Before James Delancey, Chief Justice of the Province of New York, and
Frederick Philipse, Associate Justice, my trial began on August 4, 1735,
upon an information for printing and publishing two newspapers which
were called libels against our Governor and his administration.
The defendant, John Peter Zenger, being called, appeared.
MR. CHAMBERS, _of counsel for the defense_. I humbly move, Your Honors,
that we may have justice done by the sheriff, and that he may return the
names of the jurors in the same order as they were struck.
MR. CHIEF JUSTICE. How is that? Are they not so returned?
MR. CHAMBERS. No they are not. For some of the names that were last set
down in the panel are now placed first.
MR. CHIEF JUSTICE. Make that out and you shall be righted.
MR. CHAMBERS. I have the copy of the panel in my hand as the jurors were
struck, and if the clerk will produce the original signed by Mr.
Attorney and myself, Your Honor will see that our complaint is just.
MR. CHIEF JUSTICE. Clerk, is it so? Look upon that copy. Is it a true
copy of the panel as it was struck?
CLERK. Yes, I believe it is.
MR. CHIEF JUSTICE. How came the names of the jurors to be misplaced in
the panel?
SHERIFF. I have returned the jurors in the same order in which the clerk
gave them to me.
MR. CHIEF JUSTICE. Let the names of the jurors be ranged in the order
they were struck, agreeable to the copy here in Court.
Which was done accordingly; and the jury, whose names were as follows,
were called and sworn: Thomas Hunt (Foreman), Harmanus Rutgers, Stanly
Holmes, Edward Man, John Bell, Samuel Weaver, Andries Marschalk, Egbert
van Borsom, Benjamin Hildreth, Abraham Keteltas, John Goelet, Hercules
Wendover.
Mr. Attorney General opened the information, which was as follows:
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 or justice; with much more, as will appear
upon reading the information. Libeling 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 judges have always
shown upon such occasions. But I shall say no more at this time, until
you hear the information, which is as follows:
Be it remembered that Richard Bradley, Attorney General of the king for
the Province of New York, who prosecutes for the king in this part, in
his own proper person comes here into the Court of the king, and for the
king gives the Court her to understand and be informed:
That John Peter Zenger, of the City of New York, printer (being a
seditious person; and a frequent printer and publisher of false news and
seditious libels, both wickedly and maliciously devising the
administration of His Excellency William Cosby, Captain General and
Governor in Chief, to traduce, scandalize, and vilify both His
Excellency the Governor and the ministers and officers of the king, and
to bring them into suspicion and the ill opinion of the subjects of the
king residing within the Province), on the twenty-eighth day of January,
in the seventh year of the reign of George the Second, at the City of
New York did falsely, seditiously, and scandalously print and publish,
and cause to be printed and published, a certain false, malicious,
seditious, scandalous libel entitled _The New York Weekly Journal_.
In which libel, among other things therein contained, are these words,
“Your appearance in print at last gives a pleasure to many, although
most wish you had come fairly into the open field, and not appeared
behind entrenchments made of the supposed laws against libeling, and of
what other men had said and done before. These entrenchments, gentlemen,
may soon be shown to you and to all men to be weak, and to have neither
law nor reason for their foundation, and so cannot long stand in your
stead. Therefore you had much better as yet leave them, and come to what
the people of this City and Province (_the City and Province of New York
meaning_) think are the points in question. They (_the people of the
City and Province of New York meaning_) think, as matters now stand,
that their liberties and properties are precarious, and that slavery is
like to be entailed on them and their posterity if some past things be
not amended, and this they collect from many past proceedings.”
(_Meaning many of the past proceedings of His Excellency, the Governor,
and of the ministers and officers of the king, of and for the said
Province._)
And the Attorney General likewise gives the Court here to understand and
be informed:
That the said John Peter Zenger afterwards, to wit on the eighth day of
April, did falsely, seditiously and scandalously print and publish
another false, malicious, seditious, and scandalous libel entitled _The
New York Weekly Journal_.
In which libel, among other things therein contained, are these words,
“One of our neighbors (_one of the inhabitants of New Jersey meaning_)
being in company and observing the strangers (_some of the inhabitants
of New York meaning_) full of complaints, endeavored to persuade them to
remove into Jersey. To which it was replied, that would be leaping out
of the frying pan into the fire; for, says he, we both are under the
same Governor (_His Excellency the said Governor meaning_), and your
Assembly have shown with a vengeance what is to be expected from them.
One that was then moving to Pennsylvania (_meaning one that was then
removing from New York with intent to reside at Pennsylvania_), to which
place it is reported that several considerable men are removing (_from
New York meaning_), expressed in terms very moving much concern for the
circumstances of New York (_the bad circumstances of the Province and
people of New York meaning_), and seemed to think them very much owing
to the influence that some men (whom he called tools) had in the
administration (_meaning the administration of government of the said
Province of New York_). He said he was now going from them, and was not
to be hurt by any measures they should take, but could not help having
some concern for the welfare of his countrymen, and should be glad to
hear that the Assembly (_meaning the General Assembly of the Province of
New York_) would exert themselves as became them by showing that they
have the interest of their country more at heart than the gratification
of any private view of any of their members, or being at all affected by
the smiles or frowns of a governor (_His Excellency the said Governor
meaning_); both of which ought equally to be despised when the interest
of their country is at stake.
“You, says he, complain of the lawyers, but I think the law itself is at
an end. We (_the people of the Province of New York meaning_) see men’s
deeds destroyed, judges arbitrarily displaced, new courts erected
without consent of the legislature (_within the Province of New York
meaning_) by which it seems to me trial by jury is taken away when a
governor pleases (_His Excellency the said Governor meaning_), and men
of known estates denied their votes contrary to the received practice,
the best expositor of any law. Who is there then in that Province
(_meaning the Province of New York_) that can call anything his own, or
enjoy any liberty, longer than those in the administration (_meaning the
administration of government of the said Province of New York_) will
condescend to let them do it? For which reason I have left it, as I
believe more will.”
These words are to the great disturbance of the peace of the said
Province of New York, to the great scandal of the king, of His
Excellency the Governor, and of all others concerned in the
administration of the government of the Province, and against the peace
of the king, his crown, and his dignity.
Whereupon the said Attorney General of the king prays the advisement of
the Court here, in the premises, and the due process of law against the
said John Peter Zenger.
To this information the defendant has pleaded “Not guilty,” but we are
ready to prove it.
Mr. Chambers has not been pleased to favor me with his notes, so I
cannot, for fear of doing him an injustice, pretend to set down his
argument. But here Mr. Chambers set forth very clearly the nature of a
libel, the great allowances that ought to be made for what men speak or
write, that in all libels there must be some particular persons so
clearly pointed out that no doubt must remain about who is meant, that
he was in hopes Mr. Attorney would fail in his proof as to this point.
And therefore desired that he would go on to examine his witnesses.
Then Mr. Hamilton, who at the request of some of my friends was so kind
as to come from Philadelphia to assist me at the trial, spoke.
MR. HAMILTON. 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.
Although I am perfectly of the opinion with the gentleman who has just
now spoken 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.
Therefore I shall save Mr. Attorney the trouble of examining his
witnesses to that point. I do (for my client) confess that he both
printed and published the two newspapers set forth in the
information—and I hope that 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.
MR. HAMILTON. If you brought them here only to prove the printing and
publishing of these newspapers, we have acknowledged that, and shall
abide by it.
Here my journeyman and two sons (with several others subpoenaed by Mr.
Attorney to give evidence against me) were discharged, and there was
silence in the Court for some time.
MR. CHIEF JUSTICE. Well, Mr. Attorney, will you proceed?
MR. ATTORNEY. Indeed, Sir, as Mr. Hamilton has confessed the printing
and publishing of 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.
As Mr. Attorney has not been pleased to favor us with his argument,
which he read, or with the notes of it, we cannot take upon us to set
down his words, but only to show the book cases he cited and the general
scope of the argument which he drew from those authorities.
He observed upon the excellency as well as the use of government, and
the great regard and reverence which had been constantly paid to it,
under both the law and the Gospels. That by government we were protected
in our lives, religion, and properties; and for these reasons great care
had always been taken to prevent everything that might tend to
scandalize magistrates and others concerned in the administration of the
government, especially the supreme magistrate. And that there were many
instances of very severe judgments, and of punishments, inflicted upon
such as had attempted to bring the government into contempt by
publishing false and scurrilous libels against it, or by speaking evil
and scandalous words of men in authority, to the great disturbance of
the public peace. And to support this he cited various legal texts.
From these books he insisted that a libel was a malicious defamation of
any person, expressed either in printing or writing, signs or pictures,
to asperse the reputation of one that is alive, or the memory of one
that is dead. If he is a private man, the libeler deserves a severe
punishment, but if it is against a magistrate or other public person, it
is a greater offense. For this concerns not only the breach of the peace
but the scandal of the government. What greater scandal of government
can there be than to have corrupt or wicked magistrates appointed by the
king to govern his subjects? A greater imputation to the state there
cannot be than to suffer such corrupt men to sit in the sacred seat of
justice, or to have any meddling in or concerning the administration of
justice.
From the same books Mr. Attorney insisted that whether the person
defamed is a private man or a magistrate, whether living or dead,
whether the libel is true or false, or if the party against whom it is
made is of good or evil fame, it is nevertheless a libel. For in a
settled state of government the party grieved ought to complain, for
every injury done him, in the ordinary course of the law. And as to its
publication, the law had taken so great care of men’s reputations that
if one maliciously repeats it, or sings it in the presence of another,
or delivers the libel or a copy of it over to scandalize the party, he
is to be punished as a publisher of a libel.
He said it was likewise evident that libeling was an offense against the
law of God. Acts 23:5: Then said Paul, “I wist not, brethren, that he
was the high priest; for it is written Thou shalt not speak evil of the
ruler of thy people.” II Peter 2:10: Despise government. Presumptuous
are they, selfwilled, they are not afraid to speak evil of dignities.
He then insisted that it was clear, by the laws of God and man, that it
was a very great offense to speak evil of, or to revile, those in
authority over us. And that Mr. Zenger had offended in a most notorious
and gross manner, in scandalizing His Excellency our governor, who is
the king’s immediate representative and the supreme magistrate of this
Province. For can there be anything more scandalous said of a governor
than what is published in those papers? Nay, not only the Governor but
both the Council and the Assembly are scandalized. For there it is
plainly said that “as matters now stand, their liberties and properties
are precarious, and that slavery is like to be entailed on them and
their posterity.” And then again Mr. Zenger says, “The Assembly ought to
despise the smiles or frowns of a governor; that he thinks the law is at
an end; that we see men’s deeds destroyed, judges arbitrarily displaced,
new courts erected without consent of the legislature; that it seems
that trials by jury are taken away when a governor pleases; and that
none can call anything his own longer than those in the administration
will condescend to let him do it.”
Mr. Attorney added that he did not know what could be said in defense of
a man that had so notoriously scandalized the Governor and the principal
magistrates and officers of the government by charging them with
depriving the people of their rights and liberties, taking away trial by
jury, and, in short, putting an end to the law itself. If this was not a
libel, he said, he did not know what was one. Such persons as will take
those liberties with governors and magistrates he thought ought to
suffer for stirring up sedition and discontent among the people.
He concluded by saying that the government had been very much traduced
and exposed by Mr. Zenger before he was taken notice of; that at last it
was the opinion of the Governor and the Council that he ought not to be
suffered to go on to disturb the peace of the government by publishing
such libels against the Governor and the chief persons in the
government; and therefore they had directed this prosecution to put a
stop to this scandalous and wicked practice of libeling and defaming His
Majesty’s government and disturbing His Majesty’s peace.
Mr. Chambers then summed up to the jury, observing with great strength
of reason on Mr. Attorney’s defect of proof that the papers in the
information were false, malicious, or seditious, which it was incumbent
on him to prove to the jury, and without which they could not on their
oaths say that they were so as charged.
MR. HAMILTON. May it please Your Honor, I agree with Mr. Attorney that
government is a sacred thing, but I differ widely from him when he would
insinuate that the just complaints of a number of men who suffer under a
bad administration is libeling that administration. Had I believed that
to be law, I should not have given the Court the trouble of hearing
anything that I could say in this cause.
I own that when I read the information I had not the art to find out
(without the help of Mr. Attorney’s _innuendos_) that the Governor was
the person meant in every period of that newspaper. I was inclined to
believe that they were written by some who (from an extraordinary zeal
for liberty) had misconstrued the conduct of some persons in authority
into crimes; and that Mr. Attorney (out of his too great zeal for power)
had exhibited this information to correct the indiscretion of my client,
and at the same time to show his superiors the great concern he had lest
they should be treated with any undue freedom.
But from what Mr. Attorney has just now said, to wit, that this
prosecution was directed by the Governor and the Council, and from the
extraordinary appearance of people of all conditions, which I observe in
Court upon this occasion, I have reason to think that those in the
administration have by this prosecution something more in view, and that
the people believe they have a good deal more at stake, than I
apprehended. Therefore, as it is become my duty to be both plain and
particular in this cause, I beg leave to bespeak the patience of the
Court.
I was in hopes—as that terrible Court where those dreadful judgments
were given, and that law established, which Mr. Attorney has produced
for authorities to support this cause, was long ago laid aside as the
most dangerous Court to the liberties of the people of England that ever
was known in that kingdom—that Mr. Attorney, knowing this, would not
have attempted to set up a star chamber here, nor to make their
judgments a precedent to us. For it is well known that what would have
been judged treason in those days for a man to speak, has since not only
been practiced as lawful, but the contrary doctrine has been held to be
law.
In Brewster’s case,[4] for printing that subjects might defend their
rights and liberties by arms in case the king should go about to destroy
them, he was told by the Chief Justice that it was a great mercy he was
not proceeded against for his life; for to say the king could be
resisted by arms in any case whatsoever was express treason. And yet we
see since that time that Doctor Sacheverell was sentenced in the highest
court in Great Britain for saying that such a resistance was not lawful.
Besides, as times have made very great changes in the laws of England,
so in my opinion there is good reason that places should do so too.
Is it not surprising to see a subject, upon receiving a commission from
the king to be a governor of a Colony in America, immediately imagining
himself to be vested with all the prerogatives belonging to the sacred
person of his prince? And, which is yet more astonishing, to see that a
people can be so wild as to allow of and acknowledge those prerogatives
and exemptions, even to their own destruction? Is it so hard a matter to
distinguish between the majesty of our sovereign and the power of a
governor of The Plantations? Is not this making very free with our
prince, to apply that regard, obedience, and allegiance to a subject,
which is due only to our sovereign?
And yet in all the cases which Mr. Attorney has cited to show the duty
and obedience we owe to the supreme magistrate, it is the king that is
there meant and understood, although Mr. Attorney is pleased to urge
them as authorities to prove the heinousness of Mr. Zenger’s offense
against the Governor of New York. The several Plantations are compared
to so many large corporations, and perhaps not improperly. Can anyone
give an instance that the head of a corporation ever put in a claim to
the sacred rights of majesty? Let us not (while we are pretending to pay
a great regard to our prince and his peace) make bold to transfer that
allegiance to a subject which we owe to our king only.
What strange doctrine is it to press everything for law here which is so
in England? I believe we should not think it a favor, at present at
least, to establish this practice. In England so great a regard and
reverence is had to the judges that if any man strikes another in
Westminster Hall while the judges are sitting, he shall lose his right
hand and forfeit his land and goods for so doing. Although the judges
here claim all the powers and authorities within this government that a
Court of King’s Bench has in England, yet I believe Mr. Attorney will
scarcely say that such a punishment could be legally inflicted on a man
for committing such an offense in the presence of the judges sitting in
any court within the Province of New York. The reason is obvious. A
quarrel or riot in New York cannot possibly be attended with those
dangerous consequences that it might in Westminster Hall; nor (I hope)
will it be alleged that any misbehavior to a governor in The Plantations
will, or ought to be, judged of or punished as a like undutifulness
would be to our sovereign.
From all of which, I hope Mr. Attorney will not think it proper to apply
his law cases (to support the cause of his governor) which have only
been judged where the king’s safety or honor was concerned.
It will not be denied that a freeholder in the Province of New York has
as good a right to the sole and separate use of his lands as a
freeholder in England, who has a right to bring an action of trespass
against his neighbor for suffering his horse or cow to come and feed
upon his land or eat his corn, whether enclosed or not. Yet I believe it
would be looked upon as a strange attempt for one man here to bring an
action against another whose cattle and horses feed upon his grounds
that are not enclosed, or indeed for eating and treading down his corn,
if that were not enclosed.
Numberless are the instances of this kind that might be given to show
that what is good law at one time and in one place is not so at another
time and in another place. So that I think the law seems to expect that
in these parts of the world men should take care, by a good fence, to
preserve their property from the injury of unruly beasts. And perhaps
there may be a good reason why men should take the same care to make an
honest and upright conduct a fence and security against the injury of
unruly tongues.
MR. ATTORNEY. I don’t know what the gentleman means by comparing cases
of freeholders in England with freeholders here. What has this case to
do with actions of trespass or men’s fencing their ground? 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.” If such papers are not libels, I
think it may be said that there can be no such thing as a libel.
MR. HAMILTON. May it please Your Honor, I cannot agree with Mr.
Attorney. For although 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 that I did not omit the word “false.” But it has
been said already that it may be a libel notwithstanding that it may be
true.
MR. HAMILTON. In this I must still differ with Mr. Attorney. For I
depend upon it that we are to be tried upon this information now before
the Court and the jury, and to which we have pleaded “Not guilty.” 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 the opinion that his information
would not be good without it.
But to show that it is the principal thing which, in my opinion, makes a
libel, suppose that 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 shall 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 were necessary (as I insist it is not), how
can we prove a negative? 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. Chief Justice Holt,[5] in his
charge to the jury in the case of Tutchin,[6] 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 that, 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. For if a
man is charged with killing another, or stealing his neighbor’s horse,
if he is innocent in the one case he may prove the man said to be killed
to be really alive, and the horse said to be stolen never to have been
out of his master’s stable, etc. And this, I think, is proving a
negative.
But we will save Mr. Attorney the trouble of proving a negative, take
the _onus probandi_ on 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_.
MR. HAMILTON. I am sorry the Court has so soon resolved upon that piece
of law. I expected first to have been heard to that point. I have not,
in all my reading, met with an authority that says we cannot be admitted
to give the truth in evidence upon an information for libel.
MR. CHIEF JUSTICE. The law is clear that you cannot justify a libel.
MR. HAMILTON. I own that, may it please Your Honor, to be so. But, with
submission, I understand the word “justify” there to be a justification
by plea, as it is in the case upon an indictment for murder or an
assault and battery. There the prisoner cannot justify, but pleads “Not
guilty.” Yet it will not be denied but he may be, and always is,
admitted to give the truth of the fact, or any other matter, in
evidence, which goes to his acquittal. As in murder he may prove that it
was in defense of his life, his house, etc.; and in assault and battery
he may give in evidence that the other party struck first; and in both
cases he will be acquitted. In this sense I understand the word
“justify” when applied to the case before the Court.
MR. CHIEF JUSTICE. I pray, show that you can give the truth of a libel
in evidence.
[_Here there was a discussion of the point, and Hamilton produced
precedents from English law to prove that in the past men accused of
libel had been allowed to defend themselves on the ground of the truth
of what they wrote._]
MR. HAMILTON. How shall it be known whether the words are libelous, that
is, _true_ or _false_, but by admitting us to prove them _true_, since
Mr. Attorney will not undertake to prove them _false_? Besides, is it
not against common sense that a man should be punished in the same
degree for a true libel (if any such thing could be) as for a false one?
I know it is said that truth makes a libel the more provoking, and
therefore the offense is greater, and consequently the judgment should
be the heavier. Well, suppose it were so, and let us agree for once that
_truth is a greater sin than falsehood_. Yet, as the offenses are not
equal, and as the punishment is arbitrary, that is, according as the
judges in their discretion shall direct to be inflicted, is it not
absolutely necessary that they should know whether the libel is true or
false, that they may by that means be able to proportion the punishment?
For would it not be a sad case if the judges, for want of a due
information, should chance to give as severe a judgment against a man
for writing or publishing a lie, as for writing or publishing a truth?
And yet this, with submission, as monstrous and ridiculous as it may
seem to be, is the natural consequence of Mr. Attorney’s doctrine that
_truth makes a worse libel than falsehood_, and must follow from his not
proving our papers to be _false_, or not suffering us to prove them to
be _true_.
In the case of Tutchin, which seems to be Mr. Attorney’s chief
authority, that case is against him; for Tutchin was, at his trial, put
upon showing the truth of his papers; but he did not. At least the
prisoner was asked by the king’s counsel whether he would say that they
were _true_. And as he never pretended that they were true, the Chief
Justice was not to say so.
But the point will be clearer on our side from Fuller’s case.[7] Here
you see is a scandalous and infamous charge against the late king; here
is a charge no less than high treason, against the men in public trust,
for receiving money of the French king, then in actual war with the
crown of Great Britain; and yet the Court were far from bearing him down
with that star chamber doctrine, to wit, that it was no matter whether
what he said was true or false. No, on the contrary, Lord Chief Justice
Holt asks Fuller, “Can you make it appear that they are true? Have you
any witnesses? You might have had subpoenas for your witnesses against
this day. If you take it upon you to write such things as you are
charged with, it lies upon you to prove them true, at your peril. If you
have any witnesses, I will hear them. How came you to write those books
which are not true? If you have any witnesses, produce them. If you can
offer any matter to prove what you wrote, let us hear it.” Thus said,
and thus did, that great man, Lord Chief Justice Holt, upon a trial of
the like kind with ours; and the rule laid down by him in this case is
_that he who will take upon him to write things, it lies upon him to
prove them, at his peril_. Now, sir, we have acknowledged the printing
and publishing of those papers set forth in the information, and (with
the leave of the Court) agreeable to the rule laid down by Chief Justice
Holt, we are ready to prove them to be true, at our peril.
MR. CHIEF JUSTICE. Let me see the book.
Here the Court had the case under consideration a considerable time, and
everyone was silent.
MR. CHIEF JUSTICE. Mr. Attorney, you have heard what Mr. Hamilton has
said, and the cases he has cited, for having his witnesses examined to
prove the truth of the several facts contained in the papers set forth
in the information. What do you say to it?
MR. ATTORNEY. The law, in my opinion, is very clear. They cannot be
admitted to justify a libel, for by the authorities I have already read
to the Court it is not the less a libel because it is true. I think I
need not trouble the Court over again. The thing seems to be very plain,
and I submit it to the Court.
MR. CHIEF JUSTICE. Mr. Hamilton, the Court is of the opinion that you
ought not to be permitted to prove the facts in the papers. These are
the words of the book, “It is far from being a justification of a libel
that the contents thereof are true, or that the person upon whom it is
made had a bad reputation, since the greater appearance there is of
truth in any malicious invective, so much the more provoking it is.”
MR. HAMILTON. These are star chamber cases, and I was in hopes that that
practice had been dead with the court.
MR. CHIEF JUSTICE. Mr. Hamilton, the Court have delivered their opinion,
and we expect that you will use us with good manners. You are not to be
permitted to argue against the opinion of the Court.
MR. HAMILTON. With submission, I have seen the practice in very great
courts, and never heard it deemed unmannerly to—
MR. CHIEF JUSTICE. After the Court have declared their opinion, it is
not good manners to insist upon a point in which you are overruled.
MR. HAMILTON. I will say no more at this time. The Court, I see, is
against us in this point—and that I hope I may be allowed to say.
MR. CHIEF JUSTICE. Use the Court with good manners and you shall be
allowed all the liberty you can reasonably desire.
MR. HAMILTON. I thank Your Honor. Then, Gentlemen of the Jury, it is to
you that we must now appeal for witnesses to the truth of the facts we
have offered, and are denied the liberty to prove. Let it not seem
strange that I apply myself to you in this manner. I am warranted by
both law and reason.
The law supposes you to be summoned out of the neighborhood where the
fact is alleged to be committed; and the reason of your being taken out
of the neighborhood is because you are supposed to have the best
knowledge of the fact that is to be tried. Were you to find a verdict
against my client, you must take it upon you to say that the papers
referred to in the information, and which we acknowledge we printed and
published, are _false, scandalous, and seditious_.
But of this I can have no apprehension. You are citizens of New York.
You are really what the law supposes you to be, honest and lawful men;
and according to my brief, the facts which we offer to prove were not
committed in a corner. They are notoriously known to be true. Therefore
in your justice lies our safety. And as we are denied the liberty of
giving evidence to prove the truth of what we have published, I will beg
leave to lay it down as a standing rule in such cases that the
suppressing of evidence ought always to be taken for the strongest
evidence; and I hope it will have that weight with you.
But since we are not admitted to examine our witnesses, I will endeavor
to shorten the dispute with Mr. Attorney, and to that end I desire he
would favor us with some standard definition of a libel by which it may
be certainly known whether a writing be a libel, yes or no.
MR. ATTORNEY. The books, I think, have given a very full definition of
libel.
MR. HAMILTON. Ay, Mr. Attorney, but what standard rule have the books
laid down by which we can certainly know whether the words or signs are
malicious? Whether they are defamatory? Whether they tend to the breach
of the peace, and are a sufficient ground to provoke a man, his family,
or his friends to acts of revenge: especially the ironical sort of
words? What rule have you to know when I write ironically? I think it
would be hard when I say, “Such a man is a very worthy honest gentleman,
and of fine understanding,” that therefore I mean, “He is a knave or a
fool.”
MR. ATTORNEY. I think the books are very full. It is said in Hawkins
just now read, “Such scandal as is expressed in a scoffing and ironical
manner makes a writing as properly a libel as that which is expressed in
direct terms.” I think nothing can be plainer or more full than these
words.
MR. HAMILTON. I agree the words are very plain, and I shall not scruple
to allow (when we are agreed that the words are false and scandalous,
and were spoken in an ironical and scoffing manner) that they are really
libelous. But here still occurs the uncertainty which makes the
difficulty to know what words are scandalous, and what are not. For you
say that they may be scandalous, whether true or false.
Besides, how shall we know whether the words were spoken in a scoffing
and ironical manner, or seriously? Or how can you know whether the man
did not think as he wrote? For by your rule, if he did, it is no irony,
and consequently no libel.
But under favor, Mr. Attorney, I think the same book, and under the same
section, will show us the only rule by which all these things are to be
known. The words are these, “which kind of writing is as well
_understood_ to mean only to upbraid the parties with the want of these
qualities as if they had directly and expressly done so.” Here it is
plain that the words are scandalous, scoffing, and ironical only as they
are _understood_. I know no rule laid down in the books but this, I
mean, as the words are _understood_.
MR. CHIEF JUSTICE. Mr. Hamilton, do you think it so hard to know when
words are ironical or spoken in a scoffing manner?
MR. HAMILTON. I own it may be known. But I insist that the only rule by
which to know is—as I do or can _understand_ them. I have no other rule
to go by but as I _understand_ them.
MR. CHIEF JUSTICE. That is certain. All words are libelous or not as
they are _understood_. Those who are to judge of the words must judge
whether they are scandalous, or ironical, or tend to the breach of the
peace, or are seditious. There can be no doubt of it.
MR. HAMILTON. I thank Your Honor. I am glad to find the Court of this
opinion. Then it follows that these twelve men must _understand_ the
words in the information to be scandalous—that is to say, false. For I
think it is not pretended they are of the _ironical_ sort. And when they
_understand_ the words to be so, they will say that we are guilty of
publishing a _false libel_, and not otherwise.
MR. CHIEF JUSTICE. No, Mr. Hamilton, the jury may find that Zenger
printed and published those papers, and leave it to the Court to judge
whether they are libelous. You know this is very common. It is in the
nature of a special verdict, where the jury leave the matter of the law
to the court.
MR. HAMILTON. I know, may it please Your Honor, the jury may do so. But
I do likewise know that they may do otherwise. I know that they have the
right beyond all dispute to determine both the law and the fact; and
where they do not doubt of the law, they ought to do so. Leaving it to
judgment of the court whether the words are libelous or not in effect
renders juries useless (to say no worse) in many cases. But this I shall
have occasion to speak to by and by.
Although I own it to be base and unworthy to scandalize any man, yet I
think it is even more villainous to scandalize a person of public
character. I will go so far into Mr. Attorney’s doctrine as to agree
that if the faults, mistakes, nay even the vices of such a person be
private and personal, and do not affect the peace of the public, or the
liberty or property of our neighbor, it is unmanly and unmannerly to
expose them either by word or writing. But when a ruler of a people
brings his personal failings, but much more his vices, into his
administration, and the people find themselves affected by them either
in their liberties or properties, that will alter the case mightily; and
all the things that are said in favor of rulers and of dignitaries, and
upon the side of power, will not be able to stop people’s mouths when
they feel themselves oppressed. I mean, in a free government.
MR. ATTORNEY. Pray, Mr. Hamilton, have a care what you say, don’t go too
far. I don’t like those liberties.
MR. HAMILTON. Surely, Mr. Attorney, you won’t make any applications. All
men agree that we are governed by the best of kings, and I cannot see
the meaning of Mr. Attorney’s caution. My well-known principles, and the
sense I have of the blessings we enjoy under His Majesty, make it
impossible for me to err, and I hope even to be suspected, in that point
of duty to my king.
May it please Your Honor, I was saying that notwithstanding all the duty
and reverence claimed by Mr. Attorney to men in authority, they are not
exempt from observing the rules of common justice either in their
private or public capacities. The laws of our mother country know no
exemptions. It is true that men in power are harder to be come at for
wrongs they do either to a private person or to the public, especially a
governor in The Plantations, where they insist upon an exemption from
answering complaints of any kind in their own government. We are indeed
told, and it is true, that they are obliged to answer a suit in the
king’s courts at Westminster for a wrong done to any person here. But do
we not know how impracticable this is to most men among us, to leave
their families (who depend upon their labor and care for their
livelihood) and carry evidence to Britain, and at a great, nay, a far
greater expense than almost any of us are able to bear, only to
prosecute a governor for an injury done here?
But when the oppression is general, there is no remedy even that way.
No, our Constitution has (blessed be God) given us an opportunity, if
not to have such wrongs redressed, yet by our prudence and resolution we
may in a great measure prevent the committing of such wrongs by making a
governor sensible that it is in his interest to be just to those under
his care. For such is the sense that men in general (I mean free men)
have of common justice, that when they come to know that a chief
magistrate abuses the power with which he is trusted for the good of the
people, and is attempting to turn that very power against the innocent,
whether of high or low degree, I say that mankind in general seldom fail
to interpose, and, as far as they can, prevent the destruction of their
fellow subjects.
And has it not often been seen (I hope it will always be seen) that when
the representatives of a free people are by just representations or
remonstrances made sensible of the sufferings of their fellow subjects,
by the abuse of power in the hands of a governor, that they have
declared (and loudly too) that they were not obliged by any law to
support a governor who goes about to destroy a Province or Colony, or
their privileges, which by His Majesty he was appointed, and by the law
he is bound, to protect and encourage? But I pray that it may be
considered—of what use is this mighty privilege if every man that
suffers is silent? And if a man must be taken up as a libeler for
telling his sufferings to his neighbor?
I know that it may be answered, “Have you not a legislature? Have you
not a House of Representatives to whom you may complain?” To this I
answer, we have. But what then? Is an Assembly to be troubled with every
injury done by a governor? Or are they to hear of nothing but what those
in the administration will please to tell them? And what sort of trial
must a man have? How is he to be remedied, especially if the case were,
as I have known to happen in America in my time, that a governor who has
places (I will not say pensions, for I believe they seldom give that to
another which they can take to themselves) to bestow can keep the same
Assembly (after he has modeled them so as to get a majority of the House
in his interest) for near twice seven years together? I pray, what
redress is to be expected for an honest man who makes his complaint
against a governor to an Assembly who may properly enough be said to be
made by the same governor against whom the complaint is made? The thing
answers itself.
No, it is natural, it is a privilege, I will go farther, it is a right,
which all free men claim, that they are entitled to complain when they
are hurt. They have a right publicly to remonstrate against the abuses
of power in the strongest terms, to put their neighbors upon their guard
against the craft or open violence of men in authority, and to assert
with courage the sense they have of the blessings of liberty, the value
they put upon it, and their resolution at all hazards to preserve it as
one of the greatest blessings heaven can bestow.
When a House of Assembly composed of honest freemen sees the general
bent of the people’s inclination, that is it which must and will (I am
sure it ought to) weigh with a legislature in spite of all the craft,
caressing, and cajoling made use of by a governor to divert them from
harkening to the voice of their country. As we all very well understand
the true reason why gentlemen take so much pains and make such great
interest to be appointed governors, so is the design of their
appointment not less manifest. We know His Majesty’s gracious intentions
toward his subjects. He desires no more than that his people in The
Plantations should be kept up to their duty and allegiance to the crown
of Great Britain, that peace may be preserved among them, and justice
impartially administered; so that we may be governed so as to render us
useful to our mother country by encouraging us to make and raise such
commodities as may be useful to Great Britain.
But will anyone say that all or any of these good ends are to be
effected by a governor’s setting his people together by the ears, and by
the assistance of one part of the people to plague and plunder the
other? The commission that governors bear while they execute the powers
given them according to the intent of the royal grantor requires and
deserves very great reverence and submission. But when a governor
departs from the duty enjoined on him by his sovereign, and acts as if
he were less accountable than the royal hand that gave him all that
power and honor that he is possessed of, this sets people upon examining
and inquiring into the power, authority, and duty of such a magistrate,
and to comparing those with his conduct. And just as far as they find he
exceeds the bounds of his authority, or falls short in doing impartial
justice to the people under his administration, so far they very often,
in return, come short in their duty to such a governor.
For power alone will not make a man beloved, and I have heard it
observed that the man who was neither good nor wise before his being
made a governor never mended upon his preferment, but has been generally
observed to be worse. For men who are not indued with wisdom and virtue
can only be kept in bounds by the law; and by how much the further they
think themselves out of the reach of the law, by so much the more wicked
and cruel men are. I wish there were no instances of the kind at this
day.
Wherever this happens to be the case of a governor, unhappy are the
people under his administration, and in the end he will find himself so
too, for the people will neither love him nor support him.
I make no doubt but there are those here who are zealously concerned for
the success of this prosecution, and yet I hope they are not many; and
even some of those, I am persuaded (when they consider to what lengths
such prosecutions may be carried, and how deeply the liberties of the
people may be affected by such means) will not all abide by their
present sentiments. I say “not all,” for the man who from an intimacy
and acquaintance with a governor has conceived a personal regard for
him, the man who has felt none of the strokes of his power, the man who
believes that a governor has a regard for him and confides in him—it is
natural for such men to wish well to the affairs of such a governor. And
as they may be men of honor and generosity, may, and no doubt will, wish
him success so far as the rights and privileges of their fellow citizens
are not affected. But as men of honor I can apprehend nothing from them.
They will never exceed that point.
There are others that are under stronger obligations, and those are such
as are in some sort engaged in support of the governor’s cause by their
own or their relations’ dependence on his favor for some post or
preferment. Such men have what is commonly called duty and gratitude to
influence their inclinations and oblige them to go his lengths. I know
men’s interests are very near to them, and they will do much rather than
forgo the favor of a governor and a livelihood at the same time. But I
can with very just grounds hope, even from those men (whom I will
suppose to be men of honor and conscience too), that when they see the
liberty of their country in danger, either by their concurrence or even
by their silence, they will like Englishmen, and like themselves, freely
make a sacrifice of any preferment or favor rather than be accessory to
destroying the liberties of their country and entailing slavery upon
their posterity.
There are indeed another set of men, of whom I have no hopes. I mean
such who lay aside all other considerations and are ready to join with
power in any shape, and with any man or sort of men by whose means or
interest they may be assisted to gratify their malice and envy against
those whom they have been pleased to hate; and that for no other reason
than because they are men of ability and integrity, or at least are
possessed of some valuable qualities far superior to their own. But as
envy is the sin of the Devil, and therefore very hard (if at all) to be
repented of, I will believe there are but few of this detestable and
worthless sort of men, nor will their opinions or inclinations have any
influence upon this trial.
But to proceed. I beg leave to insist that the right of complaining or
remonstrating is natural; that the restraint upon this natural right is
the law only; and that those restraints can only extend to what is
_false_. For as it is truth alone that can excuse or justify any man for
complaining of a bad administration, I as frankly agree that nothing
ought to excuse a man who raises a false charge or accusation even
against a private person, and that no manner of allowance ought to be
made to him who does so against a public magistrate.
_Truth_ ought to govern the whole affair of libels. And yet the party
accused runs risk enough even then; for if he fails in proving every
tittle of what he has written, and to the satisfaction of the court and
jury too, he may find to his cost that when the prosecution is set on
foot by men in power it seldom wants friends to favor it.
From thence (it is said) has arisen the great diversity of opinions
among judges about what words were or were not scandalous or libelous. I
believe it will be granted that there is not greater uncertainty in any
part of the law than about words of scandal. It would be misspending of
the Court’s time to mention the cases. They may be said to be
numberless. Therefore the utmost care ought to be taken in following
precedents; and the times when the judgments were given, which are
quoted for authorities in the case of libels, are much to be regarded.
I think it will be agreed that ever since the time of the Star Chamber,
where the most arbitrary judgments and opinions were given that ever an
Englishman heard of, at least in his own country; I say, prosecutions
for libel since the time of that arbitrary Court, and until the Glorious
Revolution, have generally been set on foot at the instance of the crown
or its ministers. And it is no small reproach to the law that these
prosecutions were too often and too much countenanced by the judges, who
held their places “at pleasure” (a disagreeable tenure to any officer,
but a dangerous one in the case of a judge). Yet I cannot think it
unwarrantable to show the unhappy influence that a sovereign has
sometimes had, not only upon judges, but even upon parliaments
themselves.
It has already been shown how the judges differed in their opinions
about the nature of a libel in the case of the Seven Bishops.[8] There
you see three judges of one opinion, that is, of a wrong opinion (in the
judgment of the best men in England), and one judge of a right opinion.
How unhappy might it have been for all of us at this day if that jury
had understood the words in that information as the Court did? Or if
they had left it to the Court to judge whether the petition of the
Bishops was or was not a libel? No, they took upon them (to their
immortal honor!) to determine both _law_ and _fact_, and to _understand_
the petition of the Bishops to be _no libel_, that is, to contain no
falsehood or sedition; and therefore found them not guilty.
If then upon the whole there is so great an uncertainty among judges
(learned and great men) in matters of this kind, if power has had so
great an influence on judges, how cautious ought we to be in determining
by their judgments, especially in The Plantations, and in the case of
libels?
There is heresy in law as well as in religion, and both have changed
very much. We well know that it is not two centuries ago that a man
would have been burned as a heretic for owning such opinions in matters
of religion as are publicly written and printed at this day. They were
fallible men, it seems, and we take the liberty not only to differ from
them in religious opinions, but to condemn them and their opinions too.
I must presume that in taking these freedoms in thinking and speaking
about matters of faith or religion, we are in the right; for although it
is said that there are very great liberties of this kind taken in New
York, yet I have heard of no information preferred by Mr. Attorney for
any offenses of this sort. From which I think it is pretty clear that in
New York a man may make very free with his God, but he must take a
special care what he says of his governor.
It is agreed upon by all men that this is a reign of liberty. While men
keep within the bounds of truth I hope they may with safety both speak
and write their sentiments of the conduct of men in power—I mean of that
part of their conduct only which affects the liberty or property of the
people under their administration. Were this to be denied, then the next
step may make them slaves; for what notions can be entertained of
slavery beyond that of suffering the greatest injuries and oppressions
without the liberty of complaining, or if they do, to be destroyed, body
and estate, for so doing?
It is said and insisted on by Mr. Attorney that government is a sacred
thing; that it is to be supported and reverenced; that it is government
that protects our persons and estates, prevents treasons, murders,
robberies, riots, and all the train of evils that overturns kingdoms and
states and ruins particular persons. And if those in the administration,
especially the supreme magistrate, must have all their conduct censured
by private men, government cannot subsist. This is called a
licentiousness not to be tolerated. It is said that it brings the rulers
of the people into contempt, and their authority not to be regarded, and
so in the end the laws cannot be put into execution.
These, I say, and such as these, are the general topics insisted upon by
men in power and their advocates. But I wish it might be considered at
the same time how often it has happened that the abuse of power has been
the primary cause of these evils, and that it was the injustice and
oppression of these great men that has commonly brought them into
contempt with the people. The craft and art of such men is great, and
who that is the least acquainted with history or law can be ignorant of
the specious pretences that have often been made use of by men in power
to introduce arbitrary rule, and to destroy the liberties of a free
people?
[_Here Hamilton went back to legal history to strengthen his position
on the right of a defendant to plead truth in libel cases, and on the
right of the jury to determine both the law and the fact—that is, to
deliver a verdict of guilty or not guilty of libel, instead of leaving
that culminating decision to the judges on the bench._]
This is the second information for libeling of a governor that I have
known in America. The first, although it may look like a romance, yet as
it is true I will beg leave to mention it.
Governor Nicholson,[9] who happened to be offended with one of his
clergy, met him one day upon the road; and as usual with him (under the
protection of his commission) used the poor parson with the worst of
language, and threatened to cut off his ears, slit his nose, and at last
to shoot him through the head. The parson, being a reverend man,
continued all this time uncovered in the heat of the sun, until he found
an opportunity to fly for it. Coming to a neighbor’s house, he felt
himself very ill of a fever, and immediately writes for a doctor. And
that his physician might the better judge of his distemper, he
acquainted him with the usage he had received; concluding that the
Governor was certainly mad, for that no man in his senses would have
behaved in that manner.
The doctor unhappily showed the parson’s letter. The Governor came to
hear of it. And so an information was preferred against the poor man for
saying he believed the Governor was mad. It was laid down in the
information to be false, scandalous, and wicked, and written with intent
to move sedition among the people, and to bring His Excellency into
contempt. But by an order from the late Queen Anne there was a stop put
to that prosecution, with sundry others set on foot by the same Governor
against gentlemen of the greatest worth and honor in that government.
And may not I be allowed, after all this, to say that by a little
countenance almost anything that a man writes may, with the help of that
useful term of art called an _innuendo_, be construed to be a libel,
according to Mr. Attorney’s definition of it—to wit, that whether the
words are spoken of a person of a public character or of a private man,
whether dead or living, good or bad, true or false, all make a libel.
For according to Mr. Attorney, after a man hears a writing read, or
reads and repeats it, or laughs at it, they are all punishable. It is
true that Mr. Attorney is so good as to allow it must be after the party
knows it to be a libel, but he is not so kind as to take the man’s word
for it.
Here were several cases put to show that although what a man writes of a
governor were true, proper, and necessary, yet according to the
foregoing doctrine it might be construed to be a libel. But Mr.
Hamilton, after the trial was over, being informed that some of the
cases he had put had really happened in this government, declared that
he had never heard of any such; and as he meant no personal reflections,
he was sorry he had mentioned them, and therefore they are omitted here.
MR. HAMILTON. 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 a 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 that one has
a bad name. Echard has libeled our good King William;[10] Burnet has
libeled, among others, King Charles and King James; and Rapin has
libeled them all.[11] How must a man speak or write; or what must he
hear, read, or sing; or when must he laugh so as to be secure from being
taken up as a libeler?
I sincerely believe that were some persons to go through the streets of
New York nowadays and read a part of the Bible, if it was not known to
be such, Mr. Attorney (with the help of his _innuendos_) would easily
turn it into a libel. As for instance Isaiah 9:16: “The leaders of the
people cause them to err; and they that are led by them are destroyed.”
Should Mr. Attorney go about to make this a libel, he would read it
thus: The leaders of the people (_innuendo, the Governor and Council of
New York_) cause them (_innuendo, the people of this Province_) to err,
and they (_the people of this Province meaning_) that are led by them
(_the Governor and Council meaning_) are destroyed (_innuendo, are
deceived into the loss of their liberty_), which is the worst kind of
destruction.
Or if some person should publicly repeat, in a manner not pleasing to
his betters, the 10th and 11th verses of the 56th chapter of the same
book, there Mr. Attorney would have a large field to display his skill
in the artful application of his _innuendos_. The words are: “His
watchmen are blind, they are all ignorant,... Yea, they are greedy dogs
which can never have enough.” To make them a libel there is, according
to Mr. Attorney’s doctrine, no more wanting but the aid of his skill in
the right adapting of his _innuendos_. As for instance: His watchmen
(_innuendo, the Governor’s Council and his Assembly_) are blind, they
are all ignorant (_innuendo, will not see the dangerous designs of His
Excellency_). Yea, they (_the Governor and Council meaning_) are greedy
dogs which can never have enough (_innuendo, enough of riches and
power_).
Such an instance as this seems only fit to be laughed at; but I appeal
to Mr. Attorney himself whether these are not at least equally proper to
be applied to His Excellency and his ministers as some of the inferences
and _innuendos_ in his information against my client. Then if Mr.
Attorney is at liberty to come into court and file an information in the
king’s name, without leave, who is secure whom he is pleased to
prosecute as a libeler?
And give me leave to say that the mode of prosecuting by information
(when a grand jury will not find a true bill) is a national grievance,
and greatly inconsistent with that freedom that the subjects of England
enjoy in most other cases. But if we are so unhappy as not to be able to
ward off this stroke of power directly, yet let us take care not to be
cheated out of our liberties by forms and appearances. Let us always be
sure that the charge in the information is made out clearly even beyond
a doubt; for although matters in the information may be called _form_
upon trial, yet they may be, and often have been found to be, matters of
_substance_ upon giving judgment.
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 the 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 do not 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 that 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[12] 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 that one day he will make you yourselves wear.”
This is what every man (who 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.
A famous instance of this you will find in the history of another brave
Roman of the same name, I mean Lucius Junius Brutus,[13] whose story is
well known, and therefore I shall mention no more of it than only to
show the value he put upon the freedom of his country. After this great
man, with his fellow citizens whom he had engaged in the cause, had
banished Tarquin the Proud (the last king of Rome) from a throne that he
ascended by inhuman murders and possessed by the most dreadful tyranny
and proscriptions, and had by this means amassed incredible riches, even
sufficient to bribe to his interest many of the young nobility of Rome
to assist him in recovering the crown; the plot being discovered, the
principal conspirators were apprehended, among whom were two of the sons
of Junius Brutus. It was absolutely necessary that some should be made
examples of, to deter others from attempting the restoration of Tarquin
and destroying the liberty of Rome. To effect this it was that Lucius
Junius Brutus, one of the consuls of Rome, in the presence of the Roman
people, sat judge and condemned his own sons as traitors to their
country. And to give the last proof of his exalted virtue and his love
of liberty, he with a firmness of mind (only becoming so great a man)
caused their heads to be struck off in his own presence. When he
observed that his rigid virtue occasioned a sort of horror among the
people, it is observed that he said only, “My fellow citizens, do not
think that this proceeds from any want of natural affection. No, the
death of the sons of Brutus can affect Brutus only. But the loss of
liberty will affect my country.”
Thus highly was liberty esteemed in those days, that a father could
sacrifice his sons to save his country. But why do I go to heathen Rome
to bring instances of the love of liberty? The best blood in Britain has
been shed in the cause of liberty; and the freedom we enjoy at this day
may be said to be (in a great measure) owing to the glorious stand the
famous Hampden,[14] and others of our countrymen, made against the
arbitrary demands and illegal impositions of the times in which they
lived; who, rather than give up the rights of Englishmen and submit to
pay an illegal tax of no more, I think, than three shillings, resolved
to undergo, and for the liberty of their country did undergo, the
greatest extremities in that arbitrary and terrible Court of the Star
Chamber, to whose arbitrary proceedings (it being composed of the
principal men of the realm, and calculated to support arbitrary
government) no bounds or limits could be set, nor could any other hand
remove the evil but Parliament.
Power may justly be compared to a great river. While kept within its due
bounds it 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 am 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 my, 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. You see
that I labor under the weight of many years, and am bowed 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
services 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 that
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 or private concern. It is not the cause of one
poor printer, nor of New York alone, which you are now trying. No! It
may in its consequence affect every free man 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 of both
exposing and opposing arbitrary power (in these parts of the world at
least) by speaking and writing truth.
Here Mr. Attorney observed that Mr. Hamilton had gone very much out of
the way, and had made himself and the people very merry; but that he had
been citing cases not at all to the purpose. All that the jury had to
consider was Mr. Zenger’s printing and publishing two scandalous libels
that very highly reflected on His Excellency and the principal men
concerned in the administration of this government—which is confessed.
That is, the printing and publishing of the journals set forth in the
information is confessed. He concluded that as Mr. Hamilton had
confessed the printing, and there could be no doubt but they were
scandalous papers highly reflecting upon His Excellency and on the
principal magistrates in the Province—therefore he made no doubt but
that the jury would find the defendant guilty, and would refer to the
Court for their directions.
MR. CHIEF JUSTICE. Gentlemen of the Jury: The great pains Mr. Hamilton
has taken to show how little regard juries are to pay to the opinion of
judges, and his insisting so much upon the conduct of some judges in
trials of this kind, is done no doubt with a design that you should take
but very little notice of what I might say upon this occasion. I shall
therefore only observe to you that as the facts or words in the
information are confessed, the only thing that can come in question
before you is whether the words as set forth in the information make a
libel. And that is a matter of law, no doubt, and which you may leave to
the Court.
MR. HAMILTON. I humbly beg Your Honor’s pardon, I am very much
misapprehended if you suppose that what I said was so designed.
Sir, you know I made an apology for the freedom that I found myself
under a necessity of using upon this occasion. I said there was nothing
personal designed. It arose from the nature of our defense.
The jury withdrew, and returned in a small time. Being asked by the
clerk whether they were agreed on their verdict, and whether John Peter
Zenger was guilty of printing and publishing the libels in the
information mentioned, they answered by Thomas Hunt, their foreman, “Not
guilty.” Upon which there were three huzzas in the hall, which was
crowded with people; and the next day I was discharged from my
imprisonment.