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Comment: The Zenger Trial: On Duty

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The Zenger Trial: On Duty

This is the right occasion to celebrate one of the most significant trial lawyer/jury moments in our American heritage:

" A half-century after the Zenger trial, as members of the First Congress debated the proposed Bill of Rights, one of the Constitution's principal drafters and great-grandson of Lewis Morris, Gouvernor Morris, would write of the Zenger case: 'The trial of Zenger in 1735 was the germ of American freedom, the morning star of that liberty which subsequently revolutionized America.'"

This is a story of a lawyer, his whistleblowing client, and the jury of 12 men who made their stand nullifying a prosecution for seditious libel, thereby acknowledging one of the truths Zenger published:

"The loss of liberty in general would soon follow the suppression of the liberty of the press; for it is an essential branch of liberty, so perhaps it is the best preservative of the whole.  Even a restraint of the press would have a fatal influence.  No nation ancient or modern has ever lost the liberty of freely speaking, writing or publishing their sentiments, but forthwith lost their liberty in general and became slaves."

Zenger's defense was taken up by Andrew Hamilton of Philadelphia, 'perhaps the ablest and most eloquent attorney in the colonies'-- when his original two lawyers both were disbarred by the Chief Justice when they audaciously objected to the two-man court the government had hand-picked to try Zenger's case. Hamilton's summation still stands as eloquent testament to the course to which we are still called today:

The Duty Of Seditious Whistleblowers:

"It is natural, it is a privilege, I will go farther, it is a right, which all free men claim, that they are entitled to complain when they are hurt.  They have a right publicly to remonstrate against the abuses of power in the strongest terms, to put their neighbors upon their guard against the craft or open violence of men in authority, and to assert with courage the sense they have of the blessings of liberty, the value they put upon it, and their resolution at all hazards to preserve it as one of the greatest blessings heaven can bestow...."

The Duty Of Their Lawyers:

"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 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...."

The Duty Of Jurors:

"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."

"The Zenger trial established no new law with respect to seditious libel, but in unmistakable terms it signaled the public's opposition to such prosecutions.  Concern about likely jury nullification discouraged prosecutions, and press freedom in America began to blossom."