whatsoever of either public or private individuals--by writing,
verse, pictures, or signs--was punishable as a crime. Further,
judges, not juries, determined whether publications were libelous
and then set the punishment--often death. ⁴ Juries had but one
task--to determine the "fact" that the accused did or did not pub-
lish or disseminate the libel.

This law was followed exactly in the first recorded colonial pros-
ecution, that of church elder Roger Williams, who was banished
from the Massachusetts Bay Colony after circulating "letters of
defamation" accusing the General Court there of oppression in
religion. ⁵ From that point on, however, the English common law of
libel was severely bent in the American colonies.

A change came with the first libel trial of a printer, William
Bradford, in 1692. Here Quaker judges in Philadelphia did not
follow the English practice of determining libel. Instead, they al-
lowed a jury to make this determination, and Bradford was acquit-
ted because of indecision. ⁶ Furthermore, his codefendant, Peter
Boss, was allowed to introduce evidence of the truth as justification
for the libel charged against him. ⁷ Four years later in Mas-
sachusetts, the author Thomas Maule, in his plea to the jury,
claimed he wrote only spiritual truths in a Quaker book, and the
jury refused to declare his claimed truths a libel. ⁸ Then, in 1698 in
Virginia, Gerald Slye was sentenced only after he could not prove
the truth of letters he wrote criticizing Gov. Francis Nicholson. ⁹
Another critic of Nicholson, Philip Clark, was found guilty on the
basis of spreading news that was false. ¹⁰ The question of libel again
was turned over to jurors in 1723, in Massachusetts, when John
Checkley was tried for publishing a religious pamphlet. The jury
came in with the following verdict: "If the book is false and scan-
dalous libel, we find him guilty. . . . But if the said Book, containing
a discourse concerning Episcopacy, be not a false and scandalous
libel; then we find him not guilty." ¹¹ These were all cases involving
libel of government, and criminal cases. Yet jurors were determin-
ing fact and law in some cases, and truth was a factor.

Still it was not until the 1735 trial of the publisher John Peter
Zenger that the defense of truth and jury determination of libel
were joined as primary points of consideration in the public's mind.
This was a newspaper case, and it received considerable publicity,
both in the colonies and in England, where it was reported in How-ell's State Trials

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