An Early Defense of Press Freedom in Colonial America

Andrew Hamilton

John Peter Zenger, a publisher in early eighteenth-century America, printed some material in his New York Weekly Journal that criticized the governor of the colony. Zenger was charged with seditious libel. The law of record at the time was that an accused could be convicted of seditious libel even if the printed statements were true. Andrew Hamilton, an eminent attorney, argued the case for Zenger. In the following excerpt from his summation before the court, Hamilton argues that freedom to complain about an official's abuse of power is necessary in order to preserve liberty. Therefore, true statements about government officials should not be considered libel. Hamilton successfully convinced the jury not to convict, thus establishing a long-standing precedent in U.S. law: Truth is a valid defense against a charge of libel.

Source

Andrew Hamilton, summation in the trial of John Peter Zenger, 1735.

Primary Source Text

May it please Your Honor [James Delancey, chief justice of the province of New York], I was saying that notwithstanding all the duty and reverence claimed by Mr. Attorney [prosecutor Richard Bradley, attorney general of the king for the province of New York] to men in authority, they are not exempt from observing the rules of common justice either in their private or public capacities. The laws of our mother country know no exemptions. It is true that men in power are harder to be come at for wrongs they do either to a private person or to the public, especially a governor in The Plantations, where they insist upon an exemption from answering complaints of any kind in their own government. We are indeed told, and it is true, that they are obliged to answer a suit in the king's courts at Westminster for a wrong done to any person here. But do we not know how impracticable this is to most men among us, to leave their families, who depend upon their labor and care for their livelihood, and carry evidence to Britain, and at a great, nay, a far greater expense than almost any of us are able to bear, only to prosecute a governor for an injury done here?

But when the oppression is general, there is no remedy even that way. No, our Constitution has—blessed be God—given us an opportunity, if not to have such wrongs redressed, yet by our prudence and resolution we may in a great measure prevent the committing of such wrongs by making a governor sensible that it is in his interest to be just to those under his care. For such is the sense that men in general—I mean free men—have of common justice, that when they come to know that a chief magistrate abuses the power with which he is trusted for the good of the people, and is attempting to turn that very power against the innocent, whether of high or low degree, I say that mankind in general seldom fail to interpose, and, as far as they can, prevent the destruction of their fellow subjects.

And has it not often been seen—I hope it will always be seen that when the representatives of a free people are by just representations or remonstrances made sensible of the sufferings of their fellow subjects, by the abuse of power in the hands of a governor, that they have declared (and loudly too) that they were not obliged by any law to support a governor who goes about to destroy a Province or Colony, or their privileges, which by His Majesty he was appointed, and by the law he is bound, to protect and encourage? But I pray that it may be considered—of what use is this mighty privilege if every man that suffers is silent? And if a man must be taken up as a libeler for telling his sufferings to his neighbor?

I know that it may be answered, "Have you not a legislature? Have you not a House of Representatives to whom you may complain?" To this I answer, "We have." But what then? Is an Assembly to be troubled with every injury done by a governor? Or are they to hear of nothing but what those in the administration will please to tell them? And what sort of trial must a man have? How is he to be remedied, especially if the case were, as I have known to happen in America in my time, that a governor who has places—I will not say pensions, for I believe they seldom give that to another which they can take to themselves—to bestow can keep the same Assembly, after he has modeled them so as to get a majority of the House in his interest, for near twice seven years together? I pray, what redress is to be expected for an honest man who makes his complaint against a governor to an Assembly who may properly enough be said to be made by the same governor against whom the complaint is made? The thing answers itself.

Men Are Entitled to Complain

No, it is natural, it is a privilege, I will go farther, it is a right, which all free men claim, that they are entitled to complain when they are hurt. They have a right publicly to remonstrate against the abuses of power in the strongest terms, to put their neighbors upon their guard against the craft or open violence of men in authority, and to assert with courage the sense they have of the blessings of liberty, the value they put upon it, and their resolution at all hazards to preserve it as one of the greatest blessings heaven can bestow.

When a House of Assembly composed of honest freemen sees the general bent of the people's inclination, that is which it must and will, I am sure it ought to, weigh with a legislature in spite of all the craft, caressing, and cajoling made use of by a governor to divert them from harkening to the voice of their country. As we all very well understand the true reason why gentlemen take so much pains and make such great interest to be appointed governors, so is the design of their appointment not less manifest. We know His Majesty's gracious intentions toward his subjects. He desires no more than that his people in The Plantations should be kept up to their duty and allegiance to the crown of Great Britain, that peace may be preserved among them, and justice impartially administered; so that we may be governed so as to render us useful to our mother country by encouraging us to make and raise such commodities as may be useful to Great Britain.

But will anyone say that all or any of these good ends are to be effected by a governor's setting his people together by the ears, and by the assistance of one part of the people to plague and plunder the other? The commission that governors bear while they execute the powers given them according to the intent of the royal grantor requires and deserves very great reverence and submission. But when a governor departs from the duty enjoined on him by his sovereign, and acts as if he were less accountable than the royal hand that gave him all that power and honor that he is possessed of, this sets people upon examining and inquiring into the power, authority, and duty of such a magistrate, and to comparing those with his conduct. And just as far as they find he exceeds the bounds of his authority, or falls short in doing impartial justice to the people under his administration, so far they very often, in return, come short in their duty to such a governor.

For power alone will not make a man beloved, and I have heard it observed that the man who was neither good nor wise before his being made a governor never mended upon his preferment, but has been generally observed to be worse. For men who are not imbued with wisdom and virtue can only be kept in bounds by the law; and by how much the further they think themselves out of the reach of the law, by so much the more wicked and cruel men are. I wish there were no instances of the kind at this day.

Wherever this happens to be the case of a governor, unhappy are the people under his administration, and in the end he will find himself so too, for the people will neither love him nor support him. . . .

Only False Complaints Can Be Restricted

But to proceed. I beg leave to insist that the right of complaining or remonstrating is natural; that the restraint upon this natural right is the law only; and that those restraints can only extend to what is false. For as it is truth alone that can excuse or justify any man for complaining of a bad administration, I as frankly agree that nothing ought to excuse a man who raises a false charge or accusation even against a private person, and that no manner of allowance ought to be made to him who does so against a public magistrate.

Truth ought to govern the whole affair of libels. And yet the party accused runs risk enough even then; for if he fails in proving every tittle of what he has written, and to the satisfaction of the court and jury too, he may find to his cost that when the prosecution is set on foot by men in power it seldom wants friends to favor it. . . .

There is heresy in law as well as in religion, and both have changed very much. We well know that it is not two centuries ago that a man would have been burned as a heretic for owning such opinions in matters of religion as are publicly written and printed at this day. They were fallible men, it seems, and we take the liberty not only to differ from them in religious opinions, but to condemn them and their opinions too. I must presume that in taking these freedoms in thinking and speaking about matters of faith or religion, we are in the right; for although it is said that there are very great liberties of this kind taken in New York, yet I have heard of no information preferred by Mr. Attorney for any offenses of this sort. From which I think it is pretty clear that in New York a man may make very free with his God, but he must take a special care what he says of his governor.

It is agreed upon by all men that this is a rein 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?

Abuse of Power

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 pretenses that have often been made use of by men in power to introduce arbitrary rule, and to destroy the liberties of a free people?

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, 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.

Everything Is Libel

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.

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?

For according to Mr. Attorney it is no justification to say that one has a bad name. . . . How must a man speak or write; or what must he hear, read, or sing; or when must he laugh so as to be secure from being taken up as a libeler?

The Risk of Presuming Innuendo

I sincerely believe that were some persons to go through the streets of New York nowadays and read a part of the Bible, if it was not known to be such, Mr. Attorney, with the help of his innuendos, would easily turn it into a libel. As for instance Isaiah 9:16: "The leaders of the people cause them to err; and they that are led by them are destroyed." Should Mr. Attorney go about to make this a libel, he would read it thus: "The leaders of the people (innuendo, the Governor and Council of New York) cause them (innuendo, the people of this Province) to err, and they (the people of this Province meaning) that are led by them (the Governor and Council meaning) are destroyed (innuendo, are deceived into the loss of their liberty), which is the worst kind of destruction."

Or if some person should publicly repeat, in a manner not pleasing to his betters, the fourth and fifth verses of the 56th chapter of the same book, there Mr. Attorney would have a large field to display his skill in the artful application of his innuendos. The words are: "His watchmen are blind, they are all ignorant. . . . Yea, they are greedy dogs which can never have enough." To make them a libel there is, according to Mr. Attorney's doctrine, no more wanting but the aid of his skill in the right adapting of his innuendos. As for instance: "His watchmen (innuendo, the Governors Council and his Assembly) are blind, they are all ignorant (innuendo, will not see the dangerous designs of His Excellency). Yea, they (the Governor and Council meaning) are greedy dogs which can never have enough (innuendo, enough of riches and power)."

Such an instance as this seems only fit to be laughed at; but I appeal to Mr. Attorney himself whether these are not at least equally proper to be applied to His Excellency and his ministers as some of the inferences and innuendos in his information against my client. Then if Mr. Attorney is at liberty to come into court and file an information in the king's name, without leave, who is secure whom he is pleased to prosecute as a libeler?

And give me leave to say that the mode of prosecuting by information, when a grand jury will not find a true bill, is a national grievance, and greatly inconsistent with that freedom that the subjects of England enjoy in most other cases. But if we are so unhappy as not to be able to ward off this stroke of power directly, yet let us take care not to be cheated out of our liberties by forms and appearances. Let us always be sure that the charge in the information is made out clearly even beyond a doubt; for although matters in the information may be called form upon trial, yet they may be, and often have been found to be, matters of substance upon giving judgment.

Gentlemen: The danger is great in proportion to the mischief that may happen through our too great credulity. A proper confidence in a court is commendable, but as the verdict, whatever it is, will be yours, you ought to refer no part of your duty to the discretion of other persons. If you should be of the opinion that there is no falsehood in Mr. Zenger's papers, you will, nay pardon me for the expression, you ought, to say so—because you do not know whether others—I mean the Court—may be of that opinion. It is your right to do so, and there is much depending upon your resolution as well as upon your integrity. The loss of liberty, to a generous mind, is worse than death. And yet we know that there have been those in all ages who for the sake of preferment, or some imaginary honor, have freely lent a helping hand to oppress, nay to destroy, their country. . . .

The Danger of Power

Power may justly be compared to a great river. While kept within its due bounds it is both beautiful and useful. But when it overflows its banks, it is then too impetuous to be stemmed; it bears down all before it, and brings destruction and desolation wherever it comes. If, then, this is the nature of power, let us at least do our duty, and like wise men who value freedom use our utmost care to support liberty, the only bulwark against lawless power, which in all ages has sacrificed to its wild lust and boundless ambition the blood of the best men that ever lived.

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 where liberty is well understood and freely enjoyed, yet experience has shown us all—I am sure it has to me that a bad precedent in one government is soon set up for an authority in another. And therefore I cannot but think it my, 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 upon our guard against power wherever we apprehend that it may affect ourselves or our fellow subjects.

I am truly very unequal to such an undertaking on many accounts. You see that I labor under the weight of many years, and am bowed down with great infirmities of body. Yet, 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 services could be of any use in assisting 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 that 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 or private concern. It is not the cause of one poor printer, nor of New York alone, which you are now trying. No! It may in its consequence affect every free man 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 to liberty of both exposing and opposing arbitrary power (in these parts of the world at least) by speaking and writing truth.