FC: Elcomsoft, William Penn, and John Peter Zenger

[Declan McCullagh <declan () well com>]

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From: "Alex R. Cohen" <arc () thefreestudent com>
To: <declan () well com>
Subject: Elcomsoft, William Penn, and John Peter Zenger
Date: Tue, 17 Dec 2002 17:43:12 -0500

Regarding the possibility of jury nullification in the Elcomsoft case, a 
little history review may be in order: We owe quite a bit of our freedom to 
jury nullification--it isn't just O.J. What follows is an excerpt from a 
paper I wrote recently, for which I am currently seeking publication:


Among the founders of colonies, William Penn was a particular defender of 
Magna Carta, even publishing an edition in Philadelphia and urging his 
colonists to cherish it.[1]  He had good reason to do so--especially with 
regard to Clause 39 [providing for punishment only "by the lawful judgment 
of his peers, or by the law of the land"]:  As a defendant at Old Bailey, 
charged with giving a speech in breach of the peace, Penn had been 
acquitted by a jury that acknowledged he had spoken in the street but 
refused, despite attempts at coercion from the bench, to deem his speech a 
crime.[2]  The jurors were then fined, and in proceedings on habeas corpus, 
Chief Justice Vaughan affirmed the right of jurors to decide according to 
their convictions.[3]  And in 1682, the year after William Penn became 
governor of Pennsylvania, that colony received a Frame of Government 
proclaiming "[t]hat all trials shall be by twelve men, and as near as may 
be, peers or equals, and of the neighborhood, and men without just 
exception."[4]



A case of similar significance to Penn's[5] that took place on this side of 
the Atlantic was the acquittal in 1735 of John Peter Zenger, publisher of 
the New-York Weekly Journal, on a charge of seditious libel.  It was argued 
in that case that the statements published in the Weekly Journal could not 
be libelous because they were true--but, as the judge told the jury,[6] 
truth was no defense to a charge of seditious libel in 1735.[7]  The only 
fact for the jury to decide, as the law was then understood, was whether 
the defendant had published the statements alleged to be libelous; this 
finding was to be rendered by way of a special verdict.[8]  Zenger's 
counsel conceded publication[9] and demanded a general verdict.[10]  The 
acquittal can be understood only as a rejection of the law.[11]


[1] "The 29th Chapter, no free-man shall be taken, &c. Deserves to be 
written in Letters of Gold . . . ." The Excellent Priviledge of Liberty & 
Property Being the Birth-Right of Free-Born Subjects of England 23, quoted 
at Howard, supra note 38, at 90.  Chapter 29 is a later edition of Clauses 
39 and 40.  See supra note 14.

[2] Lloyd E. Moore, The Jury: Tool of Kings, Palladium of Liberty 83 (2d 
ed. 1988).

[3] Bushell's Case, 124 Eng. Rep. 1006 (n.d.).  The Chief Justice, finding 
that the allegation "that the jury did acquit, against the direction of the 
Court, literally taken" was a mere "vail and colour of words, which make a 
shew of being something, and in truth are nothing," because every case 
contains elements of both law and fact, wrote:

If the meaning of these words, finding against the direction of the Court 
in matter of law, be, that if the Judge having heard the evidence, the law 
is for the plaintiff, or for the defendant, and you are under the pain of 
fine and imprisonment to find accordingly, then the jury ought of duty to 
do so; every man sees that the jury is but a troublesome delay, great 
charge, and of no use in determining right and wrong, and therefore the 
tryals by them may be better abolish'd than continued; which were a strange 
new-found conclusion, after a tryal so celebrated for many hundreds of years.

124 Eng. Rep., at 1011.

Vaughan writes in terms of perceptions of fact, and he argues, 124 Eng. 
Rep. at 1012-13, that the jurors may know more about the case than has been 
presented in court, because they are from the place where the facts at 
issue arose.  It is notable, then, that his opinion does not describe the 
events of the Penn and Mead trial, where the jury found defendant Penn 
"Guilty of speaking Grace-Church Street," but refused to include the words 
"unlawful assembly" as the court wished, and where only after its first two 
verdicts were refused did the jury return a full acquittal.  Compare 
Bushell's Case, 124 Eng. Rep., at 106, to Moore, supra note 40, at 84.

[4] Quoted at Moore, supra note 40, at 97.

[5] The Zenger case has been taken to stand not only for trial by jury (as 
did Penn's case and the subsequent trial of his jurors) and freedom of the 
press (which is closely linked to the freedom of speech and assembly at 
issue in the Penn case), but also for the right to counsel of one's own 
choosing.  See Bruce J. Winick, Forfeiture of Attorney's Fees under RICO 
and CCE and the Right to Counsel of Choice: The Constitutional Dilemma and 
How to Avoid It, 43 U. Miami L. Rev. 765, 786 (citing "the most famous 
trial of the colonial period, the trial of John Peter Zenger, which stands 
both as a vindication of the right to retain counsel of choice and an early 
demonstration of the importance of the right").

[6] Politics, the Press, and Law: An Introduction to the Trial of John 
Peter Zenger, in A Brief Narrative of the Case and Tryal of John Peter 
Zenger, Printer of the New York Weekly Journal 5 (Paul Finkelman ed. 1997) 
(1736).

[7] See 4 William Blackstone, Commentaries *150 ("the provocation, and not 
the falsity, is the thing to be punished criminally").

[8] Politics, the Press, and Law: An Introduction to the Trial of John 
Peter Zenger, supra note 44, at 13.

[9] A Brief Narrative of the Case and Tryal of John Peter Zenger, Printer 
of the New York Weekly Journal, supra note 44, at 110.

[10] The judge maintained that it was his right to determine whether the 
statements, if the jury found that Zenger had published them, were 
libelous, but he did not prevent Zenger's counsel from arguing that the 
jury ought to acquit on grounds of truth.  In England at that time, 
criminal defendants' attorneys were not permitted to address the 
jury.  Moore, supra note 40, at 107.

[11] In 1770, a Patriot described Zenger as rejecting seditious libel 
prosecutions.  Politics, the Press, and Law: An Introduction to the Trial 
of John Peter Zenger, supra note 44, at 2.  Yet the law of seditious libel 
remained on the books through Independence and the Constitutional 
Convention.  Id., at 9.



ALEX R. COHEN
Class of 2003
University of Pennsylvania Law School




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