USA > New York > New York City > Old New York : a journal relating to the history and antiquities of New York City, Vol. II > Part 8
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Mr. Hamilton .- If you brought them here only to prove the · printing and publishing of these newspapers, we have acknow]- edged that, and shall abide by it.
Here Zenger's journeyman and two sons, with several other persons subpoenaed to give evidence against him, were discharged, and there was silence in the court for some time. The Chief Justice then asked the Attorney General to proceed.
Mr. Attorney .- Indeed, sir, as Mr. Hamilton has confessed the printing and publishing these libels, I think the jury must find a verdict for the King; for supposing they were true, the law says they are not the less libelous for that ; nay, indeed, the law says their being true is an aggravation of the crime.
Mr. Hamilton .- Not so, neither, Mr. Attorney. There are two words to that bargain. I hope it is not our bare printing and publishing a paper that will make it a libel ; you will have something more to do before you make my client a libeler; for
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the words themselves must be libelous, that is " false, scandalous and seditious," or else we are not guilty.
The Attorney General replied to this. He debated upon the necessity, as well as use, of government, and the great regard and reverence which had been constantly paid to it, both under the law and the gospel. We were protected in our lives, religion and properties by government, and for these reasons great care always had been taken to prevent everything that might tend to scandalize magistrates and others concerned in the administration of government, especially the supreme magistrate. There had been many instances of very severe judgments, and of punish- ments inflicted upon those who had attempted to bring the government into contempt, by publishing false and scurrilous libels against it, or by speaking evil and scandalous words of men in authority, to the great disturbance of the public peace. In support of these arguments he cited 5 Coke, 121; Wood's Instit., 430 ; 2 Lilly, 168; 1 Hawkins, 73, 11, 6. From these books he insisted that a libel was a malicious defamation of any person, expressed either in writing or printing, 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 per- son it is a greater offense ; for this concerns not only the breach of the peace, but the scandal of the government. For what greater scandal of the government can there be than to have corrupt or wicked magistrates to be appointed by the King, to govern his subjects under him? And a greater imputation to the State cannot be than to suffer such corrupt men to sit on the sacred seat of justice, or to have any concern in the administration of justice. Whether the person defamed is a private man or a magistrate, whether living or dead, whether the libel is true or false, or the party against whom it is made is of good or evil fame, it is nevertheless a libel, for in a settled state of govern- ment the party grieved ought to complain for every injury done him in the ordinary course of the law. As to its publication, the law had taken so great care of men's reputations that if one maliciously repeats it or signs it in the presence of another, or delivers the libel or a copy of it over, to scandalize the party, he
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is to be punished as a publisher of a libel. He said it was like wise evident that libeling was an offense against the law of God. Acts xxiii, 5: "Then said Paul, I wist not, brethren, that he was the high priest; for it is written, thou shalt not speak evil of the ruler of the people." 2 Peter ii, 10: " Despise govern- ment, presumptuous are they, self willed, they are not afraid to speak evil of dignities," etc. He then insisted that it was clear, both by the law of God and man, that it was a very great offense to speak evil of or to revile those in authority over us, and that Mr. Zenger had offended in a most notorious and gross manner, in scandalizing his excellency our Governor, who is the King's immediate representative, and the supreme magistrate of this province, for can there be anything more scandalous said of a Governor than what is published in those papers ? Nay, not only the Governor, but both the Council and Assembly are scandalized, for there it is plainly said that, " as matters now stand, their liberties and properties are precarious, and that slavery is likely to be entailed on them and their posterity." And then again Mr. Zenger says : "The Assembly ought to despise the smiles and frowns of a Governor; that he thinks the law is at an end; that we see men's deeds destroyed, judges arbitrarily displaced, new courts erected without consent of the Legislature; and that it seems trials by juries are taken away when a Governor pleases ; that none can call anything their own longer than those in the administration will consent to let them do it." He added that he did not know what could be said in defense of a man who had so notoriously scandalized the Governor and principal magistrates and officers of the government by charging them with depriving the people of their rights and liberties, and taking away trial by juries, 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. He concluded by saying that the government had been very much traduced and aspersed by Mr. Zenger before he was taken notice of; that at last it was the opinion of the Governor and Council that he ought not to be suffered to go on to disturb the peace of the government by publishing such libels
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against the Governor and the chief persons in the government, and therefore they had directed this prosecution to put a stop to this scandalous and wicked practice of libeling and defaming his Majesty's government and disturbing his Majesty's peace. The published report of the trial does not give his remarks at any greater length than we have. There were then no shorthand writers in the country, and a full summary could only be pre- pared by the speakers. This, Hamilton undoubtedly did for him- self, and it is owing to his willingness to perform this labor that we are indebted for the preservation of one of the most eloquent appeals for liberty in modern times.
Mr. Chambers then summed up to the jury, observing the de- fect of proof that the papers in the information were false, malicious or seditious, which was incumbent on him to prove to the jury, and without which they could not say on their oaths that the matter was as charged.
Mr. Hamilton then said :
May it please your Honor, I agree with Mr. Attorney that government is a sacred thing, but I differ very widely from him when he would insinuate that the just complaints of a number of . men who suffer under a bad administration is libeling that administration. Had I believed that to be law I should not have given the court the trouble of hearing anything I could say in this cause. I own, when I read the information, I had not the art to find out (without the help of Mr. Attorney's innuendoes) that the Governor was the person meant in every period of that newspaper ; and I was inclined to believe that they were wrote by some who from an extraordinary zeal for liberty had miscon- strued the conduct of some persons in authority into crimes, and that Mr. Attorney, from his too great zeal for power, had ex- hibited this information to correct the indiscretion of my client and at the same time to show his superiors the great concern he had lest they should be treated with any undue freedom. But from what Mr. Attorney has just now said, to wit, that this pros- ecution was directed by the Governor and Council, and from the extraordinary appearance of people of all conditions which I observe in court upon this occasion, I have reason to think that those in the administration have by this prosecution something
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more in view, and that the people believe they have a good deal more at stake, than I apprehend ; and, therefore, as it is become my duty to be both plain and particular in this cause, I beg leave to bespeak the patience of the court.
I was in hopes as that terrible court where those dreadful judg- ments were given, and that law established, which Mr. Attorney has produced for authorities to support this cause, was long ago laid aside as the most dangerous court to the liberties of the people of England that ever was known in that kingdom; that Mr. Attorney, knowing this, would not have attempted to set up a Star Chamber here, nor to make their judgments a precedent to us ; for it is well known that what would have been judged treason in those days for a man to speak, I think has since not only been practiced as lawful, but the contrary doctrine has been held to be law.
In Brewster's case, for printing that the subjects might defend their rights and liberties by arms, in case the King should go about to destroy them, he was told by the Chief Justice that it was a great mercy he was not proceeded against for his life, for that to say the King could be resisted by arms in any case what- ever was express treason. And yet we see since that time Dr. Sacherevell was sentenced in the highest court of Great Britain for saying that such a resistance was not lawful. Besides, as times have made very great changes in the law of England, so, in my opinion, there are many good reasons that places should do so too.
Is it not surprising to see a subject, upon his receiving a com- mission from the King to be a governor of a colony in America, immediately imagining himself to be vested with all the pre- rogatives belonging to the sacred person of his prince ? and, which is yet more astonishing, to see that a people can be so wild as to allow of and acknowledge those prerogatives and exemptions, even to their own destruction ? Is it so hard a matter to dis- tinguish between the majesty of our sovereign and the power of a governor of the plantations? Is not this making very free with our prince to apply that regard, obedience and allegiance to a subject which is due only to our sovereign ? And yet in all the cases which Mr. Attorney has cited to show the duty and obe-
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dience we owe to the supreme magistrate, it is the King which is there meant and understood, though Mr. Attorney is pleased to urge them as authorities to prove the heinousness of Mr. Zenger's offense against the Governor of New York. The several plantations are compared to so many large corporations, and per- haps not improperly ; and can any one give any instance that the Mayor, or head of a corporation, ever put in a claim to the sacred rights of majesty ? Let us not (while we are pretending a great regard to our prince and his peace) make bold to transfer that allegiance to a subject, which we owe our King only. What strange doctrine is it to press everything for law here which is so in England ! I believe we should not think it a favor, at present at least, to establish this practice. In England, so great a regard and reverence is paid 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. And though the judges here claim all the powers and authori- ties 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. The reason is obvious; a quarrel or riot in New York cannot possibly be attended with those dangerous consequences that it might in Westminster Hall ; nor will it be alleged that any misbehavior to a governor in the plantations will, or ever ought to be, judged of or punished as a like undutifulness will be to our sovereign. From all which I hope Mr. Attorney will not think it proper to apply his law cases (to support the cause of his Governor), which have only been judged when the King's safety or honor is concerned. It will not be denied but that a freeholder in the province of New York has as good a right to the sole and separate use of his lands as a freeholder in England, who has a right to bring an action of trespass against his neighbor for suffering his horse or cow to come and feed upon his lands or eat his corn, whether enclosed or not enclosed ; and yet I believe it would be looked upon as a strange attempt for one man here to bring an action against * Coke, 3 Inst., 140.
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another whose cattle and horses feed upon his grounds not enclosed, or indeed for eating and treading down his corn if that were not enclosed. Numberless are the instances of this kind that might be given to show that what is good law at one time and in one place is not so at another time and in another place ; so that I think the law seems to expect that in these parts of the world men should take care, by a good fence, to preserve their property from the injury of unruly beasts, and perhaps there may be as good reason why men should take the same care to make an honest and upright conduct a fence and security against the injury of unruly tongues.
Mr. Attorney .- I don't know what the gentleman means by com- paring cases of freeholders in England with the frecholders here. What has this case to do with actions of trespass, or men's fencing their grounds? 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 that 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 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 tending to disquiet the people; but (whether with design or not I will not say) he omitted the word false.
Mr. 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 ; 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
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false must have some meaning, or else how came it there ? I hope Mr. Attorney will not say he put it there by chance, and I am of opinion his information would not be good without it. But to show that it is the principal thing which, in my opinion, makes a libel, I put the case if the information had been for printing and publishing a certain true libel, would that be the same thing, or could Mr. Attorney support such an information by any precedent in the English law ? No; the falsehood makes the scandal, and both make the libel. And to show the court that I am in good earnest, and to save the court's time, and Mr. Attorney's trouble, I will agree that if he can prove the facts charged upon us to be false, I'll own them to be scandalous, seditious, and a libel. So the work seems to be pretty much shortened, and Mr. Attorney has only to prove the words false, in order to make us guilty.
Mr. Attorney .- We have nothing to prove ; you have confessed the printing and publishing ; but if it was necessary (as I think it is not), how can we prove a negative ? But I hope that some regard will be had to the authorities that have been produced ; and that supposing all the words to be true, yet that will not help them. Chief Justice Holt in his charge to the jury, in the case of Turchin, made no distinction whether Turchin's papers were true or false ; and as Chief Justice Holt has made no distinction in that case, so none ought to be made here ; nor can it be shown in all that case there was any question made about their being false or true.
Mr. Hamilton .-- I did expect to hear that a negative cannot be proved ; but everybody knows there are many exceptions to that general rule; for if a man is charged with killing another, or stealing his neighbor's horse ; if he is innocent in the one case, he may prove the man, said to be killed, to be really alive ; and the horse said to be stolen, never to have been out of his master's stable, etc., and this, I think, is proving a negative. 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.
The Chief Justice .- 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.
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Mr. Hamilton .- I am sorry the court has so soon resolved on 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.
The 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 plead 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 it was in defense of his life, his house, etc., and in assault and battery, he may give in evidence that the other party struck first, and in both cases he will be acquitted. And in this sense I understand the word justify, when applied to the case before the court.
The Chief Justice .- I pray show that you can give the truth of a libel in evidence.
Mr. Hamilton .- 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 information for libel is a child, if not born, yet nursed and brought up to full maturity in the court of Star Chamber.
The Chief Justice .- Mr. Hamilton, you'll find yourself mis- taken, for in Coke's Institutes you'll find informations for libels, long before the court of Star Chamber.
Mr. Hamilton .- I thank your honor ; that is an authority I did propose to speak to by and by ; but as you have mentioned it, I'll read that authority now. I think it is in 3 Co. Inst., under title Libel ; it is the case of John de Northampton, for a letter wrote to Robert de Ferrers, one of the King's# privy council, concern- ing Sir William Scot, Chief Justice, and his fellows ; but it does not appear to have been upon information, and I have good * Coke, 3 Inst., 174.
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grounds to say it was upon indictment, as was the case of Adam de Ravensworth, just mentioned before by Lord Coke under the same title; and I think there cannot be a greater, at least a plainer, authority for us, than the judgment in the case of John de Northampton, which my Lord has set down at large. Et quia prædictus Joannes cognovit dictum literam per se scriptam Roberto de Ferrers qui est de concilio regis, qua litera continet in se nullum veritatam, etc. Now, Sir, by this judgment it appears libelous words were utterly false, and there the falsehood was the crime, and is the ground of that judgment; and is not that what we contend for? Do we not 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 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 could be) as for a false one ? I know it is said " that truth makes the libel 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 in- flicted, 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 ? For would it not be a sad case if the judges, for want of a due information, should chance to give as severe a judgment against a man for writing or publish- ing a truth as for writing or publishing a lie ? And yet this (with submission), as monstrous and ridiculous as it may seem to be, is the natural consequence of Mr. Attorney's doctrine that . " truth makes a worse libel than falsehood," and must follow from his not proving our papers to be false, or not suffering us to prove them to be true. 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.
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DIARY OF DR. ALEXANDER ANDERSON .*
JUNE.
1st. Saw the necessity of fixing a time for reading Latin. I therefore began with the Aman. Academic. I traced the map in Kentucky with a pencil. Mr. Oram came and bespoke a Cypher for Hugh Gaine. Our visitors this forenoon were young + Linn, F. Bates and W. Debow. Went and hurried Mr. Martin with my mould ; began to engrave Campbell's cut. I cast the metal for the Cypher and began it. Received 2/ from Frobisher for repairing one of his stamps. Mrs. Henry, from Greenwich, and her little son drank tea with us. Evening-I sat down with a book, but it was not decreed that I should make use of it. Capt. Stewart came in and not long after a shoal of girls who had at- tended mamma home from Mr. Davis's, together with my Brother and R. Davis, Junr. We waited on them to Dr. Young's, where we sat to hear Mr. Martin play on the violin. I accom- panied Miss P. Davis home about 10.
2d. Morning-Finished Campbell's cut. Bought a piece of linen of 26 yds. at 3/ which I afterward exchanged for one at 4/8. Engraved 4 cuts for the Hieroglyphic Bible. I got the copper plate from Myers and paid him 63 dollars; began to pumice it.
3d. Almost all the day imployed in scouring the plate, very fatiguing work. Bought 2/6 pumice stone. In the afternoon I went out a few moments, delivered the cut to Campbell and re- ceived 15/. Paid Ruthven 3/ for Scotch stone. Before dark I
* June, 1795. Continued from the November number, 1889.
t This was probably John Blair Linn, afterwards a noted clergyman. He was born in Shippensburgh, Pennsylvania, March 14, 1777, and was educated at Columbia College. He then studied law with Alexander Hamilton, and at the same time wrote a tragedy. He was ordained in the Presbyterian Church on the 13th of June, 1799, as the colleague of the Rev. Dr. Ewing of Philadel- phia, and attracted great attention from his abilities as a preacher. In 1802 he was attacked with a fever, from the effects of which he never entirely recov- ered. He died August 36th, 1804. He published two volumes of miscellany, in prose and verse, and some other works. He was the son of the Rev. William Linn, one of the ministers of the Reformed Dutch Church in this city, and his mother was a daughter of the Rev. John Blair.
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brought the plate to a pretty good polish. Walked out and called at Birdsall's. A. Tiebont spent part of the evening with us. I lent him two pamphlets.
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