Learn the roles and procedures of the American jury trial and follow the stories of Andrew Hamilton and William Penn in two deeply intertwined court cases.
The judgments of English courts were as much the law of the land as royal edicts or acts of Parliament.
This law, known as the common law, was the body of law that the Founders studied, shaped, and responded to in the years before they created the U.S. Constitution.
Two famous cases were foundational in their understanding of how the criminal justice system should function.
As you can imagine, these articles did not sit well with Governor Cosby.
In 1734, Zenger was arrested and charged with seditious libel. The charge accused Zenger of publishing false, scandalous, and malicious statements against a public official. Chief Justice James DeLancey, a Cosby ally, disbarred the men who initially intended to represent Zenger at trial.
Then in a surprising turn, Andrew Hamilton—a prominent figure in Pennsylvania’s judicial and political affairs and quite possibly the most famous legal thinker in the colonies—took over as Zenger’s main defense attorney.
See what happened in this account of the trial’s opening, published in Zenger’s paper a year after the case.
MR. ATTORNEY: May it please Your Honors, and you Gentlemen of the Jury; the Information now before the Court, and to which the Defendant Zenger has pleaded Not Guilty, is an Information for printing and publishing a false, scandalous, and seditious libel, in which His Excellency the Governor of this province, who is the King’s immediate representative here, is greatly and unjustly scandalized, as a person that has no regard to law nor justice; with much more, as will appear upon reading the Information. This of libeling is what has always been discouraged as a thing that tends to create differences among men, ill blood among the people and oftentimes great bloodshed between the party libeling and the party libeled. There can be no doubt but you Gentlemen of the Jury will have the same ill opinion of such practices, as the judges have always shewn upon such occasions. But I shall say no more at this time, until you hear the Information, which is as follows …
[The Information details specific passages, printed by Zenger, which the prosecution alleges to be libelous against Governor Cosby. The Attorney General will prove that Zenger is “Guilty.”]
MR. HAMILTON:[beginning the case for the defense]: May it please Your Honor; I am concerned in this cause on the part of Mr. Zenger the defendant. The Information against my client was sent me, a few days before I left home, with some instructions to let me know how far I might rely upon the truth of those parts of the papers set forth in the Information, and which are said to be libelous. And tho’ I am perfectly of the opinion with the gentleman who has just now spoke, on the same side with me, as to the common course of proceedings, I mean in putting Mr. Attorney upon proving, that my client printed and published those papers mentioned in the Information; yet I cannot think it proper for me (without doing violence to my own principles) to deny the publication of a complaint, which I think is the right of every freeborn subject to make, when the matters so published can be supported with truth; and therefore I’ll save Mr. Attorney the trouble of examining his witnesses to that point; and I do (for my client) confess, that he both printed and published the two newspapers set forth in the Information, and I hope in so doing he has committed no crime.
MR. ATTORNEY: Then if Your Honor pleases, since Mr. Hamilton has confessed the fact, I think our witnesses may be discharged; we have no further occasion for them.… . Indeed, Sir, as Mr. Hamilton has confessed to the printing and publishing these libels, I think the Jury must find a verdict for the King; for supposing they were true, the law says that they are not the less libelous for that; nay indeed the law says, their being true is an aggravation of the crime.
MR. HAMILTON: Not so neither, Mr. Attorney, there are two words to that bargain. I hope it is not our bare printing and publishing a paper, that will make it a libel: You will have something more to do, before you make my client a libeler; for the words themselves must be libelous, that is, false, scandalous, and seditious or else we are not guilty.
MR. ATTORNEY: […] The case before the Court is, whether Mr. Zenger is guilty of libeling His Excellency the Governor of New York, and indeed the whole administration of the government? Mr. Hamilton has confessed the printing and publishing, and I think nothing is plainer, than that the words in the Information are scandalous, and tend to sedition, and to disquiet the minds of the people of this Province. And if such papers are not libels, I think it may be said there can be no such thing as a libel.
MR. HAMILTON: May it please Your Honor; I cannot agree with Mr. Attorney: For though I freely acknowledge that there are such things as libels, yet I must insist at the same time that what my client is charged with, is not a libel; and I observed just now, that Mr. Attorney in defining a libel made use of the words scandalous, seditious, and tend to disquiet the people; but (whether with design or not I will not say) he omitted the word false.
MR. ATTORNEY: I think I did not omit the word false: But it has been said already, that it may be a libel, notwithstanding it may be true.
MR. HAMILTON: In this I must still differ with Mr. Attorney; for I depend upon it, we are to be tried upon this Information now before the Court and Jury, and to which we have pleaded Not Guilty, and by it we are charged with printing and publishing a certain false, malicious, seditious and scandalous libel. This word false must have some meaning, or else how came it there? I hope Mr. Attorney will not say, he put it there by chance, and I am of opinion his Information would not be good without it. But to show that it is the principal thing which, in my opinion, makes a libel, I put the case, [if] the Information had been for printing and publishing a certain true libel, would that be the same thing? Or could Mr. Attorney support such an Information by any precedent in the English law? No, the falsehood makes the scandal, and both make the libel. And to show the Court that I am in good earnest and to save the Court’s time, and Mr. Attorney’s trouble, I will agree, that if he can prove the facts charged upon us, to be false, I’ll own them to be scandalous, seditious and a libel. So the work seems now to be pretty much shortened, and Mr. Attorney has now only to prove the words false, in order to make us guilty.
MR. ATTORNEY: We have nothing to prove; you have confessed the printing and publishing; but if it was necessary (as I insist it is not) how can we prove a negative? But I hope some regard will be had to the authorities that have been produced, and that supposing all the words to be true, yet that will not help them, that Chief Justice Holt in his charge to the jury in the case of Tutchin made no distinction whether Tutchin’s papers were true or false; and as Chief Justice Holt has made no distinction in that case, so none ought to be made here; nor can it be shown in all that case, there was any question made about their being false or true.
MR. HAMILTON: I did expect to hear that a negative cannot be proved; but everybody knows there are many exceptions to that general rule […] But we will save Mr. Attorney the trouble of proving a negative, and take the onus probandi upon ourselves, and prove those very papers that are called libels to be true.
MR. CHIEF JUSTICE: You cannot be admitted, Mr. Hamilton, to give the truth of a libel in evidence. A libel is not to be justified; for it is nevertheless a libel that it is true.
An hour and a half later, the jury reported that they had been unable to agree, and the members of the court “used much menacing Language, and behaved themselves very imperiously to the Jury”. Then after this barbarous Usage, they sent them [back] to consider of bringing in their Verdict, and after some considerable time they returned to the Court. Silence was call’d for, and the jury call’d by their Names.
CLER:Are you agreed upon your Verdict?
JURY: Yes.
CLEF: Who shall speak for you?
JURY: Our Foreman [Thomas Veer].
CLER: Look upon the Prisoners at the Bar; how say you? Is William Penn Guilty of the Matter whereof he stands indicted in Manner and Form, or Not Guilty?
FOREMAN: Guilty of Speaking in Grace‐Church Street.
MAY: Was it not an unlawful Assembly? you mean he was speaking to a Tumult of People there?
FOREMAN: My Lord, This is all I had in Commission.
At this point some of the members of the jury, one Edward Bushel notable among them, said that “they allowed of no such Word as an unlawful Assembly in their Verdict; at which the Recorder, Mayor, Robinson and Bloodworth [aldermen], took great occasion to vilify them with most opprobrious Language; and this verdict not serving their Turns, the Recorder express’d himself thus:
REC: The Law of England will not allow you to part till you have given in your Verdict.
JURY: We have given in our Verdict, and we can give in no other.
REC: Gentlemen, you have not given in your Verdict, and you had as good say nothing; therefore go and consider it once more, that we may make an end to this troublesome Business.
JURY: We desire we may have Pen, Ink and Paper.
The court then adjourned for half an hour. Shortly after it reconvened, the jury returned and handed the clerk a sheet of paper on which was written, over the signatures of all the jurors:
We, the Jurors, hereafter named, do find William Penn to be Guilty of Speaking or Preaching to an Assembly, met together in Gracechurch‐ street, the 14th of August last, 1670. And that William Mead is Not guilty of the said Indictment.
Upon this, the recorder addressed the jury angrily:
“Gentlemen, you shall not be dismisst till we have a Verdict, that the Court will accept; and you shall be lock’d up. without Meat, Drink, Fire, and Tobacco; you shall not think thus to abuse the Court; we will have a Verdict, by the help of God, or you shall starve for it.”
To this Penn countered:
“My Jury, who are my Judges, ought not to be thus menaced; their Verdict should be free, and not compelled; the Bench ought to wait upon them, but not forestal them. I do desire that Justice may be done me, and that the Arbitrary Resolves of the Bench may not be made the Measure of my Jury’s Verdict.
When the recorder shouted, “Stop that prating Fellow’s mouth, or put him out of the Court”, Penn called after the jury: “You are Englishmen, mind your Privilege, give not away your right.” Bushel called back to him: “Nor will we ever do it.”
Despite the jury’s insistence that they were agreed, the court stated that it was “resolved to have a Verdict, and that before you can be dismisst”. The transcript recites that “The Court swore several Persons, to keep the Jury all Night without Meat, Drink, Fire, or any other Accommodation; they had not so much as a Chamber‐pot, tho’ desired.”
The court then adjourned until seven o’clock the next morning, Sunday. September 4, 1670, when the prisoners were brought to the bar, the jury was called, and in the usual colloquy asked (for the fourth time) to render its verdict:
FORE‑M: William Penn is guilty of Speaking in Gracechurch‐street.
MAY: To an unlawful Assembly?
BUSH: No, my Lord, we give no other Verdict than what we gave last Night; we have no other Verdict to give.
MAY: You are a factious Fellow, I’ll take a Course with you.
BLOOD[WORTH]: I knew Mr. Bushel would not yield.
BUSH: Sir Thomas, I have done according to my Conscience.
MAY: That Conscience of yours would cut my Throat.
BUSH: No, my Lord, it never shall.
MAY: But I will cut yours as soon as I can.
Penn thereupon asked the recorder whether he would “allow of the Verdict given of William Mead”, to which the recorder replied: “It cannot be a Verdict, because you were indicted for a Conspiracy, and one being found Not guilty, and not the other, it could not be a Verdict.”
To this Penn responded: “If Not guilty be not a Verdict, then you make of the Jury and Magna Carta but a meer Nose of Wax”; and he submitted that if William Mead “be Not guilty, it consequently follows, that I am clear, since you have indicted us of a Conspiracy, and I could not possibly conspire alone”.
After further “passages […] between the Jury and the Court, the Jury went up again, having received a fresh Charge from the Bench”, and returned for the fifth time with the same verdict:
REC. [TO BUSHEL]: I will set a Mark upon you; and whilst I have any thing to do in the City, I will have an Eye upon you. May. Have you no more Wit than to be led by such a pitiful Fellow? I will cut his Nose.
PENN: It is intolerable that my Jury should be thus menaced: Is this according to the Fundamental Laws? Are not they my proper Judges by the great Charter of England? What hope is there of ever having Justice done, when Juries are threatened, and their Verdicts rejected? […]
MAY: Stop his Mouth; Jaylor, bring Fetters and stake him to the Ground.
PENN: Do your Pleasure, I matter not your Fetters.
And the recorder in his exasperation disclosed the real basis of the prosecution and fitted the proceeding expressly into the history of religious intolerance in Europe: “Till now”, he said, “I never understood the Reason of the Policy and Prudence of the Spaniards, in suffering the Inquisition among them: And certainly it will never be well with us, till something like unto the Spanish Inquisition be in England”!
The Recorder Continues to Threaten the Jury
Addressing himself once more to the jury, the recorder went on:
Gentlemen, we shall not be at this trade always with you; you will find [that at] the next Sessions of Parliament there will be a Law made, that those that will not conform shall not have the Protection of the Law […] Your Verdict is nothing, you play upon the Court: I say you shall go together, and bring in another Verdict, or you shall starve; and I will have you carted about the City, as in Edward the Third’s time.
FORE‑M: We have given in our Verdict, and all agreed to it; and if we give in another, it will be a Force upon us to save our Lives.
MAY: Take them up.
SHERIFF: Come, Gentlemen, you must go up; you see I am commanded to make you go.
Upon this, the jury retired for the sixth time. As before, several persons were “sworn to keep them without any Accommodation, as aforesaid, till they brought in their Verdict”; and the court adjourned until the following morning, Monday, September 5, at 7:00 o’clock. The prisoners were remanded to Newgate and next morning “were brought unto the Court, which being sat, they proceeded as follow. eth”:
CLER.: […] Gentlemen of the Jury, answer to your names […] Are you all agreed of your Verdict?
JUR: Yes. […]
CLER.: Look upon the Prisoners. What say you? Is William Penn Guilty… or Not guilty?
FOREMAN: Here is our Verdict in Writing, and our Hands subscribed.
The clerk took the paper handed to him by the foreman of the jury and was about to read it when the recorder stopped him and directed him to demand “a positive Verdict”. The clerk accordingly repeated his question as to Penn and Mead separately, and in each case the foreman replied “Not guilty”.
But, says the record:
PENN: I demand my Liberty, being freed by the Jury.
MAY: No, you are in for your Fines.
PENN: Fines, for what?
MAY: For Contempt of the Court.
PENN: I ask, if it be according to the Fundamental Laws of England, that any Englishman should be Fined or Amerced, but by the Judgment of his Peers or Jury; since it expressly contradicts the fourteenth and twenty‐ninth Chapters of the great Charter of England, which say, No Freeman ought to be amerced, but by the Oath of good and Lawful Men of the Vicinage.
REC: Take him away,… Take him out of the Court.
HAMILTON: The right of the jury to find such a verdict as they in their conscience do think is agreeable to their evidence is supported by the authority of Bushel’s Case, in Vaughan’s Reports, page 135, beyond any doubt […] the jury did not think fit to take the Court’s word for it, for they could neither find riot, tumult, or anything tending to the breach of the peace committed at that meeting; and they acquitted Mr. Penn and Mead. In doing of which they took upon them to judge both the law and the fact, at which the Court (being themselves true courtiers) were so much offended that they fined the jury 40 Marks apiece, and committed them till paid.
But Mr. Bushel, who valued the right of a juryman and the liberty of his country more than his own, refused to pay the fine, and was resolved (though at a great expense and trouble too) to bring, and did bring, his habeas corpus to be relieved from his fine and imprisonment, and he was released accordingly; and this being the judgment in his case, it is established for law that the judges, how great soever they be, have no right to fine imprison or punish a jury for not finding a verdict according to the direction of the Court. And this I hope is sufficient to prove that jurymen are to see with their own eyes, to hear with their own ears, and to make use of their own consciences and understandings in judging of the lives, liberties or estates of their fellow subjects […]
If a libel is understood in the large and unlimited sense urged by Mr. Attorney, there is scarce a writing I know that may not be called a libel, or scarce any person safe from being called to an account as a libeler: For Moses, meek as he was, libeled Cain; and who is it that has not libeled the Devil? For according to Mr. Attorney, it is no justification to say one has a bad name. […]
Gentlemen; the danger is great in proportion to the mischief that may happen through our too great credulity. A proper confidence in a court is commendable; but as the verdict (whatever it is) will be yours, you ought to refer no part of your duty to the discretion of other persons. If you should be of opinion that there is no falsehood in Mr. Zenger’s papers, you will, nay (pardon me for the expression) you ought to say so; because you don’t know whether others (I mean the Court) may be of that opinion. It is your right to do so, and there is much depending upon your resolution as well as upon your integrity.
The loss of liberty to a generous mind is worse than death; and yet we know there have been those in all ages who for the sake of preferment or some imaginary honor have freely lent a helping hand to oppress, nay to destroy their country. This brings to my mind that saying of the immortal Brutus, when he looked upon the creatures of Caesar, who were very great men but by no means good men. “You Romans,” said Brutus, “if yet I may call you so, consider what you are doing; remember that you are assisting Caesar to forge those very chains which one day he will make yourselves wear.” This is what every man (that values freedom) ought to consider: He should act by judgment and not by affection or self-interest; for, where those prevail, no ties of either country or kindred are regarded, as upon the other hand the man who loves his country prefers its liberty to all other considerations, well knowing that without liberty, life is a misery […]
Power may justly be compared to a great river, while kept within its due bounds, is both beautiful and useful; but when it overflows its banks, it is then too impetuous to be stemmed, it bears down all before it and brings destruction and desolation wherever it comes. If then this is the nature of power, let us at least do our duty, and like wise men (who value freedom) use our utmost care to support liberty, the only bulwark against lawless power, which in all ages has sacrificed to its wild lust and boundless ambition the blood of the best men that ever lived.
I hope to be pardoned, sir, for my zeal upon this occasion; it is an old and wise caution: That when our neighbor’s house is on fire, we ought to take care of our own. For though blessed be God, I live in a government where liberty is well understood and freely enjoyed; yet experience has shown us all (I’m sure it has to me) that a bad precedent in one government is soon set up for an authority in another; and therefore I cannot but think it mine and every honest man’s duty that (while we pay all due obedience to men in authority) we ought at the same time to be upon our guard against power wherever we apprehend that it may affect ourselves or our fellow subjects.
I am truly very unequal to such an undertaking on many accounts. And you see I labor under the weight of many years, and am borne down with great infirmities of body; yet old and weak as I am, I should think it my duty, if required, to go to the utmost part of the land where my service could be of any use in assisting to quench the flame of prosecutions upon Informations set on foot by the government to deprive a people of the right of remonstrating (and complaining too) of the arbitrary attempts of men in power. 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.
I wish I could say there were no instances of this kind.
But to conclude; the question before the Court and you gentlemen of the Jury is not of small nor private concern, it is not the cause of a poor printer, nor of New York alone, which you are now trying: No! It may in its consequence affect every freeman 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—the liberty—both of exposing and opposing arbitrary power (in these parts of the world, at least) by speaking and writing truth.
America’s Founders thought a great deal of Bushel’s Case and the trial of John Peter Zenger.
In light of these cases, Thomas Jefferson advanced an even clearer view of jury independence:
“Permanent judges […] are misled by favor, by relationship, by a spirit of party, by a devotion to the Executive or Legislative […]
It is left therefore to the juries, if they think the permanent judges are under any biass whatever in any cause, to take upon themselves to judge the law as well as the fact.”
—THOMAS JEFFERSON
Not coincidentally, the Bill of Rights devotes more words to the subject of juries than any other.
This is because the one thing that virtually every leading thinker of the American Founding appears to have agreed on was the critical role of juries in limiting the power of government.
Under the Constitution, crime fighting is supposed to be reserved to state and local government. But over the past 40 years, Congress has federalized many of the crimes that have always been investigated by local police.