The Trial of John Peter Zenger. 1735
Prosecuting Attorney: The Case before the court is whether Mr.
Zenger is guilty of libeling His Excellency the Governor of New York, and
indeed the whole administration of the government. Mr. Hamilton has confessed
the printing and publishing, and I think nothing is plainer than that the
words in the information are scandalous, and tend to sedition, and to disquiet
the minds of the people of this province. And if such papers are not libels,
I think it may be said there can be no such thing as a libel.
Mr. Hamilton: May it please Your Honor, I cannot agree with Mr.
Attorney. For though I freely acknowledge there are such things as libels,
yet I must insist, at the same time, that what my client is charged with
is not a libel. And I observed just now that Mr. Attorney, in defining
a libel, made use of the words "scandalous, seditious, and tend to disquiet
the people." But (whether with design or not I will not say) he omitted
the word "false."
Prosecuting Attorney: I think I did not omit the word "false."
But it has been said already that it may be a libel, notwithstanding it
may be true.
Mr Hamilton: In this I must still differ with Mr. Attorney;...
we are to be tried upon this information now before the court and jury,
and to which we have pleaded not guilty, and by it we are charged printing
and publishing a certain false, malicious, seditious, and scandalous libel.
This word "false" must have some meaning or how came it there?...
Mr. Chief Justice [of the Court]: You cannot be admitted, Mr.
Hamilton, to give the truth of a libel in evidence. A libel is not to be
justified; for it is nevertheless a libel that it is true....
Mr Hamilton: I thank Your Honor. Then, gentlemen of the jury, it is
to you we must now appeal, for witnesses to the truth of the facts we have
offered, and are denied the liberty to prove. And let it not seem strange
that I apply myself to you in this manner. I am warranted so to do both
by law and reason.
The law supposes you to be summoned out of the neighborhood where the
fact is alleged to be committed; and the reason... is because you are supposed
to have the best knowledge of the fact that is to be tried. And were you
to find a verdict against my client, you must take upon you to say the
papers referred to in the information, and which we acknowledge we printed
and published, are false, scandalous, and seditious.... According to my
brief, the facts which we offer to prove were not committed in a corner;
they are notoriously known to be true; and therefore in your justice lies
our safety. And as we are denied the liberty of giving evidence to prove
the truth of what we have published, I will beg leave to lay down, as a
standing rule in such cases, that the suppressing of evidence ought always
to be taken for the strongest evidence; and I hope it will have weight
I hope to be pardoned, sir, for my zeal upon this occasion. It is an
old and wise caution that when our neighbor's house is on fire, we ought
to take care of our own. For though, blessed be God, I live in a government
[Pennsylvania colony] where liberty is well understood, and freely enjoyed,
yet experience has shown us all... that a bad precedent in one government
is soon set up for an authority in another. And therefore I cannot but
think it mine, and every honest man's duty, that (while we pay all due
obedience to men in authority) we ought at the same time to be on our guard
against power, wherever we apprehend that it may affect ourselves or our
....Old and weak as I am, I should think it my duty, if required, to
go to the utmost part of the land, where my service could be of any use,
in assist--to quench the flame of prosecutions upon informations, set on
foot by the government, to deprive a people of the right of remonstrating
(and complaining too) of the arbitrary attempts of men in power. Men who
injure and oppress the people under their administration provoke them to
cry out and complain; and then make that very complaint the foundation
for new oppressions and prosecutions. I wish I could say there were no
instances of this kind.
But to conclude. The question before the court and you, gentlemen of
the jury, is not of small nor private concern. It is not the cause of a
poor printer, nor of New York alone, which you are now trying. No! It may,
in its consequence, affect every freeman that lives under a British government
on the main of America. It is the best cause. It is the cause of liberty.
And I make no doubt but your upright conduct, this day, will not only entitle
you to the love and esteem of your fellow citizens; but every man who prefers
freedom to a life of slavery will bless and honor you, as men who have
baffled the attempt of tyranny, and, by an impartial and uncorrupt verdict,
have laid a noble foundation for securing to ourselves, our posterity,
and our neighbors, that to which nature and the laws of our country have
given us a right--the liberty both of exposing and opposing arbitrary power
(in these parts of the world, at least) by speaking and writing the truth....
[The jury withdrew and in a small time returned. And being asked by
the clerk whether they were agreed of their verdict, and whether John Peter
Zenger was guilty of printing and publishing the libels in the information
mentioned, they answered... NOT GUILTY; upon which there were three huzzas
in the hall....]