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The Case of John Peter Zenger
The law was against the poor printer. The governor wanted his scalp. His attorneys were disbarred. Could anything save him—and free speech?
December 1971 | Volume 23, Issue 1
Throwing all caution aside, Hamilton approached the end of his plea by advising the jurors that earlier English cases established 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. . . . Gentlemen the danger is great. ... 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. ... It is your Right to do so, and there is much depending upon your Resolution, as well as upon your Integrity.”
“Power,” the Philadelphia attorney said (or later recalled saying), “may justly be compared to a great River, while kept within its due Bounds. . . 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.” Drawing on a reserve of histrionic ability, he alluded to his age, his “weight of many years” and “great infirmities of body,” yet declared that he was ready to go anywhere to combat efforts to “deprive a People of the Right of remonstrating . . . [against] the arbitrary Attempts of Men in Power.” Undoubtedly having the jurors in his spell at that point, he launched into a historic and deservedly much-quoted finale.
”... the question before the Court and you Gentlemen of the Jury, is not of small nor private Concern; it is not the Cause of the poor Printer, nor of New-York alone, which you are now trying: No! It may in it’s 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 honour 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 Neighbours, 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.”
Andrew Hamilton bowed, returned to his bench, and sat down. Angry and almost inarticulate, De Lancey addressed the jury. “The great pains Mr. Hamilton has taken to show how little Regard Juries are to Pay to the Opinion of the Judges ... is done, no doubt, with a Design that you should take but very little Notice of what I might say upon this Occasion.” Nevertheless, it was all quite clear. “The only Thing that can come in Question before you is, whether the Words as set forth in the Information make a Lybel. And that is a Matter of Law, no Doubt, and which you may leave to the Court.” A moment later, when De Lancey had concluded, Hamilton rose to humbly beg pardon: “I am very much misapprehended, if you suppose what I said was so designed.” Hamilton had no wish to be in contempt of court. He may also, as he settled back to wait for the verdict, have realized that he had brilliantly achieved his task—to get around the law, which was plainly against Zenger, and mobilize the jury’s hostility to Cosby.
The jurors retired. In ten minutes they announced that they had reached a verdict. The court was recalled to order. Justice De Lancey may well have looked pleased, obviously convinced that the jurymen had wasted no time discussing complexities of free speech and the libel code. Hamilton’s lengthy discourse on the power and duty of juries to evolve new interpretations of the law had been wasted rhetoric.
The clerk faced the jury and asked if the defendant, John Peter Zenger, had been guilty of publishing the libels as charged. The foreman, one Thomas Hunt, a mariner, rose to his feet and announced the verdict: “Not Guilty.”
An eruption of cheers and laughter shook the crowded courtroom. The initial chaotic outburst was quickly coordinated into three united huzzas for the defendant, three for Hamilton, three for the jury. Reactions to the outburst varied with-the political orientation of the observer. One conservative historian reported that two justices on the bench turned pale with terror at the clamor. The record shows that De Lancey pounded his gavel for order and rebuked the crowd for its demonstration.