Dutch and English on the Hudson: A Chronicle of Colonial New York

by Maud Wilder Goodwin

A great and overwhelming surprise, however, awaited the prosecutors of Zenger. The secret had been well kept and apparently every one was amazed when there appeared for the defense one Andrew Hamilton, a citizen of Philadelphia, of venerable age and the most noted and able lawyer in the colonies. From this moment he became the central figure of the trial and his address was followed with breathless interest. He touched upon his own age and feebleness with consummate tact and dramatic effect:

You see that I labour under the weight of 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 use in assisting to quench the flame of prosecutions upon information 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 honour 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 ... by speaking and writing truth!

With scathing irony he fell upon the theory that truth was no defense for libel:

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 account as a libeller; for Moses, meek as he was, libelled Cain, and who is it that has not libelled the devil? For according to Mr. Attorney, it is no justification to say that one has a bad name. Echard has libelled our good King William; Burnet has libelled among others, King Charles and King James; and Rapin has libelled 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 libeller? 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 were not known to be such, Mr. Attorney, with the help of his innuendoes, would easily turn it into a libel. As for instance, the sixteenth verse of the ninth chapter of Isaiah: The leaders of the people cause them to err, and they that are led by them are destroyed. But should Mr. Attorney go about to make this a libel, he would treat 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 (meaning the people of the province) 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 tenth and eleventh verses of the fifty-sixth chapter of the same book, there Mr. Attorney would have a large field to display his skill in the artful application of his innuendoes. The words are, "His watchmen are all blind, they are ignorant; yes, they are greedy dogs, that can never have enough." But to make them a libel, there is according to Mr. Attorney's doctrine, no more wanting but the aid of his skill in the right adapting of his innuendoes. As for instance, "His watchmen (innuendo, the governor's council and Assembly) are blind; they are ignorant (innuendo, will not see the dangerous designs of His Excellency); yea they (meaning the governor and council) are greedy dogs which can never have enough (innuendo, enough of riches and power)."

Thus Hamilton skillfully appealed to the independent principles of the jury. There was no note, satiric, pathetic, or patriotic, which he did not strike. Overwhelmed by the torrent of his eloquence, Bradley, the Attorney-General, scarcely attempted a reply. The Chief Justice stated that the jury might bring in a verdict on the fact of publication and leave it to the Court to decide whether it were libelous. But Hamilton was far too wary to be caught thus. "I know, may it please your Honor," said he, "the jury may do so; but I do likewise know that 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 the law, they ought to do so." Nevertheless the Chief Justice charged the jury:

Gentlemen of the Jury: The great pains Mr. Hamilton has taken, to show you 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 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 the show of authority and the attempt at allurement were all in vain. The jury took but a few moments to deliberate and returned with the verdict of "not guilty." The roar of applause which shook the court-room was more than a tribute to the eloquence of the aged counsel who had accepted an unpopular case without fees because he felt that he was working for the cause of freedom. It was more than a tribute to the poor printer who had risked everything in the same cause. It was the spirit of the barons at Runnymede, of the Long Parliament, of the Revolution of 1688, of Patrick Henry of Virginia when he cried: "Give me liberty or give me death!"

The Court, divided between wrath and surprise, strove to check the wave of applause and threatened with imprisonment the leader of the cheers; but a son-in-law of ex-Chief Justice Lewis Morris succeeded in making himself heard, and declared that cheers were as lawful there as in Westminster Hall, where they had been loud enough over the acquittal of the seven bishops in 1688. Upon this the applause broke out again, and Hamilton was acclaimed the people's champion. A dinner was given in his honor and the freedom of the city was bestowed upon him. When he entered his barge for the return journey to Philadelphia, flags waved, cannon boomed, and hurrahs resounded from all quarters.