Part Two. The Trial

As there was but one printer in the Province of New York who printed a public newspaper, I[2]was in hopes that if I undertook to publish another I might make it worth my while. I soon found my hopes were not groundless. My first paper was printed on November 5, 1733; and I continued printing and publishing them, I thought to the satisfaction of everybody, till the January following, when the Chief Justice was pleased to animadvert upon the doctrine of libels in a long “charge” given in that term to the grand jury. Afterwards, on the third Tuesday of October, 1734, he was again pleased to charge the grand jury in the following words:

“Gentlemen, I shall conclude with reading a paragraph or two out of the same book concerning libels. They are arrived to that height that they call loudly for your animadversion. It is high time to put a stop to them. For at the rate things are now carried on, when all order and government is endeavored to be trampled on, and reflections are cast upon persons of all degrees, must not these things end in sedition, if not timely prevented? Lenity you have seen will not avail. It becomes you then to inquire after the offenders, that we may in a due course of law be enabled to punish them. If you, gentlemen, do not interpose, consider whether the ill consequences that may arise from any disturbances of the public peace may not in part lie at your door?

“Hawkins,[1]in his chapter on libels, considers, first whatshall be said to be a libel, and secondly who are liable to be punished for it. Under the first he says:

Nor can there be any doubt but that a writing which defames a private person only is as much a libel as that which defames persons intrusted in a public capacity, inasmuch as it manifestly tends to create ill blood, and to cause a disturbance of the public peace. However, it is certain that it is a very high aggravation of a libel that it tends to scandalize the government, by reflecting on those who are intrusted with the administration of public affairs; which does not only endanger the public peace, as all other libels do, by stirring up the parties immediately concerned in it to acts of revenge, but also has a direct tendency to breed in the people a dislike of their governors, and incline them to faction and sedition.

“As to the second point, he says:

It is certain that not only he who composes or procures another to compose it but also that he who publishes, or procures another to publish it, are in danger of being punished for it. And it is not material whether he who dispersed a libel knew anything of the contents or effects of it or not; for nothing could be more easy than to publish the most virulent papers with the greatest security if concealing the purport of them from an illiterate publisher would make him safe in dispersing them.

“These, gentlemen, are some of the offenses which are to make part of your inquiries. If any other should arise in the course of your proceedings, in which you are at a loss or conceive any doubts, upon your application here we will assist and direct you.”

The grand jury not indicting me as was expected, the gentlemen of the Council proceeded to take myJournalsinto consideration, and sent the following message to the Assembly:

[The message asked the Assembly to appoint a committee to act with one from the Council. The committees met and decided that the wishes of the Council should be reduced to writing, which was done in these terms]:

“Gentlemen, the matters we request your concurrence in are that Zenger’s papers, Nos. 7, 47, 48, 49—which were read, and which we now deliver—be burned by the hands of the common hangman, as containing in them many things derogatory of the dignity of His Majesty’s government, reflecting upon the legislature and upon the most considerable persons in the most distinguished stations in the Province, and tending to raise seditions and tumults among the people thereof.

“That you concur with us in addressing the Governor to issue his proclamation with a promise of reward for the discovery of the authors or writers of these seditious libels.

“That you concur with us in an order for prosecuting the printer thereof.

“That you concur with us in an order to the magistrates to exert themselves in the execution of their offices in order to preserve the public peace of the Province.”

[The Assembly flatly refused its concurrence, and the letter from the Council was returned to it along with the copies of theJournalthat were marked for burning.]

On Tuesday, November 5, 1734, the Quarter Sessions for the City of New York began, when the sheriff delivered to the Court an order which was read in these words:

“Whereasby an order of this Council some of John Peter Zenger’s journals, entitledThe New York Weekly Journal, Nos. 7, 47, 48, 49, were ordered to be burned by the hands of the common hangman or whipper near the pillory in thiscity on Wednesday the 6th between the hours of 11 and 12 in the forenoon, as containing in them many things tending to sedition and faction, to bring His Majesty’s government into contempt, and to disturb the peace thereof, and containing in them likewise not only reflections upon His Excellency the Governor in particular, and the legislature in general, but also upon the most considerable persons in the most distinguished stations in this Province;

“It is therefore orderedthat the mayor and magistrates of this city do attend at the burning of the several papers or journals aforesaid, numbered as above mentioned.”

Upon reading of which order, the Court forbade the entering thereof in their books at that time, and many of them declared that if it should be entered they would have their protest entered against it.

On Wednesday, November 6, the sheriff of New York moved the Court of Quarter Sessions to comply with the said order, upon which one of the aldermen offered a protest which was read by the clerk and approved by all the aldermen, either expressly or by not objecting to it, and is as follows:

“Whereasan order has been served on this Court;

“Andwhereasthis Court conceives that they are only to be commanded by the king’s mandatory writs, authorized by law, to which they conceive that they have the right of showing cause why they do not obey them if they believe them improper to be obeyed; or by orders which have some known laws to authorize them;

“Andwhereasthis Court conceives this order to be no mandatory writ warranted by law, nor knows of no law that authorizes making the order aforesaid, so they think themselves under no obligation to obey it. Which obedience they think would be in them the opening of a door for arbitrary commands,which, when once opened, they know not what dangerous consequences may attend it;

“Thereforethis Court conceives itself bound in duty (for the preservation of the rights of this Corporation, and, as much as they can, of the liberty of the press and of the people of the Province, since the Assembly of the Province and several grand juries have refused to meddle with the papers when applied to by the Council) to protest against the order aforesaid, and to forbid all the members of this Corporation to pay any obedience to it until it be shown to this Court that the same is authorized by some known law, which they neither know nor believe that it is.”

Upon the reading of which it was required of the honorable Francis Harison, recorder of this Corporation and one of the members of the Council (who was present at the making of the said order), to show by what law or authority the said order was made. Upon which he spoke in support of it, and cited the case of Doctor Sacheverell’s sermon,[2]which was by the House of Lords ordered to be burned by the hands of the hangman, and that the mayor and aldermen of London should attend the doing of it.

To which one of the aldermen answered to this purpose, that he conceived the case was no ways parallel because Doctor Sacheverell and his sermon were impeached by the House of Commons of England, which is the grand jury of the nation and representative of the whole people of England. That this, their impeachment, they prosecuted before the House of Lords, the greatest court of justice of Britain, and which beyond the memory of man has had cognizance of things of that nature. That Sacheverell had a fair hearing in defense of himself and his sermon. And after that fair hearing he and his sermon were justly, fairly, and legally condemned. That he had read the case of Doctor Sacheverell,and thought he could charge his memory that the judgment of the House of Lords in that case was that only the mayor and sheriffs of London and Middlesex should attend the burning of the sermon, and not the aldermen; and further he remembered that the order upon that judgment was only directed to the sheriffs of London, and not even to the mayor, who did not attend the doing of it. And farther said that would Mr. Recorder show that the Governor and Council had such authority as the House of Lords, and that the papers ordered to be burned were in like manner legally prosecuted and condemned, there the case of Doctor Sacheverell might be to the purpose. But without showing that, it rather proved that a censure ought not to be pronounced till a fair trial by a competent and legal authority were first had.

Mr. Recorder was desired to produce the books from whence he cited his authorities, that the court might judge of them themselves; and was told that if he could produce sufficient authorities to warrant this order they would readily obey it, but not otherwise. Upon which he said that he did not carry his books around with him. To which it was answered that he might send for them, or order a constable to fetch them. Upon which he arose, and at the lower end of the table he mentioned that Bishop Burnet’s pastoral letter was ordered by the House of Lords to be burned by the high bailiff of Westminster.[3]Upon which he abruptly went away without waiting for an answer or promising to bring his books, and did not return.

After Mr. Recorder’s departure it was moved that the protest should be entered. To which it was answered that the protest could not be entered without entering also the order, and that it was not fit to take any notice of it; and therefore it was proposed that no notice should be taken in their books of either, which was unanimously agreed to by the court.

The sheriff then moved that the court would direct their whipper to perform the said order. To which it was answered that as he was an official of the Corporation they would give no such order. Soon after the court adjourned, and did not attend the burning of the papers.

Afterwards, about noon, the sheriff, after reading the numbers of the several papers which were ordered to be burned, delivered them into the hands of his own Negro and ordered him to put them into the fire, which he did. Mr. Recorder and several of the officers of the garrison attended.

On the Lord’s Day, November 17, 1734, I was taken and imprisoned by virtue of a warrant in these words:

“At a Council held at Fort George in New York, November 2, 1734. Present: His Excellency William Cosby, Captain General and Governor in Chief, Mr. Clarke, Mr. Harison, Mr. Livingston, Mr. Kennedy, the Chief Justice, Mr. Cortlandt, Mr. Lane, Mr. Horsmanden.

“It is ordered that the sheriff for the City of New York do forthwith take and apprehend John Peter Zenger for printing and publishing several seditious libels dispersed throughout his journals or newspapers, entitledThe New York Weekly Journal; as having in them many things tending to raise factions and tumults among the people of this Province, inflaming their minds with contempt of His Majesty’s government, and greatly disturbing the peace thereof. And upon his taking the said John Peter Zenger, to commit him to the prison or common jail of the said city and county.”

And being by virtue of that warrant so imprisoned in the jail, I was for several days denied the use of pen, ink and paper, and the liberty of speech with any persons.

[Zenger’s lawyers, James Alexander and William Smith, got a habeas corpus, and then argued before the court thattheir client had a right to reasonable bail. In support of their case they appealed to English law and precedent.]

Sundry other authorities and arguments were produced and insisted on by my counsel to prove my right to be admitted to moderate bail, and to such bail as was in my power to give. Sundry parts of history they produced to show how much the requiring of excessive bail had been resented by Parliament. And in order to enable the court to judge what surety was in my power to give, I made affidavit that (my debts paid) I was not worth forty pounds (the tools of my trade and wearing apparel excepted).

Some warm expressions (to say no worse of them) were dropped on this occasion, sufficiently known and resented by the listeners, which for my part I desire may be buried in oblivion. In the end it was ordered that I might be admitted to bail, myself in 400 pounds with two sureties, each in 200 pounds, and that I should be remanded till I gave it.

As this was ten times more than was in my power to countersecure any person in giving bail for me, I conceived that I could not ask any to become my bail on these terms; and therefore I returned to the jail, where I lay until Tuesday, January 28, 1735, the last day of the court term. Then, the grand jury having found nothing against me, I expected to be discharged from my imprisonment. But my hopes proved vain, for the attorney general then charged me by “information” for printing and publishing parts of myJournalsNos. 13 and 23 as being “false, scandalous, malicious and seditious.”

[When the Court reconvened, Alexander and Smith impugned the right of the Chief Justice, James Delancey, and his colleague, Frederick Philipse, to preside over the case.The lawyers took the position that the commissions of Delancey and Philipse were defective because, among other things, Governor Cosby had appointed the two judges without the consent of his Council, and “at pleasure” instead of “during good behavior.”]

Mr. Alexander offered the above “exceptions” to the Court and prayed that they might be filed. Upon this the Chief Justice said to Mr. Alexander and Mr. Smith that they ought well to consider the consequences of what they offered. To which both answered that they had well considered what they offered, and all the consequences. Mr. Smith added that he was so well satisfied of the right of the subject to take an exception to the commission of a judge, if he thought such commission illegal, that he durst venture his life upon that point. As to the validity of the exceptions then offered, he said he took that to be a second point, but was ready to argue them both, if Their Honors were pleased to hear him. To which the Chief Justice replied that he would consider the exceptions in the morning, and ordered the clerk to bring them to him.

On Wednesday, April 16, 1735, the Chief Justice delivered one of the exceptions to the clerk, and to Justice Philipse the other, upon which Mr. Smith arose and asked the judges whether Their Honors would hear him.

To which the Chief Justice said that they would neither hear nor allow the exceptions. “For,” said he, “you thought to have gained a great deal of applause and popularity by opposing this Court; but you have brought it to that point that either we must go from the bench or you from the bar. Therefore we exclude you and Mr. Alexander from the bar.” He delivered a paper to the clerk and ordered it to be entered, which the clerk entered accordingly, and returned thepaper to the Chief Justice. After which the Chief Justice ordered the clerk to read publicly what he had written, an attested copy whereof follows:

“James Alexander and William Smith, attorneys of this Court, having presumed (notwithstanding they were forewarned by the Court of their displeasure if they should do it) to sign, and having actually signed and put into Court, exceptions in the name of John Peter Zenger, thereby denying the legality of the judges’ commissions (though in the usual form) and the being of this Supreme Court;

“It is therefore orderedthat, for the said contempt, the said James Alexander and William Smith be excluded from any farther practice in this Court, and that their names be struck out of the roll of attorneys of this Court.”

After the order of the Court was read, Mr. Alexander asked whether it was the order of Mr. Justice Philipse as well as of the Chief Justice? To which both answered that it was their order.

Mr. Alexander added that it was proper to ask the question that they might know how to have their relief. He further observed to the Court, upon reading of the order, that they were mistaken in their wording of it because the exceptions were only to their commissions, and not to the being of the Court, as is therein alleged; and prayed that the order might be altered accordingly. The Chief Justice said they conceived the exceptions were against the being of the Court. Both Mr. Alexander and Mr. Smith denied that they were, and prayed the Chief Justice to point to the place that contained such exception. They further added that the Court might well exist although the commissions of all the judges were void; which the Chief Justice confessed to be true. Therefore they prayed again that the order in that point might be altered. But it was denied.

[At a meeting of the Court two days later Alexander and Smith asked for a ruling on the extent to which they were affected by the Court order.]

They both also mentioned that it was a doubt whether by the words of the order they were debarred of their practice as counsel as well as attorneys, whereas they practiced in both capacities. To which the Chief Justice answered that the order was plain: That James Alexander and William Smith were debarred and excluded from their whole practice at this bar, and that the order was intended to bar their acting both as counsel and as attorneys, and that it could not be construed otherwise. It being asked Mr. Philipse whether he understood the order so, he answered that he did.

Upon this exclusion of my counsel I petitioned the Court to order counsel for my defense, who thereon appointed John Chambers; who pleaded “Not guilty” for me. But as to the point whether my exceptions should be part of the record as was moved by my former counsel, Mr. Chambers thought not proper to speak to it. Mr. Chambers also moved that a certain day in the next term might be appointed for my trial, and for a struck jury. Whereupon my trial was ordered to be on Monday, August 4, and the Court would consider till the first day of next term whether I should have a struck jury or not, and ordered that the sheriff should in the meantime, at my charge, return the Freeholders book.

On Tuesday, July 29, 1735, the Court opened. On the motion of Mr. Chambers for a struck jury, pursuant to the rule of the preceding term, the Court were of the opinion that I was entitled to have a struck jury. That evening at five o’clock some of my friends attended the clerk for striking the jury; when to their surprise the clerk, instead of producing the Freeholders book, to strike the jury from it in their presenceas usual, produced a list of 48 persons whom he said he had taken out of the Freeholders book.

My friends told him that a great number of these persons were not freeholders; that others were persons holding commissions and offices at the Governor’s pleasure; that others were of the late displaced magistrates of this city, who must be supposed to have resentment against me for what I had printed concerning them; that others were the Governor’s baker, tailor, shoemaker, candlemaker, joiner, etc.; that as to the few indifferent men that were upon that list, they had reason to believe (as they had heard) that Mr. Attorney had a list of them, to strike them out. And therefore they requested that he would either bring the Freeholders book, and choose out of it 48 unexceptional men in their presence as usual, or else that he would hear their objections particularly to the list he offered, and that he would put impartial men in the place of those against whom they could show just objections.

Notwithstanding this, the clerk refused to strike the jury out of the Freeholders book, and refused to hear any objections to the persons on the list; but told my friends that if they had any objections to any persons, they might strike those persons out. To which they answered that there would not remain a jury if they struck out all the exceptional men, and according to the custom they had a right to strike out only twelve.

Finding no arguments could prevail with the clerk to hear their objections to his list, nor to strike the jury as usual, Mr. Chambers told him that he must apply to the Court; which the next morning he did. And the Court upon his motion ordered that the 48 should be struck out of the Freeholders book as usual, in the presence of the parties, and that the clerk should hear objections to persons proposed to be of the48, and allow of such exceptions as were just. In pursuance of that order a jury was that evening struck to the satisfaction of both parties. My friends and counsel insisted on no objections but want of freehold, although they did not insist that Mr. Attorney General should show any particular cause against any persons he disliked, but acquiesced that any person he disliked should be left out of the 48.

Before James Delancey, Chief Justice of the Province of New York, and Frederick Philipse, Associate Justice, my trial began on August 4, 1735, upon an information for printing and publishing two newspapers which were called libels against our Governor and his administration.

The defendant, John Peter Zenger, being called, appeared.

MR. CHAMBERS,of counsel for the defense. I humbly move, Your Honors, that we may have justice done by the sheriff, and that he may return the names of the jurors in the same order as they were struck.

MR. CHIEF JUSTICE.How is that? Are they not so returned?

MR. CHAMBERS.No they are not. For some of the names that were last set down in the panel are now placed first.

MR. CHIEF JUSTICE.Make that out and you shall be righted.

MR. CHAMBERS.I have the copy of the panel in my hand as the jurors were struck, and if the clerk will produce the original signed by Mr. Attorney and myself, Your Honor will see that our complaint is just.

MR. CHIEF JUSTICE.Clerk, is it so? Look upon that copy. Is it a true copy of the panel as it was struck?

CLERK.Yes, I believe it is.

MR. CHIEF JUSTICE.How came the names of the jurors to be misplaced in the panel?

SHERIFF.I have returned the jurors in the same order in which the clerk gave them to me.

MR. CHIEF JUSTICE.Let the names of the jurors be rangedin the order they were struck, agreeable to the copy here in Court.

Which was done accordingly; and the jury, whose names were as follows, were called and sworn: Thomas Hunt (Foreman), Harmanus Rutgers, Stanly Holmes, Edward Man, John Bell, Samuel Weaver, Andries Marschalk, Egbert van Borsom, Benjamin Hildreth, Abraham Keteltas, John Goelet, Hercules Wendover.

Mr. Attorney General opened the information, which was as follows:

MR. ATTORNEY.May it please Your Honors and you, Gentlemen of the Jury. The information now before the Court, and to which the defendant, Zenger, has pleaded “Not guilty,” is an information for printing and publishing a false, scandalous, and seditious libel in which His Excellency, the Governor of this Province, who is the king’s immediate representative here, is greatly and unjustly scandalized as a person that has no regard to law or justice; with much more, as will appear upon reading the information. Libeling has always been discouraged as a thing that tends to create differences among men, ill blood among the people, and oftentimes great bloodshed between the party libeling and the party libeled. There can be no doubt but you, Gentlemen of the Jury, will have the same ill opinion of such practices as judges have always shown upon such occasions. But I shall say no more at this time, until you hear the information, which is as follows:

Be it remembered that Richard Bradley, Attorney General of the king for the Province of New York, who prosecutes for the king in this part, in his own proper person comes here into the Court of the king, and for the king gives the Court her to understand and be informed:

That John Peter Zenger, of the City of New York, printer (being a seditious person; and a frequent printer and publisher of false news and seditious libels, both wickedly and maliciously devising the administration of His Excellency William Cosby, Captain General and Governor in Chief, to traduce, scandalize, and vilify both His Excellency the Governor and the ministers and officers of the king, and to bring them into suspicion and the ill opinion of the subjects of the king residing within the Province), on the twenty-eighth day of January, in the seventh year of the reign of George the Second, at the City of New York did falsely, seditiously, and scandalously print and publish, and cause to be printed and published, a certain false, malicious, seditious, scandalous libel entitledThe New York Weekly Journal.

In which libel, among other things therein contained, are these words, “Your appearance in print at last gives a pleasure to many, although most wish you had come fairly into the open field, and not appeared behind entrenchments made of the supposed laws against libeling, and of what other men had said and done before. These entrenchments, gentlemen, may soon be shown to you and to all men to be weak, and to have neither law nor reason for their foundation, and so cannot long stand in your stead. Therefore you had much better as yet leave them, and come to what the people of this City and Province (the City and Province of New York meaning) think are the points in question. They (the people of the City and Province of New York meaning) think, as matters now stand, that their liberties and properties are precarious, and that slavery is like to be entailed on them and their posterity if some past things be not amended, and this they collect from many past proceedings.” (Meaning many of the past proceedings of His Excellency, the Governor, andof the ministers and officers of the king, of and for the said Province.)

And the Attorney General likewise gives the Court here to understand and be informed:

That the said John Peter Zenger afterwards, to wit on the eighth day of April, did falsely, seditiously and scandalously print and publish another false, malicious, seditious, and scandalous libel entitledThe New York Weekly Journal.

In which libel, among other things therein contained, are these words, “One of our neighbors (one of the inhabitants of New Jersey meaning) being in company and observing the strangers (some of the inhabitants of New York meaning) full of complaints, endeavored to persuade them to remove into Jersey. To which it was replied, that would be leaping out of the frying pan into the fire; for, says he, we both are under the same Governor (His Excellency the said Governor meaning), and your Assembly have shown with a vengeance what is to be expected from them. One that was then moving to Pennsylvania (meaning one that was then removing from New York with intent to reside at Pennsylvania), to which place it is reported that several considerable men are removing (from New York meaning), expressed in terms very moving much concern for the circumstances of New York (the bad circumstances of the Province and people of New York meaning), and seemed to think them very much owing to the influence that some men (whom he called tools) had in the administration (meaning the administration of government of the said Province of New York). He said he was now going from them, and was not to be hurt by any measures they should take, but could not help having some concern for the welfare of his countrymen, and should be glad to hear that the Assembly (meaning the General Assembly of the Province of New York) would exert themselves as becamethem by showing that they have the interest of their country more at heart than the gratification of any private view of any of their members, or being at all affected by the smiles or frowns of a governor (His Excellency the said Governor meaning); both of which ought equally to be despised when the interest of their country is at stake.

“You, says he, complain of the lawyers, but I think the law itself is at an end. We (the people of the Province of New York meaning) see men’s deeds destroyed, judges arbitrarily displaced, new courts erected without consent of the legislature (within the Province of New York meaning) by which it seems to me trial by jury is taken away when a governor pleases (His Excellency the said Governor meaning), and men of known estates denied their votes contrary to the received practice, the best expositor of any law. Who is there then in that Province (meaning the Province of New York) that can call anything his own, or enjoy any liberty, longer than those in the administration (meaning the administration of government of the said Province of New York) will condescend to let them do it? For which reason I have left it, as I believe more will.”

These words are to the great disturbance of the peace of the said Province of New York, to the great scandal of the king, of His Excellency the Governor, and of all others concerned in the administration of the government of the Province, and against the peace of the king, his crown, and his dignity.

Whereupon the said Attorney General of the king prays the advisement of the Court here, in the premises, and the due process of law against the said John Peter Zenger.

To this information the defendant has pleaded “Not guilty,” but we are ready to prove it.

Mr. Chambers has not been pleased to favor me with his notes, so I cannot, for fear of doing him an injustice, pretend to set down his argument. But here Mr. Chambers set forth very clearly the nature of a libel, the great allowances that ought to be made for what men speak or write, that in all libels there must be some particular persons so clearly pointed out that no doubt must remain about who is meant, that he was in hopes Mr. Attorney would fail in his proof as to this point. And therefore desired that he would go on to examine his witnesses.

Then Mr. Hamilton, who at the request of some of my friends was so kind as to come from Philadelphia to assist me at the trial, spoke.

MR. HAMILTON.May it please Your Honor, I am concerned in this cause on the part of Mr. Zenger, the defendant. The information against my client was sent me a few days before I left home, with some instructions to let me know how far I might rely upon the truth of those parts of the papers set forth in the information, and which are said to be libelous.

Although I am perfectly of the opinion with the gentleman who has just now spoken on the same side with me, as to the common course of proceedings—I mean in putting Mr. Attorney upon proving that my client printed and published those papers mentioned in the information—yet I cannot think it proper for me (without doing violence to my own principles) to deny the publication of a complaint, which I think is the right of every freeborn subject to make when the matters so published can be supported with truth.

Therefore I shall save Mr. Attorney the trouble of examining his witnesses to that point. I do (for my client) confess that he both printed and published the two newspapers set forth in the information—and I hope that in so doing he has committed no crime.

MR. ATTORNEY.Then if Your Honor pleases, since Mr. Hamilton has confessed the fact, I think our witnesses may be discharged. We have no further occasion for them.

MR. HAMILTON.If you brought them here only to prove the printing and publishing of these newspapers, we have acknowledged that, and shall abide by it.

Here my journeyman and two sons (with several others subpoenaed by Mr. Attorney to give evidence against me) were discharged, and there was silence in the Court for some time.

MR. CHIEF JUSTICE.Well, Mr. Attorney, will you proceed?

MR. ATTORNEY.Indeed, Sir, as Mr. Hamilton has confessed the printing and publishing of 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 libelous for that. Nay, indeed the law says their being true is an aggravation of the crime.

MR. HAMILTON.Not so neither, Mr. Attorney. 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 libeler. For the words themselves must be libelous—that is,false,scandalous,and seditious—or else we are not guilty.

As Mr. Attorney has not been pleased to favor us with his argument, which he read, or with the notes of it, we cannot take upon us to set down his words, but only to show the book cases he cited and the general scope of the argument which he drew from those authorities.

He observed upon the excellency as well as the use of government, and the great regard and reverence which had beenconstantly paid to it, under both the law and the Gospels. That by government we were protected in our lives, religion, and properties; and for these reasons great care had always been taken to prevent everything that might tend to scandalize magistrates and others concerned in the administration of the government, especially the supreme magistrate. And that there were many instances of very severe judgments, and of punishments, inflicted upon such as had attempted to bring the government into contempt by publishing false and scurrilous libels against it, or by speaking evil and scandalous words of men in authority, to the great disturbance of the public peace. And to support this he cited various legal texts.

From these books he insisted that a libel was a malicious defamation of any person, expressed either in printing or writing, signs or pictures, to asperse the reputation of one that is alive, or the memory of one that is dead. If he is a private man, the libeler deserves a severe punishment, but if it is against a magistrate or other public person, it is a greater offense. For this concerns not only the breach of the peace but the scandal of the government. What greater scandal of government can there be than to have corrupt or wicked magistrates appointed by the king to govern his subjects? A greater imputation to the state there cannot be than to suffer such corrupt men to sit in the sacred seat of justice, or to have any meddling in or concerning the administration of justice.

From the same books Mr. Attorney insisted that whether the person defamed is a private man or a magistrate, whether living or dead, whether the libel is true or false, or if the party against whom it is made is of good or evil fame, it is nevertheless a libel. For in a settled state of government the party grieved ought to complain, for every injury done him,in the ordinary course of the law. And as to its publication, the law had taken so great care of men’s reputations that if one maliciously repeats it, or sings it in the presence of another, or delivers the libel or a copy of it over to scandalize the party, he is to be punished as a publisher of a libel.

He said it was likewise evident that libeling was an offense against the law of God. Acts 23:5: Then said Paul, “I wist not, brethren, that he was the high priest; for it is written Thou shalt not speak evil of the ruler of thy people.” II Peter 2:10: Despise government. Presumptuous are they, selfwilled, they are not afraid to speak evil of dignities.

He then insisted that it was clear, by the laws of God and man, that it was a very great offense to speak evil of, or to revile, those in authority over us. And that Mr. Zenger had offended in a most notorious and gross manner, in scandalizing His Excellency our governor, who is the king’s immediate representative and the supreme magistrate of this Province. For can there be anything more scandalous said of a governor than what is published in those papers? Nay, not only the Governor but both the Council and the Assembly are scandalized. For there it is plainly said that “as matters now stand, their liberties and properties are precarious, and that slavery is like to be entailed on them and their posterity.” And then again Mr. Zenger says, “The Assembly ought to despise the smiles or frowns of a governor; that he thinks the law is at an end; that we see men’s deeds destroyed, judges arbitrarily displaced, new courts erected without consent of the legislature; that it seems that trials by jury are taken away when a governor pleases; and that none can call anything his own longer than those in the administration will condescend to let him do it.”

Mr. Attorney added that he did not know what could be said in defense of a man that had so notoriously scandalizedthe Governor and the principal magistrates and officers of the government by charging them with depriving the people of their rights and liberties, taking away trial by jury, and, in short, putting an end to the law itself. If this was not a libel, he said, he did not know what was one. Such persons as will take those liberties with governors and magistrates he thought ought to suffer for stirring up sedition and discontent among the people.

He concluded by saying that the government had been very much traduced and exposed by Mr. Zenger before he was taken notice of; that at last it was the opinion of the Governor and the Council that he ought not to be suffered to go on to disturb the peace of the government by publishing such libels against the Governor and the chief persons in the government; and therefore they had directed this prosecution to put a stop to this scandalous and wicked practice of libeling and defaming His Majesty’s government and disturbing His Majesty’s peace.

Mr. Chambers then summed up to the jury, observing with great strength of reason on Mr. Attorney’s defect of proof that the papers in the information were false, malicious, or seditious, which it was incumbent on him to prove to the jury, and without which they could not on their oaths say that they were so as charged.

MR. HAMILTON.May it please Your Honor, I agree with Mr. Attorney that government is a sacred thing, but I differ widely from him when he would insinuate that the just complaints of a number of men who suffer under a bad administration is libeling that administration. Had I believed that to be law, I should not have given the Court the trouble of hearing anything that I could say in this cause.

I own that when I read the information I had not the art to find out (without the help of Mr. Attorney’sinnuendos) that the Governor was the person meant in every period of that newspaper. I was inclined to believe that they were written by some who (from an extraordinary zeal for liberty) had misconstrued the conduct of some persons in authority into crimes; and that Mr. Attorney (out of his too great zeal for power) had exhibited this information to correct the indiscretion of my client, and at the same time to show his superiors the great concern he had lest they should be treated with any undue freedom.

But from what Mr. Attorney has just now said, to wit, that this prosecution was directed by the Governor and the Council, and from the extraordinary appearance of people of all conditions, which I observe in Court upon this occasion, I have reason to think that those in the administration have by this prosecution something more in view, and that the people believe they have a good deal more at stake, than I apprehended. Therefore, as it is become my duty to be both plain and particular in this cause, I beg leave to bespeak the patience of the Court.

I was in hopes—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, knowing this, would not have attempted to set up a star chamber here, nor to make their judgments a precedent to us. For it is well known that what would have been judged treason in those days for a man to speak, has since not only been practiced as lawful, but the contrary doctrine has been held to be law.

In Brewster’s case,[4]for printing that subjects might defendtheir rights and liberties by arms in case the king should go about to destroy them, he was told by the Chief Justice that it was a great mercy he was not proceeded against for his life; for to say the king could be resisted by arms in any case whatsoever was express treason. And yet we see since that time that Doctor Sacheverell was sentenced in the highest court in Great Britain for saying that such a resistance was not lawful. Besides, as times have made very great changes in the laws of England, so in my opinion there is good reason that places should do so too.

Is it not surprising to see a subject, upon receiving a commission from the king to be a governor of a Colony in America, immediately imagining himself to be vested with all the prerogatives belonging to the sacred person of his prince? And, which is yet more astonishing, to see that a people can be so wild as to allow of and acknowledge those prerogatives and exemptions, even to their own destruction? Is it so hard a matter to distinguish between the majesty of our sovereign and the power of a governor of The Plantations? Is not this making very free with our prince, to apply that regard, obedience, and allegiance to a subject, which is due only to our sovereign?

And yet in all the cases which Mr. Attorney has cited to show the duty and obedience we owe to the supreme magistrate, it is the king that is there meant and understood, although Mr. Attorney is pleased to urge them as authorities to prove the heinousness of Mr. Zenger’s offense against the Governor of New York. The several Plantations are compared to so many large corporations, and perhaps not improperly. Can anyone give an instance that the head of a corporation ever put in a claim to the sacred rights of majesty? Let us not (while we are pretending to pay a great regard toour prince and his peace) make bold to transfer that allegiance to a subject which we owe to our king only.

What strange doctrine is it to press everything for law here which is so in England? I believe we should not think it a favor, at present at least, to establish this practice. In England so great a regard and reverence is had to the judges that if any man strikes another in Westminster Hall while the judges are sitting, he shall lose his right hand and forfeit his land and goods for so doing. Although the judges here claim all the powers and authorities within this government that a Court of King’s Bench has in England, yet I believe Mr. Attorney will scarcely say that such a punishment could be legally inflicted on a man for committing such an offense in the presence of the judges sitting in any court within the Province of New York. The reason is obvious. A quarrel or riot in New York cannot possibly be attended with those dangerous consequences that it might in Westminster Hall; nor (I hope) will it be alleged that any misbehavior to a governor in The Plantations will, or ought to be, judged of or punished as a like undutifulness would be to our sovereign.

From all of which, I hope Mr. Attorney will not think it proper to apply his law cases (to support the cause of his governor) which have only been judged where the king’s safety or honor was concerned.

It will not be denied that a freeholder in the Province of New York has as good a right to the sole and separate use of his lands as a freeholder in England, who has a right to bring an action of trespass against his neighbor for suffering his horse or cow to come and feed upon his land or eat his corn, whether enclosed or not. Yet I believe it would be looked upon as a strange attempt for one man here to bring an actionagainst another whose cattle and horses feed upon his grounds that are not enclosed, or indeed for eating and treading down his corn, if that were not enclosed.

Numberless are the instances of this kind that might be given to show that what is good law at one time and in one place is not so at another time and in another place. So that I think the law seems to expect that in these parts of the world men should take care, by a good fence, to preserve their property from the injury of unruly beasts. And perhaps there may be a good reason why men should take the same care to make an honest and upright conduct a fence and security against the injury of unruly tongues.

MR. ATTORNEY.I don’t know what the gentleman means by comparing cases of freeholders in England with freeholders here. What has this case to do with actions of trespass or men’s fencing their ground? The case before the Court is whether Mr. Zenger is guilty of libeling 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.” If such papers are not libels, I think it may be said that there can be no such thing as a libel.

MR. HAMILTON.May it please Your Honor, I cannot agree with Mr. Attorney. For although I freely acknowledge that there are such things as libels, yet I must 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.”

MR. ATTORNEY.I think that I did not omit the word“false.” But it has been said already that it may be a libel notwithstanding that it may be true.

MR. HAMILTON.In this I must still differ with Mr. Attorney. For I depend upon it that we are to be tried upon this information now before the Court and the jury, and to which we have pleaded “Not guilty.” By it 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? I hope Mr. Attorney will not say he put it there by chance, and I am of the opinion that his information would not be good without it.

But to show that it is the principal thing which, in my opinion, makes a libel, suppose that the information had been for printing and publishing a certaintruelibel, would that be the same thing? Or could Mr. Attorney support such an information by any precedent in the English law? No, the falsehood makes the scandal, and both make the libel. And to show 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 befalse, I shall own them to bescandalous, seditious, and a libel. So the work seems now to be pretty much shortened, and Mr. Attorney has now only to prove the wordsfalsein order to make us guilty.

MR. ATTORNEY.We have nothing to prove. You have confessed the printing and publishing. But if it were necessary (as I insist it is not), how can we prove a negative? I hope some regard will be had to the authorities that have been produced, and that supposing all the words to be true, yet that will not help them. Chief Justice Holt,[5]in his charge to the jury in the case of Tutchin,[6]made no distinction whether Tutchin’s papers were true or false; and as Chief Justice Holt has made no distinction in that case, so noneought to be made here; nor can it be shown that, in all that case, there was any question made about their being false or true.

MR. HAMILTON.I did expect to hear that a negative cannot be proved. But everybody knows there are many exceptions to that general rule. For if a man is charged with killing another, or stealing his neighbor’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, etc. And this, I think, is proving a negative.

But we will save Mr. Attorney the trouble of proving a negative, take theonus probandion ourselves, and prove those very papers that are called libels to betrue.

MR. CHIEF JUSTICE.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 it istrue.

MR. HAMILTON.I am sorry the Court has so soon resolved upon that piece of law. I expected first to have been heard to that point. I have not, in all my reading, met with an authority that says we cannot be admitted to give the truth in evidence upon an information for libel.

MR. CHIEF JUSTICE.The law is clear that you cannot justify a libel.

MR. HAMILTON.I own that, may it please Your Honor, to be so. But, with submission, I understand the word “justify” there to be a justification by plea, as it is in the case upon an indictment for murder or an assault and battery. There the prisoner cannot justify, but pleads “Not guilty.” Yet it will not be denied but he may be, and always is, admitted to give the truth of the fact, or any other matter, in evidence, which goes to his acquittal. As in murder he may prove that it was in defense of his life, his house, etc.; and in assault and batteryhe may give in evidence that the other party struck first; and in both cases he will be acquitted. In this sense I understand the word “justify” when applied to the case before the Court.

MR. CHIEF JUSTICE.I pray, show that you can give the truth of a libel in evidence.

[Here there was a discussion of the point, and Hamilton produced precedents from English law to prove that in the past men accused of libel had been allowed to defend themselves on the ground of the truth of what they wrote.]

MR. HAMILTON.How shall it be known whether the words are libelous, that is,trueorfalse, but by admitting us to prove themtrue, since Mr. Attorney will not undertake to prove themfalse? Besides, is it not against common sense that a man should be punished in the same degree for a true libel (if any such thing could be) as for a false one? I know it is said that truth makes a libel the more provoking, and therefore the offense is greater, and consequently the judgment should be the heavier. Well, suppose it were so, and let us agree for once thattruth is a greater sin than falsehood. Yet, as the offenses are not equal, and as the punishment is arbitrary, that is, according as the judges in their discretion shall direct to be inflicted, is it not absolutely necessary that they 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 a judgment against a man for writing or publishing a lie, as for writing or publishing a truth? And yet this, with submission, as monstrous and ridiculous as it may seem to be, is the natural consequence of Mr. Attorney’s doctrine thattruth makes aworse libel than falsehood, and must follow from his not proving our papers to befalse, or not suffering us to prove them to betrue.

In the case of Tutchin, which seems to be Mr. Attorney’s chief authority, that case is against him; for Tutchin was, at his trial, put upon showing the truth of his papers; but he did not. At least the prisoner was asked by the king’s counsel whether he would say that they weretrue. And as he never pretended that they were true, the Chief Justice was not to say so.

But the point will be clearer on our side from Fuller’s case.[7]Here you see is a scandalous and infamous charge against the late king; here is a charge no less than high treason, against the men in public trust, for receiving money of the French king, then in actual war with the crown of Great Britain; and yet the Court were far from bearing him down with that star chamber doctrine, to wit, that it was no matter whether what he said was true or false. No, on the contrary, Lord Chief Justice Holt asks Fuller, “Can you make it appear that they are true? Have you any witnesses? You might have had subpoenas for your witnesses against this day. If you take it upon you to write such things as you are charged with, it lies upon you to prove them true, at your peril. If you have any witnesses, I will hear them. How came you to write those books which are not true? If you have any witnesses, produce them. If you can offer any matter to prove what you wrote, let us hear it.” Thus said, and thus did, that great man, Lord Chief Justice Holt, upon a trial of the like kind with ours; and the rule laid down by him in this case isthat he who will take upon him to write things, it lies upon him to prove them, at his peril. Now, sir, we have acknowledged the printing and publishing of those papers set forth in the information, and (with the leave of the Court) agreeableto the rule laid down by Chief Justice Holt, we are ready to prove them to be true, at our peril.

MR. CHIEF JUSTICE.Let me see the book.

Here the Court had the case under consideration a considerable time, and everyone was silent.

MR. CHIEF JUSTICE.Mr. Attorney, you have heard what Mr. Hamilton has said, and the cases he has cited, for having his witnesses examined to prove the truth of the several facts contained in the papers set forth in the information. What do you say to it?

MR. ATTORNEY.The law, in my opinion, is very clear. They cannot be admitted to justify a libel, for by the authorities I have already read to the Court it is not the less a libel because it is true. I think I need not trouble the Court over again. The thing seems to be very plain, and I submit it to the Court.

MR. CHIEF JUSTICE.Mr. Hamilton, the Court is of the opinion that you ought not to be permitted to prove the facts in the papers. These are the words of the book, “It is far from being a justification of a libel that the contents thereof are true, or that the person upon whom it is made had a bad reputation, since the greater appearance there is of truth in any malicious invective, so much the more provoking it is.”

MR. HAMILTON.These are star chamber cases, and I was in hopes that that practice had been dead with the court.

MR. CHIEF JUSTICE.Mr. Hamilton, the Court have delivered their opinion, and we expect that you will use us with good manners. You are not to be permitted to argue against the opinion of the Court.

MR. HAMILTON.With submission, I have seen the practice in very great courts, and never heard it deemed unmannerly to—

Back to Index Next