Law as a Colonial Shell Game

Second Sinking of USS Maine After Having Been Raised and Towed Out of Havana Harbor in 1912. Original Sinking Feb. 15, 1898, Cost 260 Lives and Touched Off the Spanish-American War on the Claim it was Done by a Spanish Mine. Public Domain Photo by U.S. Navy. Subsequent Investigation Offered Evidence of Accident.

These United States have been both colonized and colonizer, so the law has to stretch a bit.

If you come at Zenger through politics, he stands for a free press. If you come through law, he stands for jury nullification. In either case, his footprint is very large among many big-footed colonists who were destined to get crosswise with the Mother Country.

Zenger missed most of the party because he died in 1746, at what was in his time a ripe age of 48. As was often the case in those days, he was a printer and publisher and editor and writer for one publication, The New York Weekly Journal.

When wearing his editor hat, he wrote opinions critical of the royal governor of New York, William Cosby. Wearing his publisher hat, he allowed his editor to let fly at the governor, which in the minds of some was an attack on the English monarch, under whose authority Cosby served.

The beef with this particular Bill Cosby had nothing to do with drugging women to take sexual advantage of them. Cosby had — before even rendering substantial service as governor — started a hassle over his pay. When he did not fare well in litigation over the matter, the governor decided what New York needed was more “Cosby judges,” so he replaced the Chief Justice of the New York Supreme Court with a judge more to his liking.

Editor Zenger continued to pound away on the governor and Publisher Zenger continued to put the critical editorials in the paper. Thus provoked, Cosby issued a proclamation accusing the Weekly Journal of:

divers scandalous, virulent, false and seditious reflections.

While I am not informed, I would like to believe that the proclamation increased the paper’s circulation. That may or may not have been the case, but the proclamation did not have the desired effect of motivating Editor Zenger to put a cork in it.

Governor Cosby then ramped it up another notch by having John Peter Zenger arrested for criminal libel. Zenger’s lawyer, James Alexander, apparently took his duty of zealous advocacy too far to suit the governor, who demonstrated his control of the courts by having Alexander held in contempt and removed from Zenger’s case.

Zenger sat in prison for eight months before getting to trial with a new defense team headed by a Philadelphia lawyer, Andrew Hamilton. I am not informed whether this was the beginning of “Philadelphia lawyer” as a description of a legal hotshot of questionable ethics, but I’m fairly certain Hamilton did not inspire Woody Guthrie’s song of the same name.

Hamilton had another problem every bit as challenging as the Cosby judge presiding. All the prosecutor had to prove was that Zenger published words that defamed the governor. It made no difference whether the words were true. That was at the time the law of defamation. Whether written (libel) or spoken (slander), truth was no defense.

The trial plan was to bring in as much evidence as possible of truth and use that as a hook upon which to hang the reasonable doubt argument. The judge was having none of it and it appeared that Zenger was sunk, since the judge instructed the jury on the law in no uncertain terms.

Legend has it that the jury was out only ten minutes before they returned with a “not guilty” verdict. Gov. Cosby was not a happy camper. However, it took the American Revolution and some more litigation before truth was established as a defense in 1804.

This truth as a defense and jury nullification nonsense rocked along just fine in the United States until the United States became the Mother Country rather than the colony. In the Spanish-American War, the U.S. acquired a pre-formed empire when it took what was left of colonial Spain after revolutions from Mexico south stripped away most of the real estate the Spanish monarch held by right of discovery.

Monument to Victims of Maine Explosion in Havana. Wikimedia Commons Free Art License

The leavings consisted of Cuba — which was promised freedom as another pretext for the war in addition to the sinking of the U.S.S. Maine in Havana Harbor, allegedly by a Spanish mine — Guam, Puerto Rico, and The Philippines. As in all colonies, the natives got restless.

Jesús Balzac published a newspaper in Arecibo, Puerto Rico, in which he carried articles highly critical of Governor Arthur Yager, a Princeton classmate of President Woodrow Wilson. Balzac’s conviction on two counts of criminal libel made it all the way to the U.S. Supreme Court without a word in the written opinions about what Balzac said to get himself thrown in jail.

The closest clue offered was in one paragraph blowing past Balzac’s attempt to raise the shield of the First Amendment,

the claim that the alleged libels here did not pass the bounds of legitimate comment on the conduct of the Governor of the Island against whom they were directed, and that their prosecution is a violation of the First Amendment to the Constitution securing free speech and a free press. A reading of the two articles removes the slightest doubt that they go far beyond the “exuberant expressions of meridional speech,” to use the expression of this court in a similar case…. Indeed they are so excessive and outrageous in their character that they suggest the query whether their superlative vilification has not overleapt itself and become unconsciously humorous. But this is not a defence.

I am a bit disappointed that the SCOTUS told us Balzac’s insult was such a “superlative vilification” that it was funny without letting us in on the joke.

However, my purpose here is not to demonstrate the fine art of insulting a colonial governor. I was more interested in the colonial shell game, where principles of law that are lionized in the Mother Country as fundamental to freedom can be disregarded in the colonies, usually with the claim that disregarding what the colonizers regard as essential to liberty is in the best interests of the colonized.

In this case, Jesús Balzac demanded a jury trial, and complained to the SCOTUS that his Sixth Amendment right to trial by jury was being denied when no jury was impaneled. The SCOTUS explained how the denial was in the best interests of Puerto Rico:

The jury system needs citizens trained to the exercise of the responsibilities of jurors. In common-law countries centuries of tradition have prepared a conception of the impartial attitude jurors must assume. The jury system postulates a conscious duty of participation in the machinery of justice which it is hard for people not brought up in fundamentally popular government at once to acquire. One of its greatest benefits is in the security it gives the people that they, as jurors actual or possible, being part of the judicial system of the country can prevent its arbitrary use or abuse. Congress has thought that a people like the Filipinos or the Porto Ricans, trained to a complete judicial system which knows no juries, living in compact and ancient communities, with definitely formed customs and political conceptions, should be permitted themselves to determine how far they wish to adopt this institution of Anglo-Saxon origin, and when.

Note how you can read this touching exposition of the colonial shell game and, if you choose, believe that denying Jesús Balzac a jury trial was in the best interests of Puerto Rico. I suppose that over twenty years of listening to my fellow U.S. citizens whine and cry about having to serve jury duty should incline me to agree that the SCOTUS was doing Puerto Rico a favor.

Or you can read it like an American colonist about ready to throw off the English yoke, and if you read it that way the direct translation is that Jesús Balzac was denied the opportunity to become the John Peter Zenger of Puerto Rico.

Enrolled Cherokee, 9th grade dropout, retired judge, associate professor emeritus, and (so far) cancer survivor. Memoir: Lighting the Fire (Miniver Press 2020)

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