In fact, the power of jury nullification predates our
Constitution. In November of 1734, a printer named
John Peter Zenger was arrested for seditious libel
against his Majesty's government. At that time, a law of
the Colony of New York forbid any publication without
prior government approval. Freedom of the press was
not enjoyed by the early colonialists! Zenger, however,
defied this censorship and published articles strongly
critical of New York colonial rule.
When brought to trial in August of 1735, Zenger
admitted publishing the offending articles, but argued
that the truth of the facts stated justified their
publication. The judge instructed the jury that truth is
not justification for libel. Rather, truth makes the libel
more vicious, for public unrest is more likely to follow
true, rather than false claims of bad governance. And
since the defendant had admitted to the "fact" of
publication, only a question of "law" remained.
Then, as now, the judge said the "issue of law" was for
the court to determine, and he instructed the jury to find
the defendant guilty. It took only ten minutes for the
jury to disregard the judge's instructions on the law
and find Zenger NOT GUILTY.
