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Andrew Hamilton’s Speech Defending Freedom of the Press - Aug 4th, 1735
[Submitted by Ed Goertzen, in support of the Ontario Human Rights Commission assistance to Arthur Topham, Autumn 2014]

Andrew Hamilton’s Speech Defending Freedom of the Press, at the trial of John Peter Zenger, Aug 4th, 1735
May it please your honors, I agree with Mr. Attorney [Richard Bradley] 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 that 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 written by some who, from an extraordinary zeal for liberty, had misconstrued the conduct of some persons in authority into crimes; and that Mr. Attorney, out of his too great zeal for power, had exhibited 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 had just now said, to wit, that this prosecution 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 more in view, and that the people believe they have a good deal more at stake than I apprehended; 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 judgments 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.

There is heresy in law as well as in religion, and both have changed very much; and 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 opinion, but to condemn them and their opinions too; and I must presume that in taking these freedoms in thinking and speaking about matters of faith or religion, we are in the right; for, though it is said 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 special care what he says of his Governor. It is agreed upon by all men that this is a reign of liberty, and 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 of 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.)

It is said, and insisted upon by Mr. Attorney, that government is a sacred thing; that it is to be supported and reverenced; it is government that protects our persons and estates; that prevents treasons, murders, robberies, riots, and all the train of evils that overturn kingdoms and states and ruin particular persons; and if those in the administration, especially the supreme magistrates, 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 so that their authority is not regarded, and so that in the end the laws cannot be put in 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 which has commonly brought them into contempt with the people. The craft and art of such men are great, and who that is the least acquainted with history or with law can be ignorant of the specious pretenses which have often been made use of by men in power to introduce arbitrary rule and destroy the liberties of a free people. . . .

This is the second information for libeling of a governor that I have known in America. And the first, though 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 it was usual with him (under the protection of his commission), used the poor parson with the worst of language, 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; and coming to a neighbor's house felt himself very ill of a fever, and immediately wrote for a doctor; and that his physician might be 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; and it was laid in the information to be false, scandalous, and wicked, and written with intent to move sedition among the people and bring his Excellency into contempt. But, by an order from the late Queen Anne, there was a stop put to the prosecution, with sundry others set on foot by the same Governor against gentlemen of the greatest worth and honor in that government.

And may not I be allowed, after all this, to say that, by a little countenance, almost anything which 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; 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, Mr. Attorney is so good as to allow, 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 any person safe from being called to 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 one has a bad name. Eachard has libeled our good King William; Bumet has libeled, among many others, King Charles and King James; and Rapin has libeled them all. How must a man speak or write, or what must he hear, read, or sings. Or when must he laugh, so as to be secure from being taken up as a libeler? 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 were not known to be such, Mr. Attorney, with the help of his innuendoes, would easily turn it into a libel. As for instance: Isaiah II: 1 6: "The leaders of the people cause them to err, and they that are led by them are destroyed." But 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 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 tenth and the eleventh verses of the fifty-sixth chapter of the same book, there Mr. Attorney would have a large field to display his skill in the artful application of his innuendoes. The words are: "His watchmen are blind, they are ignorant," etc. "Yea, they are greedy dogs, they can never have enough." But 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 his innuendoes. As, for instance, "His watchmen" (innuendo, the Governor's council and assembly) "are blind, they are 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 may 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 innuendoes in his information against my client. Then, if Mr. Attorney be 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 as the crown law is contended for in bad times, there is no remedy for the greatest oppression of this sort, even though the party prosecuted be acquitted with honor. And give me leave to say, as great men as any in Britain have boldly asserted that the mode of prosecuting by information (when a grand jury will not find billa vera) is a national grievance and greatly inconsistent with that freedom which 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, 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, though 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 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 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. This brings to my mind that saying of the immortal Brutus, when he looked upon the creatures of Caesar, who were very great men, but by no means good men: "You Romans," said Brutus, "if yet I may call you so, consider what you are doing; remember that you are assisting Caesar to forge those very chains which one day he will make yourselves wear." This is what every man that values freedom ought to consider; he should act by judgment and not by affection or self-interest; for where those prevail, no ties of either country or kindred are regarded; as, upon the other hand, the man who loves his country prefers its liberty to all other considerations, well knowing that without liberty life is a misery. . .

Power may justly be compared to a great river; while kept within its 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 be 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 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 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. And you see I labor under the weight of many years and am borne 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 service 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 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 free man that lives under a British government on the main continent 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 citizen, 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 of both exposing and opposing arbitrary power (in these parts of the world at least) by speaking and writing truth.

[Text of this speech is submitted by Ed Goertzen, in support of the Ontario Human Rights Commission assistance to Arthur Topham, Autumn 2014]

 An account of the trial of John Peter Zenger may be found at Wikipedia

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