[Hamilton] said, that the two great questions that arose in the cause were: 1. Can the truth be given in evidence? 2. Are the jury to judge of the intent and the law?
The liberty of the press consisted in publishing with impunity, truth with good motives, and for justifiable ends, whether it related to men or to measures. To discuss measures without reference to men, was impracticable. Why examine measures, but to prove them bad, and to point out their pernicious authors, so that the people might correct the evil by removing the men? There was no other way to preserve liberty, and bring down a tyrannical faction. If this right was not permitted to exist in vigor and in exercise, good men would become silent; corruption and tyranny would go on, step by step, in usurpation, until at last, nothing that was worth speaking, or writing, or acting for, would be left in our country.
But he did not mean to be understood as being the advocate of a press wholly without control. He reprobated the novel, the visionary, the pestilential doctrine of an unchecked press, and ill fated would be our country, if this doctrine was to prevail. It would encourage vice, compel the virtuous to retire, destroy confidence, and confound the innocent with the guilty. Single drops of water constantly falling may wear out adamant. The best character of our country, he to whom it was most indebted, and who is now removed beyond the reach of calumny, felt its corrosive effects. No, he did not contend for this terrible liberty of the press, but he contended for the right of publishing truth, with good motives, although the censure might light upon the government, magistrates, or individuals.
The check upon the press ought to be deposited, not in a permanent body of magistrates, as the court, but in an occasional and fluctuating body, the jury, who are to be selected by lot. Judges might be tempted to enter into the views of government, and to extend, by arbitrary constructions, the law of libels. In the theory of our government, the executive and legislative departments are operated upon by one influence, and act in one course, by means of popular election. How, then, are our judges to be independent? How can they withstand the combined force and spirit of the other departments? The judicial is less independent here than in England, and, of course, we have more reason, and stronger necessity, to cling to the trial by jury, as our greatest safety.
Men are not to be implicitly trusted, in elevated stations. The experience of mankind teaches us, that persons have often arrived at power by means of flattery and hypocrisy; but instead of continuing humble lovers of the people, have changed into their most deadly persecutors.
The right of giving the truth in evidence, in cases of libels, is all-important to the liberties of the people. Truth is an ingredient in the eternal order of things, in judging of the quality of acts. He hoped to see the axiom, that truth was admissible, recognized by our legislative and judicial bodies. He always had a profound reverence for this doctrine, and he felt a proud elevation of sentiment in reflecting, that the act of congress, [Sedition Act] which had been the object of so much unmerited abuse, and had been most grossly misrepresented by designing men, established this great vital principle. It was an honorable, a worthy and glorious effort in favor of public liberty.
He maintained that the common law applied to the United States. That the common law was principally the application of natural law to the state and condition of society.
That the constitution of the United States used terms and ideas which had a reference to the common law, and were inexplicable without its aid. That the definition of treason, of the writ of habeas corpus, of crimes and misdemeanors, &c., were all to be expounded by the rules of the common law. That the constitution would be frittered away or borne down by factions, (the evil genii, the pest of republics,) if the common law was not applicable. That without this guide, any political tenet or indiscretion might be made a crime or pretext to impeach, convict and remove from office the judges of the federal courts. That if we departed from common law principles, we would degenerate into anarchy, and become the sport of the fury of conflicting passions. The transition from anarchy was to despotism, to an armed master.
The real danger to our liberties was not from a few provisional troops. The road to tyranny will be opened by making dependent judges, by packing juries, by stifling the press, by silencing leaders and patriots. His apprehensions were not from single acts of open violence. Murder rouses to vengeance; it awakens sympathy, and spreads alarm. But the most dangerous, the most sure, the most fatal of tyrannies, was by selecting and sacrificing single individuals, under the mask and forms of law, by dependent and partial tribunals. Against such measures we ought to keep a vigilant eye, and take a manly stand. Whenever they arise, we ought to resist, and resist, till we have hurled the demagogues and tyrants from their imagined thrones. He concurred most readily with the learned counsel opposed to him, in the opinion that the English were a free, a gloriously free people. That country is free where the people have a representation in the government, so that no law can pass without their consent; and where they are secured in the administration of justice, by the trial by jury. We have gone further in this country into the popular principle, and he cordially united his prayers with the opposite counsel, that the experiment with us might be successful.
The question on the present libel ought to be again tried. It concerns the reputation of Mr. Jefferson. It concerned deeply the honor of our country. It concerned the fame of that bright and excellent character General Washington, in which he had left a national legacy of inestimable value.
He concluded, by recapitulating the substance of the doctrine for which he contended, in the following words:
The liberty of the press consists in the right to publish, with impunity, truth, with good motives, for justifiable ends, though reflecting on government, magistracy, or individuals.
That the allowance of this right is essential to the preservation of a free government; the disallowance of it fatal.
That its abuse is to be guarded against by subjecting the exercise of it to the animadversion and control of the tribunals of justice; but that this control cannot safely be entrusted to a permanent body of magistracy, and requires the effectual co-operation of court and jury.
That to confine the jury to the mere question of publication, and the application of terms, without the right of inquiry into the intent or tendency, reserving to the court the exclusive right of pronouncing upon the construction, tendency, and intent of the alleged libel, is calculated to render nugatory the function of the jury; enabling the court to make a libel of any writing whatsoever, the most innocent or commendable.