- Historic Sites
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
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.
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.