Besides, how shall we know whether the words were spoken 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 under 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 that 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 spoken in a scoffing manner?
MR. HAMILTON. I own it may be known. But I insist that the only rule by which 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, or 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 these 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 that 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 the law to the court.
MR. HAMILTON. I know, may it please Your Honor, the jury may do so. But I do likewise know that they may do otherwise. I know that 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. 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.
Although I own it to be base and unworthy to scandalize any man, yet I think it is even more villainous to scandalize a person of public character. 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 do not 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 things that are said in favor of rulers and of dignitaries, 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.
MR. ATTORNEY. Pray, Mr. Hamilton, have a care what you say, don’t go too far. I don’t like those liberties.