. Cosby demanded that Van Dam turn over half of the salary hehad earned while serving as acting governor of New York during the year between Cosby'sappointment and his arrival in the colony. The hard-headed Van Dam agreed--providing thatCosby would split with him half of the perquisites he earned during the same time period. ByVan Dam's calculations, Cosby would actually owe him money--over £4000.

Governor Cosby responded in August 1732 by filing suit for his share of Van Dam's salary.Knowing that he had no chance of prevailing in his case if the decision were left to a jury,Cosby designated the provincial Supreme Court to sit as a "Court of Exchequer" (without ajury) to hear his suit. Van Dam refused to roll over, and had his lawyers challenge the legalityof Cosby's attempt to do an end-run of the colony's established jury system. The decisionon the legality of Cosby's creation of the new court fell to the three members of the SupremeCourt itself, and in April 1733 it voted 2 to 1 to uphold Cosby's action. Cosby wrote a letter tothe dissenting judge, Chief Justice Lewis Morris, demanding that he explain his vote. Morrisdid so, but to Cosby's great displeasure, his explanation appeared not in a private letter tothe Governor, but in a pamphlet printed by John Peter Zenger. Cosby "went ballistic," removingMorris as Chief Justice and replacing him with a staunch royalist, James Delancey.

Cosby's action of firing Morris intensified the growing opposition to his administration amongsome of the most powerful people in the colony. Rip Van Dam, Lewis Morris, and an energeticattorney named James Alexander organized what came to be known as the Popular Party, apolitical organization that would constitute a serious challenge to Cosby's ability to govern.

Cosby attempted to maintain his grip on power by employing Francis Harison--a man called byhistorians Cosby's "flatterer-in-chief" and "hatchetman"--to become censor and effectiveeditor of the only established New York newspaper, the New York Gazette. Harison defendedCosby both in prose and strained verse, such as this poem that appeared the Gazette'sJanuary 7, 1734 issue:

Cosby the mild, the happy, good and great,

The strongest guard of our little state;

Let malcontents in crabbed language write,

And the D...h H....s belch, tho' they cannot bite.

He unconcerned will let the wretches roar,

And govern just, as others did before.

James Alexander, often described as the "mastermind" of the opposition, decided to take theunprecedented step of founding an independent political newspaper. Alexander approachedJohn Peter Zenger who, along with William Bradford, the Gazette's printer, was one of only twoprinters in the colony, with the idea of publishing a weekly newspaper to be called the New YorkWeekly Journal. Zenger, who had made a modest living the past six years printing mainlyreligious tracts, agreed. In a letter to an old friend, Alexander revealed the Journal's mission: "Inclosed is also the first of a newspaper designed to be continued weekly, chiefly to exposehim [Cosby] and those ridiculous flatteries with which Mr. Harison loads our other newspaperwhich our Governor claims and has the privilege of suffering nothing to be in but what he andMr. Harison approve of."