Once upon a time in America, there was a leader considered by many historians to be:
"spiteful," "greedy," "jealous," "quick-tempered," "dull," "unlettered," and "haughty"
That man was William S. Cosby, the royal governor of the colony of New York from 1731 until his death in 1736. Here he is as described by University of Missouri-Kansas City Law School law professor Douglas O Linder on his Famous Trials website:
By all accounts, Cosby was spiteful, mean-spirited, quick-tempered, greedy, jealous, dull, and a petty tyrant. Too often many of these traits seemed to turn up among colonial governors who, overall, were quite a bad lot. There is a reason for this, according to one historian, who observed that governors consisted "most often of members of aristocratic families whose personal morals, or whose incompetence, were such that it was impossible to employ then nearer home."
Cosby has also been described as “devoid of statesmanship, seeking money and preferment.” In other words: not too terribly different from the current occupant of the oval office. And like the current president, the royal governor often found himself at odds with individual jurists within the justice system.
William Cosby began his tenure while involved in a lawsuit with Rip Van Dam, the man who had acted on his behalf during the year between Cosby’s appointment and his arrival from England. Van Dam, a member of the provincial council, refused to split his salary for that year with the new governor unless Cosby was willing to share the proceeds of his perquisites for the same period. When the chief justice of the colony’s Supreme Court dissented from allowing the governor the use of a jury-free trial to decide the issue, Cosby demanded an explanation for his dissent. Chief Justice Lewis Morris provided his opinion with a cover letter, both of which were printed by John Peter Zenger, one of only two publishers in the colony. In his cover letter, Lewis Morris wrote:
"If judges are to be intimidated so as not to dare to give any opinion, but what is pleasing to the Governor, and agreeable to his private views, the people of this province who are very much concerned both with respect to their lives and fortunes in the freedom and independency of those who are to judge them, may possibly not think themselves so secure in either of them as the laws of his Majesty intended they should be."
Cosby angrily fired him, even though the other two Justices voted in Cosby’s favor and allowed his jury-free trial against Van Dam to proceed.
That was not enough for Cosby, however, who apparently nurtured petty grievances and spent much of his time seeking revenge for perceived wrongs. Unwilling to allow the former chief justice any place in the government of the colony, he used his henchmen to suppress the votes of Quakers, who heavily favored Lewis Morris’ candidacy in an election to determine a Manchester assembly seat.
[T]he sheriff was deaf to all that could be alleged on that [the Quaker] side; and notwithstanding that he was told by both the late Chief Justice and James Alexander, one of His Majesty's Council and counsellor-at-law, and by one William Smith, counsellor-at-law, that such a procedure [disqualifying the Quakers for affirming rather than swearing] was contrary to law and a violent attempt upon the liberties of the people, he still persisted in refusing the said Quakers to vote. …
Morris won without the Quaker votes, angering Cosby even further. During the election and afterward, John Peter Zenger published the New York Weekly Journal, a newspaper set up by Morris and his allies James Alexander and William Smith, two lawyers in the province, to publicize the unpopular activities of the governor.
Few things enrage a tin-pot despot more than a free press and unsurprisingly, Cosby went after the New York Weekly Journal, asking a grand jury to issue an indictment against Zenger for seditious libel, which, according to the Historical Society of the New York Courts:
...was defined as the intentional publication, without lawful excuse or justification, of written blame of any public man or of the law, or any institution established by the law.
When the grand jury failed to issue an indictment in January 1734, Cosby requested an indictment from the new grand jury panel that was seated in October. That attempt also failed but the governor was able to convince his Supreme Court, led by James DeLancy (appointed to replace Lewis Morris), to issue a bench warrant for the publisher, John Peter Zenger. On November 17, 1734, Zenger was arrested and held in New York’s Old City Jail subject to a bail of £400. Some reports say it was £800—not that it mattered much, as he would be unable to raise that kind of money. He remained in jail for the following year as his wife ran the paper in his absence, missing only a single issue.
Alexander and Smith were the attorneys for Zenger until they objected to the hand-picked judges in the case. For that, they were disbarred. Next, Cosby tried to stack the jury for Zenger’s trial using men he felt would be sympathetic to his views. The same hand-picked judges rejected this obvious attempt to predetermine the verdict and a less biased jury was quickly selected. Zenger initially received his defense from a court appointed attorney, who was replaced by Andrew Hamilton of Philadelphia.
Later known for being one of the planners of Philadelphia’s Independence Hall, at the time of the Zenger trial 60-year-old Andrew Hamilton was already a successful attorney in Pennsylvania, a former attorney general of the colony, and speaker of the Provincial Assembly. He accepted the Zenger case pro bono:
because he felt there existed a threat to the entire judicial system and someone had to assert leadership about it.
At the time, the truth was not accepted as a defense against seditious libel. When Hamilton attempted to present it, Chief Justice DeLancy rejected that defense.
Chief Justice Delancey ruled that Hamilton could not present evidence of the truth of the statements contained in Zenger's Journal. "The law is clear that you cannot justify a libel," Delancey announced. "The jury may find that Zenger printed and published those papers, and leave to the Court to judge whether they are libelous."
Hamilton’s response:
I know, may it please Your Honor, the jury may do so. But I do likewise know that they may do otherwise. I know that they have the right beyond all dispute to determine both the law and the fact; and where they do not doubt of the law, they ought to do so. Leaving it to judgment of the court whether the words are libelous or not in effect renders juries useless (to say no worse) in many cases. But this I shall have occasion to speak to by and by.
And so the ground was laid for jury nullification, or the right of juries to reject the law on which the alleged violation is based. Hamilton’s closing argument is a stirring defense of the freedom of all to criticize their government when it engages in the arbitrary exercise of power and concludes with:
The question before the Court and you, Gentlemen of the jury, is not of small or private concern. It is not the cause of one poor printer, nor of New York alone, which you are now trying. 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. And I make no doubt but 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 baffled the attempt of tyranny, and by an impartial and uncorrupt verdict have laid a noble foundation for securing to ourselves, our posterity, and our neighbors, that to which nature and the laws of our country have given us a right to liberty of both exposing and opposing arbitrary power (in these parts of the world at least) by speaking and writing truth.
The Zenger trial did not, in fact, guarantee freedom of the press, nor did it result in a change in the seditious libel laws.
Rather, it influenced how people thought about these subjects and led, many decades later, to the protections embodied in the Unites States Constitution, the Bill of Rights and the Sedition Act of 1798. The Zenger case demonstrated the growing independence of the professional Bar and reinforced the role of the jury as a curb on executive power. As Gouverneur Morris said, the Zenger case was, "the germ of American freedom, the morning star of that liberty which subsequently revolutionized America!”
That is something that should be kept in mind by any current tin-pot despots who wish to arbitrarily exercise a nonexistent power. If the courts don’t reign him in on their own, it is not outside the realm of the possible that American juries will.
Something else for would-be tyrants to remember: after his acquittal, Zenger returned to his printing business and published an account of his trial.