By Nancy Spannaus
February 14, 2020—Long before I encountered Alexander Hamilton’s American System of political economy, I came upon another uniquely American republican tradition: the demand for truth as a standard in law and journalism. I refer to the case of John Peter Zenger, a New York editor who was thrown in prison for daring to “libel” the governor of the state in his newspaper Weekly Journal by charging him with “publishing several seditious libels… influencing Minds with Contempt of his Majesty’s Government.” The Zenger case of 1735 made history when his lawyer, Andrew Hamilton of Philadelphia, successfully argued that the truth of Zenger’s charges had to be decided by the jury; contrary to the judge’s charge, the jury then acquitted the printer and set him free.
This verdict was revolutionary. It overturned the standing practice in oligarchic English and Roman law, which determined that publishing derogatory stories about public officials was criminal libel per se. In fact, the offense was considered even worse if the stories were based on the truth. The problem in the eyes of these autocratic authorities, was that any attacks on the powers-that-be was subversive of public order, and had to be suppressed. Such a theory made the juries in trials of libel nearly superfluous. They were not permitted to contest or explore the facts behind the charge, only rule on whether the law was being correctly applied.
The Zenger precedent didn’t stick in English legal practice, however, even in the more egalitarian American colonies. Instead it took the intervention of another Hamilton—this time, former Treasury Secretary Alexander Hamilton—to so effectively argue the case for considering truth in cases of libel, that the standard became part of the legal code in New York State, and then the nation as a whole.
The Croswell Case
Contrary to what you might think, it was not the current political uproar over alleged “fake news,” the impeachment trial, and growing censorship of the internet which leads me to address the issue of truth in law. Rather, it was prompted by my being reminded by the Alexander Hamilton Awareness Society that February 13 (1804) was the day that Alexander Hamilton made his famed six-hour argument for demanding that the truth of a libel charge be considered in determining whether malicious libel had been committed.
Alexander Hamilton’s argument before the New York State Supreme Court was made in the case of The People vs. Harry Croswell. Croswell, editor of a paper called The Wasp, was charged with libeling President Thomas Jefferson, by writing that “Jefferson paid [journalist James] Callender for calling Washington a traitor, a robber and a perjurer; for calling Adams a hoary-headed incendiary; and for most grossly slandering the private characters of men whom he well knew were virtuous.”
By the time Hamilton entered the case, Croswell had already been convicted. His attorneys had sought to bring Callender to the trial as a witness, but Callender (who had by then also offended Jefferson by beginning to publish charges of his affair with his slave Sally Hemings) had died by drowning in the James River (allegedly when drunk). Justice Morgan Lewis had denied the Croswell’s attorneys’ attempts to address the truth of the libel charges.
Croswell’s appeal was being heard by a four-judge panel, which split two to two on the verdict. Thus Hamilton’s plea that Croswell should have a new trial, in which the truth of the alleged libel, as well as his intent in publishing it, should be a matter of deliberation by the jury, was denied. However, Croswell was released from prison.
Hamilton’s impassioned presentation drew a huge audience, and was republished far and wide. It was also widely publicized by the esteemed Justice James Kent, a panel member who wrote a decision concurring with his argumentation. Hamilton’s intervention was credited with facilitating the passage, in 1805, of a New York state statute which permitted non-malicious publication of the truth as a defense against criminal libel. In 1821 the legal principles Hamilton and Kent argued were incorporated into the New York State Constitution, and spread from there.
Hamilton’s Argument for Truth and Press Freedom
Unfortunately, there is no precise transcript of Hamilton’s extended oration. However, a summary and key quotations have been compiled in the book The Founders’ Constitution by Philip B. Kurland and published online by the Jack Miller Center for Teaching America’s Founding Principles and History, from which I quote here.
Hamilton said there were two key issues at stake in the appeal: 1) Can the truth be given in evidence? 2. Is the jury to judge of the intent and the law? After conceding that he did not agree that press freedom should be totally unfettered, he then honed in on his key point, which the Miller Center write-up summarizes as follows:
The right of giving the truth in evidence, in cases of libels, is all-important to the liberties of the people. Truth is an ingredient in the eternal order of things, in judging of the quality of acts. He hoped to see the axiom, that truth was admissible, recognized by our legislative and judicial bodies. He always had a profound reverence for this doctrine, and he felt a proud elevation of sentiment in reflecting, that the act of congress, which had been the object of so much unmerited abuse, and had been most grossly misrepresented by designing men, established this great vital principle. It was an honorable, a worthy and glorious effort in favor of public liberty. He reflected also, with much pleasure, on the fact, that so illustrious a patriot as Mr. Jay had laid down, correctly and broadly, the power of the jury. These acts were monuments, were consoling vestiges of the wisdom and virtue of the administration and character that produced them.
Hamilton himself summarized his lengthy presentation at the conclusion:
“1. The liberty of the press consists in the right to publish, with impunity, truth, with good motives, for justifiable ends, though reflecting on government, magistracy, or individuals.
“2. That the allowance of this right is essential to the preservation of a free government; the disallowance of it fatal.
“3. That its abuse is to be guarded against by subjecting the exercise of it to the animadversion and control of the tribunals of justice; but that this control cannot safely be intrusted to a permanent body of magistracy, and requires the effectual co-operation of court and jury.
“4. That to confine the jury to the mere question of publication, and the application of terms, without the right of inquiry into the intent or tendency, reserving to the court the exclusive right of pronouncing upon the construction, tendency, and intent of the alleged libel, is calculated to render nugatory the function of the jury; enabling the court to make a libel of any writing whatsoever, the most innocent or commendable.
“5. That it is the general rule of criminal law, that the intent constitutes the crime; and that it is equally a general rule, that the intent, mind, or quo animo, is an inference of fact to be drawn by the jury.
“6. That if there are exceptions to this rule, they are confined to cases in which not only the principal fact, but its circumstances, can be, and are, specifically defined by statute or judicial precedent.
“7. That, in respect to libel, there is no such specific and precise definition of facts and circumstances to be found; that, consequently, it is difficult, if not impossible, to pronounce that any writing is per se, and exclusive of all circumstances, libellous; that its libellous character must depend on intent and tendency; the one and the other being matter of fact.
“8. That the definitions or descriptions of libels to be met with in the books, founded them upon some malicious or mischievous intent or tendency, to expose individuals to hatred or contempt, or to occasion a disturbance or a breach of the peace.
“9. That in determining the character of a libel, the truth or falsehood is, in the nature of things, a material ingredient, though the truth may not always be decisive; but being abused may still admit of a malicious and mischievous intent, which may constitute a libel.
“10. That, in the Roman law, one source of the doctrine of a libel, the truth, in cases interesting to the public, was given in evidence; that the ancient statutes, probably declaratory of the common law, make the falsehood an ingredient of the crime; that the ancient precedents in the courts of justice correspond, and that the precedents to this day charge a malicious intent.
“11. That the doctrine of excluding the truth, as immaterial, originated in a tyrannical and polluted source, in the court of Star Chamber; and though it prevailed a considerable length of time, yet there are leading precedents down to the revolution, and ever since, in which a contrary practice prevailed.
“12. That the doctrine being against reason and natural justice, and contrary to the original principles of the common law, enforced by statutory provisions, the precedents which support it deserve to be considered in no better light than as a malus usus, which ought to be abolished.”
“13. That, in the general distribution of power, in any system of jurisprudence, the cognizance of law belongs to the court, of fact to the jury; that as often as they are not blended, the power of the court is absolute and exclusive. That, in civil cases, it is always so, and may rightfully be so exerted. That, in criminal cases, the law and fact being always blended, the jury, for reasons of a political and peculiar nature, for the security of life and liberty, are intrusted with the power of deciding both law and fact.”
In short, Hamilton defined the freedom of the press as “the right to publish, with impunity, truth, with good motives, for justifiable ends, though reflecting on government, magistracy, or individuals.”
There is more than one reason that Hamilton’s argumentation in the Croswell case is relevant today. Here I identify two.
One reason relates to the evaluation of the man himself. Hamilton’s advocacy for press freedom and truth as a (qualified) defense runs counter to the image of his character which many historians put forward, images which portray him as a would-be dictator and anti-republican.
Another relates to the standard which we today should hold for our own press and national discourse. There is clearly no simple rule of thumb here. Not only do we need to evaluate the standard of truth, but whether the publisher’s intent has both “good motives” and “justifiable ends,” and coheres with a search for truth. Should we consider so-called “expert consensus” to be the metric for truth? Should we consider untrue any facts that come from sources which we (or the powers that be) have declared to be “our enemies?” Should we disregard malicious intent and prejudice, of which, I contend, no one side in our current political dissension has a monopoly?
Indeed, our Founders—Hamilton among them—set a high standard for our public life. They considered that standard of probity, morality, and respect for truth to be the bedrock upon which our republic would thrive, or else fail. That standard has often been tested, and is being so tested again today. We the citizens are the jury which will decide.
 Quoted in Great American Trials, From Salem Witchcraft to Rodney King, Edward W. Knappman, ed., Visible Ink Press, Detroit, Michigan, 1994, pp. 23-28.