After a lawsuit resulted in providing the colonial governor, William Cosby, half the salary of the previous acting governor, Zenger published the dissent of Judge Lewis Morris in pamphlet form. It contained strident articles and mock advertisements criticizing Cosby. An agent of the governor subsequently burned copies of the Weekly Journal in front of city hall.
Through instructions to his wife, Zenger would continue publishing his paper during the eight months that he awaited trial in jail. At the time, English common law, which had been transported to the colonies, provided that truth was no defense to an accusation of seditious libel; indeed, truthful information could be even more dangerous than lies, because it was more believable.
Calling essentially for the exercise of what today would be considered jury nullification, in the case of New York v. John Peter Zenger Hamilton urged jurors to strike down this law as unjust. The importance of the case is that it established the principle, now firmly embedded in U.
Alexander Hamilton used this argument in the case of People v. Croswell N. The concept was later incorporated into the law of New York and other states. He is co-editor of the Encyclopedia of the First Amendment. Zenger is guilty of libeling His Excellency the Governor of New York, and indeed the whole administration of the government? 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. May it please Your Honor; I cannot agree with Mr. Attorney: For though I freely acknowledge that 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. 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.
In this I must still differ with Mr. Attorney; for I depend upon it, 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 with printing and publishing a certain false, malicious, seditious and scandalous libel.
This word false must have some meaning, or else how came it there? I hope Mr. Or could Mr. Attorney support such an Information by any precedent in the English law? So the work seems now to be pretty much shortened, and Mr. Attorney has now only to prove the words false, in order to make us guilty.
We have nothing to prove; you have confessed the printing and publishing; but if it was necessary as I insist it is not how can we prove a negative?
I did expect to hear that a negative cannot be proved; but everybody knows there are many exceptions to that general rule. But we will save Mr. Attorney the trouble of proving a negative, and take the onus probandi upon ourselves, and prove those very papers that are called libels to be true. 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. I am sorry the Court has so soon resolved upon that piece of law; I expected first to have been heard to that point.
I have not in all my reading met with an authority that says, we cannot be admitted to give the truth in evidence, upon an Information for a libel. I pray show that you can give the truth of a libel in evidence. I am ready, both from what I understand to be the authorities in the case, and from the reason of the thing, to show that we may lawfully do so.
But here I beg leave to observe that Informations for libels is a child if not born, yet nursed up and brought to full maturity, in the Court of Star Chamber. Do not we insist that the falsehood makes the scandal, and both make the libel? And how shall it be known whether the words are libelous, that is, true or false , but by admitting us to prove them true , since Mr.
Attorney will not undertake to prove them false? Besides, is it not against common sense that a man should be punished in the same degree for a true libel if any such thing could be as for a false one?
I know it is said, that truth makes a libel the more provoking, and therefore the offense is the greater, and consequently the judgment should be the heavier. Well, suppose it were so, and let us agree for once, that truth is a greater sin than falsehood : Yet as the offenses are not equal, and as the punishment is arbitrary, that is, according as the judges in their discretion shall direct to be inflicted; is it not absolutely necessary that they should know whether the libel is true or false , that they may by that means be able to proportion the punishment?
And yet this with submission , as monstrous and ridiculous as it may seem to be, is the natural consequence of Mr. But this is only reasoning upon the case, and I will now proceed to show what in my opinion will be sufficient to induce the Court to allow us to prove the truth of the words which in the Information are called libelous.
Here the Court had the case under consideration a considerable time, and everyone was silent. Attorney, you have heard what Mr. Hamilton has said, and the cases he has cited, for having his witnesses examined to prove the truth of the several facts contained in the papers set forth in the Information, what do you say to it? The law in my opinion is very clear; they cannot be admitted to justify a libel; for, by the authorities I have already read to the Court, it is not the less a libel because it is true.
I think I need not trouble the Court with reading the cases over again; the thing seems to be very plain, and I submit it to the Court.
These are Star Chamber cases, and I was in hopes that practice had been dead with the Court. Hamilton, the Court have delivered their opinion, and we expect you will use us with good manners; you are not to be permitted to argue against the opinion of the Court.
With submission, I have seen the practice in very great courts, and never heard it deemed unmannerly to——. I will say no more at this time; the Court I see is against us in this point; and that I hope I may be allowed to say. Use the Court with good manners, and you shall be allowed all the liberty you can reasonably desire. 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 of your being taken out of the neighborhood 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 ; but of this I can have no apprehension. You are citizens of New York; you are really what the law supposes you to be, honest and lawful men ; and, 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 it 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 that weight with you.
But since we are not admitted to examine our witnesses, I will endeavor to shorten the dispute with Mr. Attorney, and to that end, I desire he would favor us with some standard definition of a libel, by which it may be certainly known whether a writing be a libel, yea or not.
The books, I think, have given a very full definition of a libel; they say [quoting the chapter on libels in William Hawkins, A Treatise of the Pleas of the Crown ] it is in a strict sense taken for a malicious defamation, expressed either in printing or writing, and tending either to blacken the memory of one who is dead, or the reputation of one who is alive, and to expose him to public hatred, contempt, or ridicule.
Ay, Mr. Attorney; but what certain standard rule have the books laid down, by which we can certainly know whether the words or the signs are malicious? Whether they are defamatory? Whether they tend to the breach of the peace, and are a sufficient ground to provoke a man, his family, or friends to acts of revenge, especially those of the ironical sort of words? And what rule have you to know when I write ironically? I think it would be hard, when I say, such a man is a very worthy honest gentleman, and of fine understanding , that therefore I meant he was a knave or a fool.
I think the books are very full; it is said in I Hawk. Which kind of writing is as well understood to mean only to upbraid the parties with the want of these qualities, as if it had directly and expressly done so. I think nothing can be plainer or more full than these words. I agree the words are very plain, and I shall not scruple to allow when we are agreed that the words are false and scandalous, and were spoken in an ironical and scoffing manner, etc.
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 the same section will show us the only rule by which all these things are to be known.
I know no rule laid down in the books but this, I mean, as the words are understood. Hamilton, do you think it so hard to know when words are ironical, or spoke in a scoffing manner? I own it may be known; but I insist, the only rule to know is, as I do or can understand them; I have no other rule to go by, but as I understand them.
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 , tend to the breach of the peace , or are seditious : There can be no doubt of it. 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. Hamilton concluded by making the argument that truth is the best defense against libel. Today, the Zenger case is seen as a landmark decision that influenced the independence of attorneys, the power of juries as a counterbalance against executive powers, and the need for a free press.
Belknap ed. Connecticut Eben Moglen. Only one issue was missed. The continued publication of the newspaper built support for Zenger cause. John Peter Zenger; either reference is correct. In his address, Hamilton asked the jury to consider the truth of the statements published and concluded with these famous words: The question before the Court and you, Gentlemen of the jury, is not of small or private concern.
Connecticut Donald A. American Journalists: Getting the Story. New York Eben Moglen.
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