John Peter Zenger Trial: 1735

Fifteen days later, Zenger was arrested, charged with "presenting and publishing several seditious libels … influencing [the people's] Minds with Contempt of his Majesty's Government." Zenger was confined to the dungeon of the old city hall, which housed the courts, on 400 pounds bail, an amount easily two or three times Zenger's annual revenue from the newspaper. (It was the bail placed on Zenger that later influenced the writing of the Eighth Amendment of the U.S. Constitution, forbidding excessive bails and fines.)

Cosby's next step was to disbar Zenger's lawyers, William Smith and James Alexander, when they argued against the bail and challenged the commission of Chief Justice James De Lancey, a Cosby appointee. Appointed to defend Zenger—who missed producing only one issue of his newspaper while in prison, dictating editorials to his wife through the dungeon door—was John Chambers, a conscientious enough fellow but one who belonged to the Cosby party.

Despite jury lists that seemed rigged in Cosby's favor, eventually a panel was obtained that contained seven New Yorkers of Dutch descent, among whom anti-British feeling was strong. Even so, the prosecution was confident of victory. Most legal opinion of the time held that defamatory words equated libel, regardless of the truth or falsity of the words. Under the law, as interpreted by Cosby's attorney general, Richard Bradley, it was solely up to the judge, a Cosby appointee and crony, to decide if the articles were seditious and defamatory. The jury's role was limited to determining if Zenger was "guilty" of publishing the articles in question. Since the printer never denied this, the jury's verdict seemed a foregone conclusion.

Unknown to the Cosby forces, Zenger's friends had not been idle. As a result of their endeavors, a 59-year-old man was sitting in the audience as the trial began. Now he arose, and to the dismay of the judge and prosecutor, identified himself as Andrew Hamilton of Philadelphia, the most famous trial lawyer in the colonies. It was Hamilton's role in the Zenger trial that inspired the phrase, "When in trouble, get a Philadelphia lawyer."

Defense attorney Chambers, in a difficult spot, gladly deferred to Hamilton. From the start, Hamilton admitted Zenger had printed the papers, but observed that for a libel to be proved it must be both false and malicious. "It is a right," said Hamilton, "which all freemen claim, and are entitled to, to complain when they are hurt; they have a right publicly to remonstrate against abuses of power in the strongest terms, to put their neighbors upon their guard against the craft or open violence of men in authority"—a function for a newspaper to perform—"and to assert with courage the sense they have of the blessings of liberty."

Prosecutor Bradley vigorously contested Hamilton's argument, insisting on defining libel as words that were "scandalous, seditious, and tend to disquiet the people." To no one's surprise, Judge De Lancey sided with Bradley, declaring, "You cannot be admitted, Mr. Hamilton, to give the truth of a libel in evidence." Challenged by Hamilton, the chief justice, testily quoting from a British court ruling, declared, "The greater appearance there is of truth in any malicious invective, so much the more provoking it is." Although Hamilton quickly pointed out that the quote came from one of the notorious secret trials of religious dissenters held by the Star Chamber (a former oppressive English court), De Lancey was unmoved and the ruling stood, barring Hamilton from calling witnesses who would testify to the truth of the Weekly Journal's articles, testimony that Royal Governor Cosby very much wanted to avoid.