WEIGHING THE EVIDENCE

Primary Evidence

3.1 Cato’s Letters: Of Freedom of Speech, 1720

That Men ought to speak well of their Governors, is true, while their Governors deserve to be well spoken of. . . .

[I]t is the Part and Business of the People, for whose Sake alone all Publick Matters are, or ought to be, transacted, to see whether they be well or ill transacted; so it is the Interest, and ought to be the Ambition, of all honest Magistrates, to have their Deeds openly examined, and publickly scanned: Only the wicked Governors of Men dread what is said of them. . . .

. . . When they are honest, they ought to be publickly known, that they may be publickly commended; but if they be knavish or pernicious, they ought to be publickly exposed, in order to be publickly detested. . . .

Freedom of Speech is the great Bulwark of Liberty; they prosper and die together: And it is the Terror of Traytors and Oppressors, and a Barrier against them. It produces excellent Writers, and encourages Men of fine Genius. Tacitus tells us, that the Roman Commonwealth bred great and numerous Authors, who writ with equal Boldness and Eloquence: But when it was enslaved, those great Wits were no more. . . . Tyranny had usurped the Place of Equality, which is the Soul of Liberty, and destroyed publick Courage. The Minds of Men, terrified by unjust Power, degenerated into all the Vileness and Methods of Servitude: Abject Sycophancy and blind Submission grew the only Means of Preferments, and indeed of Safety; Men durst not open their Mouths, but to flatter. . . .

All Ministers, therefore, who were Oppressors, or intended to be Oppressors, have been loud in their Complaints against Freedom of Speech, and the License of the Press; and always restrained, or endeavoured to restrain, both. In consequence of this, they have brow-beaten Writers, punished them violently, and against Law, and burnt their Works. By all which they shewed how much Truth alarmed them, and how much they were at Enmity with Truth.

Source: John Trenchard and Thomas Gordon, Cato’s Letters Or Essays on Liberty, Civil and Religious, and other important Subjects, vol. 1 (London: W. Wilkins, T. Woodward, J. Walthoe, and J. Peele, 1737), pp. 97–102.

Why, according to the authors, is freedom of expression a “great Bulwark of Liberty”? What do they believe results from censorship?

3.2 Benjamin Franklin, “Apology for Printers,” 1731

I request all who are angry with me on the account of printing things they don’t like, calmly to consider these following particulars:

1. That the opinions of men are almost as various as their faces; an observation general enough to become a common proverb, So many men so many minds;
2. That the business of printing has chiefly to do with men’s opinions; most things that are printed tending to promote some, or oppose others;
3. That hence arises the peculiar unhappiness of that business, which other callings are no way liable to; they who follow printing being scarce able to do anything in their way of getting a living, which shall not probably give offence to some, and perhaps to many. . . .
4. That it is as unreasonable in any one man or set of men to expect to be pleased with everything that is printed, as to think that nobody ought to be pleased but themselves;
5. Printers are educated in the belief, that when men differ in opinion, both sides ought equally to have the advantage of being heard by the public; and that when truth and error have fair play, the former is always an overmatch for the latter. Hence they cheerfully serve all contending writers that pay them well, without regarding on which side they are of the question in dispute;
6. Being thus continually employed in serving both parties, printers naturally acquire a vast unconcernedness as to the right or wrong opinions contained in what they print; regarding it only as the matter of their daily labor. They print things full of spleen and animosity, with the utmost calmness and indifference, and without the least ill-will to the persons reflected on, who nevertheless unjustly think the printer as much their enemy as the author, and join both together in their resentment;
7. That it is unreasonable to imagine printers approve of everything they print, and to censure them on any particular thing accordingly; since in the way of their business they print such great variety of things opposite and contradictory. It is likewise as unreasonable what some assert, “That printers ought not to print anything but what they approve;” since if all of that business should make such a resolution, and abide by it, an end would thereby be put to free writing, and the world would afterwards have nothing to read but what happened to be the opinions of printers.

Source: The Pennsylvania Gazette (1731), in An Apology for Printers, ed. Randolph Goodman (New York: Book Craftsmen Associates, 1955), pp. 4–7.

According to Franklin, should publishers be held accountable for the opinions they disseminate? Why or why not?

3.3 The Trial of John Peter Zenger, 1735

[Zenger was arrested in November 1734 and kept in prison on excessive bail. In April 1735, the chief justices dismissed his lawyers for challenging the legality of their judicial appointments, which they held “at pleasure” of the governor]. . . .

. . . [T]he Chief Justice said that they would neither hear nor allow the exceptions; . . . you have brought it to that point that either we must go from the bench, or you from the bar: Therefore we exclude [you] from the bar. . . .

[In late July, the justices agreed to a trial by jury, which the sheriff, clerk, and prosecution repeatedly tried to stack in favor of the governor. The trial finally began on August 4, with Hamilton leading Zenger’s defense.]

Mr. Attorney. May it please Your Honors, and you, gentlemen of the jury; the information now before the Court, and to which the Defendant Zenger has pleaded not guilty, is an information for printing and publishing a false, scandalous and seditious libel, in which His Excellency the Governor of this Province, who is the King’s immediate representative here, is greatly and unjustly scandalized as a person that has no regard to law nor justice. . . . This of libeling is what has always been discouraged as a thing that tends to create differences among men, ill blood among the people, and oftentimes great bloodshed between the party libeling and the party libeled. . . .

Mr. Hamilton. May it please Your Honor; I am concerned in this cause on the part of Mr. Zenger the Defendant. . . . I cannot think it proper for me (without doing violence to my own principles) to deny the publication of a complaint which I think is the right of every free-born subject to make when the matters so published can be supported with truth; and therefore I’ll save Mr. Attorney the trouble of examining his witnesses to that point; and I do (for my client) confess that he both printed and published the two newspapers set forth in the information, and I hope in so doing he has committed no crime. . . .

Mr. Attorney. . . . [A]s 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 that they are not the less libelous for that; nay indeed the law says their being true is an aggravation of the crime. . . .

Mr. Hamilton. . . . [Mr. Attorney] observed upon the excellency as well as the use of government, and the great regard and reverence which had been constantly paid to it, both under the law and the gospel. That by government we were protected in our lives, religion and properties. . . . [T]hat 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. . . . [F]or [in his newspapers] it is plainly said that as matters now stand, their liberties and properties are precarious, and that slavery is like to be entailed on them and their posterity. And then again Mr. Zenger says the Assembly ought to despise the smiles or 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 condescend to let them do it.—. . .—If this was not a libel, he said, he did not know what was one.¹ . . .

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 [because what he printed is true]. . . .

. . . [T]he falsehood makes the scandal, and both make the libel. . . .

Mr. Chief Justice. . . . [I]t is nevertheless a libel that it is true.

Mr. Hamilton. I am sorry the Court has so soon resolved upon that piece of law; I expected first to have been heard to that point.² . . .

Mr. Chief Justice. Mr. Hamilton, the Court have delivered their opinion, and we expect you will use us with good manners; you are not to be permitted to argue against the opinion of the Court.

Mr. Hamilton. With submission, I have seen the practice in very great courts, and never heard it deemed unmannerly to—

Mr. Chief Justice. After the Court have declared their opinion, it is not good manners to insist upon a point in which you are over-ruled.

Mr. Hamilton. I will say no more at this time; the Court I see is against us in this point; and that I hope I may be allowed to say.

Mr. Chief Justice. Use the Court with good manners, and you shall be allowed all the liberty you can reasonably desire.

Mr. Hamilton. I thank Your Honor. Then, gentlemen of the jury, it is to you we must now appeal for witnesses to the truth of the facts we have offered and are denied the liberty to prove; and let it not seem strange that I apply myself to you in this manner, I am warranted so to do both by law and reason. The law supposes you to be summoned out of the neighborhood where the fact is alleged to be committed; and the reason of your being taken out of the neighborhood is because you are supposed to have the best knowledge of the fact that is to be tried. . . . You are citizens of New York; you are really what the law supposes you to be, honest and lawful men; and, according to my brief, the facts which we offer to prove were not committed in a corner; they are notoriously known to be true; and therefore in your justice lies our safety. And as we are denied the liberty of giving evidence to prove the truth of what we have published, I will beg leave to lay it down as a standing rule in such cases, that the suppressing of evidence ought always to be taken for the strongest evidence. . . . [N]otwithstanding all the duty and reverence claimed by Mr. Attorney to men in authority, they are not exempt from observing the rules of common justice, either in their private or public capacities; the laws of our Mother Country know no exemption. It is true, men in power are harder to be come at for wrongs they do either to a private person or to the public; especially a governor in the plantations, where they insist upon an exemption from answering complaints of any kind in their own government. We are indeed told and it is true they are obliged to answer a suit in the King’s courts at Westminster for a wrong done to any person here: But do we not know how impracticable this is to most men among us, to leave their families (who depend upon their labor and care for their livelihood) and carry evidences to Britain, and at a great, nay, a far greater expense than almost any of us are able to bear, only to prosecute a governor for an injury done here. But when the oppression is general there is no remedy even that way, no, our constitution has (blessed be God) given us an opportunity, if not to have such wrongs redressed, yet by our prudence and resolution we may in a great measure prevent the committing of such wrongs by making a governor sensible that it is his interest to be just to those under his care. . . . But I pray it may be considered of what use is this mighty privilege if every man that suffers must be silent? And if a man must be taken up as a libeler for telling his sufferings to his neighbor? I know it may be answered, Have you not a legislature? Have you not a House of Representatives to whom you may complain? And to this I answer, we have. But what then? . . . [W]hat redress is to be expected for an honest man who makes his complaint against a governor to an Assembly who may properly enough be said to be made by the same governor against whom the complaint is made?³ . . .

. . . [W]e 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. . . .

. . . 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 freeman 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—the liberty—both of exposing and opposing arbitrary power (in these parts of the world, at least) by speaking and writing truth. . . .

The jury withdrew and in a small time returned and being asked by the Clerk whether they were agreed of their verdict, and whether John Peter Zenger was guilty of printing and publishing the libels in the information mentioned? They answered . . . Not Guilty, upon which there were three huzzas in the hall which was crowded with people and the next day [Zenger] was discharged from [his] imprisonment.

Source: Brief Narrative of the Case and Trial of John Peter Zenger, ed. Alexander James and Stanley Nider Katz (Cambridge, MA: Belknap Press, 1963), pp. 53–101.

What kind of evidence is the defense attorney, Hamilton, prohibited from presenting at the trial? Why does it matter?

3.4 David Hume, “Of Parties in General,” 1742

Of all men that distinguish themselves by memorable achievements, the first place of honour seems due to legislators and founders of states, who transmit a system of laws and institutions to secure the peace, happiness, and liberty of future generations. . . .

As much as legislators and founders of states ought to be honoured and respected among men, as much ought the founders of sects and factions to be detested and hated; because the influence of faction is directly contrary to that of laws. Factions subvert government, render laws impotent, and beget the fiercest animosities among men of the same nation, who ought to give mutual assistance and protection to each other. And what should render the founders of parties more odious, is the difficulty of extirpating these weeds, when once they have taken root in any state. They naturally propagate themselves for many centuries, and seldom end but by the total dissolution of that government, in which they are sown. They are, besides, plants which grow most plentifully in the richest soil; and though absolute governments be not wholly free from them, it must be confessed, that they rise more easily, and propagate themselves faster in free governments, where they always infect the legislature itself, which alone could be able, by the steady application of rewards and punishments, to eradicate them.

Factions may be divided into Personal and Real; that is, into factions, founded on personal friendship or animosity among such as compose the contending parties, and into those founded on some real difference of sentiment or interest. The reason of this distinction is obvious; though I must acknowledge, that parties are seldom found pure and unmixed, either of the one kind or the other. . . .

Personal factions arise most easily in small republics. Every domestic quarrel, there, becomes an affair of state. Love, vanity, emulation, any passion, as well as ambition and resentment, begets public division. . . .

Men have such a propensity to divide into personal factions, that the smallest appearance of real difference will produce them. . . .

Real factions may be divided into those from interest, from principle, and from affection. Of all factions, the first are the most reasonable and the most excusable. Where two orders of men, such as the nobles and people, have a distinct authority in a government, not very accurately balanced and modelled, they naturally follow a distinct interest; nor can we reasonably expect a different conduct. . . .

Parties from principle, especially abstract speculative principle, are known only to modern times, and are, perhaps, the most extraordinary and unaccountable phenomenon that has yet appeared in human affairs. Where different principles beget a contrariety of conduct, which is the case with all different political principles, the matter may be more easily explained. A man, who esteems the true right of government to lie in one man, or one family, cannot easily agree with his fellow-citizen, who thinks that another man or family is possessed of this right. Each naturally wishes that right may take place, according to his own notions of it. But where the difference of principle is attended with no contrariety of action, but every one may follow his own way, without interfering with his neighbour, as happens in all religious controversies; what madness, what fury, can beget such an unhappy and such fatal divisions?

. . . But such is the nature of the human mind, that it always lays hold on every mind that approaches it; and as it is wonderfully fortified by an unanimity of sentiments, so it is shocked and disturbed by any contrariety. . . .

This principle, however frivolous it may appear, seems to have been the origin of all religious wars and divisions. . . .

. . . By parties from affection, I understand those which are founded on the different attachments of men towards particular families and persons, whom they desire to rule over them. These factions are often very violent; though, I must own, it may seem unaccountable, that men should attach themselves so strongly to persons, with whom they are nowise acquainted, whom perhaps they never saw, and from whom they never received, nor can ever hope for, any favour. Yet this we often find to be the case.

Source: David Hume, Essays and Treatises on Severy Subjects, vol. 1 (Edinburgh: Bell and Bradfute et al., 1825), pp. 49–51, 53–57.

According to Hume, what is the difference between “Personal” and “Real” factions?