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Andrew Hamilton: Defense of Freedom of the Press
www.americancorner.org.tw | 2013-01-21 11:11
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. . . .
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 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....
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; Burnet 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 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 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 11:16: "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. . . .
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 sakes 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 wdse 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. . . .
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 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....
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; Burnet 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 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 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 11:16: "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. . . .
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 sakes 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 wdse 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. . . .
