Contents

1.  The Tryal of John Peter Zenger of New-York, Printer.

2.  Cato’s Letters. No. 32. “Reflections upon Libelling.”

3.  Cato, “The Importance of Liberty of the Press.”

The Tryal of John Peter Zenger of New-York, Printer

After he was acquitted, Zenger published a “brief narrative” of his trial. Though it is told from his own perspective, there is some question as to whether Zenger wrote it himself, or whether his lawyer Andrew Hamilton wrote it on his behalf. It contains the arguments on both sides of the case both in Zenger’s original trial and in his retrial after his original lawyer was removed on grounds of contempt of court. Below is an abridged version of Zenger’s account of the trial, from the Online Library of Liberty. Some passages are summarized in brackets. The complete original publication may be downloaded from the New York State Court’s website.

MR. ATTORNEY [Prosecution].  May it please Your Honors, and you Gentlemen of the Jury; the Information now before the Court, and to which the Defendant Zenger has pleaded Not Guilty, is an Information for printing and publishing a false, scandalous, and seditious libel, in which His Excellency the Governor of this province, who is the King’s immediate representative here, is greatly and unjustly scandalized, as a person that has no regard to law nor justice; with much more, as will appear upon reading the Information.  This of libeling is what has always been discouraged as a thing that tends to create differences among men, ill blood among the people and oftentimes great bloodshed between the party libeling and the party libeled.  There can be no doubt but you Gentlemen of the Jury will have the same ill opinion of such practices, as the judges have always shewn upon such occasions.  But I shall say no more at this time, until you hear the Information, which is as follows . . . . [The Information details specific passages, printed by Zenger, which the prosecution alleges to be libelous against Governor Cosby.  The Attorney General will prove that Zenger is “Guilty.”]

[At this point, Zenger’s court-appointed attorney, John Chambers, sets forth the nature of a libel, which requires that “there must be some particular persons so clearly pointed out, that no doubt must remain about who is meant.”  He insists that great allowances “ought to be made for what men speak or write.”  He hopes to show that the prosecution cannot prove Zenger’s guilt.]

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

MR. HAMILTON [beginning the case for the defense]. May it please Your Honor; I am concerned in this cause on the part of Mr. Zenger the defendant.  The Information against my client was sent me, a few days before I left home, with some instructions to let me know how far I might rely upon the truth of those parts of the papers set forth in the Information, and which are said to be libelous.  And tho’ I am perfectly of the opinion with the gentleman who has just now spoke, on the same side with me, as to the common course of proceedings, I mean in putting Mr. Attorney upon proving, that my client printed and published those papers mentioned in the Information; yet I cannot think it proper for me (without doing violence to my own principles) to deny the publication of a complaint, which I think is the right of every free-born subject to make, when the matters so published can be supported with truth; and therefore I’ll save Mr. Attorney the trouble of examining his witnesses to that point; and I do (for my client) confess, that he both printed and published the two newspapers set forth in the Information, and I hope in so doing he has committed no crime.

MR. ATTORNEY. Then if Your Honor pleases, since Mr. Hamilton has confessed the fact, I think our witnesses may be discharged; we have no further occasion for them. . . . .  Indeed, Sir, as Mr. Hamilton has confessed to the printing and publishing these libels, I think the Jury must find a verdict for the King; for supposing they were true, the law says that they are not the less libelous for that; nay indeed the law says, their being true is an aggravation of the crime.

MR. HAMILTON. Not so neither, Mr. Attorney, there are two words to that bargain.  I hope it is not our bare printing and publishing a paper, that will make it a libel:  You will have something more to do, before you make my client a libeler; for the words themselves must be libelous, that is, false, scandalous, and seditious or else we are not guilty.

[Attorney General Bradley now makes his opening statement, presenting the case against Zenger and appealing to numerous authorities.  He is followed by John Chambers, who argues, on Zenger’s behalf, that the Attorney General has failed to prove the charges contained in the Information.]

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. . . . .

[Hamilton goes to compare the actions of the Governor and Council in prosecuting Zenger to the arbitrary way that British monarchs had once prosecuted its political opponents in the notorious Court of Star Chamber, where defendants were tried without the usual protections of the common law.  This court, so named for the Chamber in which it met, came to be seen as an engine of royal tyranny, and it was abolished by an act of Parliament in 1641.  Hamilton is maintaining that the prosecution of Zenger follows Star Chamber procedures and precedents that are no longer valid in a freer time and a different place.]

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. . . . . . [A]s 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. . . . . .  Numberless are the instances of this kind that might be given, to show that what is good law at one time and in one place  . . . is not so at another time and in another place . . . . .

MR. ATTORNEY. . . . . . 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 . . . .   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.  [Hamilton replies that a prisoner may give the truth of the fact, or any other matter in evidence, which goes to his acquittal.]  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. [Hamilton turns to Coke’s Institutes and cites the judgment in the case of John de Northampton which, according to Hamilton, held that words were libelous because of their falsehood.]  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.  [Hamilton goes on to discuss at length some other cases—the Trial of the Seven Bishops, the Tutchin Case, and the Case of William Fuller—to support his contention that if words are to be libelous, they must be false.]  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 [the presiding judge in Tutchin and Fuller], 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 [quoting the chapter on libels in William Hawkins, A Treatise of the Pleas of the Crown] 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 so.  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 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. famosus, in 5. Co. [See Introduction regarding De Libellis Famosis, as reported by Coke.]  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 [perhaps John Lilburne, at his 1637 trial] 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.

[Hamilton begins his summation for Zenger.] 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? . . . . .

[Hamilton goes on to argue that public criticism of abusive governors may prompt the legislature to take action against.]  [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.  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. . . . .

[Hamilton goes on to argue that their royal commission does not entitle governors to abuse the people or to enlist some of the people to plague and plunder others.  The people’s duty towards a governor is diminished when he departs from the duty enjoined him by his Sovereign.  Hamilton expresses the hope that even some of Governor Cosby’s supporters will recognize the danger that Zenger’s conviction would pose for the liberty of their country.]

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). . .   . .

[Hamilton proceeds to show that juries sometimes resisted the opinion of judges as to what constituted criminal libel, as 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. . . . . .

[In reviewing other cases, Hamilton suggests that they should no longer be relied upon for law, since the Sovereign and the judges were exceeding their proper powers.  Also, New York’s restrictions on what citizens can say about governors are even greater than those that limited what the people of Great Britain could say in earlier times about their Sovereign and his judges.] 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 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 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. . . . .

[Hamilton reviews two statutes from the reign of Henry VII that empower courts to dispense with Grand Jury indictments and trial juries and to punish on the basis of an Information.  Eventually these were repealed and the Court of Star Chamber abolished. pulled down.  Hamilton goes on to explain that the intent of his review is to make a point about juries.]  I only intend . . . 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. . . . . . [As Hamilton explains, this case arose out of the prosecution of Quaker leaders, William Penn and William Mead, for preaching to an assembled group of some 300 persons in Grace Church Street in London.  The Court ordered the jury to find that the meeting was riotous, tumultuous, and a disturbance to 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. . . . .

[After reviewing some other cases, Hamilton concludes this part of the defense by rejecting the prosecutor’s broad definition of libel.]  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.

[Hamilton’s Peroration]  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. . . . . [Hamilton illustrates this point by quoting some verses of scripture that could, by the prosecutor’s broad definition, be construed as a libelous attack on the Governor and his Council.]  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 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. . . . . .  [Hamilton goes on to give another example from ancient Rome—that of Lucius Junius Brutus, who had his own sons executed in his presence as traitors—to illustrate how highly one should prize the liberty of one’s 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.

[The Attorney General’s Closing Statement.]  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’sbefore 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 [Chief Justice Holt in Tutchin] 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?  To tell us, that those that are employed know nothing of the matter, and those that do know are not employed.  Men are not adapted to offices, but offices, to men, out of a particular regard to their inte

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Download the complete original version from the New York State Court website (pdf).

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Cato’s Letters. No. 32. “Reflections upon Libelling.” (1721)

This essay, first published by British writer Thomas Gordon a decade earlier, was printed in Zenger’s New York Weekly Journal shortly before his arrest in 1733. It puts forward the argument employed by Zenger’s lawyers that seditious libel, more than private libel, ought to allow for truth as a defense on the grounds that “the exposing … of publick wickedness” is “a duty which every man owes to truth and his country.” This is nearly a reversal of Blackstone’s argument that it is precisely in public matters where criticism can erode political and social stability that truth is irrelevant. The below version is from the Online Library of Liberty.

I design in this letter to lay before the town some thoughts upon libelling; a sort of writing that hurts particular persons, without doing good to the publick; and a sort of writing much complained of amongst us at this time, with great ground, but not more than is pretended.

A libel is not the less a libel for being true. This may seem a contradiction; but it is neither one in law, or in common sense: There are some truths not fit to be told; where, for example, the discovery of a small fault may do great mischief; or where the discovery of a great fault can do no good, there ought to be no discovery at all: And to make faults where there are none, is still worse.

But this doctrine only holds true as to private and personal failings; and it is quite otherwise when the crimes of men come to affect the publick. Nothing ought to be so dear to us as our country, and nothing ought to come in competition with its interests. Every crime against the publick is a great crime, though there be some greater than others. Ignorance and folly may be pleaded in alleviation of private offences; but when they come to be publick offences, they lose all benefit of such a plea: We are then no longer to consider only to what causes they are owing, but what evils they may produce; and here we shall readily find, that folly has overturned states, and private ignorance been the parent of publick confusion.

The exposing therefore of publick wickedness, as it is a duty which every man owes to truth and his country, can never be a libel in the nature of things; and they who call it so, make themselves no compliment. He who is affronted at the reading of the ten commandments, would make the decalogue a libel, if he durst; but he tempts us at the same time to form a judgment of his life and morals not at all to his advantage: Whoever calls publick and necessary truths, libels, does but apprize us of his own character, and arm us with caution against his designs. I doubt not but if the late directors had been above the Parliament, as they once thought themselves, they would have called the votes of the House of Commons against them, false and scandalouslibels.

Machiavel says, Calumny is pernicious, but accusation beneficial, to a state; and he shews instances where states have suffered or perished for not having, or for neglecting, the power to accuse great men who were criminals, or thought to be so; and hence grew the temptation and custom of slandering and reviling, which was the only remedy that the people had left them: So that the evil of calumny was owing to the want of justice, and the people were more blameless than those whom they reviled; who, having forced them upon a licentiousness of speech, did very unkindly chide and punish them for using it. Slander is certainly a very base and mean thing: But surely it cannot be more pernicious to calumniate even good men, than not to be able to accuse ill ones.

I have long thought, that the world are very much mistaken in their idea and distinction of libels. It has been hitherto generally understood that there were no other libels but those against magistrates, and those against private men: Now, to me there seems to be a third sort of libels, full as destructive as any of the former can possibly be; I mean, libels against the people. Itwas otherwise at Athens and Rome; where, though particular men, and even great men, were often treated with much freedom and severity, when they deserved it; yet the people, the body of the people, were spoken of with the utmost regard and reverence: “The sacred privileges of the people,” “The inviolable majesty of the people,” “The awful authority of the people,” and “The unap-pealable judgment of the people,” were phrases common in these wise, great, and free cities. Other modes of speech are since grown fashionable, and popular madness is now almost proverbial: But this madness of theirs, whenever it happens, is derived from external causes. Oppression, they say, will make a wise man mad; and delusion has not less force: But where there are neither oppressors nor impostors, the judgment of the people in the business of property, the preservation of whichis the principal business of government, does rarely err. Perhaps they are destituteof grimace, mystery, refinements, shrugs, dissimulation, and reserve, and theother accomplishments of courtiers: But as these are only masks to conceal theabsence of honesty and sense, the people, who possess as they do the substance, have reason to despise such insipid and contemptible shadows.

Machiavel, in the chapter where he proves that a multitude is wiser and more constant than a prince, complains, that the credit which the people should be in declines daily; for, says he, every man has liberty to speak what he pleases against them; but against a prince no man can talk without a thousand apprehensions and dangers. I have indeed often wondered, that the inveighing against the interest of the people, and calling their liberties in question, as has been and is commonly done among us by old knaves and young fools, has never been made an express crime.

I must own, I know not what treason is, if sapping and betraying the liberties of a people be not treason, in the eternal and original nature of things. Let it be remembered for whose sake government is, or could be, appointed; then let it be considered, who are more to be regarded, the governors or the governed. They indeed owe one another mutual duties; but if there be any transgressions committed, the side that is most obliged ought doubtless to bear the most: And yet it is so far otherwise, that almost all over the earth, the people, for one injury that they do their governors, receive ten thousand from them: Nay, in some countries, it is made death and damnation, not to bear all the oppressions and cruelties, which men made wanton by power inflict upon those that gave it them.

The truth is; if the people are suffered to keep their own, it is the most that they desire: But even this is a happiness which in few places falls to their lot; they are frequently robbed by those whom they pay to protect them. I know that it is a general charge against the people, that they are turbulent, restless, fickle, and unruly: Than which there can be nothing more untrue; for they are only so where they are made so. As to their being fickle, it is so false, that, on the contrary, they have almost ever a strong bent to received customs, and as strong a partiality to names and families that they have been used to: And as to their being turbulent, it is as false; since there is scarce an example in an hundred years of any people’s giving governors any uneasiness, till their governors had made them uneasy: Nay, for the most part, they bear many evils without returning one, and seldomthrow off their burdens so long as they can stand under them.

But intending to handle this subject more at large in another letter, I return more directly to the business of libels.

As to libels against government, like all others, they are always base and unlawful, and often mischievous; especially when governments are impudently charged with actions and designs of which they are not guilty. It is certain, that we ought not to enter into the private vices or weaknesses of governors, any further than their private vices enter into their publick administration; and when they do, it will be impossible to stop people’s mouths: They will be provoked, and shew that they are so, in spite of art and threats, if they suffer hardships and woe from the private gratifications of their superiors, from whom they have a right to expect ease and happiness; and if they be disappointed, they will be apt to deal very freely with their characters.

In truth, most libels are purely personal; they fly at men rather than things; which proceeding is as injudicious as it is unmanly. It is mean to be quarrelling with faces, names, and private pleasures; things perfectly indifferent to the world, or things out of a man’s own power; and ’tis silly, as it shews those whom we attack, that we attack them not for what they do, but for what they are: And this is to provoke them without mending them. All this therefore is libelling; an offence against which the laws of almost every country, and particularly of our own, have furnished a remedy in proportion to the consequence and quality of the person offended. And it is as just that reputation should be defended by law, as that property should.

The praise of well-doing is the highest reward that worthy and disinterested men aim at, and it is villainous and ungrateful to rob them of it; and those that do it, are libellers and slanderers. On the other hand, while censure and infamy attend evil-doers, it will be some restraint, if not upon them, yet upon others, from following their example: But if men be ever suffered to do what they please without hearing of it, or being accountable for it; liberty and law will be lost, though their names may remain. And whether acting wickedly with impunity, or speaking falsely with impunity, be likely to do most hurt to human society and the peace of the world, I leave all the world to judge: common equity says, that they both ought to be punished, though not both alike.

All libels, the higher they aim, the more malignity they acquire; and therefore when they strike at the person of the prince, the measure of their guilt is complete. The office of a prince is to defend his people and their properties; an excellent and a painful office; which, where it is executed with honesty and diligence, deserves the highest applause and reward; and whoever vilifies and traduces him, is an enemy to society and to mankind, and will be punished with the consent of all who love either. And yet it is scarce possible, in a free country, to punish by a general law any libel so much as it deserves; since such a law, consisting of so many branches, and being of such vast latitude, would make all writing whatsoever, how innocent soever, and even all speaking, unsafe. Hence it is, that in Turkey, though printing were permitted, it would be of no use, because no body would dare to make any use of it.

As long as there are such things as printing and writing, there will be libels: It is an evil arising out of a much greater good. And as to those who are for locking up the press, because it produces monsters, they ought to consider that so do the sun and the Nile; and that it is something better for the world to bear some particular inconveniencies arising from general blessings, than to be wholly deprived of fire and water.

Of all sorts of libels, scurrilous ones are certainly the most harmless and contemptible: Even truth suffers by ill-manners; and ill-manners prevent the effect of lies. The letter in the Saturday’s Post of the 27th past does, I think, exceed all the scurrilities which I have either heard, or seen, from the press or the pulpit. The author of it must surely be mad: he talks as if distraction were in his head, and a firebrand in his hand; and nothing can be more false, than the insinuations which he makes, and the ugly resemblances which he would draw. The paper is a heap of falsehood and treason, delivered in the style and spirit of billingsgate; and indeed most of the enemies to his Majesty’s person, title, and government, have got the faculty of writing and talking, as if they had their education in that quarter.

However, as bad as that letter is (and, I think, there cannot be a worse), occasion will never be taken from scurrilous and traitorous writing, to destroy the end of writing. We know that in all times there have been men lying upon the watch to stifle liberty, under a pretence of suppressing libels; like the late King James, who, having occasion for an army to suppress Monmouth’s Rebellion, would needs keep it up afterwards; because, forsooth, other rebellions might happen, for which he was resolved to give cause.

I must own, that I would rather many libels should escape, than the liberty of the press should be infringed; yet no man in England thinks worse of libels than I do; especially of such as bid open defiance to the present Protestant establishment.

Corrupt men, who have given occasion for reproach, by their base and dark practices with the late directors, being afraid of truths that affect them from the press, may be desirous of shutting it up: But honest men, with clear reputations, which they know foul mouths cannot hurt, will always be for preserving it open, as a sure sign of liberty, and a cause of it.

The best way to escape the virulence of libels, is not to deserve them; but as innocence itself is not secure against the malignity of evil tongues, it is also necessary to punish them. However, it does not follow that the press is to be sunk, for the errors of the press. No body was ever yet so ridiculous to propose a law for restraining people from travelling upon the highway, because some who used the highway committed robberies.

It is commonly said, that no nation in the world would allow such papers to come abroad as England suffers; which is only saying, that no nation in the world enjoys the liberty which England enjoys. In countries where there is no liberty, there can be no ill effects of it. No body is punished at Constantinople for libelling: Nor is there any distinction there between the liberty of the press, and the licentiousness of the press; a distinction ever to be observed by honest men and freemen.

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Cato, “The Importance of Liberty of the Press”

This essay, also under the pseudonym Cato, is not from the more famous Cato’s Letters, but was probably the work of James Alexander, Zenger’s first lawyer. It too was published in the New York Weekly Journal prior to Zenger’s arrest. This, along with Cato’s Letters #32, was included as a preemptive defense of the newspaper, which Zenger knew was vulnerable to charges of libel. The version below is from Douglas Linder’s Famous Trials website.

Monday, November, 1733:

The liberty of the press is a subject of the greatest importance, and in which every individual is as much concerned as he is in any other part of liberty: Therefore it will not be improper to communicate to the public the sentiments of a late excellent writer upon this point. Such is the elegance and perspicuity of his writings, such the inimitable force of his reasoning, that it will be difficult to say anything new that he has not said, or not to say that much worse which he has said.

There are two sorts of monarchies, an absolute and a limited one. In the first, the liberty of the press can never be maintained, it is inconsistent with it; for what absolute monarch would suffer any subject to animadvert on his actions when it is in his power to declare the crime and to nominate the punishment? This would make it very dangerous to exercise such a liberty. Besides the object against which those pens must be directed is their sovereign, the sole supreme magistrate; for there being no law in those monarchies but the will of the prince, it makes it necessary for his ministers to consult his pleasure before anything, can be undertaken: He is therefore properly chargeable with the grievances of his subjects, and what the minister there acts being in obedience to the prince, he ought not to incur the hatred of the people; for it would be hard to impute that to him for a crime which is the fruit of his allegiance, and for refusing which he might incur the penalties of treason. Besides, in an absolute monarchy, the will of the prince being the law, a liberty of the press to complain of grievances would be complaining against the law and the constitution, to which they have submitted or have been obliged to submit; and therefore, in one sense, may be said to deserve punishment; so that under an absolute monarchy, I say, such a liberty is inconsistent with the constitution, having no proper subject to politics on which it might be exercised, and if exercised would incur a certain penalty.

But in a limited monarchy, as England is, our laws are known, fixed, and established. They are the straight rule and sure guide to direct the king, the ministers, and other his subjects: And therefore an offense against the laws is such an offense against the constitution as ought to receive a proper adequate punishment; the several constituents of the government, the ministry, and all subordinate magistrates, having their certain, known, and limited sphere in which they move; one part may certainly err, misbehave, and become criminal, without involving the rest or any of them in the crime or punishment.

But some of these may be criminal, yet above punishment, which surely cannot be denied, since most reigns have furnished us with too many instances of powerful and wicked ministers, some of whom by their power have absolutely escaped punishment, and the rest, who met their fate, are likewise instances of this power as much to the purpose; for it was manifest in them that their power had long protected them, their crimes having, often long preceded their much desired and deserved punishment and reward.

That might overcomes right, or which is the same thing, that might preserves and defends men from punishment, is a proverb established and confirmed by time and experience, the surest discoverers of truth and certainty. It is this therefore which makes the liberty of the press in a limited monarchy and in all its colonies and plantations proper, convenient, and necessary, or indeed it is rather incorporated and interwoven with our very constitution; for if such an overgrown criminal, or an impudent monster in iniquity, cannot immediately be come at by ordinary Justice, let him yet receive the lash of satire, let the glaring truths of his ill administration, if possible, awaken his conscience, and if he has no conscience, rouse his fear by showing him his deserts, sting him with the dread of punishment, cover him with shame, and render his actions odious to all honest minds. These methods may in time, and by watching and exposing his actions, make him at least more cautious, and perhaps at last bring down the great haughty and secure criminal within the reach and grasp of ordinary justice. This advantage therefore of exposing the exorbitant crimes of wicked ministers under a limited monarchy makes the liberty of the press not only consistent with, but a necessary part of, the constitution itself.

It is indeed urged that the liberty of the press ought to be restrained because not only the actions of evil ministers may be exposed, but the character of good ones traduced. Admit it in the strongest light that calumny and lies would prevail and blast the character of a great and good minister; yet that is a less evil than the advantages we reap from the liberty of the press, as it is a curb, a bridle, a terror, a shame, and restraint to evil ministers; and it may be the only punishment, especially for a time. But when did calumnies and lies ever destroy the character of one good minister? Their benign influences are known, tasted, and felt by everybody: Or if their characters have been clouded for a time, yet they have generally shined forth in greater luster: Truth will always prevail over falsehood.

The facts exposed are not to be believed because said or published; but it draws people’s attention, directs their view, and fixes the eye in a proper position that everyone may judge for himself whether those facts are true or not. People will recollect, enquire and search, before they condemn; and therefore very few good ministers can be hurt by falsehood, but many wicked ones by seasonable truth: But however the mischief that a few may possibly, but improbably, suffer by the freedom of the press is not to be put in competition with the danger which the KING and the people may suffer by a shameful, cowardly silence under the tyranny of an insolent, rapacious, infamous minister.

Monday, November 19, 1733 (The remainder of the letter concerning the liberty of the press begun in our last [issue].)

Inconveniences are rather to be endured than that we should suffer an entire and total destruction. Who would not lose a leg to save his neck? And who would not endanger his hand to guard his heart? The loss of liberty in general would soon follow the suppression of the liberty of the press; for as it is an essential branch of liberty, so perhaps it is the best preservation of the whole. Even a restraint of the press would have a fatal influence. No nation ancient or modern ever lost the liberty of freely speaking, writing, or publishing their sentiments but forthwith lost their liberty in general and became slaves. LIBERTY and SLAVERY! how amiable is one! how odious and abominable the other! Liberty is universal redemption, joy, and happiness; but servitude is absolute reprobation and everlasting perdition in politics.
All the venal supporters of wicked ministers are aware of the great use of the liberty of the press in a limited free monarchy: They know how vain it would be to attack it openly, and therefore endeavor to puzzle the case with words, inconsistencies, and -nonsense; but if the opinion of the most numerous, unprejudiced and impartial part of mankind is an argument of truth, the liberty of the press has that as well as reason on its side. I believe every honest Briton of whatever denomination, who loves his country, if left to his own free and unbiased judgment is a friend to the liberty of the press and an enemy to any restraint upon it. Surely all the independent whigs, to a man, are of this opinion. By an Independent Whig, I mean one whose principles lead him to be firmly attached to the present happy establishment, both in church and state, and whose fidelity to the royal family is so staunch and riveted as not to be called in question, tho’ his mind is not overswayed, or rather necessitated, by the extraordinary weight of lucrative posts or pensions. The dread of infamy hath certainly been of great use to the cause of virtue, and is a stronger curb upon the passions and appetites of some men than any other consideration moral or religious. Whenever, therefore, the talent of satire is made use of to restrain men by the fear of’ shame from immoral actions, which either do or do not fall under the cognizance of the law, it is properly, and justly, and commendably applied: On the contrary, to condemn all satire is in effect the same thing as countenancing vice by screening it from reproach and the just indignation of mankind. The use of satire was of great service to the patriot whigs in the reign of King Charles and King James the second, as well as in that of Queen Anne. They asserted the freedom of writing against wicked ministers; and tho’ they knew it would signify nothing to accuse them publicly whilst they were in the zenith of their power, they made use of satire to prepare the way and alarm the people against their designs. If men in power were always men of integrity, we might venture to trust them with the direction of the press, and there would be no occasion to plead against the restraint of it; but as they have vices like their fellows, so it very often happens that the best intended and the most valuable writings are the objects of their resentment, because opposite to their own tempers or designs. In short, I think, every man of common sense will judge that he is an enemy to his king and country who pleads for any restraint upon the press; but by the press, when nonsense, inconsistencies, or personal reflections are writ, if despised, they die of course; if truth, solid arguments, and elegant, just sentiments are published, they should meet with applause rather than censure; if sense and nonsense are blended, then, by the free use of the press, which is open to all, the inconsistencies of the writer may be made apparent; but to grant a liberty only for praise, flattery, and panegyric, with a restraint on everything which happens to be offensive and disagreeable to those who are at any time in power, is absurd, servile, and ridiculous; upon which, I beg leave to quote one observation of the ingenious Mr. Gordon, in his excellent discourses upon Tacitus. “In truth,” says he,
where no liberty is allowed to speak of governors besides that of pralsina them, their praises will be little believed; their tenderness and aversion to have their conduct examined will be apt to prompt people to think their conduct guilty or weak, to suspect their management and designs to be worse perhaps than they are, and to become turbulent and seditious, rather than be forced to be silent.9

I shall conclude with a citation from Tacitus, pat to the purpose:

Socordiam eorum inridere libet, qui praesenti potentia credunt extingui posse etiam sequentia aevi memoriam: Nam contra punitis ingeniis gliscit auctoritas, neque aliud externi reges, aut qui eadem saevitia usi sunt, nisi dedecus sibi, atque illis gloriam peperere.

Read it on famous-trials.com (see heading #2).

Find it in Garrett Epps, The First Amendment: Freedom of the Press, on Amazon.

Barnett, Lincoln. “The Case of John Peter Zenger.” American Heritage 23, No. 1 (December 1971).

Read online at American Heritage.

Lewis, Laker. “The Right to Complain: The Trial of John Peter Zenger.” American Bar Association Journal 46, no. 1 (1960): 108-111.

Offers an easy-to read summary of the trial, its background, its arguments, and its legacy.

Find it on JSTOR (free access).

Schauer, Frederick. “The Role of the People in First Amendment Theory.” California Law Review 74, no. 3 (1986): 761-788.

This essay examines the implications of the Zenger trial — in particular its example of jury nullification — for the role of the public in guarding the freedom of the press.

Find it on JSTOR (restricted access).

Blasi, Vincent. “The Checking Value in First Amendment Theory.” American Bar Foundation Research Journal 2, no. 3 (1977): 521-649.

Read it on JSTOR (free access).

Find a six-page edited version in John Garvey and Frederick Schauer, eds. The First Amendment: A Reader, on Amazon.

John Peter Zenger Trial (1735) on famous-trials.com

Crown v. John Peter Zenger on the New York Court System website

Michael E. Tigar, “The Trial of John Peter Zenger: A Play in Five Scenes.” 1986. (pdf)