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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
The adjectives touched off a semantic and legal debate. For if the only restraint on the press was not prior licensing but the law of libel, that law was strict. It was designed to prohibit what an English judge, in a later case ( Dean of St. Asaph ‘s case, 1784) had called “written censure upon public men for their conduct as such, or upon the laws, or upon the institutions of the country.” Nor did it matter whether the words were true or false. In short, any man could say or write what he chose, but he could be penalized if his words were judged, under the broad umbrella, to be libellous. In England the common law courts of King’s Bench had taken over such cases by 1735, and in New York, where English common law was binding, criticism of Governor Cosby could theoretically be punished as severely as criticism of King George n in England.
That was Bradley’s line of argument. Quoting from the specimens of political comment in the Journal that, by earlier English precedents, were clearly libellous, the attorney general added that he did not know what could be said in defense of a man who had so notoriously scandalized the governor and other officers of the government, when all knew that government was entitled to “great regard and reverence . . . both under the law and the gospel.” If this was not libel, he added, he did not know what was.
To this Hamilton replied, “May it please Your Honour, 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 libelling that Administration. Had I believed that to be Law, I should not have given the Court the Trouble of hearing any Thing that I could say in this cause.”
Hamilton then began his assault on the major precedent, cited by both Chief Justice De Lancey and Bradley. In 1606, during the oppressive reign of James i, the Court of Star Chamber, composed of Crownappointed judges who sat in secret, held, in the case of de Libelhs Famosis , that statements could be libellous even if true. This thesis had prevailed on both sides of the Atlantic for more than a century, and it was Hamilton’s determination to shoot it down. His opening salvo was directed at Bradley’s selection of supportive cases from the hated Star Chamber tribunal, abolished in 1641.
“I was in hopes,” said Hamilton, “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 . . . would not have attempted ... to make their Judgments a Precedent to us. For it is well known, that what would have been judg’d 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.”
Declining to argue the merits of Star Chamber precedent, the attorney general went back to what he insisted was the nub of the matter. “The Case before the Court is, whether Mr. Zenger is guilty of Libelling 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 Libel.”
Hamilton at once leaped on a significant omission. “May it please Your Honour; I cannot agree with Mr. Attorney. For tho’ I freely acknowledge, that there are such Things as Libels, yet I 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. ”
Bradley brushed this aside. “I think I did not omit the Word false , ” he declared. “But it has been said already, that it may be a Libel notwithstanding it may be true.” That was precisely what Hamilton wanted to dispute, and the debate crackled briskly for a few moments.