In 1737 the verdict of the Zenger trial was severely criticized in two
anonymous letters to the _Barbados Gazette_, and these were reprinted
by Andrew Bradford of Philadelphia. Alexander wrote a reply in the
_Pennsylvania Gazette_. His essay is an important historical document,
although strangely overlooked by the historians of American democracy.
It presents him as the most important theorist of freedom of the press
this country has ever produced. These are some of the key passages:
Freedom of speech is a principal pillar in a free government. When this
support is taken away, the Constitution is dissolved, and tyranny is
erected on its ruins. Republics and limited monarchies derive their
strength and vigor from a popular examination into the actions of the
magistrates.
These abuses of the freedom of speech are the excrescences of liberty.
They ought to be suppressed; but to whom dare we commit the care of
doing it? An evil magistrate, entrusted with a power to punish words, is
armed with a weapon the most destructive and terrible. Under the
pretense of pruning off the exuberant branches, he frequently destroys
the tree.
Augustus Caesar, under the specious pretext of preserving the characters
of the Romans from defamation, introduced the law whereby libeling was
involved in the penalties of treason against the state. This established
his tyranny; and for one mischief it prevented, ten thousand evils,
horrible and tremendous, sprang up in the place.
Henry VIII, a prince mighty in politics, procured that act to be passed
whereby the jurisdiction of the Star Chamber was confirmed and
extended.... The subjects were terrified from uttering their griefs
while they saw the thunder of the Star Chamber pointing at their heads.
This caution, however, could not prevent several dangerous tumults and
insurrections. For when the tongues of the people are restrained, they
commonly discharge their resentments by a more dangerous organ, and
break out into open acts of violence.
But to resume the description of the reign of Charles II. The doctrine
of servitude was chiefly managed by Sir Roger Lestrange. He had great
advantages in the argument, being licenser for the press, and might have
carried all before him without contradiction if writings of the other
side of the question had not been printed by stealth. The authors were
prosecuted as seditious libelers.
In the two former papers the writer endeavored to prove by historical
facts the fatal dangers that necessarily attend a restraint on freedom
of speech and the liberty of the press: upon which the following
reflection naturally occurs, viz., THAT WHOEVER ATTEMPTS TO SUPPRESS
EITHER OF THOSE, OUR NATURAL RIGHTS, OUGHT TO BE REGARDED AS AN ENEMY TO
LIBERTY AND THE CONSTITUTION.
In civil actions an advocate should never appear but when he is
persuaded the merits of the cause lie on the side of his client. In
criminal actions it often happens that the defendant in strict justice
deserves punishment; yet a counsel may oppose it when a magistrate
cannot come at the offender without making a breach in the barriers of
liberty and opening a floodgate to arbitrary power. But when the
defendant is innocent and unjustly prosecuted, his counsel may, nay
ought to, take all advantages and use every stratagem that his skill,
art, and learning can furnish him with. This last was the case of Zenger
at New York, as appears by the printed trial and the verdict of the
jury. It was a popular cause. The liberty of the press in that Province
depended on it. On such occasions the dry rules of strict pleading are
never observed. The counsel for the defendant sometimes argues from the
known principles of law, then raises doubts and difficulties to confound
his antagonist, now applies himself to the affections, and chiefly
endeavors to raise the passions. Zenger’s defense is to be considered in
all those different lights.
Upon the whole: To suppress inquiries into the administration is good
policy in an arbitrary government. But a free Constitution and freedom
of speech have such a reciprocal dependence on each other that they
cannot subsist without consisting together.