Defense of John Peter Zenger on Charge of Seditious Libel

Andrew Hamilton

New York, 1735


Mr. Hamilton. May it please Your Honor; 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 libeling that administration. Had I believed that to be law, I should not have given the Court the trouble of hearing anything that I should say in this cause. I own when I read the information I had not the art to find out (without the help of Mr. Attorney's innuendoes) that the Governor was the person meant in every period of that newspaper; and I was inclined to believe that they were wrote 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 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: And 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, I think, has since not only been practiced as lawful, but the contrary doctrine has been held to be law In Brewster's case for printing that the subjects might defend their 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 that to say the King could be resisted by arms in any case whatsoever was express treason. And yet we see since that time Dr. 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 his 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, though 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; and can anyone give an instance that the mayor or 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 to our 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. And though 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 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 but 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 enclosed; and yet I believe it would be looked upon as a strange attempt for one man here to bring an action against another, whose cattle and horses feed upon his grounds 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 C[oke] 3 Inst. I40. 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 as 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. And if such papers are not libels, I think it may be said there can be no such thing as a libel.

Mr. Hamilton. May it please Your Honor; I cannot agree with Mr. Attorney: For though 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 I did not omit the word false: But it has been said already that it may be a libel notwithstanding it may be true.

Mr. Hamilton. In this I must still differ with Mr. Attorney; for I depend upon it, we are to be tried upon this information now before the Court and jury, and to which we have pleaded not guilty, and 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 opinion his information would not be good without it. But to show that it is the principal thing which, in my opinion, makes a libel, I put the case, if the information had been for printing and publishing a certain true libel, 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 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.

Mr. Attorney. 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? But 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, that Chief Justice Holt in his charge to the jury in the case of Tutchin made no distinction whether Tutchin's papers were true or false; and as Chief Justice Holt has made no distinction in that case, so none ought to be made here; nor can it be shown 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, and take the onus probandi upon ourselves, and prove those very papers that are called libels to be true.

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 is true.

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 a 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 plead not guilty: Yet it will not be denied but he may, 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 it was in defense of his life, his house, etc., and in assault and battery, he may give in evidence that the other party struck first, and in both cases he will be acquitted. And 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.

Mr. Hamilton. I am ready, both from what I understand to be the authorities in the case, and from the reason of the thing, to show that we may lawfully do so. But here I beg leave to observe that informations for libels is a child if not born, yet nursed up and brought to full maturity, in the Court of Star Chamber.

Mr. Chief Justice. Mr. Hamilton you'll find yourself mistaken; for in Coke's Institutes you'll find informations for libels long before the Court of Star Chamber.

Mr. Hamilton. I thank Your Honor; that is an authority I did propose to speak to by and by: But as you have mentioned it, I'll read that authority now. I think it is in 3 Co. Inst. under title Libel; it is the case of John de Northampton for a letter wrote to Robert de Ferrers, one of the King's Privy Council, concerning Sir William Scot, Chief Justice, and his fellows; but it does not appear to have been upon information; and I have good grounds to say it was upon indictment, as was the case of Adam de Ravensworth, just Coke 3 Inst.. 174. mentioned before by Lord Coke under the same title; and I think there cannot be a greater, at least a plainer authority for us, than the judgment in the case of John de Northampton, which my Lord has set down at large. Et quia praedictus lohannes cognouit dictam litteram per se scriptam Roberto de Ferrers, qui est de Concilio Regis, qua littera continet in se nullam ueritatem, etc. Now sir, by this judgment it appears the libelous words were utterly false, and there the falsehood was the crime and is the ground of that judgment: And is not that what we contend for? Do not we insist that the falsehood makes the scandal, and both make the libel? And how shall it be known whether the words are libelous, that is, true or false, but by admitting us to prove them true, since Mr. Attorney will not undertake to prove them false? 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 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 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 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. But this is only reasoning upon the case, and I will now proceed to show what in my opinion will be sufficient to induce the Court to allow us to prove the truth of the words which in the information are called libelous. And first, I think there cannot be a greater authority for us than the judgment I just now mentioned in the case of John de Northampton, and that was in early times, and before the Star Chamber came to its fullness of power and wickedness. In that judgment, as I observed, the falsehood of the letter which was wrote is assigned as the very ground of the sentence. And agreeable to this it was urged by Sir Robert Sawyer in the trial of the seven bishops, that the falsity, the malice, and sedition of the writing were all facts to be proved. But here it may be said Sir Robert was one of the bishops' counsel, and his argument is not to be allowed for law: But I offer it only to show that we are not the first who have insisted that to make a writing a libel, it must be false. And if the argument of a counsel must have no weight, I hope there will be more regard shown to the opinion of a judge, and therefore I mention the words of Justice Powell in the same trial, where he says (of the petition of the bishops, which was called a libel, and upon which they were prosecuted by information) that to make it a libel, it must be false and malicious and tend to sedition; and declared, as he saw no falsehood or malice in it, he was of opinion that it was no libel. Now I should think this opinion alone, in the case of the King, and in a case which that King had so much at heart and which to this day has never been contradicted, might be a sufficient authority to entitle us to the liberty of proving the truth of the papers which in the information are called false, malicious, seditious and scandalous. If it be objected that the opinions of the other three judges were against him, I answer that the censures the judgments of these men have undergone, and the approbation Justice Powell's opinion, his judgment and conduct upon that trial has met with, and the honor he gained to himself for daring to speak truth at such a time, upon such an occasion, and in the reign of such a King, is more than sufficient in my humble opinion, to warrant our insisting on his judgment as a full authority to our purpose, and it will lie upon Mr. Attorney to show that this opinion has since that time been denied to be law, or State Trials, Vol. 4 [trial of the seven bishops, June 29, 1688, King's Bench. IV State Trials 300392. For the most famous account of the trial, see Macaulay, History of England, 11, 9901039]. that Justice Powell who delivered it has ever been condemned or blamed for it in any law book extant at this day, and this I will venture to say Mr. Attorney cannot do. But to make this point yet more clear, if anything can be clearer, I will on our part proceed and show that in the case of Sir Samuel Barnardiston, his counsel, notwithstanding he stood before one of the greatest monsters that ever presided in an English court (Judge Jeffreys) insisted on the want of proof to the malice and seditious intent of the author of what was called a libel. And in the case of Tutchin, which seems to be Mr. Attorney's chief authority, that case is against him; for he was upon his trial put upon showing the truth of his papers, but did not; at least the prisoner was asked by the King's counsel whether he would say they were true? # And as he never pretended that they were true, the Chief Justice was not to say so. But the point will still be clearer on our side from Fuller's case, for falsely and wickedly causing to be printed a false and scandalous libel, in which (amongst other things) were contained these words, "Mr. Jones has also made oath that he paid 5___ more by the late King's order to several persons in places of trust, that they might complete my ruin, and invalidate me forever. Nor is this all; for the same Mr. Jones will prove by undeniable witness and demonstration that he has distributed more than I80,000 in eight years last past by the French King's order to persons in public trust in this kingdom." 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 they are true? Have you any witnesses? You might have had subpoenas for your witnesses against this day. If you take State Trials, Vol. V, 549 [Case of John Tutchin].[State Trials, Vol. V, 445 [Case of William Fuller, May 20, 1702, King's Bench. V State Trials 445449]. 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 have 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 is that 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) agreeable to 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 with reading the cases 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 opinion, 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 practice had been dead with the Court.

Mr. Chief Justice. 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.

Mr. Hamilton. With submission, I have seen the practice in very great courts, and never heard it deemed unmannerly to--

Mr. Chief Justice. After the Court have declared their opinion, it is not good manners to insist upon a point in which you are overruled.

Mr. 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.

Mr. Chief Justice. Use the Court with good manners, and you shall be allowed all the liberty you can reasonably desire.

Mr. Hamilton. I thank Your Honor. Then, gentlemen of the jury, it is to you we must now appeal for witnesses 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. The law supposes you to be summoned out of the neighborhood where the fact is alleged to be committed; and the reason of your being taken out of the neighborhood is because you are supposed to have the best knowledge of the fact that is to be tried. And 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, according to my brief, the facts which we offer to prove were not committed in a corner; they are notoriously known to be true; and therefore in your justice lies our safety. 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; and I hope it will have that weight with you. But since we are not admitted to examine our witnesses, I will endeavor to shorten the dispute with Mr. Attorney, and to that end I desire he would favor us with some standard definition of a libel, by which it may be certainly known whether a writing be a libel, yea or not.

Mr. ,Attorney. The books, I think, have given a very full definition of a libel; they say it is in a strict sense taken for a malicious defamation, expressed either in printing or writing, and tending either to blacken the memory of one who is dead, or the reputation of one who is alive, and to expose him to public hatred, contempt, or ridicule. 2. But it is said that in a larger sense the notion of a libel may be applied to any defamation whatsoever, expressed either by signs or pictures, as by fixing up a gallows against a man's door, or by painting him in a shameful and ignominious manner. 3. and since the chief cause for which the law so severely punishes all offences of this nature is the direct tendency of them to a breach of public peace by provoking the parties injured, their friends and families, to acts of revenge, which it would be impossible to restrain by the severest laws, were there no redress from public justice for injuries of this kind, which of all others are most sensibly felt; and since the plain meaning of such scandal as is expressed by signs or pictures is as obvious to common sense, and as easily understood by every common capacity, and altogether as provoking as that which is expressed by writing or printing, why should it not be equally criminal? 4. And from the same ground it seemeth also clearly to follow that such scandal as is expressed in a scoffing and ironical manner makes a writing as properly a libel, as that which is expressed in direct terms; as where a writing, in a taunting manner reckoning up several acts of public charity done by one, says you will not play the Jew, nor the hypocrite, and so goes on in a strain of ridicule to insinuate that what he did was owing to his vainglory; or where a writing, pretending to recommend to one the characters of several great men for his imitation, instead of taking notice of what they are generally esteemed famous for, pitched on such qualities only which their enemies charge them with the want of, as by proposing such a one to be imitated for his courage who is known to be a great statesman but no soldier, and another to be imitated for his learning who is known to be a great general but no scholar, etc., which kind of writing is as well understood to mean only to upbraid the parties with the want of these qualities as if it had directly and expressly done so.

Mr. Hamilton. Ay, Mr. Attorney; but what certain standard rule have the books laid down, by which we can certainly know whether the words or the signs are malicious ? Whether they are defamatory ? Whether they tend to the breach of the peace, and are a sufficient ground to provoke a man, his family, or friends to acts of revenge, especially those of the ironical sort of words? And what rule have you to know when I write ironically? I think it would be hard, when I say such a man is a very worthy honest gentleman, and of fine understanding, that therefore I meant he was a knave or a fool.

Mr. Attorney. I think the books are very full; it is said in I Hawk. p. 193, just now read, that such scandal as is expressed in a scoffing and ironical manner makes a writing as properly a libel as that which is expressed in direct terms; as where a writing, in a taunting manner says, reckoning up several acts of charity done by one, says, you will not play the Jew or the hypocrite, and so goes on to insinuate that what he did was owing to his vainglory, etc. Which kind of writing is as well understood to mean only to upbraid the parties with the want of these qualities, as if it had directly and expressly done so. I think nothing can be plainer or more full than these words.

Mr. Hamilton. I agree the words are very plain, and I shall not scruple to allow (when we are agreed that the words are false and scandalous, and were spoken in an ironical and scoffing manner, etc.) that they are really libelous; but here still occurs the uncertainty which makes the difficulty to know what words are scandalous and what not; for you say, they may be scandalous, true or false; besides, how shall we know whether the words were spoke in a scoffing and ironical manner, or seriously? Or how can you know whether the man did not think as he wrote? For by your rule, if he did, it is no irony, and consequently no libel. But under favor, Mr. Attorney, I think the same book and the same section will show us the only rule by which all these things are to be known. The words are these: which kind of writing is as well UNDERSTOOD to mean only to upbraid the parties with the want of these qualities, as if they had directly and expressly done 50.35 Here it is plain the words are scandalous, scoffing and ironical only as they are understood. I know no rule laid down in the books but this, I mean, as the words are understood .

Mr. Chief Justice. Mr. Hamilton, do you think it so hard to know when words are ironical, or spoke in a scoffing manner?

Mr. Hamilton. I own it may be known; but I insist, the only rule to know is, as I do or can understand them; I have no other rule to go by, but as I understand them.

Mr. Chief Justice. That is certain. All words are libelous or not, as they are understood. Those who are to judge of the words must judge whether they are scandalous or ironical, tend to the breach of the peace, or are seditious: There can be no doubt of it.

Mr. Hamilton. I thank Your Honor; I am glad to find the Court of this opinion. Then it follows that those twelve men must understand the words in the information to be scandalous, that is to say false; for I think it is not pretended they are of the ironical sort; and when they understand the words to be so, they will say we are guilty of publishing a false libel, and not otherwise.

Mr. Chief Justice. 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; you know this is very common; it is in the nature of a special verdict, where the jury leave the matter of law to the Court.

Mr. Hamilton. I know, may it please Your Honor, 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 libelous or not in effect renders juries useless (to say no worse) in many cases; but this I shall have occasion to speak to by and by; and I will with the Court's leave proceed to examine the inconveniencies that must inevitably arise from the doctrines Mr. Attorney has laid down; and I observe, in support of this prosecution, he has frequently repeated the words taken from the case of libel. Famosis in 5. Co. This is indeed the leading case, and to which almost all the other cases upon the subject of libels do refer; and I must insist upon saying that according as this case seems to be understood by the Court and Mr. Attorney, it is not law at this day: For though I own it to be base and unworthy to scandalize any man, yet I think it is even villainous to scandalize a person of public character, and I will go so far into Mr. Attorney's doctrine as to agree that if the faults, mistakes, nay even the vices of such a person be private and personal, and don't affect the peace of the public, or the liberty or property of our neighbor, it is unmanly and unmannerly to expose them either by word or writing. But when a ruler of a people brings his personal failings, but much more his vices, into his administration, and the people find themselves affected by them, either in their liberties or properties, that will alter the case mightily, and all the high things that are said in favor 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, I mean in a free government. It is true in times past it was a crime to speak truth, and in that terrible Court of Star Chamber, many worthy and brave men suffered for so doing; and yet even in that Court and in those bad times, a great and good man durst say, what I hope will not be taken amiss of me to say in this place, to wit, The practice of informations for libels is a sword in the hands of a wicked king and an arrant coward to cut down and destroy the innocent; the one cannot because of his high station, and the other dares not because of his want of courage, revenge himself in another manner.

Mr. Attorney. Pray Mr. Hamilton, have a care what you say, don't too far neither, I don't like those liberties.

Mr.. Hamilton. Sure, Mr. Attorney, you won't make any applications; all men agree that we are governed by the best of kings, and I cannot see the meaning of Mr. Attorney's caution; my well known principles, and the sense I have of the blessings we enjoy under His present Majesty, makes it impossible for me to err, and I hope, even to be suspected, in that point of duty to my King. May it please Your Honor, I was saying that notwithstanding all the duty and reverence claimed by Mr. Attorney to men in authority, they are not exempt from observing the rules of common justice, either in their private or public capacities; the laws of our Mother Country know no exemption. It is true, men in power are harder to become at for wrongs they do either to a private person or to the public; especially a governor in the plantations, where they insist upon an exemption from answering complaints of any kind in their own government. We are indeed told and it is true they are obliged to answer a suit in the King's courts at Westminster for a wrong done to any person here: But do we not know how impracticable this is to most men among us, to leave their families (who depend upon their labor and care for their livelihood) and carry evidences to Britain, and at a great, nay, a far greater expense than almost any of us are able to bear, only to prosecute a governor for an injury done here. But when the oppression is general there is no remedy even that way, no, our constitution has (blessed be God) given us an opportunity, if not to have such wrongs redressed, yet by our prudence and resolution we may in a great measure prevent the committing of such wrongs by making a governor sensible that it is his interest to be just to those under his care; for such is the sense that men in general (I mean freemen) have of common justice, that when they come to know that a chief magistrate abuses the power with which he is trusted for the good of the people, and is attempting to turn that very power against the innocent, whether of high or low degree, I say mankind in general seldom fail to interpose, and as far as they can, prevent the destruction of their fellow subjects. And has it not often been seen (and I hope it will always be seen) that when the representatives of a free people are by just representations or remonstrances made sensible of the sufferings of their fellow subjects by the abuse of power in the hands of a governor, they have declared (and loudly too) that they were not obliged by any law to support a governor who goes about to destroy a province or colony, or their privileges, which by His Majesty he was appointed, and by the law he is bound to protect and encourage. But I pray it may be considered of what use is this mighty privilege if every man that suffers must be silent? And if a man must be taken up as a libeler for telling his sufferings to his neighbor? I know it may be answered, Have you not a legislature? Have you not a House of Representatives to whom you may complain? And to this I answer, we have. But what then? Is an Assembly to be troubled with every injury done by a governor? Or are they to hear of nothing but what those in the administration will please to tell them? Or what sort of a trial must a man have? And how is he to be remedied; especially if the case were, as I have known it to happen in America in my time, that a governor who has places (I will not say pensions, for I believe they seldom give that to another which they can take to themselves) to bestow, and can or will keep the same Assembly (after he has modeled them so as to get a majority of the House in his interest) for near twice seven years together? 39 I pray, what redress is to be expected for an honest man who makes his complaint against a governor to an Assembly who may properly enough be said to be made by the same governor against whom the complaint is made? The thing answers itself No, it is natural, it is a privilege, I will go farther, it is a right which all freemen claim, and are entitled to complain when they are hurt; they have a right publicly to remonstrate the abuses of power in the strongest terms, to put their neighbors 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. And when a House of Assembly composed of honest freemen sees the general bent of the people's inclinations, that is it which must and will (I'm sure it ought to) weigh with a legislature, in spite of all the craft, caressing and cajoling made use of by a governor to divert them from hearkening to the voice of their country. As we all very well understand the true reason why gentlemen take so much pains and make such great interest to be appointed governors, so is the design of their appointment not less manifest. We know His Majesty's gracious intentions to his subjects; he desires no more than that his people in the plantations should be kept up to their duty and allegiance to the Crown of Great Britain, that peace may be preserved amongst them, and justice impartially administered; that we may be governed so as to render us useful to our Mother Country, by encouraging us to make and raise such commodities as may be useful to Great Britain. But will any one say that all or any of these good ends are to be effected by a governor's setting his people together by the ears, and by the assistance of one part of the people to plague and plunder the other ? The commission which governors bear while they execute the powers given them, according to the intent of the Royal Grantor expressed in their commissions, requires and deserves very great reverence and submission; but when a governor departs from the duty enjoined him by his Sovereign, and acts as if he was less accountable than the Royal Hand that gave him all that power and honor which he is possessed of; this sets people upon examining and enquiring into the power, authority and duty of such a magistrate, and to compare those with his conduct, and just as far as they find he exceeds the bounds of his authority, or falls short in doing impartial justice to the people under his administration, so far they very often, in return, come short in their duty to such a governor. For power alone will not make a man beloved, and I have heard it observed that the man who was neither good nor wise before his being made a governor, never mended upon his preferment, but has been generally observed to be worse: For men who are not endued with wisdom and virtue can only be kept in bounds by the law; and by how much the further they think themselves out of the reach of the law, by so much the more wicked and cruel men are. I wish there were no instances of the kind at this day. And wherever this happens to be the case of a governor, unhappy are the people under his administration, and in the end he will find himself so too; for the people will neither love him nor support him. I make no doubt but there are those here who are zealously concerned for the success of this prosecution, and yet I hope they are not many, and even some of those I am persuaded (when they consider what lengths such prosecutions may be carried, and how deeply the liberties of the people may be affected by such means) will not all abide by their present sentiments; I say not all: For the man who from an intimacy and acquaintance with a governor has conceived a personal regard for him, the man who has felt none of the strokes of his power, the man who believes that a governor has a regard for him and confides in him, it is natural for such men to wish well to the affairs of such a governor; and as they may be men of honor and generosity, may, and no doubt will, wish him success, so far as the rights and privileges of their fellow citizens are not affected. But as men of honor I can apprehend nothing from them; they will never exceed that point. There are others that are under stronger obligations, and those are such as are in some sort engaged in support of a governor's cause by their own or their relations' dependence on his favor for some post or preferment; such men have what is commonly called duty and gratitude to influence their inclinations, and oblige them to go his lengths. I know men's interests are very near to them, and they will do much rather than forgo the favor of a governor and a ]livelihood at the same time; but I can with very just grounds hope, even from those men, whom I will suppose to be men of honor and conscience too, that when they see the liberty of their country is in danger, either by their concurrence, or even by their silence, they will like Englishmen, and like themselves, freely make a sacrifice of any preferment of favor rather than be accessory to destroying the liberties of their country and entailing slavery upon their posterity. There are indeed another set of men of whom I have no hopes, I mean such who lay aside all other considerations, and are ready to join with power in any shapes, and with any man or sort of men by whose means or interest they may be assisted to gratify their malice and envy against those whom they have been pleased to hate; and that for no other reason but because they are men of abilities and integrity, or at least are possessed of some valuable qualities far superior to their own. But as envy is the sin of the devil, and therefore very hard, if at all, to be repented of, I will believe there are but few of this detestable and worthless sort of men, nor will their opinions or inclinations have any influence upon this trial. But to proceed; I beg leave to insist that the right of complaining or remonstrating is natural; and the restraint upon this natural right is the law only, and those restraints can only extend to what is false: For as it is truth alone which can excuse or justify any man for complaining of a bad administration, I as frankly agree that nothing ought to excuse a man who raises a false charge or accusation, even against a private person, and that no manner of allowance ought to be made to him who does so against a public magistrate. Truth ought to govern the whole affair of libels, and yet the party accused runs risk enough even then; for if he fails of proving every tittle of what he has wrote, and to the satisfaction of the Court and jury too, he may find to his cost that when the prosecution is set on foot by men in power, it seldom wants friends to favor it. And from thence (it is said) has arisen the great diversity of opinions among judges about what words were or were not scandalous or libelous. I believe it will be granted that there is not greater uncertainty in any part of the law than about words of scandal; it would be misspending of the Court's time to mention the cases; they may be said to be numberless; and therefore the utmost care ought to be taken in following precedents; and the times when the judgments were given which are quoted for authorities in the case of libels are much to be regarded. I think it will be agreed that ever since the time of the Star Chamber, where the most arbitrary and destructive judgments and opinions were given that ever an Englishmen heard of, at least in his own country: I say prosecutions for libels since the time of that arbitrary Court, and until the Glorious Revolution, have generally been set on foot at the instance of the Crown or its ministers; and it is no small reproach to the law that these prosecutions were too often and too much countenanced by the judges, who held their places at pleasure (a disagreeable tenure to any officer, but a dangerous one in the case of a judge).40 To say more to this point may not be proper. And yet I cannot think it unwarrantable to show the unhappy influence that a sovereign has sometimes had, not only upon judges, but even upon Parliaments themselves. It has already been shown how the judges delivered in their opinions about the nature of a libel in the case of the seven bishops. There you see three judges of one opinion, that is, of a wrong opinion in the judgment of the best men in England, and one judge of a right opinion. How unhappy might it have been for all of us at this day if that jury had understood the words in that information as the Court did ? Or if they had left it to the Court to judge whether the petition of the bishops was or was not a libel? No they took upon them, to their immortal honor! to determine both law and fact, and to understand the petition of the bishops to be no libel, that is, to contain no falsehood nor sedition, and therefore found them not guilty. And remarkable is the case of Sir Samuel Barnardiston, who was fined I0,000 for writing a letter in which, it may be said, none saw any scandal or falsehood but the Court and jury; for that judgment was afterwards looked upon as a cruel and detestable judgment, and therefore was reversed by Parliament. Many more instances might be given of the complaisance of court judges about those times and before; but I will mention only one case more, and that is the case of Sir Edward Hales, who though a Roman Catholic, was by King James II preferred to be a Colonel of his Army, notwithstanding the statute of 25 Cha. 2nd. Chap. 2 by which it is provided, That every one that accepts of an office, civil or military, etc., shall take the oaths, subscribe the declaration, and take the sacrament, within three months, etc., otherwise he is disabled to hold such office, and the grant for the same to be null and void, and the party to forfeit ~;500.43 Sir Edward Hales did not take the oaths or sacrament, and was prosecuted for the 5__ for exercising the office of a colonel by the space of three months without conforming as in the act is directed. Sir Edward pleads, That the King by his letters patents did dispense with his taking the oaths and sacrament, and subscribing the declaration, and had pardoned the forfeiture of ~500. And whether the King's dispensation was good, against the said act of Parliament? was the question. I shall mention no more of this case than to show how in the reign of an arbitrary prince, where judges hold their seats at pleasure, their determinations have not always been such as to make precedents of, but the contrary; and so it happened in this case where it was solemnly judged, That, notwithstanding this act of Parliament, made in the strongest terms for preservation of the Protestant religion, that yet the King had by his royal prerogative a power to dispense with that law; and Sir Edward Hales was acquitted by the judges accordingly. So the King's dispensing power, being by the judges set up above the act of Parliament, this law, which the people looked upon as their chief security against popery and arbitrary power, was by this judgment rendered altogether ineffectual. But this judgment is sufficiently exposed by Sir Edward Atkins, late one of the judges of the Court of Common Pleas, in his Enquiry into the King's Power of Dispensing with Penal Statutes; ~ where it is shown who it was that first invented dispensations; how they came into England; what ill use has been made of them there; and all this principally owing to the countenance given them by the judges. He says of the dispensing power, The Pope was the inventor of it; our Kings have borrowed it from them; and the judges have from time to time nursed and dressed it up, and given it countenance; and it is still upon the growth, and encroaching 'till it has almost subverted all law, and made the regal power absolute if not dissolute. This seems not only to show how far judges have been influenced by power, and how little cases of this sort where the prerogative has been in question in former reigns are to be relied upon for law: But I think it plainly shows too, that a man may use a greater freedom with the power of his Sovereign and the judges in Great Britain than it seems he may with the power of a governor in the plantations, who is but a fellow subject. Are these words with which we are charged like these? Do Mr. Zenger's papers contain any such freedoms with his governor or his Council as Sir Edward Atkins has taken with the regal power and the judges in England? And yet I never heard of any information brought against him for these freedoms. If then upon the whole there is so great an uncertainty among judges (learned and great men) in matters of this kind; if power has had so great an influence on judges; how cautious ought we to be in determining by their judgments, especially in the plantations and in the case of libels ? There is heresy in law as well as in religion, and both have changed very much; and we well know that it is not two centuries ago that a man would have been burnt as an heretic for owning such opinions in matters of religion as are publicly wrote and printed at this day. They were fallible men, it seems, and we take the liberty not only to differ from them in religious opinions, but to condemn them and their opinions too; and I must presume that in taking these freedoms in thinking and speaking about matters of faith or religion, we are in the right: For, though it is said there are very great liberties of this kind taken in New York, yet I have heard of no information preferred by Mr. Attorney for any offenses of this sort. From which I think it is pretty clear that in New York a man may make very free with his God, but he must take special care what he says of his governor. It is agreed upon by ;all men that this is a reign of liberty, and while men keep within the bounds of truth, I hope they may with safety both speak and write their sentiments of the conduct of men in power. I mean of that part of their conduct only which affects the liberty or property of the people under their administration; were this to be denied, then the the next step may make them slaves: For what notions can be entertained of slavery beyond that of suffering the greatest injuries and oppressions without the liberty of complaining; or if they do, to be destroyed, body and estate, for so doing?It is said and insisted on by Mr. Attorney that government is a sacred thing; that it is to be supporled and reverenced; it is government that protects our persons and estates; that prevents treasons, murders, robberies, riots, and all the train of evils that overturns kingdoms and states and ruins particular persons; and if those in the administration, especially the supreme 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 in the end the laws cannot be put in execution. These I say, and such as these, are the general topics insisted upon by men in power and their advocates. But I wish it might be considered at the same time how often it has happened that the abuse of power has been the primary cause of these evils, and that it was the injustice and oppression of these great men which has commonly brought them into contempt with the people. The craft and art of such men is great, and who that is the least acquainted with history or law can be ignorant of the specious pretenses which have often been made use of by men in power to introduce arbitrary rule and destroy the liberties of a free people. I will give two instances; and as they are authorities not to be denied, nor can be misunderstood, I presume they will be sufficient. The first is the statute of 3d. of Hen. 7. Cap. 1. The preamble of the statute will prove all, and more than I have alleged. It begins, "The King our sovereign lord remembereth how by unlawful maintenances, giving of liveries, signs and tokens, etc., untrue demeanings of sheriffs in making of panels, and other untrue returns, by taking of money, by injuries, by great riots and unlawful assemblies; the policy and good rule of this realm is almost subdued; and for the not punishing these inconveniences, and by occasion of the premises, little or nothing may be found by enquiry, etc., to the increase of murders, etc., and unsureties of all men living, and losses of their lands and goods." Here is a fine and specious pretense for introducing the remedy, as it is called, which is provided by this act, that is; instead of being lawfully accused by 24 good and lawful men of the neighborhood, and afterwards tried by I2 like lawful men, here is a power given to the Lord Chancellor, Lord Treasurer, the Keeper of the King's Privy Seal, or two of them, calling to them a bishop, a temporal lord, and other great men mentioned in the act (who, it is to be observed, were all to be dependents on the court), to receive information against any person for any of the misbehaviors recited in that act, and by their discretion to examine and to punish them according to their demerit. The second statute I proposed to mention is the 11th of the same King, chap. 3d, the preamble of which act has the like fair pretenses as the former: for the King calling to his remembrance the good laws made against the receiving of liveries, etc., unlawful extortions, maintenances, embracery, etc., unlawful games, etc., and many other great enormities and offenses committed against many good statutes to the displeasure of almighty God, which, the act says, could not, nor yet can, be conveniently punished by the due order of the law, except it were first found by 12 men, etc., which, for the causes aforesaid, will not find nor yet present the truth. And therefore the same statute directs that the justices of assize, and justices of the peace, shall, upon information for the King before them made, have full power, by their discretion, to hear and determine all such offenses. Here are two statutes that are allowed to have given the deepest wound to the liberties of the people of England of any that I remember to have been made, unless it may be said that the statute made in the time of Henry 8th by which his proclamations were to have the effect of laws might in its consequence be worse. And yet we see the plausible pretenses found out by the great men to procure these acts. And it may justly be said that by those pretenses the people of England were cheated or awed into the delivering up their ancient and sacred right of trials by grand and petit juries. I hope to be excused for this expression, seeing my Lord Coke calls it an unjust and strange act, that tended in its execution to the great displeasure of almighty God, and the utter subversion of the common law.

These, I think, make out what I alleged, and are flagrant instances of the influences of men in power, even upon the representatives of a whole kingdom. From all which I hope it will be agreed' that it is a duty which all good men owe to their country to guard against the unhappy influence of ill men when entrusted with power, and especially against their creatures and dependents, who, as they are generally more necessitous, are surely more covetous and cruel. But it is worthy of observation that though the spirit of liberty was borne down and oppressed in England at that time, yet it was not lost; for the Parliament laid hold of the first opportunity to free the subject from the many insufferable oppressions and outrages committed upon their persons and estates by color of these acts, the last of which, being deemed the most grievous, was repealed in the first year of Henry 8th.; Though it is to be observed that Henry 7th and his creatures reaped such great advantages by the grievous oppressions and exactions, grinding the faces of the poor subjects, as my Lord Coke says, by color of this statute by information only, that a repeal of this act could never be obtained during the life of that prince. The other statute, being the favorite law for supporting arbitrary power, was continued much longer. The execution of it was by the great men of the realm; and how they executed it, the sense of the kingdom, expressed in the 17th of Charles 1st (by which the Court of Star Chamber, the soil where informations grew rankest) will best declare. In that statute, Magna Charta, and the other statutes made in the time of Edward 3rd, which, I think, are no less than five, are particularly enumerated as acts, by which the liberties and privileges of the people of England were secured to them against such oppressive courts as the Star Chamber and others of the like jurisdiction. And the reason assigned for their pulling down the Star Chamber is that the proceedings, censures and decrees of the Court of Star Chamber, even though the great men of the realm, nay and a bishop too (holy man) were judges, had by experience been found to be an intolerable burden to the subject, and the means to introduce an arbitrary power and government. And therefore that Court was taken away, with all the other courts in that statute mentioned having like jurisdiction. I don't mention this statute as if by the taking away the Court of Star Chamber the remedy for many of the abuses or offenses censured there was likewise taken away; no, I only intend by it to show that the people of England saw clearly the danger of trusting their liberties and properties to be tried, even by the greatest men in the kingdom, without the judgment of a jury of their equals. They had felt the terrible effects of leaving it to the judgment of these great men to say what was scandalous and seditious, false or ironical. And if the Parliament of England thought this power of judging was too great to be trusted with men of the first rank in the kingdom without the aid of a jury, how sacred soever their characters might be, and therefore restored to the people their original right of trial by juries, I hope to be excused for insisting that by the judgment of a Parliament, from whence no appeal lies, the jury are the proper judges of what is false at least, if not of what is scandalous and seditious. This is an authority not to be denied, it is as plain as it is great, and to say that this act indeed did restore to the people trials by juries, which was not the practice of the Star Chamber, but that did not give the jurors any new authority or any right to try matters of law, I say this objection will not avail; for I must insist that where matter of law is complicated with matter of fact, the jury have a right to determine both. As for instance; upon indictment for murder, the jury may, and almost constantly do, take upon them to judge whether the evidence will amount to murder or manslaughter, and find accordingly; and I must say I cannot see why in our case the jury have not at least as good a right to say whether our newspapers are a libel or no libel as another jury has to say whether killing of a man is murder or manslaughter. The right of the jury to find such a verdict as they in their conscience do think is agreeable to their evidence is supported by the authority of Bushel's case, in Vaughan's Reports, pag. I35, beyond any doubt. For, in the argument of that case, the Chief Justice who delivered the opinion of the Court lays it down for law that in all general issues, as upon non cul. in trespass, non tort., nul disseizen in assize, etc., though it is matter of law whether the defendant is a trespasser, a disseizer, etc., in the particular cases in issue, yet the jury find not (as in a special verdict) the fact of every case, leaving the law to the Court; but find for the plaintiff or defendant upon the issue to be tried, wherein they resolve both law and fact complicately. It appears by the same case that though the discreet and lawful assistance of the judge, by way of advice to the jury, may be useful; yet that advice or direction ought always to be upon supposition, and not positive, and upon coercion. The reason given in the same book is because the judge (as judge) cannot know what the evidence is which the jury have, that is, he can only know the evidence given in court; but the evidence which the jury have may be of their own knowledge, as they are returned of the neighborhood. They may also know from their own knowledge that what is sworn in court is not true; and they may know the witnesses to be stigmatized, to which the Court may be strangers. But what is to my purpose is that suppose that the Court did really know all the evidence which the jury know, yet in that case it is agreed that the judge and jury may differ in the result of their evidence as well as two judges may, which often happens. And in pag. I48, the judge subjoins the reason why it is no crime for a jury to differ in opinion from the Court, where he says that a man cannot see with another's eye, nor hear by another's ear; no more can a man conclude or infer the thing by another's understanding or reasoning. From all which (I insist) it is very plain that the jury are by law at liberty (without any affront to the judgment of the Court) to find both the law and the fact in our case as they did in the case I am speaking to, which I will beg leave just to mention, and it was this. Mr. Penn and Mead being Quakers, and having met in a peaceable manner, after being shut out of their meeting house, preached in Grace Church Street in London to the people of their own persuasion, and for this they were indicted; and it was said that they with other persons, to the number of 300, unlawfully and tumultuously assembled, to the disturbance of the peace, etc. To which they pleaded not guilty. And the petit jury being sworn to try the issue between the King and the prisoners, that is, whether they were guilty, according to the form of the indictment? Here there was no dispute but they were assembled together, to the number mentioned in the indictment; But whether that meeting together was riotously, tumultuously, and to the disturbance of the peace? was the question. And the Court told the jury it was, and ordered the jury to find it so; for (said the Court) the meeting was the fact, and that is confessed, and we tell you it is unlawful, for it is against the statute; and the meeting being unlawful, it follows of course that it was tumultuous and to the disturbance of the peace. But the jury did not think fit to take the Court's word for it, for they could neither find riot, tumult, or anything tending to the breach of the peace committed at that meeting; and they acquitted Mr. Penn and Mead. In doing of which they took upon them to judge both the law and the fact, at which the Court (being themselves true courtiers) were so much offended that they fined the jury 40 marks apiece, and committed them till paid. But Mr. Bushel, who valued the right of a juryman and the liberty of his country more than his own, refused to pay the fine, and was resolved (though at a great expense and trouble too) to bring, and did bring, his habeas corpus to be relieved from his fine and imprisonment, and he was released accordingly; and this being the judgment in his case, it is established for law that the judges, how great soever they be, have no right to fine imprison or punish a jury for not finding a verdict according to the direction of the Court. And this I hope is sufficient to prove that jurymen are to see with their own eyes, to hear with their own ears, and to make use of their own consciences and understandings in judging of the lives, liberties or estates of their fellow subjects. And so I have done with this point. This is the second information for libeling of a governor that I have known in America. And the first, though it may look like a romance, yet as it is true, I will beg leave to mention it. Governor Nicholson, who happened to be offended with one of his clergy, met him one day upon the road, and as was usual with him (under the protection of his commission) used the poor parson with the worst of language, threatened to cut off his ears, slit his nose, and at last to shoot him through the head. The parson being a reverend man, continued all this time uncovered in the heat of the sun, until he found an opportunity to fly for it; and coming to a neighbor's house felt himself very ill of a fever, and immediately writes for a doctor; and that his physician might the better judge of his distemper, he acquainted him with the usage he had received; concluding that the Governor was certainly mad, for that no man in his senses would have behaved in that manner. The doctor unhappily shows the parson's letter; the Governor came to hear of it; and so an information was preferred against the poor man for saying he believed the Governor was mad; and it was laid in the information to be false, scandalous and wicked, and wrote with intent to move sedition among the people, and bring His Excellency into contempt. But by an order from the late Queen Anne, there was a stop put to that prosecution, with sundry others set on foot by the same Governor, against gentlemen of the greatest worth and honor in that government. And may not I be allowed, after all this, to say that by a little countenance, almost anything which a man writes may, with the help of that useful term of art called an innuendo, be construed to be a libel, according to Mr. Attorney's definition of it, that whether the words are spoke of a person of a public character, or of a private man, whether dead or living, good or bad, true or false all make a libel; for according to Mr. Attorney, after a man hears a writing read, or reads and repeats it, or laughs at it, they are all punishable. It is true, Mr. Attorney is so good as to allow, after the party knows it to be a libel, but he is not so kind as to take the man's word for it.

[Here were several cases put to show that though what a man writes of a governor was true, proper and necessary, yet according to the foregoing doctrine it might be construed to be a libel: But Mr. Hamilton after the trial was over being informed that some of the cases he had put had really happened in this government, he declared he had never heard of any such; and as he meant no personal reflections, he was sorry he had mentioned them, and therefore they are omitted here.]

Mr. Hamilton. If a libel is understood in the large and unlimited sense urged by Mr. Attorney, there is scarce a writing I know that may not be called a libel, or scarce any person safe from being called to an account as a libeler: For Moses, meek as he was, libeled Cain; and who is it that has not libeled the Devil? For according to Mr. Attorney, it is no justification to say one has a bad name. Echard has libeled our good King William: Burnet has libeled among many others King Charles and King James; and Rapin has libeled them all. How must a man speak or write, or what must he hear, read, or sing? Or when must he laugh, so as to be secure from being taken up as a libeler? I sincerely believe that were some persons to go through the streets of New York nowadays, and read a part of the Bible, if it was not known to be such, Mr. Attorney, with the help of his innuendoes, would easily turn it into a libel. As for instance, Is. IX. 16, The leaders of the people cause them to err, and they that are led by them are destroyed. But should Mr. Attorney go about to make this a libel, he would read it thus; The leaders of the people [innuendo, the Governor and Council of New York] cause them [innuendo, the people of this Province] to err, and they [the people of this Province meaning] that are led by them [the Governor and Council meaning] are destroyed [innuendo, are deceived into the loss of their liberty] which is the worst kind of destruction. Or if some persons should publicly repeat, in a manner not pleasing to his betters, the 10th and 11th verses of the LVI Chap. of the same book, there Mr. Attorney would have a large field to display his skill, in the artful application of his innuendoes. The words are, His watchmen are all blind, they are ignorant, etc. Yea, they are greedy dogs, that can never have enough. But to make them a libel, there is according to Mr. Attorney's doctrine no more wanting but the aid of his skill in the right adapting his innuendoes. As for instance; His watchmen [innuendo, the Governor's Council and Assembly] are all blind, they are ignorant [innuendo, will not see the dangerous designs of His Excellency]. Yea, they [the Governor and Council meaning] are greedy dogs, which can never have enough [innuendo, enough of riches and power]. Such an instance as this is seems only fit to be laughed at; but I may appeal to Mr. Attorney himself, whether these are not at least equally proper to be applied to His Excellency and his ministers as some of the inferences and innuendoes in his information against my client. Then if Mr. Attorney is at liberty to come into court, and file an information in the King's name without leave, who is secure whom he is pleased to prosecute as a libeler ? And as the Crown law is contended for in bad times, there is no remedy for the greatest oppression of this sort, even though the party prosecuted is acquitted with honor. And give me leave to say as great men as any in Britain have boldly asserted that the mode of prosecuting by information (when a Grand Jury will not find billa vera) is a national grievance, and greatly inconsistent with that freedom which the subjects of England enjoy in most other cases. But if we are so unhappy as not to be able to ward off this stroke of power directly, yet let us take care not to be cheated out of our liberties by forms and appearances; let us always be sure that the charge in the information is made out clearly even beyond a doubt; for though matters in the information may be called form upon trial, yet they may be and often have been found to be matters of substance upon giving judgment. Gentlemen; the danger is great in proportion to the mischief that may happen through our too great credulity. A proper confidence in a court is commendable; but as the verdict (whatever it is) will be yours, you ought to refer no part of your duty to the discretion of other persons. If you should be of opinion that there is no falsehood in Mr. Zenger's papers, you will, nay (pardon me for the expression) you ought to say so; because you don't know whether others (I mean the Court) may be of that opinion. It is your right to do so, and there is much depending upon your resolution as well as upon your integrity. The loss of liberty to a generous mind is worse than death; and yet we know there have been those in all ages who for the sake of preferment or some imaginary honor have freely lent a helping hand to oppress, nay to destroy their country. This brings to my mind that saying of the immortal Brutus, when he looked upon the creatures of Caesar, who were very great men but by no means good men. "You Romans," said Brutus, "if yet I may call you so, consider what you are doing; remember that you are assisting Caesar to forge those very chains which one day he will make yourselves wear." This is what every man (that values freedom) ought to consider: He should act by judgment and not by affection or selfinterest; for, where those prevail, no ties of either country or kindred are regarded, as upon the other hand the man who loves his country prefers its liberty to all other considerations, well knowing that without liberty, life is a misery.A famous instance of this you will find in the history of another brave Roman of the same name, I mean Lucius Junius Brutus, whose story is well known and therefore I shall mention no more of it than only to show the value he put upon the freedom of his country. After this great man, with his fellow citizens whom he had engaged in the cause, had banished Tarquin the Proud, the last King of Rome, from a throne which he ascended by inhuman murders and possessed by the most dreadful tyranny and proscriptions, and had by this means amassed incredible riches, even sufficient to bribe to his interest many of the young nobility of Rome to assist him in recovering the crown; but the plot being discovered, and principal conspirators were apprehended, among whom were two of the sons of Junius Brutus. It was absolutely necessary that some should be made examples of, to deter others from attempting the restoring of Tarquin and destroying the liberty of Rome. And to effect this it was that Lucius Junius Brutus, one of the consuls of Rome, in the presence of the Roman people, sat judge and condemned his own sons as traitors to their country: And to give the last proof of his exalted virtue and his love of liberty: He with a firmness of mind (only becoming so great a man) caused their heads to be struck off in his own presence; and when he observed that his rigid virtue occasioned a sort of horror among the people, it is observed he only said, "My fellow citizens, do not think that this proceeds from any want of natural affection: No, the death of the sons of Brutus can affect Brutus only; but the loss of liberty will affect my country." Thus highly was liberty esteemed in those days that a father could sacrifice his sons to save his country. But why do I go to heathen Rome to bring instances of the love of liberty, the best blood in Britain has been shed in the cause of liberty: and the freedom we enjoy at this day may be said to be (in a great measure) owing to the glorious stand the famous Hampden, and other of our countrymen, made against the arbitrary demands and illegal impositions of the times in which they lived; who rather than give up the rights of Englishmen and submit to pay an illegal tax of no more, I think, than 3 shillings, resolved to undergo, and for their liberty of their country did undergo, the greatest extremities in that arbitrary and terrible Court of Star Chamber, to whose arbitrary proceedings (it being composed of the principal men of the realm and calculated to support arbitrary government) no bounds or limits could be set, nor could any other hand remove the evil but a Parliament. Power may justly be compared to a great river, while kept within its due bounds, is both beautiful and useful; but when it overflows its banks, it is then too impetuous to be stemmed, it bears down all before it and brings destruction and desolation wherever it comes. If then this is the nature of power, let us at least do our duty, and like wise men (who value freedom) use our utmost care to support liberty, the only bulwark against lawless power, which in all ages has sacrificed to its wild lust and boundless ambition the blood of the best men that ever lived. I hope to be pardoned, sir, for my zeal upon this occasion; it is an old and wise caution that when our neighbor's house is on fire, we ought to take care of our own. For though blessed be God, I live in a government where liberty is well understood and freely enjoyed; yet experience has shown us all (I'm sure it has to me) that a bad precedent in one government is soon set up for an authority in another; and therefore I cannot but think it mine and every honest man's duty that (while we pay all due obedience to men in authority) we ought at the same time to be upon our guard against power wherever we apprehend that it may affect ourselves or our fellow subjects. I am truly very unequal to such an undertaking on many accounts. And you see I labor under the weight of many years, and am borne down with great infirmities of body; yet old and weak as I am, I should think it my duty, if required, to go to the utmost part of the land where my service could be of any use in assisting to quench the flame of prosecutions upon informations set on foot by the government to deprive a people of the right of remonstrating (and complaining too) of the arbitrary attempts of men in power. Men who injure and oppress the people under their administration provoke them to cry out and complain; and then make that very complaint the foundation for new oppressions and prosecutions. I wish I could say there were no instances of this kind. But to conclude; the question before the Court and you gentlemen of the jury is not of small nor private concern, it is not the cause of a poor printer, nor of New York alone, which you are now trying: No! It may in its consequence affect every freeman that lives under a British government on the main of America. It is the best cause. It is the cause of liberty; and I make no doubt but your upright conduct this day will not only entitle you to the love and esteem of your fellow citizens; but every man who prefers freedom to a life of slavery will bless and honor you as men who have baffled the attempt of tyranny; and by an impartial and uncorrupt verdict, have laid a noble foundation for securing to ourselves, our posterity, and our neighbors that to which nature and the laws of our country have given us a right--the liberty--both of exposing and opposing arbitrary power (in these parts of the world, at least) by speaking and writing truth.

[Here Mr. Attorney observed that Mr. Hamilton had gone very much out of the way, and had made himself and the people very merry: But that he had been citing cases not at all to the purpose; he said there was no such cause as Mr. Bushel's or Sir Edward Hale's before the court; and he could not find out what the Court or jury had to do with dispensations, riots or unlawful assemblies: All that the jury had to consider of was Mr. Zenger's printing and publishing two scandalous libels, which very highly reflected on His Excellency and the principal men concerned in the administration of this government, which is confessed. That is, the printing and publishing of the Journals set forth in the information is confessed. And concluded that as Mr. Hamilton had confessed the printing and there could be no doubt but they were scandalous papers, highly reflecting upon His Excellency, and the principal magistrates in the Province. And therefore he made no doubt but the jury would find the Defendant guilty, and would refer to the Court for their direction.]

Mr. Chief Justice. Gentlemen of the jury. The great pains Mr. Hamilton has taken to show how little regard juries are to pay to the opinion of the judges, and his insisting so much upon the conduct of some judges in trials of this kind, is done no doubt with a design that you should take but very little notice of what I might say upon this occasion. I shall therefore only observe to you that as the facts or words in the information are confessed: The only thing that can come in question before you is whether the words as set forth in the information make a libel. And that is a matter of law, no doubt, and which you may leave to the Court. But I shall trouble you no further with anything more of my own, but read to you the words of a learned and upright judge ~ in a case of the like nature. To say that corrupt officers are appointed to administer affairs is certainly a reflection on the government. If people should not be called to account for possessing the people with an ill opinion of the government, no government can subsist, for it is very necessary for all governments that the people should have a good opinion of it. And nothing can be worse to any government than to endeavor to procure animosities; as to the management of it, this has been always looked upon as a crime, and no government can be safe without it be punished. Now you are to consider whether these words I have read to you, do not tend to beget an ill opinion of the administration of the government?