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25th Oct 2007 20:33 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 reign 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?
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.
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. Echard has libeled our good King William; Burnet has libeled, among 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 sing; 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 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) arc 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.
This brings to my mind that saying of the immortal [Marcus] 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 that one day he will make you yourselves wear.' This is what every man who 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.
A famous instance of this you will find in the history of another brave Roman of the same name, I mean Lucius Junius Brutus, whose story is well known, and therefore I shall mention no more of it than only to show the value he put upon the freedom of his country. After this great man, with his fellow citizens whom he had engaged in the cause, had banished Tarquin the Proud, the last king of Rome, from a throne that he ascended by inhuman murders and possessed by the most dreadful tyranny and proscriptions, and had by this means amassed incredible riches, even sufficient to bribe to his interest many of the young nobility of Rome to assist him in recovering the crown; the plot being discovered, the principal conspirators were apprehended, among whom were two of the sons of Junius Brutus. It was absolutely necessary that some should be made examples of, to deter others from attempting the restoration of Tarquin and destroying the liberty of Rome. To effect this it was that Lucius Junius Brutus, one of the consuls of Rome, in the presence of the Roman people, sat judge and condemned his own sons as traitors to their country. And to give the last proof of his exalted virtue and his love of liberty, he with a firmness of mind only becoming so great a man caused their heads to be struck off in his own presence. When he observed that his rigid virtue occasioned a sort of horror among the people, it is observed that he said only, 'My fellow citizens, do not think that this proceeds from any want of natural affection. No, the death of the sons of Brutus can affect Brutus only. But the loss of liberty will affect my country.'
Thus highly was liberty esteemed in those days, that a father could sacrifice his sons to save his country. But why do I go to heathen Rome to bring instances of the love of liberty? The best blood in Britain has been shed in the cause of liberty; and the freedom we enjoy at this day may be said to be in a great measure owing to the glorious stand the famous Hampden, and others of our countrymen, made against the arbitrary demands and illegal impositions of the times in which they lived; who, rather than give up the rights of Englishmen and submit to pay an illegal tax of no more, I think, than three shillings, resolved to undergo, and for the liberty of their country did undergo, the greatest extremities in that arbitrary and terrible Court of the Star Chamber, to whose arbitrary proceedings - it being composed of the principal men of the realm, and calculated to support arbitrary government -no bounds or limits could be set, nor could any other hand remove the evil but Parliament.'
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, 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 information, 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.
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