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Suspicion of Arbitrary Power
Digital History ID 92

Author:   John P. Zenger
Date:1733

Annotation:

A pivotal jury decision in New York in 1735 helped establish the principle of freedom of the press. Opponents of New York's royal governor William Cosby had set up John Peter Zenger (1697-1746), a German immigrant, as publisher of the New York Weekly Journal in 1733. The next year, after New York's governor dismissed one of his leading opponents, Chief Justice Lewis Morris, from office, the Weekly Journal severely criticized Cosby. Because the articles attacking Cosby were published anonymously, the governor had Zenger indicted and tried for seditious libel. English law defined any criticism of a public official--true or false--as libel. But Zenger's attorney, Andrew Hamilton (1676-1741) of Philadelphia, persuaded the jury that Zenger had printed the truth and that the truth is not libelous.

In stirring words, Hamilton told the jury that "the Question before the Court...is not the Cause of a poor Printer, nor of New-York alone.... No! It may in its Consequence, affect every Freeman that lives under a British Government on the Main of America.... It is the Cause of Liberty.... Every Man who prefers Freedom to a Life of Slavery will bless and honour You, as Men who have...given us a Right...both of exposing and opposing arbitrary Power (in these Parts of the World, at least) by speaking and writing Truth."

An excerpt from Zenger's Weekly Journal gives vivid expression to the popular suspicion of arbitrary power.


Document:

Mr. Zenger,

Pray insert the following sentiments of Cato, and you'll oblige Yours, &c.

Considering what sort of a Creature Man is, it is scarce possible to put him under too many restraints, when he is possessed of great Power: He may possibly use it well; but they act most prudently, who supposing that he would use it ill enclose him within certain Bounds and make it terrible to him to exceed them.

It is nothing strange, that Men, who think themselves unaccountable, should act unaccountably, and that all Men would be unaccountable if they could...; and no Man cares to be at the entire Mercy of another. Hence it is that if every Man had his Will, all Men would exercise Dominion, and no Man would suffer it. It is therefore owning more to the Necessities of Men, than to their Inclinations, that they have put themselves under the Restraint of Laws, and appointed certain persons, called Magistrates, to execute them; otherwise they would never be executed, scarce any Man having such a Degree of Virtue as unwillingly to execute the Laws upon himself....

Hence grew the Necessity of Government, which was the mutual Contract of a Number of Men, agreeing upon certain Terms of Union and Society, and putting themselves under Penalties if they violated these terms, which were called Laws, and put into the Hands of one or more Men to execute. And thus men quitted Part of their natural Liberty to acquire civil Security. But frequently the Remedy prov'd worse than the Disease; and humane Society had often no enemies so great as their own Magistrates; who, wherever they were trusted with too much Power, always abused it, and grew mischievous to those who made them what they were. Rome, while she was free, (that is, while she kept her Magistrates within due bounds) could defend herself against all the world, and conquer it; but being enslaved (that is her Magistrates having broke their Bounds) she could not defend her self against her own single Tyrants; nor could they defend her against her foreign Foes and Invaders: For by their Madness and Cruelties they had destroyed her Virtue and Spirit, and exhausted her Strength....

The common People generally think that great Men have great Minds, and scorn base Actions; which Judgment is so false, that the basest and worst of all Actions have been done by great Men; perhaps they have not picked private Pockets, but they have done worse, they have often disturbed, deceived and pillaged the World: And he who is capable of the highest Mischiefs, is capable of the Meanest. He who plunders a Country of Millions of Money, would in suitable Circumstances steal a Silver Spoon; and a Conqueror, who steals and pillages a Kingdom, would in an humbler Fortune rifle a Portmanteau or rob an Orchard.

Political Jealousy, therefore, in the people is a necessary and laudable Passion. But in a Chief Magistrate, a Jealousy of his People is not so justifiable, their Ambition being only to preserve themselves; whereas it is natural for Power to be striving to enlarge itself, and to be encroaching upon those that have none....

Now because Liberty chastises and shortens Power, therefore Power would extinguish Liberty; and consequently Liberty has too much cause to be exceeding jealous and always upon her Defence. Power has many Advantages over her; it has generally numerous Guards, many Creatures, and much Treasure; besides it has more Craft and Experience, and less Honesty and Innocence: And whereas Power can, and for the most Part does subsist where Liberty is not, Liberty cannot subsist without Power; so that she has, as it were, the Enemy always at her Gates.

To Conclude: Power without Control appertains to God alone; and no Man ought to be trusted with what no Man is equal to. In Truth, there are so many passions and Inconsistencies, and so much Selfishness, belonging to humane Nature, that we can scarce be too much upon our Guard against each other. The only Security we have that men will be Honest, is to make it their Interest to be Honest; and the best Defence we can have against their being Knaves, is to make it terrible to them to be Knaves. As there are many Men, wicked in some Stations, who would be innocent in others; the best way is to make Wickedness unsafe in any Station.

Source: Gilder Lehrman Institute

Additional information: New York Weekly Journal, March 11, 1733

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