The Trial of Peter Zenger

by Unknown

It is agreed upon by all men that this is a reign of liberty. While men keep within the bounds of truth I hope they may with safety both speak and write their sentiments of the conduct of men in power—I mean of that part of their conduct only which affects the liberty or property of the people under their administration. Were this to be denied, then the next step may make them slaves; for what notions can be entertained of slavery beyond that of suffering the greatest injuries and oppressions without the liberty of complaining, or if they do, to be destroyed, body and estate, for so doing?

It is said and insisted on by Mr. Attorney that government is a sacred thing; that it is to be supported and reverenced; that it is government that protects our persons and estates, prevents treasons, murders, robberies, riots, and all the train of evils that overturns kingdoms and states and ruins particular persons. And if those in the administration, especially the supreme magistrate, must have all their conduct censured by private men, government cannot subsist. This is called a licentiousness not to be tolerated. It is said that it brings the rulers of the people into contempt, and their authority not to be regarded, and so in the end the laws cannot be put into execution.

These, I say, and such as these, are the general topics insisted upon by men in power and their advocates. But I wish it might be considered at the same time how often it has happened that the abuse of power has been the primary cause of these evils, and that it was the injustice and oppression of these great men that has commonly brought them into contempt with the people. The craft and art of such men is great, and who that is the least acquainted with history or law can be ignorant of the specious pretences that have often been made use of by men in power to introduce arbitrary rule, and to destroy the liberties of a free people?

[Here Hamilton went back to legal history to strengthen his position on the right of a defendant to plead truth in libel cases, and on the right of the jury to determine both the law and the fact—that is, to deliver a verdict of guilty or not guilty of libel, instead of leaving that culminating decision to the judges on the bench.]

This is the second information for libeling of a governor that I have known in America. The first, although it may look like a romance, yet as it is true I will beg leave to mention it.

Governor Nicholson,[9] who happened to be offended with one of his clergy, met him one day upon the road; and as usual with him (under the protection of his commission) used the poor parson with the worst of language, and threatened to cut off his ears, slit his nose, and at last to shoot him through the head. The parson, being a reverend man, continued all this time uncovered in the heat of the sun, until he found an opportunity to fly for it. Coming to a neighbor’s house, he felt himself very ill of a fever, and immediately writes for a doctor. And that his physician might the better judge of his distemper, he acquainted him with the usage he had received; concluding that the Governor was certainly mad, for that no man in his senses would have behaved in that manner.

The doctor unhappily showed the parson’s letter. The Governor came to hear of it. And so an information was preferred against the poor man for saying he believed the Governor was mad. It was laid down in the information to be false, scandalous, and wicked, and written with intent to move sedition among the people, and to bring His Excellency into contempt. But by an order from the late Queen Anne there was a stop put to that prosecution, with sundry others set on foot by the same Governor against gentlemen of the greatest worth and honor in that government.

And may not I be allowed, after all this, to say that by a little countenance almost anything that a man writes may, with the help of that useful term of art called an innuendo, be construed to be a libel, according to Mr. Attorney’s definition of it—to wit, that whether the words are spoken of a person of a public character or of a private man, whether dead or living, good or bad, true or false, all make a libel. For according to Mr. Attorney, after a man hears a writing read, or reads and repeats it, or laughs at it, they are all punishable. It is true that Mr. Attorney is so good as to allow it must be after the party knows it to be a libel, but he is not so kind as to take the man’s word for it.

Here were several cases put to show that although what a man writes of a governor were true, proper, and necessary, yet according to the foregoing doctrine it might be construed to be a libel. But Mr. Hamilton, after the trial was over, being informed that some of the cases he had put had really happened in this government, declared that he had never heard of any such; and as he meant no personal reflections, he was sorry he had mentioned them, and therefore they are omitted here.

MR. HAMILTON. 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 a person safe from being called to an account as a libeler. For Moses, meek as he was, libeled Cain; and who is it that has not libeled the Devil?