Chapter VIII: A Newspaper War (4)

I think it will be agreed that ever since the time of the Star Chamber, where the most arbitrary judgments and opinions were given that ever an Englishman heard of, at least in his own country; I say, prosecutions for libel 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). 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 differed in their opinions about the nature of a libel in the case of the Seven Bishops.[8] 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 or sedition; and therefore found them not guilty.

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. We well know that it is not two centuries ago that a man would have been burned as a heretic for owning such opinions in matters of religion as are publicly written 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. I must presume that in taking these freedoms in thinking and speaking about matters of faith or religion, we are in the right; for although it is said that 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 a special care what he says of his governor.

It is agreed upon by all men that this is a reign of liberty. 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 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 supported and reverenced; that it is government that protects our persons and estates, 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 into 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 that 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 pretences that have often been made use of by men in power to introduce arbitrary rule, and to destroy the liberties of a free people?

[_Here Hamilton went back to legal history to strengthen his position
on the right of a defendant to plead truth in libel cases, and on the
right of the jury to determine both the law and the fact—that is, to
deliver a verdict of guilty or not guilty of libel, instead of leaving
that culminating decision to the judges on the bench._]

This is the second information for libeling of a governor that I have known in America. The first, although it may look like a romance, yet as it is true I will beg leave to mention it.

Governor Nicholson,[9] who happened to be offended with one of his clergy, met him one day upon the road; and as usual with him (under the protection of his commission) used the poor parson with the worst of language, and 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. Coming to a neighbor’s house, he 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 showed 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. It was laid down in the information to be false, scandalous, and wicked, and written with intent to move sedition among the people, and to 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 that 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—to wit, that whether the words are spoken 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 that Mr. Attorney is so good as to allow it must be 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 although what a man writes of a governor were 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, declared that 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 a 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 that one has a bad name. Echard has libeled our good King William;[10] Burnet has libeled, among others, King Charles and King James; and Rapin has libeled them all.[11] 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 _innuendos_) would easily turn it into a libel. As for instance Isaiah 9:16: “The leaders of the people cause them to err; and they that are led by them are destroyed.” 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 person should publicly repeat, in a manner not pleasing to his betters, the 10th and 11th verses of the 56th chapter of the same book, there Mr. Attorney would have a large field to display his skill in the artful application of his _innuendos_. The words are: “His watchmen are blind, they are all ignorant,... Yea, they are greedy dogs which can never have enough.” 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 of his _innuendos_. As for instance: His watchmen (_innuendo, the Governor’s Council and his Assembly_) are blind, they are all 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 seems only fit to be laughed at; but I 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 _innuendos_ 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 give me leave to say that the mode of prosecuting by information (when a grand jury will not find a true bill) is a national grievance, and greatly inconsistent with that freedom that 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 although 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 the 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 do not 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 that 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[12] 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 that one day he will make you yourselves wear.” This is what every man (who values freedom) ought to consider. He should act by judgment and not by affection or self-interest; 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,[13] 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 that 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; the plot being discovered, the 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 restoration of Tarquin and destroying the liberty of Rome. 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. When he observed that his rigid virtue occasioned a sort of horror among the people, it is observed that he said only, “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,[14] and others 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 three shillings, resolved to undergo, and for the liberty of their country did undergo, the greatest extremities in that arbitrary and terrible Court of the 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 Parliament.

Power may justly be compared to a great river. While kept within its due bounds it 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 am 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 my, 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. You see that I labor under the weight of many years, and am bowed 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 services 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 that 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 or private concern. It is not the cause of one poor printer, nor of New York alone, which you are now trying. No! It may in its consequence affect every free man 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 of both 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. All that the jury had to consider was Mr. Zenger’s printing and publishing two scandalous libels that 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. He 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 on the principal magistrates in the Province—therefore he made no doubt but that the jury would find the defendant guilty, and would refer to the Court for their directions.

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 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.

MR. HAMILTON. I humbly beg Your Honor’s pardon, I am very much misapprehended if you suppose that what I said was so designed.

Sir, you know I made an apology for the freedom that I found myself under a necessity of using upon this occasion. I said there was nothing personal designed. It arose from the nature of our defense.

The jury withdrew, and returned in a small time. Being asked by the clerk whether they were agreed on their verdict, and whether John Peter Zenger was guilty of printing and publishing the libels in the information mentioned, they answered by Thomas Hunt, their foreman, “Not guilty.” Upon which there were three huzzas in the hall, which was crowded with people; and the next day I was discharged from my imprisonment.

4. Aftermath

At a Common Council held at the City Hall on Tuesday, September 16, 1735:

“_Ordered_, that Andrew Hamilton of Philadelphia, barrister-at-law, be presented with the Freedom of this Corporation.”

At a Common Council held at the City Hall on Monday, September 29, 1735: Paul Richards (Mayor), the Recorder, aldermen, and assistants of the City of New York, convened in Common Council.

“To all to whom these presents shall come, greeting.

“_Whereas_ honor is the just reward of virtue, and public benefits demand a public acknowledgment;

“_We therefore_, under a grateful sense of the remarkable service done to the inhabitants of this City and Colony by Andrew Hamilton of Pennsylvania, barrister-at-law—by his learned and generous defense of the rights of mankind and the liberty of the press in the case of John Peter Zenger, lately tried on an information exhibited in the Supreme Court of this Colony—do by these presents bear to the said Andrew Hamilton the public thanks of the Freemen of this Corporation for that signal service which he cheerfully undertook under great indisposition of body and generously performed, refusing any fee or reward;

“And in testimony of our great esteem for his person, and sense of his merit, do hereby present him with the Freedom of this Corporation.

“These are therefore to certify and declare that the said Andrew Hamilton is hereby admitted, received, and allowed a Freeman of the said City; to have, hold, enjoy, and partake of all the benefits, liberties, privileges, freedoms, and immunities whatsoever granted or belonging to a Freeman and Citizen of the same City.

“In testimony whereof, the Common Council of the City, in Common Council assembled, have caused the Seal of the City to be hereunto affixed this twenty-ninth day of September, Anno Domini one thousand seven hundred and thirty-five.”

Appendix I

_The New York Weekly Journal_ Covers an Election

The Westchester election in which Lewis Morris won his most satisfying
victory over Governor Cosby took place on the green of St. Paul’s
Church, Eastchester, on October 29, 1733. Whoever wrote the
_Journal’s_ story about the election was no mean hand at covering the
news, as the following extracts will show:

On this day Lewis Morris, late Chief Justice of this Province, was by a great majority of voices elected a Representative for the County of Westchester.

This being an election of great expectation, and wherein the court and country’s interest was exerted (as is said) to the utmost, I shall give my readers a particular account of it as I had it from a person that was present at it.

Nicholas Cooper, high sheriff of the said county, having by papers affixed to the church of Eastchester and other public places given notice of the day and place of election, without mentioning any time of the day when it was to be done, made the electors on the side of the late judge very suspicious that some fraud was intended; to prevent which about fifty of them kept watch upon and about the green at Eastchester (the place of election) from 12 o’clock the night before until the morning of that day.

The other electors beginning to move on Sunday afternoon and evening so as to be at New Rochelle by midnight, their way lay through Harrison’s Purchase, the inhabitants of which provided for their entertainment as they passed, each house in their way having a table plentifully covered for that purpose. About midnight they all met at the house of William Lecount in New Rochelle, whose house not being large enough to entertain so great a number, a large fire was made in the street, by which they sat until daylight, at which time they began to move. They were joined on the hill at the east end of the town by about seventy horse of the electors of the lower part of the county, and then proceeded towards the place of election in the following order.

First rode two trumpeters and three violins; next four of the principal freeholders, one of whom carried a banner on one side of which was affixed in gold capitals KING GEORGE, and on the other, in like golden capitals, LIBERTY AND LAW; next followed the candidate, Lewis Morris, late Chief Justice of this Province; then two colors; and at sunrise they entered upon the green of Eastchester, the place of the election, followed by about three hundred horse of the principal freeholders of the county (a greater number than had ever appeared for one man since the settlement of that county).

About eleven of the clock appeared the candidate of the other side, William Forster, schoolmaster, appointed by the Society for Propagation of the Gospel, and lately made by commission from His Excellency (the present Governor) Clerk of the Peace and Common Pleas in that county; which commission it is said he purchased for the valuable consideration of one hundred pistoles given the Governor. Next to him came two ensigns borne by two of the freeholders; then followed the Honorable James Delancey, Chief Justice of the Province of New York, and the Honorable Frederick Philipse, second judge of the said Province and Baron of the Exchequer, attended by about one hundred seventy horse of the freeholders and friends of the said Forster. The two judges entered the green on the east side, and as they rode twice around it their greeting was “No land tax!” as they passed. The second judge very civilly saluted the late Chief Justice by taking off his hat, which the late judge returned in the same manner.

About an hour after the high sheriff came to town finely mounted, the housings and holster caps being scarlet richly laced with silver.... Upon his approach the electors on both sides went into the green where they were to elect; and after having read His Majesty’s writ he bade the electors to proceed to the choice, which they did. A great majority appeared for Mr. Morris, upon which a poll was demanded, but by whom is not known to the relator, though it was said by many to be done by the sheriff himself. Morris, the candidate, several times asked the sheriff upon whose side the majority appeared, but could get no other reply but that a poll must be had.

Accordingly, after about two hours’ delay in getting benches, chairs, and tables, they began to poll. Soon after one of those called Quakers, a man of known worth and estate, came to give his vote for the late judge. Upon this Forster and the two Fowlers, Moses and William, chosen by him to be inspectors, questioned his having an estate, and required of the sheriff to tender him the Book to swear in due form of law; which he refused to do, but offered to take his solemn affirmation, which by both the laws of England and the laws of this Province was indulged to the people called Quakers, and had always been practiced from the first election of Representatives in this Province to this time, and never refused. But the sheriff was deaf to all that could be alleged on that side; and notwithstanding that he was told by both the late Chief Justice and James Alexander, one of His Majesty’s Council and counsellor-at-law, and by William Smith, counsellor-at-law, that such a procedure was contrary to law and a violent attempt on the liberties of the people, he still persisted in refusing the said Quaker to vote; and in like manner did refuse seven and thirty Quakers more, men of known and visible estates. About eleven o’clock that night the poll was closed, and it stood thus:

For the late Chief Justice 231
Quakers 38
In all 269
For William Forster 151
The difference 118
269

So that the late Chief Justice carried it by a great majority without the Quakers.

The indentures being sealed, the whole body of electors waited on their new Representative to his lodgings with trumpets sounding and violins playing; and in a little time took their leave of him. Thus ended the Westchester election, to the general satisfaction.

_New York, November 5._

On Wednesday the 31st of October the late Chief Justice, but new Representative for the County of Westchester, landed in this city about five o’clock in the evening at the ferry stairs. On his landing he was saluted by a general fire of the guns from the merchant vessels lying in the road; and was received by great numbers of the most considerable merchants and inhabitants of this city, and by them, with loud acclamations of the people as he walked the streets, conducted to the Black Horse Tavern, where a handsome entertainment was prepared for him at the charge of the gentlemen who received him. In the middle of one side of the room was fixed a tabulet with golden capitals, _KING GEORGE, LIBERTY AND LAW_.

Appendix II

Zenger’s Lawyers on the Behavior of His Judges

James Alexander and William Smith, disbarred for their exceptions to
the commissions of the two Justices of the Supreme Court, won
reinstatement in their practice after an appeal to the legislature.
Their appeal was printed by Peter Zenger under the title, _The
Complaint of James Alexander and William Smith to the Committee of the
General Assembly of the Colony of New York_ (1735). Here is the
centerpiece of their argument:

We conceived the innocence of our client no sufficient security while we esteemed the Governor his prosecutor, who had the judges in his power. We had too much reason for caution from the conduct of the Chief Justice. We heard how His Honor had vented his displeasure against him when he accidentally met him in the street on the Sunday before his arrest. We had been witnesses to sundry warm charges and moving addresses to several grand juries plainly leveled against Zenger, and with intention to procure his country to indict him. And we saw his name among that committee of the Council that conferred with a committee of this House in order to procure a concurrence to condemn some of Zenger’s _Journals_ without giving him an opportunity to defend them. We heard that the Chief Justice was a principal manager at that conference and spoke much on that occasion. We saw his name among those who issued that order of the Council that commanded the magistrates of this city to attend the burning of some of the _Journals_, and which sets forth that they had been condemned by the Council to be burned by the hands of the common hangman. We much doubted the legality of these extraordinary proceedings of the Chief Justice and the rest of the Council. We saw the Chief Justice’s name among those who issued that extraordinary warrant by which our client was apprehended. We had seen his want of moderation in demanding security in 800 pounds when Zenger was brought before him on his habeas corpus, though the act required bail to be taken only according to the quality of the prisoner and nature of the offense, and though at the same time this poor man had made oath before him that he was not worth 40 pounds, besides the tools of his trade and his apparel. We had heard the Chief Justice declare, in the fullest court we had then ever seen in that place, that if a jury found Zenger not guilty they would be perjured, or words to that effect; and this even before any information in form was lodged against him. As for Justice Philipse, we had been told how vigorous and active he had been in the General Assembly to procure the concurrence of that House with the Council in the order for the burning of Zenger’s papers, even before they were legally condemned, and in addressing the Governor to issue a proclamation with a promise of reward for the discovery of the writers of them, and in an order for prosecuting the poor printer.

We wish we had no occasion to repeat these things to show the motives of our conduct. Had we not been obliged thereto in order to vindicate ourselves, we had much rather that they had been buried in silence. But under these many forewarnings what could we do, what ought we to do, for our client? Surely everything that was lawful and likely to contribute to his safety.

Appendix III

James Alexander on Freedom of the Press

In 1737 the verdict of the Zenger trial was severely criticized in two
anonymous letters to the _Barbados Gazette_, and these were reprinted
by Andrew Bradford of Philadelphia. Alexander wrote a reply in the
_Pennsylvania Gazette_. His essay is an important historical document,
although strangely overlooked by the historians of American democracy.
It presents him as the most important theorist of freedom of the press
this country has ever produced. These are some of the key passages:

Freedom of speech is a principal pillar in a free government. When this support is taken away, the Constitution is dissolved, and tyranny is erected on its ruins. Republics and limited monarchies derive their strength and vigor from a popular examination into the actions of the magistrates.

These abuses of the freedom of speech are the excrescences of liberty. They ought to be suppressed; but to whom dare we commit the care of doing it? An evil magistrate, entrusted with a power to punish words, is armed with a weapon the most destructive and terrible. Under the pretense of pruning off the exuberant branches, he frequently destroys the tree.

Augustus Caesar, under the specious pretext of preserving the characters of the Romans from defamation, introduced the law whereby libeling was involved in the penalties of treason against the state. This established his tyranny; and for one mischief it prevented, ten thousand evils, horrible and tremendous, sprang up in the place.

Henry VIII, a prince mighty in politics, procured that act to be passed whereby the jurisdiction of the Star Chamber was confirmed and extended.... The subjects were terrified from uttering their griefs while they saw the thunder of the Star Chamber pointing at their heads. This caution, however, could not prevent several dangerous tumults and insurrections. For when the tongues of the people are restrained, they commonly discharge their resentments by a more dangerous organ, and break out into open acts of violence.

But to resume the description of the reign of Charles II. The doctrine of servitude was chiefly managed by Sir Roger Lestrange. He had great advantages in the argument, being licenser for the press, and might have carried all before him without contradiction if writings of the other side of the question had not been printed by stealth. The authors were prosecuted as seditious libelers.

In the two former papers the writer endeavored to prove by historical facts the fatal dangers that necessarily attend a restraint on freedom of speech and the liberty of the press: upon which the following reflection naturally occurs, viz., THAT WHOEVER ATTEMPTS TO SUPPRESS EITHER OF THOSE, OUR NATURAL RIGHTS, OUGHT TO BE REGARDED AS AN ENEMY TO LIBERTY AND THE CONSTITUTION.

In civil actions an advocate should never appear but when he is persuaded the merits of the cause lie on the side of his client. In criminal actions it often happens that the defendant in strict justice deserves punishment; yet a counsel may oppose it when a magistrate cannot come at the offender without making a breach in the barriers of liberty and opening a floodgate to arbitrary power. But when the defendant is innocent and unjustly prosecuted, his counsel may, nay ought to, take all advantages and use every stratagem that his skill, art, and learning can furnish him with. This last was the case of Zenger at New York, as appears by the printed trial and the verdict of the jury. It was a popular cause. The liberty of the press in that Province depended on it. On such occasions the dry rules of strict pleading are never observed. The counsel for the defendant sometimes argues from the known principles of law, then raises doubts and difficulties to confound his antagonist, now applies himself to the affections, and chiefly endeavors to raise the passions. Zenger’s defense is to be considered in all those different lights.

Upon the whole: To suppress inquiries into the administration is good policy in an arbitrary government. But a free Constitution and freedom of speech have such a reciprocal dependence on each other that they cannot subsist without consisting together.

Notes to the Introduction

[1]Cadwallader Colden, _History of William Cosby’s Administration as
Governor of the Province of New York, and of Lieutenant-Governor
George Clarke’s Administration through 1737_ (New York Historical
Society Collections, 1935), p. 286.

[2]_Documents Relative to the Colonial History of the State of New
York_, ed. E. B. O’Callaghan (Albany, 1853-87), V, 937.

[3]William Smith, _The History of the Late Province of New York, from
Its Discovery to the Appointment of Governor Colden in 1762_ (New
York, 1829-30), II, 3.

[4]Livingston Rutherfurd, _John Peter Zenger, His Press, His Trial and a
Bibliography of Zenger Imprints_ (New York, 1904), p. 15.

[5]_N.Y. Col. Docs._, V, 949.

[6]Colden, _op. cit._, p. 298.

[7]_N.Y. Col. Docs._, V, 955.

[8]Colden, _op. cit._, pp. 298-299.

[9]_Ibid._, p. 313.

[10]_New York Gazette_, November 5, 1733.

[11]_Ibid._, January 7, 1734.

[12]_Ibid._, March 18, 1734.

[13]_N.Y. Col. Docs._, V, 940.

[14]_Documents Relating to the Colonial History of the State of New
Jersey_, ed. William A. Whitehead (Newark, 1880-1928), V, 359.

[15]_Ibid._, V, 360.

[16]_N.Y. Col. Docs._, VI, 21.

[17]_Ibid._, VI, 5.

[18]_New York Weekly Journal_, January 21, 1734.

[19]_Ibid._, January 28, 1734.

[20]_New York Gazette_, February 4, 1734.

[21]_New York Weekly Journal_, November 26, 1733.

[22]_Ibid._, December 31, 1733.

[23]_New York Gazette_, April 1, 1734.

[24]Colden, _op. cit._, p. 323.

[25]_N.Y. Col. Docs._, V, 978.

[26]_Ibid._, V, 975.

[27]_Ibid._, V, 976.

[28]_Ibid._

[29]_Ibid._

[30]_Ibid._

[31]_Ibid._, V, 984.

[32]_The Papers of Lewis Morris, Governor of the Province of New Jersey
from 1738 to 1746_, ed. William A. Whitehead (New York, 1852), pp.
22-23.

[33]_Ibid._, pp. 24-25.

[34]_N.Y. Col. Docs._, VI, 21.

[35]_Ibid._, VI, 34-35.

[36]Rutherfurd, _op. cit._, pp. 127-128.

Notes to the Text

[1]William Hawkins was, during Zenger’s own period, probably the
outstanding author of legal textbooks. Delancey’s quotations are
from his _Treatise of the Pleas to the Crown_ (London, 1724), I,
192-193.

[2]Henry Sacheverell, a Tory divine, attacked the Whig Ministry for not
being Royalist or High Church enough. He was tried for seditious
libel and found guilty (1710), but his case was instrumental in the
decline of the Whigs and the rise of the Tories under Queen Anne.
See G. N. Clark, _The Later Stuarts_ (Oxford, 1940), pp. 216-217.

[3]Gilbert Burnet, Bishop of Salisbury, was the historian of his time as
well as one of its most controversial ecclesiastico-politicians. His
pastoral letter sounds innocuous enough now, but his enemies in
Parliament impugned it as too Royalist and too favorable to the
Dissenters (1693). See Macaulay’s _History of England_, “Fireside”
ed. (Boston and New York, 1910), IV, 464-466. Bishop Burnet was the
father of New York’s Governor William Burnet.

[4]Thomas Brewster, one of the many printers prosecuted during the reign
of Charles II, was convicted (1663) of violating the licensing laws
when he published _The Phoenix, or the Solemn League and Covenant_,
which defended the regicides who executed Charles I. For Chief
Justice Robert Hyde’s excoriating summing up, see J. W. Willis-Bund,
_A Selection of Cases from the State Trials_ (Cambridge, 1882), II,
415.

[5]Sir John Holt, one of the great chief justices in the history of
British law, handed down numerous important rulings on the subject
of libel. See Fredrick Seaton Siebert, _Freedom of the Press in
England, 1476-1776_ (Urbana, Ill., 1952), _passim_.

[6]John Tutchin, publisher of the _Observator_, made broad charges of
treason and corruption against the government, and was tried in a
court presided over by Chief Justice Holt (1704). See Siebert, _op.
cit._, p. 275.

[7]William Fuller was one of the notorious impostors who abounded in
England at the time of the Popish Plot. His grossly fictitious
account of a sinister scheme to restore the Stuarts was exposed by
the House of Commons (1692), and he was promptly arrested,
prosecuted, and convicted. Macaulay has a good description of the
Fuller incident, _op. cit._, pp. 280-289.

[8]These ecclesiastics, led by William Sancroft, Archbishop of
Canterbury, refused to promulgate from their pulpits the Declaration
of Indulgence by which James II would have granted freedom of
worship to his subjects. The Seven Bishops argued that he was
attempting to exercise a dispensing power that the crown did not
possess. They were prosecuted before Parliament, but acquitted
(1688). See Clark, _op. cit._, pp. 120-121.

[9]Francis Nicholson, a stormy petrel among colonial administrators, was
Governor of Virginia at the time of this episode (1704). His
intended victim was John Monroe, a clergyman of the Church of
England. The information against Monroe is in the _Executive
Journals of the Council of Virginia_ (Richmond, 1927), II, 451-452.

[10]Laurence Echard, Tory divine and historian, wrote the bitterly
anti-Williamite _History of the Revolution of 1688_. See Eugene
Lawrence, _Lives of the British Historians_ (New York, 1855), I,
312-315.

[11]Paul de Rapin de Thoyras, although a Frenchman, became the foremost
authority on English history. His _Histoire d’Angleterre_ appeared
in 1723, and long remained the standard work on the subject,
influencing a whole generation of British historians including Hume.
See Lawrence, _op. cit._, I, 226-229.

[12]Marcus Brutus, one of the assassins of Julius Caesar, is most
familiar to the English-speaking world as Shakespeare’s “noblest
Roman of them all.” Hamilton’s anecdote is based on the laudatory
picture of the man drawn in Plutarch’s _Lives_.

[13]Lucius Junius Brutus was the Roman patriot who, according to legend,
led the revolt that drove out Tarquin the Proud and put an end to
the Kings of Rome. The story of his execution of his sons is told
repeatedly by the Roman historians, the most familiar source being
Livy’s _History of Rome_, bk. I.

[14]John Hampden occupies a special niche in British history as the man
who refused to pay the Ship Money levied by Charles I for the
building of a fleet (1637). His defiance of the crown caught the
imagination of later generations as a major step toward the
development of parliamentary government in England. See George
Macaulay Trevelyan, _England Under the Stuarts_ (19th ed., London,
1947), p. 152.

Other Footnotes

[1]See Appendix I.

[2]Peter Zenger is the ostensible narrator throughout.

Suggestions for Further Reading

1. Editions of the Trial.

Chandler, Peleg W. _American Criminal Trials_ (New York, 1841).

Howell, T. B. _State Trials_ (London, 1816).

Mott, Frank Luther. _Oldtime Comments on Journalism_ (Columbia, Mo.,
1954).

Rutherfurd, Livingston. _John Peter Zenger, His Press, His Trial and a
Bibliography of Zenger Imprints_ (New York, 1904).

2. Source Material.

_Documents Relating to the Colonial History of the State of New Jersey_,
ed. William A. Whitehead (Newark, 1880-1928).

_Documents Relative to the Colonial History of the State of New York_,
ed. E. B. O’Callaghan (Albany, 1853-87).

_New York Gazette_, 1732-36.

_New York Weekly Journal_, 1732-36.

3. Histories of the Period.

Colden, Cadwallader. _History of William Cosby’s Administration as
Governor of the Province of New York, and of Lieutenant-Governor
George Clarke’s Administration through 1737_ (New York Historical
Society Collections, 1935).

Goodwin, Maud Wilder. _Dutch and English on the Hudson_ (New Haven,
Conn., 1919).

_History of the State of New York_, ed. A. C. Flick (New York, 1933).

Osgood, Herbert L. _The American Colonies in the Eighteenth Century_
(New York, 1924).

Smith, William. _The History of the Late Province of New York, from Its
Discovery to the Appointment of Governor Colden in 1762_ (New
York, 1829-30).

4. Peter Zenger.

Cobb, Sanford. _The Story of the Palatines_ (New York, 1897).

Hildeburn, Charles R. _Sketches of Printers and Printing in Colonial New
York_ (New York, 1895).

McMurtrie, Douglas. _A History of Printing in the United States_ (New
York, 1936).

Rutherfurd, Livingston. _Op. cit._

Thomas, Isaiah. _The History of Printing in America, with a Biography of
Printers and an Account of Newspapers_ (Worcester, Mass., 1810).

Wroth, Lawrence C. _A History of Printing in Colonial Maryland,
1686-1776_ (Baltimore, 1922).

5. The Zenger Case.

Bleyer, William Grosvenor. _Main Currents in the History of American
Journalism_ (Boston, 1927).

Cheslaw, Irving. _John Peter Zenger and His, “New York Weekly Journal”_
(New York, 1952).

Cook, Elizabeth Christine. _Literary Influences in Colonial Newspapers_
(New York, 1912).

Emery, Edwin, and William Ladd Smith. _The Press and America_ (New York,
1954).

Hudson, Frederic. _Journalism in the United States from 1690 to 1872_
(New York, 1873).

Jones, Robert W. _Journalism in the United States_ (New York, 1947).

Kobre, Sidney. _The Development of the Colonial Newspaper_ (Pittsburgh,
1944).

Lee, James Melvin. _History of American Journalism_ (Boston, 1917).

Morris, Richard B. _Fair Trial_ (New York, 1952).

Mott, Frank Luther. _American Journalism, a History of Newspapers in the
United States through 260 Years: 1690-1950_ (New York, 1950).

Payne, George Henry. _History of Journalism in the United States_ (New
York, 1920).

Rutherfurd, Livingston. _Op. cit._

6. Miscellaneous.

Akers, Dwight. _The High Crimes of Colonel Mathews_ (Goshen, N. Y.,
1954).

Chenery, William L. _Freedom of the Press_ (New York, 1955).

Goebel, Julius, Jr., and T. Raymond Naughton. _Law Enforcement in
Colonial New York_ (New York, 1944).

Hamlin, Paul. _Legal Education in Colonial New York_ (New York, 1939).

Keys, Alice. _Cadwallader Colden, a Representative Eighteenth Century
Official_ (New York, 1912).

Konkle, Burton Alva. _The Life of Andrew Hamilton, 1676-1741, “The
Day-Star of the American Revolution”_ (Philadelphia, 1941).

_The Papers of Lewis Morris, Governor of the Province of New Jersey from
1738 to 1746_, ed. William A. Whitehead (New York, 1852).

Siebert, Fredrick Seaton. _Freedom of the Press in England, 1476-1776_
(Urbana, Ill., 1952).

Swindler, William F. _Problems of Law in Journalism_ (New York, 1955).

Thayer, Frank. _Legal Control of the Press_ (Chicago, 1944).

7. Important Articles.

Crossman, Ralph L. “The Legal and Journalistic Significance of the Trial
of John Peter Zenger,” _Rocky Mountain Law Review_, X (1938),
258-268.

Paltsits, V. H. “Some Recent Manuscript Accessions,” _Bulletin of the
New York Public Library_, XLIV (1940), 523-526.

Price, Warren C. “Reflections on the Trial of John Peter Zenger,”
_Journalism Quarterly_, XXXII (1955), 161-168.

“Publications Relating to New York Affairs under Governor Cosby,”
_Bulletin of the New York Public Library_, II (1898), 249-255.

_INDEX_

A
_A Brief Narrative of the Case and Tryal of John Peter Zenger_,
72-75
Bradley declines to furnish data, 68-69
Edited by Alexander, 57, 68-71
Hamilton furnishes data, 70-71
Precedent, 57, 61-62
Printed by Zenger, 57, 68
Adams, Samuel, 60, 62
Alexander, James, _passim_
_Articles of Complaint_, possible author of, 41
_Brief Narrative_, edits, 57, 68-71
Cosby, conflict with, 25-26, 37, 46-47, 69-70
Disbarred by Delancey, 40, 70, 88-90, Appendix II
Early life, 25
Equity court, denies validity of, 12
Freedom of press, defends, 30-32, 141
Hamilton, provides court strategy for, 70
Morris, helps draw up strategy for, 45
_New York Weekly Journal_, edits, 24-26, 34, 69
Van Dam’s lawyer, 12
Westchester election, attends, Appendix I
Zenger’s lawyer, 40, 69-70, 79, 86-87, Appendix II
Alsop, John, 36
_Articles of Complaint_, 40-44
Assembly, 11, 35, 82

B
_Barbadoes Gazette_, Appendix III
Bennett, James Gordon, 65
Bible cited, 10, 125, 126-127
Blagg, Edward, 36
Board of Trade, 15, 27, 28, 55
Borah, William E., 65-66
_Boston Gazette_, 60
Bradford, Andrew, 4, Appendix III
Bradford, William, 3-5, 16
Bradley, Franklin, _passim_
Attorney General, 48, 79
_Brief Narrative_, declines to furnish data, 68-69
Prosecutes Zenger, 48, 68, 94-132
Westchester election, attends, Appendix I
Brewster, Thomas, 103-104
_British Journal_, 31
Brutus, Lucius Junius, 128-129
Burnet, Bishop, 85, 126
Burnet, William, 6-7

C
_Cato’s Letters_, 31-32
Censorship, 16, 55-57, 66-67
Chambers, John, 79, 90, 98, 102
Chandler, Peleg W., 71
Clarke, George, 49, 86
Colden, Cadwallader, _passim_
Cosby in Minorca, 9-10
Harison, Francis, 19
Morris, removal from Supreme Court, 14, 18-19
Morris-Delancey feud, 7
Newspapers, new importance of, 60
Zenger prosecution, 37
Cooper, Nicholas, 23, Appendix I
Cosby, William, 8-9, 26
Attacked by _Journal_, 28, 32
Burning of _Journal_, 35
Complaints to superiors, 10-11, 13-14, 25-26, 27, 46, 47
Court party and, 11, 16
Defended by _Gazette_, 20-21, 32
Equity court, 12-13
Governor of New York, 9-11
and Harison, Francis, 18-19
Misdemeanors, 11, 15, 28, 39-40, 55, 58
Morris, removes from Supreme Court, 14, 18-19, 23
Opponents, 11-12, 23, 25-26, 37-38, 40-47, 49, 55, 69-70
Council, 11, 43-44, 82-83, 86
Court party, 11, 16, 22, 39, 43
_Craftsman_, 32

D
Dana, Charles A., 65
Delancey, James, _passim_
Chief Justice, 14, 18-19, 79
Disbars Alexander and Smith, 40, 70, 88-90, Appendix II
Equity court, defends, 12-13
Hamilton, compared with, 51
Harison, Francis, 18
Westchester election, attends, Appendix I
and Zenger, Peter, 35, 40, 48, 51, 59, 80-81, 87
Zenger trial, presides over, 79, 93-132
Delancey, Stephen, 6-7
Delancey Interest, 7, 11

E
Echard, Laurence, 126

F
Forster, William, 22, Appendix I
Fox Libel Act, 64
Franklin, Benjamin, 4, 63
Fuller, William, 110

G
Gordon, Thomas, 31
Greeley, Horace, 65

H
Halifax, Earl of, 9
Hamilton, Andrew, _passim_
Alexander, follows court strategy of, 70
_Brief Narrative_, furnishes data, 70-71
British law and America, 62-63, 105-106
Career in Pennsylvania, 50-51
Counsel for the Defense, 48, 55-56, 59, 79, 98-132
Delancey, compared with, 51
Early life, 49-50
Freedom of press, 55-56
Influence, 62-64, 66
New York citizen, 133-134
On right of jury to decide verdict, 58-59, 99-132 _passim_
Truth a defense in libel cases, 56, 99-132
Hampden, John, 129
Hancock, John, 62
Harison, Francis, _passim_
Career in New York, 16-18
Cosby, henchman of, 18-20, 36, 45, 84-85
_Journal_ and, 33-34, 37, 86
_New York Gazette_, edits, 16, 20-21, 34
Recorder for New York City, 17, 79, 84
Hawkins, William, 80-81
Hildeburn, Charles R., 65
Holt, Sir John, 107, 110-111
Horsmanden, Daniel, 45, 86
Howell, T. B., 71

J
Jefferson, Thomas, 61
Jury, struck
Acquits Zenger, 48, 56, 58-59, 61, 132
Court party attempts to pack, 90-94
Members, 94

L
Libel
Meaning, 54-55, 63-64, 99-132 _passim_
Zenger and, 35, 48, 55, 61, 69, 81, 94-98, 131-132
_London Journal_, 31
Lord Campbell’s Act, 64

M
Magistrates of New York City, 35, 36, 83-85, 133-134
Matthews, Vincent, 35-36
Montgomerie, John, 7
Morris, Gouverneur, 6, 63
Morris, Lewis, _passim_
_Articles of Complaint_, possible author of, 41
Career in New York, 5-7
Cosby, conflict with, 14-15, 37, 44-47
Equity court, denies validity of, 13
_Journal_ and, 29-30, 34
Popular party, 15
Removed from Supreme Court, 14, 18-19, 23
Westchester election, wins, 22-24, Appendix I
Morris, Lewis (grandson of above), 6
Morris, Lewis, Jr., 16, 34, 45
Morris Interest, 7, 11
Mott, Frank Luther, 71

N
Newcastle, Duke of, 9, 10-11, 13-14, 25-26
New York Bar Association, 66
_New York Gazette_, 16
Defends Cosby, 20-21, 32
Harison and, 16, 34, 39
War with _Journal_, 32-35
New York Public Library, 65
_New York Weekly Journal_, _passim_
Alexander and, 24-25, 26, 69
_Boston Gazette_, forerunner of, 60
Burned, 37, 82-83, 86
Constitutional development, 61-63
Continuing importance, 65-67
Cosby and, 28, 32, 35, 55
Democracy, influence on, 59-66
Harison and, 33-34
Political independent, America’s first, 24, 53, 56
Printed by Zenger, 24, 38, 80, 82, 86, 95-99
War with _Gazette_, 32-35
Westchester election, 28, 135
Nicholson, Francis, 124

O
Otis, James, 62