William Cosby, who became royal governor of New York in August 1732, loathed opposition. When provincial Chief Justice Lewis Morris ruled against him in a private lawsuit, the governor replaced Morris with the “young and arrogant” James DeLancey.

Morris, who organized other “gentlemen of the landed interest” against Cosby, crushed a Cosbyite opponent at an October 1733 Assembly election. On November 5, 1733, the Morrisites unleashed the New York Weekly Journal, edited and published by John Peter Zenger. He had emigrated from Germany in 1710 as a 13-year-old bonded apprentice to a printer, whom he served for eight years while repaying his passage.

Zenger’s newspaper exposed Cosby’s padded expense accounts and mysterious dealings in government owned lands. On November 17, 1734, Cosby ordered Zenger’s arrest for seditious libel – publication of statements intended to arouse the people against the government by either bringing it into contempt or exciting dissatisfaction – for which truth was no defense. Chief Justice DeLancey set bail far beyond Zenger’s means, effectively jailing him until the trial.

The arrest delayed the paper’s publication until November 25, when the Journal appeared with this explanation:

As you last week were Disappointed of my Journall, I think it Incumbent upon me, to publish my Apoligy which is this. On the Lord’s Day, the Seventeenth of this instant, I was Arrested, taken and Imprisoned in the common Gaol of this Citty, by Virtue of a Warrant from the Governour … where upon I was put under such Re straint that I had not the Liberty of Pen, Ink, or Paper, or to see, or speak with People, till upon my Complaint to the Honourable the Chief Justice, at my appearing before him upon my Habia Corpus on the Wednesday following … I hope for the future by the Liberty of Speaking to my Servants thro’ the Hole of the Door of the Prison, to entertain you with my weekly Journal as formerly.

The courtroom was packed on August 4, 1735. After the attorney general’s opening statement, an unknown lawyer rose for the defense. Andrew Hamilton, a 59-year-old Scottish immigrant, too had come to America as an indentured servant. He had since become Pennsylvania’s attorney general and was presently speaker of its provincial Assembly.

Zenger had been charged with publishing “a certain false, malicious, seditious, and scandalous libel.” Each adjective was thus an element of the crime and had to be separately proven at trial. In his opening, Hamilton said: “This word false must have some meaning, or else how came it there? … No, the falsehood makes the scandal, and both make the libel … the Attorney General has only to prove the words false in order to make us guilty.”

Despite a ruling from DeLancey that truth was no defense, Hamilton continued arguing that the cases creating the doctrine of seditious libel all involved false statements, making falsehood an element of the crime. Hamilton also asserted the jury had an inherent power to judge the law as well as the facts and refuse to convict if the law is unjust, a doctrine today called jury nullification.

He discussed a 1670 case involving William Penn’s arrest for breaking the laws establishing the Church of England as the only lawful religion by preaching on Quakerism, which Penn freely admitted. The judge had directed the jury to find Penn guilty. Four jurors voted to acquit. The judge jailed them without food or water. Four days later, when they still voted to acquit, he fined and imprisoned them. One juror, Edmund Bushell, sought a writ of habeas corpus. The lord chief justice of England ordered the jurors’ release, ruling they could not be punished for their verdict.

Hamilton’s summation shifted the issue from Zenger’s guilt to whether New Yorkers might criticize their rulers:

… the question … is not the cause of a poor Printer of New York alone … No! … It is the cause of Liberty … your upright conduct this day will not only entitle you to the love and esteem of your fellow citizens; but every man who prefers freedom to a life of slavery will bless and honor you as men who … have laid a noble foundation for securing to ourselves, our posterity, and our neighbors … that liberty, both of exposing and opposing arbitrary power … by speaking and writing the Truth.

Zenger later wrote: “…the Jury… returned in about Ten Minutes, and found me Not Guilty; upon which there were immediately three Hurra’s of many Hundreds of People.” Next morning, as Hamilton sailed for Philadelphia, “he was saluted with the great Guns of several Ships in the Harbour, as a public Testimony of the glorious Defense he made in the cause of Liberty.” Zenger published the Journal until he died on July 28, 1746. The poor printer’s name remains synonymous with freedom of the press.