1. First look at the famous case of John Peter Zenger.[147] Here are the facts. In 1733, Mr. Zenger established a newspaper in New York—there was only one there before—called the "New York Weekly Journal," "containing the freshest Advices foreign and domestic." In some numbers of this he complained, modestly enough, of various grievances in the administration of the Province, then ruled by Governor Cosby. He said, "as matters now stand their [the People's] liberties and properties are precarious, and that Slavery is likely to be entailed on them and their posterity, if some past things be not amended." He published the remarks of some one who said he "should be glad to hear that the Assembly would exert themselves, as became them, by showing that they have the interest of their country more at heart than the gratification of any private view of any of their members, or being at all affected by the smiles or frowns of a Governor, both which ought equally to be despised when the interest of the country is at stake." "We see men's deeds destroyed, judges arbitrarily displaced, new courts erected without consent of the legislature, by which, it seems to me, trials by juries are taken away when a Governor pleases." "Who, then, in that province can call any thing his own, or enjoy any liberty longer than those in the administration will condescend to let him do it?"
In October, 1734, Chief Justice de Lancey gave a charge to the Grand-Jury, urging them to indict Mr. Zenger for a libel. He says, "It is a very high aggravation of a libel that it tends to scandalize the government by reflecting on those who are intrusted with the administration of public affairs, which ... has a direct tendency to breed in the public a dislike of their Governors." "If he who hath either read a libel himself, or hath heard it read by another, do afterwards maliciously read or report any part of it in the presence of others, or lend or show it to another, he is guilty of an unlawful publication of it."
But the Judge had not packed the Grand-Jury with sufficient care, and so no bill was found. Thereupon the Governor's Council sent a message to the General Assembly of New York, complaining of Mr. Zenger's Journal as tending "to alienate the affections of the people of this province from his majesty's government," and asking them to inquire into the said papers and the authors thereof; the Council required that the obnoxious numbers might "be burned by the hands of the common hangman or whipper, near the pillory." The Assembly let them lie on the table. The Court of Quarter-sessions was applied to to burn the papers; but as that body refused, the sheriff "delivered them unto the hands of his own negro, and ordered him to put them into the fire, which he did."
Mr. Zenger was imprisoned by a warrant from the Governor, a lettre de cachet, and "for several days denied the use of pen, ink, and paper, and the liberty of speech with any person." An ex officio information was brought against him, charging him with "malicious and seditious libel." His counsel, Messrs. Alexander and Smith, took exceptions to the proceedings. The Chief Justice would neither hear nor allow the exceptions, "for" said he, "you thought to have gained a great deal of applause and popularity by opposing this court ... but you have brought it to that point, that either we must go from the bench or you from the bar, therefore we exclude you." So "for contempt of court" their names were struck from the list of attorneys. The case came on for trial. The clerk of the Court sought to pack his jury, and instead of producing the "Freeholders' book" to select the Jury from, presented a list of forty-eight persons which he said he had taken from that book. This Honorable Court knows how easy it is to violate the law in summoning jurors; none knew it better a hundred and twenty years ago. Of the 48 some were not freeholders at all; others held commissions and offices at the Governor's pleasure; others were of the late displaced magistrates who had a grudge against Mr. Zenger for exposing their official conduct; besides, there were the governor's baker, tailor, shoemaker, candle-maker, and joiner. But it does not appear that this Judge had any Brother-in-law on the list; corruption had not yet reached that height. But that wicked list was set aside after much ado, and a Jury summoned in the legal manner. It may astonish the Court but it was really done—and a Jury summoned according to law. The trial went on. Andrew Hamilton of Philadelphia defended Mr. Zenger with law, wit, learning, and eloquence. He admitted the fact of printing and publishing the documents, and rested the defence on the truth of their assertions. The Attorney-General, Mr. Bradley, said, "supposing they were true, the law says that they are not the less libellous for that: nay, indeed, the law says, their being true is an aggravation of the crime." He "did not know what could be said in defence of a man that had so notoriously scandalized the governor and principal magistrates ... by charging them with depriving the people of their rights and liberties, and taking away trials by juries, and in short putting an end to the law itself. If this was not a libel, he did not know what was one. Such persons as did take these liberties ... ought to suffer for stirring up sedition and discontent among the people."
The Chief Justice declared, "It is far from being a justification of a libel that the contents thereof are true ... since the greater appearance there is of truth, so much the more provoking is it!" "The jury may find that Mr. Zenger printed and published these papers, and leave it to the court to judge whether they are libellous!"
That would be to put the dove's neck in the mouth of the fox, and allow him to decide whether he would bite it off. Mr. Hamilton replied:—
"This of leaving it to the judgment of the court whether the words are libellous or not, in effect renders Juries useless (to say no worse), in many cases." "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 the 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 deputies, 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 durst say, what I hope will not be taken amiss of me to say in this place, namely, '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, redress himself in another manner.'
"It is a right which all persons claim and are entitled to, to complain when they are hurt; they have a right publicly to remonstrate against 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." "It is a duty which all good men owe to their country, to guard against the unhappy influence of ill men when intrusted with power, and especially against their creatures and dependants, who as they are generally more necessitous, are surely more covetous and cruel."
According to the Judge the Jury had only one question before them, "Did Zenger publish the words charged in the information?" That fact was clear; nay, he did not himself deny it. He confessed it in court. But the jury fell back on their rights and duties to decide the Question of Fact, of Law, and of the Application of the Law to the Fact, and returned "Not Guilty," "upon which there were three huzzas in the Hall." Had this Honorable Court been then in existence I suppose it would have talked of indicting the jurors for "perjury," and would doubtless have had its labor for its pains. For the Common Council of New York presented Mr. Hamilton with a costly gold box and the freedom of the city. Gentlemen, this took place one hundred and twenty years ago. Forty years before the Revolution, Andrew Hamilton helped lay the "brilliant foundation of liberty," whereon another Hamilton was also to raise up noble walls of freedom. Gentlemen of the Jury, by Wisdom is a house builded, but the foolish plucketh it down with her own hands. Will you allow that to be done? What if the jury in 1735 had been faithless? The axe which smote down Zenger in New York, bloody and cruel, would have shorn off the heads of Otis and Quincy, and Adams and Hancock at Boston; the family of Scroggs alone would be held in honor in New England.[148]
Gentlemen, it once happened in New York that Governor Nicholson was offended with one of the clergymen of the Province. He met him on the road one day, and "as it was usual with him (under the protection of his commission) used the poor minister with the worst of language, threatened to cut off his ears, slit his nose, and at last to shoot him through the head." The minister, "being a reverend man, continued all this time uncovered in the heat of the sun, until he found an opportunity to fly for it, and coming to a neighbor's house fell ill of a fever and wrote for a doctor," relating the facts and concluding that the governor was crazy, for no man in his right mind would behave so ill. The doctor showed the letter; the governor brought a prosecution against the minister for publishing a "scandalous, wicked, and seditious libel." No doubt he could have found a judge even then who would twist the law so as to make the letter "sedition" and "libel;" nay, perhaps he could construct a jury so as to secure a conviction, but before it reached trial the prosecution was stopped by the order of Queen Anne.