MR. CHIEF JUSTICE. Well, Mr. Attorney, will you proceed?
MR. ATTORNEY. Indeed, Sir, as Mr. Hamilton has confessed the printing and publishing of 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.
As Mr. Attorney has not been pleased to favor us with his argument, which he read, or with the notes of it, we cannot take upon us to set down his words, but only to show the book cases he cited and the general scope of the argument which he drew from those authorities.
He observed upon the excellency as well as the use of government, and the great regard and reverence which had been constantly paid to it, under both the law and the Gospels. That by government we were protected in our lives, religion, and properties; and for these reasons great care had always been taken to prevent everything that might tend to scandalize magistrates and others concerned in the administration of the government, especially the supreme magistrate. And that there were many instances of very severe judgments, and of punishments, inflicted upon such as had attempted to bring the government into contempt by publishing false and scurrilous libels against it, or by speaking evil and scandalous words of men in authority, to the great disturbance of the public peace. And to support this he cited various legal texts.
From these books he insisted that a libel was a malicious defamation of any person, expressed either in printing or writing, signs or pictures, to asperse the reputation of one that is alive, or the memory of one that is dead. If he is a private man, the libeler deserves a severe punishment, but if it is against a magistrate or other public person, it is a greater offense. For this concerns not only the breach of the peace but the scandal of the government. What greater scandal of government can there be than to have corrupt or wicked magistrates appointed by the king to govern his subjects? A greater imputation to the state there cannot be than to suffer such corrupt men to sit in the sacred seat of justice, or to have any meddling in or concerning the administration of justice.
From the same books Mr. Attorney insisted that whether the person defamed is a private man or a magistrate, whether living or dead, whether the libel is true or false, or if the party against whom it is made is of good or evil fame, it is nevertheless a libel. For in a settled state of government the party grieved ought to complain, for every injury done him, in the ordinary course of the law. And as to its publication, the law had taken so great care of men’s reputations that if one maliciously repeats it, or sings it in the presence of another, or delivers the libel or a copy of it over to scandalize the party, he is to be punished as a publisher of a libel.
He said it was likewise evident that libeling was an offense against the law of God. Acts 23:5: Then said Paul, “I wist not, brethren, that he was the high priest; for it is written Thou shalt not speak evil of the ruler of thy people.” II Peter 2:10: Despise government. Presumptuous are they, selfwilled, they are not afraid to speak evil of dignities.
He then insisted that it was clear, by the laws of God and man, that it was a very great offense to speak evil of, or to revile, those in authority over us. And that Mr. Zenger had offended in a most notorious and gross manner, in scandalizing His Excellency our governor, who is the king’s immediate representative and the supreme magistrate of this Province. For can there be anything more scandalous said of a governor than what is published in those papers? Nay, not only the Governor but both the Council and the Assembly are scandalized. For there it is plainly said that “as matters now stand, their liberties and properties are precarious, and that slavery is like to be entailed on them and their posterity.” And then again Mr. Zenger says, “The Assembly ought to despise the smiles or frowns of a governor; that he thinks the law is at an end; that we see men’s deeds destroyed, judges arbitrarily displaced, new courts erected without consent of the legislature; that it seems that trials by jury are taken away when a governor pleases; and that none can call anything his own longer than those in the administration will condescend to let him do it.”
Mr. Attorney added that he did not know what could be said in defense of a man that had so notoriously scandalized the Governor and the principal magistrates and officers of the government by charging them with depriving the people of their rights and liberties, taking away trial by jury, and, in short, putting an end to the law itself. If this was not a libel, he said, he did not know what was one. Such persons as will take those liberties with governors and magistrates he thought ought to suffer for stirring up sedition and discontent among the people.