The Case of John Peter Zenger


HAMILTON : “In this I must still differ with Mr. Attorney . . . [for] 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? . . . No the Falsehood makes the Scandal, and both make the Libel. And to shew 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.” B RADLEY (refusing to be drawn in): “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? ...”

HAMILTON : “I did expect to hear, That a Negative cannot be proved; but every body knows there are many Exceptions to that general Rule: For if a Man is charged with killing another, or stealing his neighbour’s horse, if he is innocent in the one Case, he may prove the Man said to be killed, to be really alive; and the Horse said to be stolen, never to have been out of his Master’s Stable, and this, I think, is proving a Negative. 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 .”

That was enough to bring in Chief Justice De Lancey to reiterate the law. “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 is true.”

Hamilton was ready with a long list of citations and an argument that ridiculed the idea of “the greater the truth, the greater the libel": “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 Sm than Falsehood ; Yet as the Offenses are not equal ... is it not absolutely necessary that [the judges] 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 ajudgment against a Man for writing or publishing a Lie, as for writing or publishing a Truth? And yet this . . . 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 .”


De Lancey not only remained unmoved but resorted to judicial fiat, and, it may be guessed from the words used, some exasperation. Once more he announced : “Mr. Hamilton, the Court is of Opinion, you ought not to be permitted to prove the Facts in the Papers,” and read the supporting citation from a law book before him. When Hamilton tried to persist, he was brusquely cut down.

HAMILTON : “These are Star Chamber Cases, and I was in Hopes that Practice had been dead with the Court.”

DE LANCEY : “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.”

HAMILTON : “With Submission, I have seen the Practice in very great Courts, and never heard it deemed unmannerly to—”

DE LANCEY : “After the Court have declared their Opinion, it is not good Manners to insist upon a Point in which you are overruled.”

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.”

DE LANCEY: “Use the Court with good Manners, and you shall be allowed all the Liberty you can reasonably desire.”

Zenger’s supporters felt their spirits wane. It seemed clear that the great lawyer’s effort had failed. Stripped of power to distinguish truth from falsehood, the jury could return no other verdict than Guilty. Yet Hamilton showed no sign of chagrin. He had one more maneuver to try- unprecedented, hazardous, one that might possibly lead to disbarment, possibly prison.