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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
Calmly, he said: “I thank Your Honour,” and turned to the jurors. “Then, Gentlemen of the Jury, it is to you we must now appeal, for Witness, to the Truth of the Facts we have offered and are denied the Liberty to prove; and let it not seem strange, that I apply myself to you in this Manner, I am warranted so to do both by Law and Reason. . . . were you to find a Verdict against my client, you must take upon you to say, the Papers referred to in the Information, and which we acknowledge we printed and published, are false, scandalous and seditious ; but of this I can have no Apprehension. You are citizens of New-York ; you are really what the Law supposes you to be, honest and lawful men . . . . And as we are denied the Liberty of giving Evidence, to prove the Truth of what we have published, I will beg Leave to lay it down as a standing Rule in such Cases, That the suppressing of Evidence ought always to be taken for the strongest Evidence . ”
What Hamilton was now doing was to appeal over the heads of the chief justice and the attorney general and urge the jury to ignore the court’s order, determine the truth of the Journal ’s charges, and find Zenger innocent of libel if indeed the accusations had merit. After a few more verbal exchanges with Bradley, this became clear. For when De Lancey repeated once more: “No, Mr. Hamilton; the Jury may find that Zenger printed and published those Papers, and leave it to the Court to judge whether they are libelous,” Hamilton was almost blunt: “I know, may it please Your Honour, the Jury may do so; but I do likewise know they may do otherwise. I know they have the Right beyond all Dispute to determine both the Law and the Fact, and where they do not doubt of the Law, they ought to do so. This of leaving it to the Judgment of the Court, whether the Words are libellous or not in Effect renders Juries useless. ...” And as he swept onward in his argument, Hamilton went beyond the issues of Cosby and his enemies. He moved toward a general defense of freedom of speech. He declared that “all the high Things that are said in Favour of Rulers, and of Dignities, and upon the side of Power, will not be able to stop People’s Mouths when they feel themselves oppressed. . . .” And he even harked back to the English revolt against the Stuarts, quoting “a great and good Man” whom he did not name, to the effect that “ the Practice of Informations [prosecutions without grand-jury indictments] for Libels is a Sword in the Hands of a wicked King and an arrant Coward to cut down and destroy the Innocent . ”
That was enough to bring Bradley up sharp. “Pray Mr. Hamilton,” he warned, “have a Care what you say, don’t go too far neither, I don’t like those Liberties.” Blandly Hamilton backed away: “Sure, Mr. Attorney, you won’t make any Applications; all Men agree that we are governed by the best of Kings.” And smoothly, he moved into a lengthy, moving, and still painfully timely discourse in defense of “a Right which all Freemen claim . . . they have a right publickly to remonstrate the Abuses of Power in the strongest Terms, to put their neighbours upon their Guard against the Craft or open Violence of Men in Authority, and to assert with Courage the Sense they have of the Blessings of Liberty, the Value they put upon it, and their Resolution at all Hazards to preserve it as one of the greatest Blessings Heaven can bestow.”
De Lancey and Bradley apparently sat without interruption as the powerful attorney eloquently developed his theme of the ineluctable necessity of free speech, while ranging easily for examples through recent British and ancient Roman history.
Two centuries ago, he noted, heretics were burned at the stake for uttering unorthodox theological doctrines, but in 1735 a man could criticize the church with impunity. ”... it is pretty clear,” said Hamilton with deliberate irony, “That in New-York a Man may make very free with his God, but he must take special Care what he says of his Governour.” The Attorney General, he continued, seemed to feel that “ Government is a sacred Thing; That it is to be supported and reverenced; It is Government that protects our Persons and Estates; That prevents Treasons, Murders, Robberies, Riots, and all the Tram of Evils that overturns Kingdoms and States, and rums particular Persons ; and if those in the Administration, especially the Supream Magistrate, must have all their Conduct censured by private Men, Government cannot subsist. This is called a Licentiousness not to be tolerated. It is said, That it brings the Rulers of the People into Contempt, and their Authority not to be regarded, and so m the End the Laws cannot be put into Execution . ”