Professor Andrew Trees, Roosevelt University
In 1733, John Peter Zenger, printer of the New York Weekly Journal, was charged with seditious libel and jailed after publishing articles harshly criticizing William Cosby, the royal governor of New York (the authors of the articles were anonymous, and Zenger refused to name them). According to the common law at the time, it did not matter if the accusations were true. Any criticism that undermined the authority of the government was punishable as seditious libel, and Zenger was clearly guilty by that standard. But Andrew Hamilton, Zenger’s attorney and one of the finest legal minds in the colonies, made the novel argument that the truth or falsity of the accusations should be considered as part of the defense. The jury eventually acquitted Zenger, which marked an important first step in establishing the freedom of the press.
A Brief Narrative of the Case and Tryal of John Peter Zenger
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 nor justice; with much more, as will appear upon reading the Information. This of libeling is what 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.
Although the attorney claims that the accusations were false, remember that the common law held that truth was not a defense against seditious libel. The great English jurist Sir Edward Coke had explained that such criticisms disturbed the peace by causing quarrels and also undermined the authority of the government.
There can be no doubt but you Gentlemen of the Jury will have the same ill opinion of such practices, as the judges have always shewn upon such occasions. But I shall say no more at this time, until you hear the Information, which is as follows . . . . [The Information details specific passages, printed by Zenger, which the prosecution alleges to be libelous against Governor Cosby. The Attorney General will prove that Zenger is “Guilty.”]
[At this point, Zenger’s court-appointed attorney, John Chambers, sets forth the nature of a libel, which requires that “there must be some particular persons so clearly pointed out, that no doubt must remain about who is meant.” He insists that great allowances “ought to be made for what men speak or write.” He hopes to show that the prosecution cannot prove Zenger’s guilt.]
Then Mr. Hamilton, who at the request of some of my friends, was so kind as to come from Philadelphia, to assist me on the trial, spoke.
MR. HAMILTON [beginning the case for the defense]. 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. And tho’ I am perfectly of the opinion with the gentleman who has just now spoke, 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 free-born subject to make, when the matters so published can be supported with truth; and therefore I’ll save Mr. Attorney the trouble of examining his witnesses to that point; and I do (for my client) confess, that he both printed and published the two newspapers set forth in the Information, and I hope in so doing he has committed no crime.
In the above passage, Hamilton concedes that Zenger published the material, which (under the traditional understanding) would have necessitated a guilty verdict, but he goes on to argue that this is “the right of every free-born subject” who should be able to criticize the government if “the matters so published can be supported with truth.” Although the freedom of the press would later be guaranteed in the First Amendment, Hamilton’s argument was a striking innovation at the time.
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. . . . . Indeed, Sir, as Mr. Hamilton has confessed to the printing and publishing 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.
The attorney points out that being true actually aggravates the crime of seditious libel. According to the common law, truthful accusations were indeed worse because they were even more damaging to the government’s authority than false accusations.
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.
[Attorney General Bradley now makes his opening statement, presenting the case against Zenger and appealing to numerous authorities. He is followed by John Chambers, who argues, on Zenger’s behalf, that the Attorney General has failed to prove the charges contained in the Information.]
MR. HAMILTON. May it please Your Honor; I agree with Mr. Attorney, that government is a sacred thing, but I differ very 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 should say in this cause. I own when I read the Information, I had not the art to find out (without the help of Mr. Attorney’s innuendoes) that the Governor was the person meant in every period of that newspaper. . . . .
In the above passage, Hamilton is in effect arguing that one should be able to make just complaints against a bad administration without being accused of libel. In other words, truth should be a reasonable defense.
[Hamilton goes to compare the actions of the Governor and Council in prosecuting Zenger to the arbitrary way that British monarchs had once prosecuted its political opponents in the notorious Court of Star Chamber, where defendants were tried without the usual protections of the common law. This court, so named for the Chamber in which it met, came to be seen as an engine of royal tyranny, and it was abolished by an act of Parliament in 1641. Hamilton is maintaining that the prosecution of Zenger follows Star Chamber procedures and precedents that are no longer valid in a freer time and a different place.]
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, I think, has since not only been practiced as lawful, but the contrary doctrine has been held to be law. . . . . . [A]s 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. . . . . . 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 . . . . .
In the above passage, Hamilton rests his argument on English practices–it would not be until the Revolution many decades later that Americans would set about establishing American foundations for these rights. In addition, he is making the argument for the evolution of the law. The Star Chamber was a special court, which over time came to be associated with arbitrary and excessive power and was abolished in the seventeenth century. By comparing the proceedings to the Star Chamber, Hamilton is engaging in some strategic hyperbole to discredit the prosecution’s case. and suggesting that the old understanding of libel needs to be replaced.
MR. ATTORNEY. . . . . . 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. And if such papers are not libels, I think it may be said there can be no such thing as a libel.
MR. HAMILTON. May it please Your Honor; I cannot agree with Mr. Attorney: For though 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.
Hamilton returns again to the argument that the criticisms should only be libelous if false.
MR. ATTORNEY. I think I did not omit the word false: But it has been said already, that it may be a libel, notwithstanding it may be true.
MR. HAMILTON. In this I must still differ with Mr. Attorney; for I depend upon it, we are to be tried upon this Information now before the Court and Jury, and to which we have pleaded Not Guilty, and 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 opinion his Information would not be good without it. But to show that it is the principal thing which, in my opinion, makes a libel, I put the case, [if] 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’ll 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.
Hamilton is hammering home the point again that the words need to be false to qualify as libel (even though the common law had the opposite viewpoint).
MR. ATTORNEY. We have nothing to prove; you have confessed the printing and publishing; but if it was necessary (as I insist it is not) how can we prove a negative? But 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, that Chief Justice Holt in his charge to the jury in the case of Tutchin 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 in all that case, there was any question made about their being false or true.
The attorney is trying to maintain the traditional understanding in which the confession of having published the criticisms would have been enough to prove seditious libel.
MR. HAMILTON. I did expect to hear that a negative cannot be proved; but everybody knows there are many exceptions to that general rule . . . . But we will save Mr. Attorney the trouble of proving a negative, and take the onus probandi upon 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.
In the above passage, the Chief Justice confirms that truth is no defense in a case of libel, but the jury will choose to ignore this.
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 a libel.
MR. CHIEF JUSTICE. The law is clear, that you cannot justify a libel.
In other words, truth is not a defense.
MR. HAMILTON. [Hamilton replies that a prisoner may give the truth of the fact, or any other matter in evidence, which goes to his acquittal.] And 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.
MR. HAMILTON. I am ready, both from what I understand to be the authorities in the case, and from the reason of the thing, to show that we may lawfully do so. But here I beg leave to observe that Informations for libels is a child if not born, yet nursed up and brought to full maturity, in the Court of Star Chamber.
MR. CHIEF JUSTICE. Mr. Hamilton you’ll find yourself mistaken; for in Coke’s Institutes you’ll find Informations for libels long before the Court of Star Chamber.
The Chief Justice takes issue with the idea that seditious libel was an innovation of the Star Chamber.
MR. HAMILTON. [Hamilton turns to Coke’s Institutes and cites the judgment in the case of John de Northampton which, according to Hamilton, held that words were libelous because of their falsehood.] Now sir, by this judgment it appears the libelous words were utterly false, and there the falsehood was the crime and is the ground of that judgment: And is not that what we contend for? Do not we insist that the falsehood makes the scandal, and both make the libel? And 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 the 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.
Although not the main thrust of his argument, Hamilton engages in some clever legal wrangling here by arguing that, since true criticisms are considered worse than false ones, the truth or falsehood of the criticisms must matter to some extent because the punishments for the two should not be the same.
But this is only reasoning upon the case, and I will now proceed to show what in my opinion will be sufficient to induce the Court to allow us to prove the truth of the words which in the Information are called libelous. [Hamilton goes on to discuss at length some other cases—the Trial of the Seven Bishops, the Tutchin Case, and the Case of William Fuller—to support his contention that if words are to be libelous, they must be false.] 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 [the presiding judge in Tutchin and Fuller], 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 with reading the cases 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 opinion, 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 practice had been dead with the Court.
MR. CHIEF JUSTICE. Mr. Hamilton, the Court have delivered their opinion, and we expect 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 we must now appeal for witnesses to the truth of the facts we have offered and are denied the liberty to prove; and let it not seem strange that I apply myself to you in this manner, I am warranted so to do both by 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. And were you to find a verdict against my client, you must take upon you to say, 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; and 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, yea or not.
After the Chief Justice has effectively ruled against his argument, Hamilton appeals directly to the jury to judge not just the facts of the case but, in effect, to interpret the law as well by taking into account whether or not the accusations are true. Notice how Hamilton is also relying upon (and reminding the jurors of) the fact that they are from the same neighborhood. This protection, of course, will be part of the Sixth Amendment. Additionally, Hamilton’s appeal is a clever (albeit oblique) appeal to their shared identity as New Yorkers against a corrupt British official. In that, it also prefigures the disputes of the American Revolution.
MR. ATTORNEY. The books, I think, have given a very full definition of a libel; they say [quoting the chapter on libels in William Hawkins, A Treatise of the Pleas of the Crown] it is in a strict sense taken for a malicious defamation, expressed either in printing or writing, and tending either to blacken the memory of one who is dead, or the reputation of one who is alive, and to expose him to public hatred, contempt, or ridicule. 2. But it is said that in a larger sense the notion of a libel may be applied to any defamation whatsoever, expressed either by signs or pictures, as by fixing up a gallows against a man’s door, or by painting him in a shameful and ignominious manner. 3. and since the chief cause for which the law so severely punishes all offences of this nature is the direct tendency of them to a breach of public peace by provoking the parties injured, their friends and families, to acts of revenge, which it would be impossible to restrain by the severest laws, were there no redress from public justice for injuries of this kind, which of all others are most sensibly felt; and since the plain meaning of such scandal as is expressed by signs or pictures is as obvious to common sense, and as easily understood by every common capacity, and altogether as provoking as that which is expressed by writing or printing, why should it not be equally criminal? 4. And from the same ground it seemeth also clearly to follow that 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; as where a writing, in a taunting manner reckoning up several acts of public charity done by one, says you will not play the Jew, nor the hypocrite, and so goes on in a strain of ridicule to insinuate that what he did was owing to his vainglory; or where a writing, pretending to recommend to one the characters of several great men for his imitation, instead of taking notice of what they are generally esteemed famous for, pitched on such qualities only which their enemies charge them with the want of, as by proposing such a one to be imitated for his courage who is known to be a great statesman but no soldier, and another to be imitated for his learning who is known to be a great general but no scholar, etc., which kind of writing is as well understood to mean only to upbraid the parties with the want of these qualities as if it had directly and expressly done so.
MR. HAMILTON. Ay, Mr. Attorney; but what certain standard rule have the books laid down, by which we can certainly know whether the words or the 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 friends to acts of revenge, especially those of the ironical sort of words? And 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 meant he was a knave or a fool.
MR. ATTORNEY. I think the books are very full; it is said in I Hawk. p. 193, just now read, That 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; as where a writing, in a taunting manner says, reckoning up several acts of charity done by one, says, you will not play the Jew or the hypocrite, and so goes on to insinuate, that what he did was owing to his vainglory, etc. Which kind of writing is as well understood to mean only to upbraid the parties with the want of these qualities, as if it had directly and expressly done so. 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, etc.) that they are really libelous; but here still occurs the uncertainty, which makes the difficulty to know, what words are scandalous and what not; for you say, they may be scandalous, true or false; besides, how shall we know whether the words were spoke 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 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 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.
The argument starts to shift to grounds that a post-modern literary theorist would find familiar–the difficulty of establishing the precise meanings of words.
MR. CHIEF JUSTICE. Mr. Hamilton, do you think it so hard to know when words are ironical, or spoke in a scoffing manner?
MR. HAMILTON. I own it may be known; but I insist, the only rule 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, 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 those 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 we are guilty of publishing a false libel, and not otherwise.
Hamilton has cleverly used this argument to establish that the jury should establish their own understanding of the words, which would give them greater leeway in deciding the case.
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 law to the Court.
In the above passage, the Chief Justice argues for the traditional distinction that the Court interprets the law, while the jury only deals with the facts of the case.
MR. HAMILTON. I know, may it please Your Honor, the Jury may do so; but I do likewise know they may do otherwise. I know 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.
Hamilton again argues that juries have the right to judge both the law and the facts of a case.
This of 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; and I will with the Court’s leave proceed to examine the inconveniencies that must inevitably arise from the doctrines Mr. Attorney has laid down; and I observe, in support of this prosecution, he has frequently repeated the words taken from the case of Libel. famosus, in 5. Co. [See Introduction regarding De Libellis Famosis, as reported by Coke.] This is indeed the leading case, and to which almost all the other cases upon the subject of libels do refer; and I must insist upon saying that according as this case seems to be understood by the Court and Mr. Attorney, it is not law at this day: For though I own it to be base and unworthy to scandalize any man, yet I think it is even villainous to scandalize a person of public character, and 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 don’t 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 high things that are said in favor of rulers, and of dignities, 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. It is true in times past it was a crime to speak truth, and in that terrible Court of Star Chamber, many worthy and brave men suffered for so doing; and yet even in that Court, and in those bad times, a great and good man [perhaps John Lilburne, at his 1637 trial] durst say, what I hope will not be taken amiss of me to say in this place, to wit, The practice of Informations for libels is a sword in the hands of a wicked king, and an arrant coward, to cut down and destroy the innocent; the one cannot, because of his high station, and the other dares not, because of his want of courage, revenge himself in another manner.
MR. ATTORNEY. Pray Mr. Hamilton, have a care what you say, don’t too far neither, I don’t like those liberties.
MR. HAMILTON. Sure, 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 present Majesty, makes it impossible for me to err, and I hope, even to be suspected, in that point of duty to my King.
[Hamilton begins his summation for Zenger.] 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 exemption. It is true, men in power are harder to become 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 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 evidences 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 his interest to be just to those under his care; for such is the sense that men in general (I mean freemen) 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 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 (and 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, 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 it may be considered of what use is this mighty privilege if every man that suffers must be silent? And if a man must be taken up as a libeler for telling his sufferings to his neighbor? . . . . .
This paragraph and the following ones are, in large measure, a strong defense of the rights of freedom of the press and freedom of speech.
[Hamilton goes on to argue that public criticism of abusive governors may prompt the legislature to take action against.] [I]t is natural, it is a privilege, I will go farther, it is a right which all freemen claim, and are entitled to complain when they are hurt; they have a right publicly to remonstrate 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. And when a House of Assembly composed of honest freemen sees the general bent of the people’s inclinations, that is it which must and will (I’m 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 hearkening to the voice of their country. . . . .
[Hamilton goes on to argue that their royal commission does not entitle governors to abuse the people or to enlist some of the people to plague and plunder others. The people’s duty towards a governor is diminished when he departs from the duty enjoined him by his Sovereign. Hamilton expresses the hope that even some of Governor Cosby’s supporters will recognize the danger that Zenger’s conviction would pose for the liberty of their country.]
But to proceed; I beg leave to insist that the right of complaining or remonstrating is natural; and the restraint upon this natural right is the law only, and those restraints can only extend to what is false: For as it is truth alone which 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 of proving every tittle of what he has wrote, 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. And 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; and 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 and destructive judgments and opinions were given that ever an Englishmen heard of, at least in his own country: I say prosecutions for libels 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). . . . .
[Hamilton proceeds to show that juries sometimes resisted the opinion of judges as to what constituted criminal libel, as in the case of the Seven Bishops] 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 nor sedition, and therefore found them not guilty. . . . . .
[In reviewing other cases, Hamilton suggests that they should no longer be relied upon for law, since the Sovereign and the judges were exceeding their proper powers. Also, New York’s restrictions on what citizens can say about governors are even greater than those that limited what the people of Great Britain could say in earlier times about their Sovereign and his judges.] It is agreed upon by all men that this is a reign of liberty, and 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 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; it is government that protects our persons and estates; that 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 in 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 which 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 pretenses which have often been made use of by men in power to introduce arbitrary rule and destroy the liberties of a free people. I will give two instances; and as they are authorities not to be denied, nor can be misunderstood, I presume they will be sufficient. . . . .
[Hamilton reviews two statutes from the reign of Henry VII that empower courts to dispense with Grand Jury indictments and trial juries and to punish on the basis of an Information. Eventually these were repealed and the Court of Star Chamber abolished. pulled down. Hamilton goes on to explain that the intent of his review is to make a point about juries.] I only intend . . . to show that the people of England saw clearly the danger of trusting their liberties and properties to be tried, even by the greatest men in the kingdom, without the judgment of a jury of their equals. They had felt the terrible effects of leaving it to the judgment of these great men to say what was scandalous and seditious, false or ironical. And if the Parliament of England thought this power of judging was too great to be trusted with men of the first rank in the kingdom without the aid of a jury, how sacred soever their characters might be, and therefore restored to the people their original right of trial by juries, I hope to be excused for insisting that by the judgment of a Parliament, from whence no appeal lies, the jury are the proper judges of what is false at least, if not of what is scandalous and seditious. This is an authority not to be denied, it is as plain as it is great, and to say that this act indeed did restore to the people trials by juries, which was not the practice of the Star Chamber, but that did not give the jurors any new authority or any right to try matters of law, I say this objection will not avail; for I must insist that where matter of law is complicated with matter of fact, the jury have a right to determine both. As for instance; upon indictment for murder, the jury may, and almost constantly do, take upon them to judge whether the evidence will amount to murder or manslaughter, and find accordingly; and I must say I cannot see why in our case the jury have not at least as good a right to say whether our newspapers are a libel or no libel as another jury has to say whether killing of a man is murder or manslaughter.
The right of the jury to find such a verdict as they in their conscience do think is agreeable to their evidence is supported by the authority of Bushel’s Case, in Vaughan’s Reports, pag. I35, beyond any doubt. . . . . . [As Hamilton explains, this case arose out of the prosecution of Quaker leaders, William Penn and William Mead, for preaching to an assembled group of some 300 persons in Grace Church Street in London. The Court ordered the jury to find that the meeting was riotous, tumultuous, and a disturbance to the peace.] But the jury did not think fit to take the Court’s word for it, for they could neither find riot, tumult, or anything tending to the breach of the peace committed at that meeting; and they acquitted Mr. Penn and Mead. In doing of which they took upon them to judge both the law and the fact, at which the Court (being themselves true courtiers) were so much offended that they fined the jury 40 Marks apiece, and committed them till paid. But Mr. Bushel, who valued the right of a juryman and the liberty of his country more than his own, refused to pay the fine, and was resolved (though at a great expense and trouble too) to bring, and did bring, his habeas corpus to be relieved from his fine and imprisonment, and he was released accordingly; and this being the judgment in his case, it is established for law that the judges, how great soever they be, have no right to fine imprison or punish a jury for not finding a verdict according to the direction of the Court. And this I hope is sufficient to prove that jurymen are to see with their own eyes, to hear with their own ears, and to make use of their own consciences and understandings in judging of the lives, liberties or estates of their fellow subjects. . . . .
[After reviewing some other cases, Hamilton concludes this part of the defense by rejecting the prosecutor’s broad definition of libel.] And may not I be allowed, after all this, to say, that by a little countenance, almost anything which 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, that whether the words are spoke 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, Mr. Attorney is so good as to allow, after the party knows it to be a libel, but he is not so kind as to take the man’s word for it.
[Hamilton’s Peroration] 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 any 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 one has a bad name. Echard has libeled our good King William: Burnet has libeled among many others King Charles and King James; and Rapin has libeled them all. 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 innuendoes, would easily turn it into a libel. . . . . [Hamilton illustrates this point by quoting some verses of scripture that could, by the prosecutor’s broad definition, be construed as a libelous attack on the Governor and his Council.] Such an instance as this is seems only fit to be laughed at; but I may 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 innuendoes 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 as the Crown law is contended for in bad times, there is no remedy for the greatest oppression of this sort, even though the party prosecuted is acquitted with honor. And give me leave to say as great men as any in Britain have boldly asserted that the mode of prosecuting by Information (when a Grand Jury will not find billa vera) is a national grievance, and greatly inconsistent with that freedom which 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 though 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 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 don’t 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 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, 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 which one day he will make yourselves wear.” This is what every man (that 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. . . . . . [Hamilton goes on to give another example from ancient Rome—that of Lucius Junius Brutus, who had his own sons executed in his presence as traitors—to illustrate how highly one should prize the liberty of one’s 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, and other 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 3 Shillings, resolved to undergo, and for their liberty of their country did undergo, the greatest extremities in that arbitrary and terrible Court of 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 a Parliament.
Power may justly be compared to a great river, while kept within its due bounds, 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’m 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 mine 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. And you see I labor under the weight of many years, and am borne 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 service 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 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 nor private concern, it is not the cause of a poor printer, nor of New York alone, which you are now trying: No! It may in its consequence affect every freeman 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—both of exposing and opposing arbitrary power (in these parts of the world, at least) by speaking and writing truth.
Hamilton closes by once again appealing directly to the jury, and he does so in terms that sound strikingly similar to arguments made by the colonists against arbitrary and tyrannical British rule in the years leading up to the Revolution (including an explicit appeal to natural law).
[The Attorney General’s Closing Statement.] 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; he said there was no such cause as Mr. Bushel’s or Sir Edward Hale’sbefore the Court; and he could not find out what the Court or jury had to do with dispensations, riots or unlawful assemblies: All that the Jury had to consider of was Mr. Zenger’s printing and publishing two scandalous libels, which 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. And 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 the principal magistrates in the Province. And therefore he made no doubt but the Jury would find the Defendant guilty, and would refer to the Court for their direction.
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 the 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. But I shall trouble you no further with anything more of my own, but read to you the words of a learned and upright judge [Chief Justice Holt in Tutchin] in a case of the like nature:
To say that corrupt officers are appointed to administer affairs is certainly a reflection on the government. If people should not be called to account for possessing the people with an ill opinion of the government, no government can subsist, for it is very necessary for all governments that the people should have a good opinion of it. And nothing can be worse to any government than to endeavor to procure animosities; as to the management of it, this has been always looked upon as a crime, and no government can be safe without it be punished.
Source: https://oll.libertyfund.org/pages/1736-brief-narrative-of-the-trial-of-peter-zenger (abridged account)