One fateful autumn day 288 years ago, the colonial governor of New York ordered the arrest of John Peter Zenger, an uncompliant newspaper publisher. The governor's name was William Crosby and the fires of the ensuing legal battle he lit would smolder for half a century before helping ignite a revolution.
Dispatched to these shores by the British crown in 1732, Crosby immediately stamped himself as a problematic appointee. Vain and petty, his first official act upon arrival was to demand that his predecessor, Albany-born Rip Van Dam, split his salary with Crosby from his post on the Council of the Royal Governor.
When Van Dam refused, the governor sued him -- in a newly created "Court of Equity" packed with Crosby cronies. After Van Dam appealed to the New York Supreme Court, Crosby removed the one justice with the courage to vote against him, replacing him with another toady. This was the kind of thing he did. By 1733, Crosby could be found trying to rig a local election in Westchester. Naturally, such machinations created political antagonists. One of them, a man named James Alexander, got the idea to start a newspaper that would document Crosby's intrigues. He hired John Peter Zenger, a German-born printer who had immigrated to the colonies at 13 and who until then had published mostly religious tracts and open letters.
And so, the Weekly Journal came into existence on November 5, 1733, -- New York's first opposition newspaper. As expected, Gov. Crosby did not cotton to the idea of an unofficial media voice. Anticipating such intransigence, the Weekly Journal positioned itself not only in opposition to Crosby, but on the side of press freedom.
"The loss of liberty in general would soon follow the suppression of the liberty of the press; for it is an essential branch of liberty, so perhaps it is the best preservative of the whole," the Journal proclaimed. "Even a restraint of the press would have a fatal influence. No nation ancient or modern has ever lost the liberty of freely speaking, writing or publishing their sentiments, but forthwith lost their liberty in general."
Deaf to such eloquence, Crosby tried to shut the paper down by ordering Zenger's arrest. But he underestimated the resiliency and ingenuity of his foe. From his jail cell, Zenger penned an apology. Not to Crosby, but to his readers -- for missing the November 18, 1734 edition.
He only missed one, however, managing with the help of various comrades to publish from prison. The battle lines were set. The case came to trial eight months later -- Zenger was incarcerated the entire time -- with the defendant represented in court by a "smart Philadelphia lawyer," as he was described, named Andrew Hamilton. Here a third immigrant enters our tale. A native of Scotland, Andrew Hamilton had arrived in Virginia in his early 20s. Although he never talked about his family life back home, it's safe to say that he wasn't high-born. What Hamilton signified is the upward mobility possible in the New World.
He married into a Quaker family in Virginia and moved to Maryland, where he helped write that colony's laws and served in the legislature. A lawyer by trade, he relocated to Pennsylvania in his early 40s, came to represent the family of William Penn, served as a member of the Pennsylvania Assembly and as recorder of Philadelphia, and supervised the construction of Philadelphia's Independence Hall. He was indeed smart -- and highly esteemed.
The prosecutor in Peter Zenger's case argued in court that the libel laws of England were the de facto libel laws of New York and that in England, any defamation against the crown -- or its agents -- was merely a matter of proving the identity of the author. In other words, insofar as the jury was concerned, truth was no defense. Indeed, there was no real defense at all.
Hamilton challenged this logic. Without exactly explaining why, he argued that the laws of England should not necessarily apply to New York. The trial judge didn't buy it. "The jury may find that Zenger printed and published those papers," he said, "and leave to the Court to judge whether they are libelous."
But the defense strategy was to talk past the judge -- straight to the jury and, by implication, the wider court of American public opinion: Hamilton addressed his argument to John Peter Zenger's peers. Andrew Hamilton was going for jury nullification: "I know that [the jurors] have the right beyond all dispute to determine both the law and the fact," he told the court.
In his summary argument, Hamilton did not mince words about what was at stake: "The question before the court and you, gentlemen of the jury, is not of small or private concern. It is not the cause of the poor printer, nor of New York alone," he said. "No! It may in its consequence affect every free man that lives under a British government on the main of America. It is the best cause. It is the cause of liberty."
The jury didn't take long. It returned from its deliberations and foreman Thomas Hunt called out the verdict: "Not guilty!"
Hurrahs rang out through the courtroom, drowning out the demands of the judge for order. Something had been started that would be hard to quell. Nearly half a century later, Gouverneur Morris, one of the Founding Fathers, would write: "The trial of Zenger in 1735 was the germ of American freedom, the morning star of that liberty which subsequently revolutionized America."
And it is his lawyer's ringing summation that freedom of press is the best cause, the cause of liberty, that is our quote of the week.
Carl M. Cannon is the Washington bureau chief for RealClearPolitics. Reach him on Twitter @CarlCannon.
