“ 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. ”

“ MR. CHIEF JUSTICE. The law is clear that you cannot justify a libel.
MR. HAMILTON. I own that, may it please Your Honor, to be so. But, with submission, I understand the word “justify” there to be a justification by plea, as it is in the case upon an indictment for murder or an assault and battery. There the prisoner cannot justify, but pleads “Not guilty.” Yet it will not be denied but he may be, and always is, admitted to give the truth of the fact, or any other matter, in evidence, which goes to his acquittal. As in murder he may prove that it was in defense of his life, his house, etc. ”

“ Cosby had hand-picked his judge to insure control of the court, but never would this kind of illegality be repeated with the same lighthearted contempt for criticism. Never again would any Colonial governor try quite so recklessly and arrogantly to rig elections or to seize land or to play the politician with his Council in order to create within it a faction that would rubber-stamp his whims. ”

“ From these books he insisted that a libel was a malicious defamation of any person, expressed either in printing or writing, signs or pictures, to asperse the reputation of one that is alive, or the memory of one that is dead. If he is a private man, the libeler deserves a severe punishment, but if it is against a magistrate or other public person, it is a greater offense. For this concerns not only the breach of the peace but the scandal of the government. What greater scandal of government can there be than to have corrupt or wicked magistrates appointed by the king to govern his subjects? ”

“ 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. ”

“ 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? ”

“ 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 128 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. ”

“ I know men’s interests are very near to them, and they will do much rather than forgo the favor of a governor and a livelihood at the same time. But I can with very just grounds hope, even from those men (whom I will suppose to be men of honor and conscience too) , that when they see the liberty of their country in danger, either by their concurrence or even by their silence, they will like Englishmen, and like themselves, freely make a sacrifice of any preferment or favor rather than be accessory to destroying the liberties of their country and entailing slavery upon their posterity. ”

“ 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. ”

“ But this lack of information is by no means crippling to the historian of the period. If we would prefer to know more about Peter Zenger, the plain truth is that half a dozen other men were of more consequence than he in the establishment of a free press in New York. He was neither the editor of his newspaper nor even a principal writer for it during its great days; his function hardly went beyond that of the mere printer. He became famous almost by accident, famous as a symbol rather than as a motivating force. ”

“ When a House of Assembly composed of honest freemen sees the general bent of the people’s inclination, that is it which 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. ”

“ 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. ”

“ By creating political journalism in the true sense, the Journal did as much, perhaps, as any other single agent to create the American way of life. If we find censorship stifling today, we owe that phenomenon of our moral physiology in no small degree to the battle that was fought and won by Peter Zenger.
On the constitutional side, the Zenger case helped snap the leading strings that bound the American Colonies to the mother country.
It made resistance to governors more respectable. Governor Cosby’s defeat, like Peter Zenger’s vindication, was a legal precedent. ”

“ The paper came out every Monday, always truculent and always propagandizing one point of view in politics. The political issue was the only raison d’être of publication. Everything else—foreign news, essays, verses, squibs, advertisements—was filler.
Here was something original for this side of the ocean, an experiment in journalism as critical as ever was attempted by any members of our fourth estate; and successful, for the Journal lived and throve and became the ancestor of the great American political organs of modern times. ”

“ Reading between the lines of the trial we are compelled to infer that Delancey lost control partly because of his own inadequacy, and partly because his hostility toward Hamilton was tempered by a deferential respect due to superior knowledge, experience, ability, and prestige. It is just as easy to see how the spectacle of the Hamilton-Delancey duel swayed the jury, prompting them to act on the advice of the defense attorney rather than on the instruction of the chief justice. ”

“ No people in the world have contended for liberty with more boldness and greater success than the Dutch; are more tenacious in retaining it; or more jealous of any attempts upon it; yet in their plantations they seem to be lost to all the sense of it, and a fellow that is but one degree removed from an idiot shall, with a full-mouthed “Sacrament, Donder and Blixum!” govern as he pleases, dispose of them and their properties at his discretion, and their magistrates will keep in with him at any rate, and think his favor no mean purchase for the loss of their liberty. ”

“ On all these counts the Brief Narrative needs overhauling for our purposes.
This does not imply any distortion: the bulk of Alexander’s text is here just as it came from Zenger’s press. Most of the pamphlet is still perfectly clear, and it would be pointless to change anything simply for the sake of change. More than that, it is preferable to keep to the original wherever possible in order to catch something of the eighteenth-century atmosphere.
Clarity is the touchstone. Nothing has been allowed to stand that might trouble readers who are not familiar with obsolete usages. ”

“ We cannot afford to ignore or slur over the printer and his colleagues who first insisted on independence in publishing the news, put their principle into practice, produced a great newspaper that magnificently vindicated them, defended their newspaper in the teeth of official condemnation and judicial indictment, and were so obviously in the right that a jury of their fellow citizens upheld them in spite of a hostile court. ”

“ In England so great a regard and reverence is had to the judges that if any man strikes another in Westminster Hall while the judges are sitting, he shall lose his right hand and forfeit his land and goods for so doing. Although the judges here claim all the powers and authorities within this government that a Court of King’s Bench has in England, yet I believe Mr. Attorney will scarcely say that such a punishment could be legally inflicted on a man for committing such an offense in the presence of the judges sitting in any court within the Province of New York. ”

“ This man with the two others I have mentioned, Van Dam and Alexander, are the only men from whom I am to look for any opposition in the administration of the government, and they are so implacable in their malice that I am to look for all the insolent, false and scandalous aspersions that such bold and profligate wretches can invent. ”

“ Republics and limited monarchies derive their strength and vigor from a popular examination into the actions of the magistrates.
These abuses of the freedom of speech are the excrescences of liberty. They ought to be suppressed; but to whom dare we commit the care of doing it? An evil magistrate, entrusted with a power to punish words, is armed with a weapon the most destructive and terrible. Under the pretense of pruning off the exuberant branches, he frequently destroys the tree. ”

“ 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. ”

“ 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. 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 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. ”

“ Britain gave the jury its proper function as early as 1792, with the Fox Libel Act, whereas America had to wait for the Sedition Act of 1798; but we admitted that veracity might be alleged in the Sedition Act, a right which the British were without until Lord Campbell’s Act was passed in 1843.
The struggle for the two principles on both sides of the Atlantic is a monument to the sagacity of Andrew Hamilton. No one could have won their vindication at a single stroke against the inertia of old tradition and habitual usage. ”

“ This sacred Privilege is so essential to free Governnments, that the Security of Property, and the Freedom of Speech always go together; and in those wretched Countries where a Man cannot call his Tongue his own he can scarce call any Thing else his own. Whoever would overthrow the Liberty of a Nation must begin by subduing the Freeness of Speech ”

“ However, it is certain that it is a very high aggravation of a libel that it tends to scandalize the government, by reflecting on those who are intrusted with the administration of public affairs; which does not only endanger the public peace, as all other libels do, by stirring up the parties immediately concerned in it to acts of revenge, but also has a direct tendency to breed in the people a dislike of their governors, and incline them to faction and sedition. ”

“ Attorney added that he did not know what could be said in defense of a man that had so notoriously scandalized 102 the Governor and the principal magistrates and officers of the government by charging them with depriving the people of their rights and liberties, taking away trial by jury, and, in short, putting an end to the law itself. If this was not a libel, he said, he did not know what was one. Such persons as will take those liberties with governors and magistrates he thought ought to suffer for stirring up sedition and discontent among the people. ”