John Lilburne and John Peter Zenger

John Lilburne was the Tom Paine of the English Revolution in the seventeenth century. Lilburne, like Paine, wrote the most provocative and catalytic of all the many Puritan pamphlets.

Seventeenth-century England, more than New England, is the seedbed of modern political thought. While it cannot be said that daily life changed into a modern style in the seventeenth century, thought did. Certainly all shades of political opinion arose in the English upheaval: From the divine right theory of James I, the righteous despotism of Cromwell and his New Model Army, the scientific police-state absolutism of Thomas Hobbes, to the constitutional democracy of the Presbyterian and Whig parliamentary party, the radical democracy of Lilburne’s Levellers, all the way to the communal communism of Gerrald Winstanley’s Diggers and the chiliastic Fifth Monarchists’s expectations of Christ’s imminent return.

John Lilburne is a consistent dissenter. He objected to the abuse of power by the Stuart regime, by Parliament when it overthrew Charles, and by Cromwell when he did away with Parliament. He was by no means an anarchist. Lilburne held strong convictions about the rule of law, and that is the key to understanding him. He attacked Charles I for denying the rights in Magna Carta, such as trial by jury, but he was equally vigorous in his attack on the erstwhile dissenters, his former allies, when they put Charles on trial and denied him a trial by jury.

In 1637, when Lilburne was twenty-three, he was arrested for importing “factious and scandalous” books from Holland. He had visited Amsterdam, but his attempt to smuggle into London several thousand Puritan pamphlets by Dr. John Bastwick and William Prynne was betrayed by an agent provocateur.

Under an order from the Privy Council Lilburne was privately interrogated by the Attorney General’s chief clerk, but little in the way of information came out of the questioning because Lilburne kept insisting that the questions were not “pertinent to my imprisonment.” Questions about Dr. Bastwick and the others were irrelevant because, as he maintained, “I am not imprisoned for knowing and talking with such and such men, but for sending over books; and therefore I am not willing to answer you to any more of these questions, because I see you go about this Examination to ensnare me.”⁵⁵

Because he refused to cooperate, the next stop for young Lilburne was the notorious Star Chamber. That body had recently dealt with Bastwick and Prynne, a dim prospect. Lilburne and John Wharton, a bookseller in his eighties who had been arrested as Lilburne’s accomplice in book smuggling, were tried. But the Star Chamber proceedings were not as smooth as those in power normally expected and hardly routine. Lilburne began his resistance to the Star Chamber by refusing to take the inquisitorial oath ex officio when offered the Bible.

What to do Sir?

You must sweare.

To what?

That you shall make true answer to all things that is asked you.

Must I so Sir? But before I sweare, I will know to what I must sweare.

As soon as you have sworne, you shall.⁵⁶

Lilburne refused. He became the first person ever to refuse the Star Chamber oath.⁵⁷

After four days in his cell to think about the Star Chamber oath, his refusal, and the whole matter of his book smuggling, Lilburne again refused to take the oath. Not surprisingly Lilburne and Wharton were declared “guilty of a very high contempt and offense of dangerous consequence, and evil example.” Both the young Lilburne and the elderly Wharton were pilloried. Lilburne, in addition, was whipped through the streets of the city for about two miles, a walk which for his supporters who watched became akin to a religious pilgrimage. In spite of the pain as he was being whipped, Lilburne spoke to the crowd, keeping them spellbound with his story of the “inquisition oath.” The warden gagged him, returned him to prison, and put him in irons in the dungeon. Yet during three years of imprisonment he managed to write and secrete out nine sharply worded pamphlets which were printed and distributed.⁵⁸

After taking power one of the first acts of the Long Parliament was the freeing of “free-born” John Lilburne, declaring that the Star Chamber sentence had been “illegal, and against the Liberty of the subject…bloody, cruel, wicked, barbarous, and tyrannical.” Soon after that they abolished the Star Chamber and the High Commission and forbid the oath ex officio.⁵⁹

Controversy over the Star Chamber and the High Commission and the oath did not appear for the first time in Lilburne’s trial. Puritans had rallied with lawyers a generation earlier in the cause of common law— the Puritans because it was a weapon against the orthodoxy and the lawyers because it returned law-making to the courts.

Lilburne’s 1637 confrontation with the Star Chamber was not his last trial, nor even his most famous. After his release from prison Lilburne was made a captain in the Parliamentary Army. In 1642 he was taken prisoner by the king’s forces and tried at Oxford for treason. He would have been executed had Parliament not threatened reprisals. He was later exchanged and given a major’s commission, later a lieutenant-colonel’s. He soon left the army because he could not enter Cromwell’s New Model Army without taking another oath, the covenant.

Out of the army Lilburne wrote more pamphlets. His writing led him into more trouble with those in power, now his comrades-in-arms-and-in-prison. Early in 1645 he drew his pen to do battle against intolerance and in defense of freedom of conscience and speech, against, ironically, William Prynne, now a powerful member of the House of Commons. Prynne saw to it twice that Commons summoned Lilburne to answer before one of its committees, not too different from the Star Chamber, but both times he went unpunished. He was finally arrested when he was overheard in conversation saying certain scandalous things against the speaker of the House, Lenthall.

In his trial for disrespectful remarks Lilburne refused to answer questions unless the cause of his arrest were specified, a repetition of events which must have caused him some sense of dĂ©jà vu. He claimed the procedure was contrary to the privileges of free-born English and Magna Carta. After he spent three months in Newgate prison, Lilburne was released and the charges dropped.⁶²

Lilburne spent two more years in prison, between 1645 and 1647, because of a controversy that began with a dispute over his back pay from his service in the army which rapidly became a matter of slander against the powerful Earl of Manchester. He was summoned before the House of Lords but refused to acknowledge its jurisdiction or to answer incriminating questions. His sentence to the Tower and fine were matters the House of Commons moved slowly on, but they finally did secure his release. His outpouring of pamphlets increased. When plans for the king’s trial were taking shape, Lilburne not only refused to take part but argued that Charles I should be tried by a jury.

In March 1649, two months after Charles I had been tried and executed, Lilburne came out with Englands New Chains Discovered. It was his strongest attack on the denial of fundamental rights by Parliament and the army officers whom he labeled the “Grandees.” When he was brought before the council of state, he refused to admit its jurisdiction or answer incriminating questions—dĂ©jà vu once again. For his refusal he was sent to the Tower for another stay. Somehow he managed to continue writing pamphlets and getting them out to a printer. One was an effort he made with several other Levellers, An Agreement of the Free People of England. This manifesto reads like a harbinger of the charges against arbitrary government found in the Declaration of Independence and the guarantees of rights in the Bill of Rights of the United States Constitution. It proclaims that God gave them the opportunity

to make this Nation Free and Happy, to reconcile our differences, and beget a perfect amitie and friendship once more amongst us, that we may stand clear in our conscience before Almighty God, as unbyassed by any corrupt Interest or particular advantages.… We the free People of England, to whom God hath given hearts, means and opportunity to effect the same, do with submission to his wisdom, in his name, and desiring the equity thereof may be to his praise and glory; Agree to ascertain our Government, to abolish all arbitrary Power, and to set bounds and limits both to our Supreme, and all Subordinate Authority, and remove all known Grievances.⁶³

The pamphlet urged the recognition of a freedom of religion which would include conscientious objection, the securing of a protection against self-incrimination, and the insuring of provisions that government would take neither life, limb, liberty, nor estate without due process of law.

For writing his pamphlet Lilburne was accused of being a “false traitor, not having the fear of God before thine eyes, but being stirred and moved upon the instigation of the Devil, [who] didst endeavour not only to disturb the peace and tranquillity of this nation, but also the government thereof to subvert.”⁶⁴ The indictment quoted Lilburne’s writings, as did the attorney general, in order to establish that Lilburne “didst publish that the government aforesaid is tyrannical, usurped, and unlawful; and that the Commons assembled in Parliament are not the Supreme Authority of this nation.” His writings had “the intent to stir up and raise forces against the Government with a mutiny in the army.”⁶⁵

John Lilburne’s 1649 trial became the seventeenth-century version of the Chicago Eight trial with Lilburne playing all eight parts. He questioned the location of the trial: in Guild Hall instead of a regular court or Westminster Hall. He challenged the prosecution for approaching the bench alone: “Hold a while, hold a while, let there be no discourse but openly; for my adversaries or prosecutors whispering with the Judges is contrary to the law of England.”⁶⁶ Or another time: “Not in huggermugger, privately or whisperingly.”⁶⁷ His insistent objections and lengthy declamations were generally permitted by the judges, but occasionally they were as provoked to speak out as Lilburne: “I will not be out voiced by you,” Lord Keble admonished him, “our lives and our souls are upon it, therefore you shall have equity and justice.”⁶⁸

Like the Chicago Eight trial, Lilburne’s is notable for the scope of legal issues he raised. Not only did Lilburne insist that the prosecutor have no “hugger-mugger” conferences with the judges, he sparred with the court over the right to counsel, the protection against self-incrimination, and the independence of the jury. Lilburne fought a running battle with the judges over what he believed was his “birth-right and privilege” guaranteed by the “good old Laws of England”: the right to consult with counsel. Judge Keble replied to Lilburne’s demand by saying that the trial concerned only matters of fact, for which he needed no counsel, and “if matter of law do arise upon the proof of the fact, you shall know it, and then shall have counsel assigned to you.”⁶⁹ Lilburne shot back: “You expect from me impossibilities; for, seeing I have been seven months in prison for nothing, and could not in the least know perfectly what would be laid to my charge, nor after what manner I should be preceded against.” Besides, as he pointed out to the court, the form of the proceedings were not in English, his only language, but in Latin and French. Further, what was in English held “a great many snares, and a great many niceties in the practick,” making the formal proceedings impossible for him.

Therefore I beseech and most earnestly intreat you, to assign me counsel to consult with, before I be too ensnared: and, if you will not do it, and give me some reasonable time to prepare my plea and defence, then order me to be knocked on the head immediately in the place where I stand, without any further trial, for I must needs be destroyed, if you deny me all the means of my preservation.⁷⁰

He was not allowed counsel, although a solicitor, Mr. Sprat, was in the courtroom ready to speak for Lilburne. When Sprat did speak up, he was silenced:

Lord Keble: Spare yourself; when your time comes, you shall speak.

Mr. Sprat: He asked leave for me first. And, Sir it is easy to prove the whole indictment to be a matter of law.

Judge Jermin: What impudent fellow is that, that dare to be so bold as to speak in the court without being called.⁷¹

Lilburne insisted that the laws of England insured that his words would not be used against him. “Sir,” he instructed the court, “by Petition of right, I am not to answer to any questions concerning myself.” A reading of the Petition of Right does not readily reveal the source of Lilburne’s claim, but he was dogged. His insistence, in fact, made his trial a landmark in the establishment of the right. While in error, he helped forge a fundamental principle. When the attorney general mentioned that the accused had pled not guilty but had confessed, Lilburne jumped in: “No, Sir; you do me wrong, and abuse me. I never confessed any thing, neither did I plead Not Guilty; for my plea was conditional, grounded upon your promises, not to take any advantage of my ignorance in your formalities.”⁷²

Although Lilburne would tell the court his name, he refused to raise his hand. Even that, he surmised, might be used against him. “You demand I should hold up my hand at the bar,” he told the court, “and I know not what it means, neither what in law it signifies.” Judge Jermin explained that by raising his hand he would identify himself as the man called for and would signify “a pure innocent hand does set forth a clear unspotted heart; that so the heart and hand together might betoken innocency.” Lilburne continued to resist. Judge Keble urged him: “Hear the Court, Mr. Lilburne, there shall be nothing of circumvention or interruption; but as you have professed to be a rational and understanding man in words, let your deeds so declare you.” Lilburne replied, “Sir, I beseech you, do not surprise me with punctilios or niceties, which are hard things for me to lose my life upon. I tell you again, my name is John Lilburne, son of Mr. Richard Lilburne.” At that Judge Keble lost his composure: “Talk not of punctilios with us, nor talk not of judges made by the laws; you shall not want law: but if you talk of punctilios here in this room, we will stop that language.” After one more speech on the matter by Lilburne, in which he pointed out his disadvantage in not knowing the formalities of the law, Lord Keble gave in and said that they would be done with the issue in order to let the trial progress.⁷³ Score one for “ignorant” John Lilburne in his battle with the learned judges.

Lilburne maintained such a consistent adherence to the principle that he had a right not to give evidence against himself that when asked by the court to identify the original of a pamphlet he had handed to a soldier, Lilburne refused so much as to look at it. Judge Keble asked that the documents be shown to Lilburne, but Lilburne replied: “I am too old with such simple ginns to be catched; I will cast mine eyes upon none of your papers, neither shall I answer to any questions that concern myself. I have learned more law out of the Petition of Right, and Christ pleading before Pilate, than so.”⁷⁴

Lilburne insisted throughout the trial that the burden of proof rested with Attorney General Ned Prideaux, not with him. The opening of Lilburne’s defense speech shows him to be the Puritan that he was: “You have done no more to me, than the Scribes and Pharisees did to Jesus Christ; and in my dealing with you, I have but walked in the steps of my Lord and Master Jesus Christ and his apostles.” Lilburne used Jesus’s trial to establish that he was right in insisting that the government had the burden of proof. When Jesus was called to answer, Lilburne reminded the court: “Pilate adjured him to answer him, whether he was such a one or no, well, saith he, thou sayest it: so say I, Thou, Mr. Prideaux, sayest it; they are my books, but prove it.”⁷⁵

In addition to the right to counsel and the protection against self-incrimination, a third major theme in Lilburne’s 1649 trial is his insistence that the jury had authority to judge matters of law as well as fact. Lilburne wanted to quote Edward Coke’s Institutes to the jury, but this led to another altercation with the judges, now over the role of the jury.

Lord Keble: Master Lilburne, quietly express yourself, and you do well; the jury are judges of matter of fact altogether, and judge Coke says so: But I tell you the opinion of the Court, they are not judges of matter of law.

Lilburne: The jury by law are not only judges of fact, but of law also; and you that call yourselves judges of the law, are no more but Norman intruders; and in deed and in truth, if the jury please, are no more but cyphers, to pronounce their verdict.

Judge Jermin: Was there ever such a damnable blasphemous heresy as this is, to call the judges of the law, cyphers?

Lilburne: Sir, I entreat you give me leave to read the words of the law, then; for to the jury I apply, as my judges, both in the law and fact.⁷⁶

Lilburne’s insistence on a type of jury sovereignty, while wide of the legal mark, might be understood as aimed at an important principle, namely, the independence of the jury from punishment for a “wrong” verdict. In 1670, when William Penn and William Mead were acquitted of speaking to an unlawful assembly in spite of pressure from the judge on the jury to find them guilty, the jury was fined and imprisoned, not an unusual practice then. Edward Bushell and three jurors appealed the punishment and won in the Court of Common Pleas which held that a jury could not be questioned or molested for their verdict.⁷⁷ The Bushell case is a legal monument, but Lilburne’s trial, as we will see, is its foundation.

The right to counsel, protection against self-incrimination, and the independence of the jury were concerns of Lilburne in the trial, but the transcript reveals others which are also important. He challenged the “huggermugger” bench conference, as we noted, and he questioned whether the special Oyer and Terminer court was legal. He maintained that he had a right to be tried not by a “special prejudged, packed, overawing” extraordinary court but by “the ordinary, universal and common trials at ordinary assizes-sessions.” He cited Magna Carta, the Petition of Right, and the abolition of the Star Chamber as his authority.⁷⁸

Lilburne also insisted that his arrest had been illegal: “Fetched out of my bed in terror and affrightment and led through London-streets with hundreds of armed men” instead of by “civil and magisterial officers.” He listed several parliamentary declarations on the mode of arrest.⁷⁹

Lilburne criticized the way in which he had been interrogated. Like the Star Chamber procedures which had been abolished, he had been taken before the Council of State, but he “saw no accuser, no prosecutor, no accusation, no charge or indictment,” yet he was questioned nevertheless.⁸⁰ In addition, Lilburne wanted the trial to be open to the public (probably because he was a popular figure facing those he had criticized). When the trial began he insisted that the door remain open. One of the first issues he raised in the trial, after demanding that the proceedings be public, was the fact that, among other things, he had not been given a copy of the indictment. Another issue was that, in addition to needing a lawyer, he needed the authority to subpoena witnesses, time (perhaps ten days) to bring witnesses from distant places, and time to prepare his defense. After Lilburne raised these matters with the court, they were denied and the trial proceeded.⁸¹

Attorney General Prideaux taunted Lilburne in his address to the jury: “He will write, print, publish, bespatter, and reproach; yea, and raise tumults and rebellion in a clandestine way: but if we chance to question him therefore, he will not own it.”⁸² Prideaux read to the jury the text of the July 1649 law of high treason (which, incidentally, was passed by Parliament after Lilburne had been arrested) together with matching portions from Lilburne’s writings. The new law described what a false traitor would be: “That if any person shall maliciously or advisedly publish by writing, printing, or openly declaring, that the said government is tyrannical, usurped or unlawful; or that the commons in parliament assembled are not the supreme authority of this nation,” plus a long list of other offensive activities, “shall be taken, deemed and declared by authority of this parliament to be high treason.”⁸³ It takes little more than a reading of the titles of Lilburne’s works to see how he fits with the new treason law: “An Impeachment of High Treason against Oliver Cromwell, and his son-in-law Henry Ireton, esquires, members of the late forcibly dissolved house of commons; presented to public view, by lieutenant-colonel John Lilburne, close prisoner in the Tower of London, for his real, true, and zealous affections to the liberties of his native country.”⁸⁴ This and other pamphlets contained compelling illustrations of what Parliament, Cromwell, and the Model Army intended to stop. Nevertheless Lilburne insisted that the new treason law was contrary to the law of England which required not one but two witnesses. He quoted Coke’s Institutes: “Only upon direct and manifest proof, not upon conjectural presumptions, or inferences, or strains of wit.”⁸⁵ Here again, as in his demand for due process, Lilburne’s critique of the law of treason anticipates the United States Constitution in which James Madison drafted a definition of treason which was designed to be difficult to commit or be found guilty of transgressing.

After the jury had heard from both sides, after Lilburne presented all of his challenges and took time to explain each with a detailed knowledge of Coke and other legal authorities, and after the court turned down his demands and answered his charges at least to their own satisfaction, the jury retired at 5 P.M. to consider their verdict. By 6 P.M. they returned.

Clerk: What say you, (look upon the Prisoner) is he guilty of the Treasons charged upon him, or any of them, or Not Guilty?

Foreman: Not Guilty of all of them.

In an unusual entry in the trial transcript, the recorder described the scene which followed the verdict:

Which No being pronounced with a loud voice, immediately the whole multitude of people in the Hall, for joy of the Prisoner’s acquittal, gave such a loud and unanimous shout, as is believed was ever heard in Guildhall, which lasted for about half an hour without intermission; which made the Judges for fear turn pale, and hang down their heads; but the Prisoner stood silent at the bar, rather more sad in his countenance than he was before.⁸⁶

This situation might explain why Lilburne, in spite of his harsh language and challenges to the court’s authority, not to mention his importunateness, was not cited for contempt. Unlike the Chicago Eight and their lawyers who received lengthy contempt citations from Judge Hoffman for their courtroom behavior, Lilburne received none. Nevertheless, he was not released after his acquittal but returned to the Tower. A grumbling public made demands for Lilburne’s release, and two weeks later the Council of State finally ordered his discharge.

The 1649 trial was not Lilburne’s last. He continued to churn out pamphlets. In 1651 the Rump Parliament, side-stepping the awkwardness of another public trial, summarily banished Lilburne. He left for Amsterdam and stayed until Cromwell had dissolved Parliament completely. In June 1653 he returned without permission, only to be indicted, arrested, and brought before a regular court and jury, not an extraordinary court as in 1649, at Old Bailey. Lilburne again demanded a copy of the indictment, assignment of counsel, and time to prepare his defense. Reluctantly perhaps, the court yielded. In insisting on these rights Lilburne had performed, according to James Fitzjames Stephen, “the feat which no one else ever achieved, of extorting from the Court a copy of his indictment in order that he might put it before counsel and be instructed as to the objections which he might take against it.”⁸⁷ During the trial Lilburne challenged the act of Parliament by which he had been banished, claiming that either the Rump Parliament was an illegal body, therefore its act was null, or if legal, Cromwell had unjustly dissolved it. In either case, he argued, his banishment was void. Besides, he had been banished without a trial by jury. Further, following another of his 1649 arguments, the present jury could judge both law and fact. This 1651 trial, reported to be “even more stormy than the earlier one,” came to the same result: not guilty. Even Cromwell’s regiments sounded their trumpets and shouted their approval when they heard the verdict.

Cromwell evidently did not know what to do with Lilburne. He was too popular either to release or to try again, a threat to a dictator whether at large or in the courtroom. Ignoring the writ of habeas corpus, Cromwell had Lilburne shifted from prison to prison and then exiled to Jersey, Guernsey, and the Isle of Wright. When, two years later, Lilburne became ill, Cromwell allowed him to return to die at the age of forty-three.⁸⁹

John Peter Zenger’s trial almost a century later raises some of the same matters as Lilburne’s trials did, but not nearly as many. In spite of the attention in the American tradition given Zenger’s trial—the trial was a preview of the coming revolution—Lilburne’s conflicts remain the ones which most clearly define most issues faced by modern dissenters. Nevertheless, Zenger’s trial is important in the history of American political trials.⁹⁰

When Governor William Cosby of New York sued his predecessor, Rip Van Dam, and then removed Chief Justice Lewis Morris who had ruled against him, Cosby prompted criticism and satire in a newspaper printed by Zenger. Chief Justice James DeLancey, whom Cosby appointed to replace Morris, did the governor’s bidding by ordering that the offending issues of the newspaper be burned. Soon Zenger was arrested and tried.

Without going into the details of Zenger’s 1735 trial, we can make note of the clash of issues in the trial. One theme which characterizes the Zenger case from beginning to end is the independence of the courts. The newspaper articles Governor Cosby took exception to were about his arbitrary removal of Justice Morris. When Zenger was arrested Justice DeLancey announced in the bail hearing that “if a jury found Zenger not guilty, they would be perjured.”⁹¹ Bail was set at an unprecedented £400, an excessive amount. Attorney General Richard Bradley, instead of going to a Grand Jury, filed an information against Zenger, which was then regarded as a high-handed way of avoiding the popular basis of a jury system.⁹² When Zenger’s lawyers, James Alexander and William Smith, objected to Justice DeLancey hearing the case, he disbarred (yes, disbarred) them. Zenger’s court-appointed attorney, John Chambers, looked over the list of forty names the clerk of court chose as potential jurors only to discover an attempt to pack the Zenger jury: It included men in Governor Cosby’s employ and others linked with him. Chambers was able to strike them and obtain a jury not composed of Cosby’s friends. If anything, as Stanley Katz argues, the new jury represented the Morris majority in New York.⁹³ Finally, when the well-known Philadelphia lawyer, Andrew Hamilton, joined Zenger’s defense, he urged the jury to render a verdict on the whole matter before them, to judge the law as well as the facts. The only question that the prosecution and Justice DeLancey wanted the jury to consider was whether or not Zenger had printed the paper. Hamilton admitted that Zenger had but argued that the real question before the jury was broader, extending to the truth of what Zenger printed. After Justice DeLancey told Hamilton that he “ought not to be permitted to prove the facts in the papers,” Hamilton told the jury this:

Then, gentlemen of the jury, it is to you we must now appeal for witnesses to the truth of the facts we have offered and are denied the liberty to prove.… You are citizens of New York; you are really what the law supposes you to be, honest and lawful men; and, according to my brief, the facts which we offer to prove were not committed in a corner; they are notoriously known to be true; and therefore in your justice lies our safety. And as we are denied the liberty of giving evidence to prove the truth of what we have published, I will beg leave to lay it down as a standing rule in such cases, that the suppressing of evidence ought to be taken for the strongest evidence; and I hope it will have that weight with you.⁹⁴

The other major theme of Zenger’s trial is freedom of press. Zenger faced the standard argument for suppression found in all oligarchies, today as much as in colonial New York: criticism of those who rule detracts from their rightful authority. The articles in the Weekly Journal which aroused Governor Cosby’s wrath were written by James Alexander and William Smith, the attorneys whom Justice DeLancey disbarred. Much of what Zenger printed was satire. One of Cosby’s henchmen was recognizable in a mock advertisement for a “large spaniel, of about 5 feet 5 inches high” who “has lately strayed from his kennel with his mouth full of fulsome panegyricks.” The sheriff was identifiable as a monkey which “lately broke his chain and ran into the country.”⁹⁵ Zenger printed a song sheet which cheered those who would “be brave for liberty and law,/ Boldly despise the haughty knave,/ that would keep us in awe.” The song castigated the courts:

Though pettifogging knaves deny us rights of Englishmen; We’ll make the scoundrel rascals fly, and ne’er return again. Our judges they would chop and change for those that serve their turn. and will not surely think it strange if they for this should mourn.⁹⁶

This was an obvious reference to Governor Cosby’s removal of Justice Morris and the appointment of Justice DeLancey.⁹⁷

Zenger was charged with seditious libel. This doctrine in the law developed after the zealous misuse of the treason law by the Tudors. The courts held that defamation of a public person was a more serious offense than when committed against a private person because, as Edward Coke explained it, then “it concerns only the breach of the peace but the scandal of Government.”⁹⁸ This is exactly 180 degrees opposite the position the Supreme Court took in the 1964 New York Times v. Sullivan case. In the Sullivan decision those who criticize public officials are provided with an extra protection of the law because of “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attack on government and public officials.”⁹⁹ While Zenger was tried for printing what was true, the Sullivan case allows factual error which is not malicious. Hamilton argued that “every freeman that lives under a British government on the main of America” has “a right—the liberty— both of exposing and opposing arbitrary power (in these parts of the world, at least) by speaking and writing the truth.” He told the jury that the case of Zenger was not the cause of a poor printer but the issue of liberty versus arbitrary government: “Men who injure and oppress the people under their administration provoke them to cry out and complain; and then make that very complaint the foundation for new oppressions and prosecutions.¹⁰⁰

Zenger was found not guilty by the jury. While his case is not the legal landmark many have assumed it must be, it can be seen as a clear confrontation by the colonists, as represented by the jury as well as Zenger and his lawyers, against the colonial government in the person of the judge and prosecution as well as Governor Cosby. The legal precedents from the Zenger case amount to little, for, as Leonard Levy demonstrates, the Zenger case “was like the stage-coach ticket inscribed, â€?Good for this day only.’”¹⁰¹ Zenger’s trial is important largely because it symbolizes two opposing perspectives on government and dissent. Hamilton’s position is given above. Justice DeLancey characterized the other in his instructions to the jury. The jury was to leave the question of law to the court (they, of course, did not), and they should heed the words of another judge, whom Justice DeLancey quoted:

If people should not be called to account for possessing the people with an ill opinion of the government, no government can subsist, for it is very necessary for all governments that the people should have a good opinion of it. And nothing can be worse to any government than to endeavor to procure animosities; as to the management of it, this has been always looked upon as a crime, and no government can be safe without it be punished.¹⁰²

In short, the contest in the Zenger trial, if pushed to the logical ends, is between one side which maintained that dissent undermines government and leads to anarchy and another side which argued that dissent is necessary to prevent arbitrary rule.