Part Two. The Trial
1. Dramatis Personae
James Alexander, a lawyer for the Defendant Richard Bradley, Attorney General John Chambers, Counsel for the Defense James Delancey, Chief Justice of the Supreme Court Andrew Hamilton, Counsel for the Defense Francis Harison, Recorder for the City of New York Frederick Philipse, Associate Justice of the Supreme Court William Smith, a lawyer for the Defendant JOHN PETER ZENGER, the Defendant
2. Preliminaries
As there was but one printer in the Province of New York who printed a public newspaper, I[2] was in hopes that if I undertook to publish another I might make it worth my while. I soon found my hopes were not groundless. My first paper was printed on November 5, 1733; and I continued printing and publishing them, I thought to the satisfaction of everybody, till the January following, when the Chief Justice was pleased to animadvert upon the doctrine of libels in a long “charge” given in that term to the grand jury. Afterwards, on the third Tuesday of October, 1734, he was again pleased to charge the grand jury in the following words:
“Gentlemen, I shall conclude with reading a paragraph or two out of the same book concerning libels. They are arrived to that height that they call loudly for your animadversion. It is high time to put a stop to them. For at the rate things are now carried on, when all order and government is endeavored to be trampled on, and reflections are cast upon persons of all degrees, must not these things end in sedition, if not timely prevented? Lenity you have seen will not avail. It becomes you then to inquire after the offenders, that we may in a due course of law be enabled to punish them. If you, gentlemen, do not interpose, consider whether the ill consequences that may arise from any disturbances of the public peace may not in part lie at your door?
“Hawkins,[1] in his chapter on libels, considers, first what shall be said to be a libel, and secondly who are liable to be punished for it. Under the first he says:
Nor can there be any doubt but that a writing which defames a private person only is as much a libel as that which defames persons intrusted in a public capacity, inasmuch as it manifestly tends to create ill blood, and to cause a disturbance of the public peace. However, it is certain that 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 does not only endanger the public peace, as all other libels do, by stirring up the parties immediately concerned in it to acts of revenge, but also has a direct tendency to breed in the people a dislike of their governors, and incline them to faction and sedition.
“As to the second point, he says:
It is certain that not only he who composes or procures another to compose it but also that he who publishes, or procures another to publish it, are in danger of being punished for it. And it is not material whether he who dispersed a libel knew anything of the contents or effects of it or not; for nothing could be more easy than to publish the most virulent papers with the greatest security if concealing the purport of them from an illiterate publisher would make him safe in dispersing them.