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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
As Chambers uttered the last syllables of his mild peroration, an elderly and imposing gentleman rose dramatically from a bench at the rear of the courtroom and announced that he wished to participate in Zenger’s defense. An ember of hope and excitement glowed in the bloc of Zenger supporters. Members of the Court Party looked questioningly toward the bench. Unknown to all, including Zenger, Alexander and Smith had communicated, after their disqualification, with perhaps the best legal mind in America: Andrew Hamilton, former attorney general of Philadelphia, former speaker of the Pennsylvania assembly, former vice-admiralty judge, a member of London’s Gray’s Inn, an independent in politics and religion, and versatile enough to have been one of the architects of Independence Hall. In the later colonial period, the term “Philadelphia lawyer” would be a high compliment to a member of the bar, and it is possible, though not provable, that Hamilton was the prototype and that the phrase originated with the Zenger case.
When he walked down the aisle of the courtroom to defend Zenger, Hamilton seemed a strong and dominant figure in comparison with the startled young justices on the bench. Some years later the son of William Smith recalled, in a history of New York, “He had art, eloquence, vivacity, and humor, was ambitious of fame, negligent of nothing to ensure success, and possessed a confidence which no terrors could awe.”
Like many lawyers, Hamilton had perhaps a bit of the actor in him, and it may have been this trait, combined with a touch of gout, that caused him to limp down the aisle and disarm the uncertain judges with an air of overpowering venerability. The Zenger case had appealed to his own political disposition. He had been a friend of Alexander’s; and when he received a call for help, he agreed without hesitation to make the long trip to New York.
Upon his unexpected appearance, Cosby supporters waited expectantly for De Lancey to expel Hamilton from the chamber, as he had disbarred Alexander and Smith. But Hamilton’s prestige and assurance of manner may have disconcerted the young chief justice. He conferred briefly with his associate justice, Philipse, and then rapped for the hearing to begin.
Attorney General Bradley was about to call his first witness to testify that Zenger and no other man had published the libellous papers when Hamilton interceded and astonished the court by an amiable declaration. “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 News Papers set forth in the Information, and I hope in so doing he has committed no crime.”∗
∗Hamilton’s remarks at the trial, as well as those of other participants, are not derived from a court transcript but are taken from A Brief Narrative of the Case and Trial of John Peter Zenger (1736), prepared by James Alexander and Andrew Hamilton a few months after the trial. This work, often reprinted, was one of the most renowned American publications in the eighteenth century.
Quite probably taken aback by Hamilton’s concession, the attorney general, after a moment of hesitation, turned to the bench and said, “Then, if Your Honour pleases, since Mr. Hamilton has confessed the Fact, I think our Witnesses may be discharged; we have no further Occasion for them.”
“If you brought them here,” said Hamilton, “only to prove the Printing and Publishing of these News Papers, we have acknowledged that, and shall abide by it.”
At this point Zenger’s journeyman and two sons, and a few other witnesses subpoenaed by Bradley, were discharged and there was silence in the courtroom for some time.
“Well Mr. Attorney,” De Lancey finally said, “will you proceed?”
“Indeed, Sir,” responded the prosecutor, “as Mr. Hamilton has confessed 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 libellous for that; nay indeed the Law says that their being true is an Aggravation of the Crime.”
Hamilton instantly demurred. “Not so neither, Mr. Attorney,” he exclaimed, “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 libeller; for the Words themselves must be libellous, that is, false, scandalous , and seditious or else we are not guilty.”