Zenger

A Brief Narrative of the Case and Trial of John Peter Zenger (Excerpts)

Trial of John Peter Zenger for seditious libel before the NY Supreme Court, 1735

Arguments of Andrew Hamilton from Philadelphia for the defense:

May it please Your Honor, I am concerned in this cause on the part of Mr. Zenger, the defendant.

….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.

Gentlemen of the Jury, it is to you we must 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. …[W]ere 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….

I know, may it please Your Honor, the Jury may … 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.

[I]t 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.

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 … 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 that 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 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 that 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.

It is said and insisted on by [the prosecuting] Attorney, That Government is a sacred Thing; That it is to be supported and reverenced; It is Government that protects our Persons and Estates; That prevents Treasons, Murders, Robberies, Riots, and all the 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 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 hope to be excused for insisting, that … the Jury are the proper judges, of what is false at least, if not, of what is scandalous and seditious.

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 News Papers 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.

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 born down with great Infirmities of Body; yet Old and Weak as I am, I should think it my Duty, if required, to go 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.

[The jury withdrew and, after a little while, returned with a verdict of not guilty.]

The above excerpts are drawn from the original 1736 version of A Brief Narrative of the Case and Trial of John Peter Zenger. The author was probably James Alexander. [There are changes in spelling, and italics are removed.]

For a complete version: