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经典案例:The Trial of John Peter Zenger

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In response to Delancey's ruling, Hamilton revealed the true nature of the defense strategy--jury nullification:

I know, may it please Your Honor, the jury may do so. But I do likewise know that they may do otherwise. I know that they have the right beyond all dispute to determine both the law and the fact; and where they do not doubt of the law, they ought to do so. Leaving it to judgment of the court whether the words are libelous or not in effect renders juries useless (to say no worse) in many cases. But this I shall have occasion to speak to by and by.
Hamilton's lengthy summation to the jury still stands as an eloquent defense not just of a German-born printer, but of a free press:

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 loss of liberty, to a generous mind, is worse than death. And yet we know that 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 is what every man who 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 due 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 is the nature of power, let us at least do our duty, and like wise 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....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....

You see that I labor under the weight of many years, and am bowed 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 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....

But to conclude: The question before the Court and you, Gentlemen of the jury, is not of small or private concern. It is not the cause of one 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 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 to liberty of both exposing and opposing arbitrary power (in these parts of the world at least) by speaking and writing truth.

Chief Justice Delancey seemed unsure how to react to Hamilton's eloquence. He instructed the jury that its duty under the law was clear. There were no facts for it to decide, and it was not to judge the law. Delancey all but ordered the jury to return a verdict of "Guilty":

The great pains Mr. Hamilton has taken to show how little regard juries are to pay to the opinion of judges, and his insisting so much upon the conduct of some judges in trials of this kind, is done no doubt with a design that you should take but very little notice of what I might say upon this occasion. I shall therefore only observe to you that as the facts or words in the information are confessed, the only thing that can come in question before you is whether the words as set forth in the information make a libel. And that is a matter of law, no doubt, and which you may leave to the Court.
The jury withdrew to deliberate. A short time later, it returned. The clerk of the court asked the jury foreman, Thomas Hunt, to state the verdict of the jury. "Not guilty," Hunt answered. There followed "three huzzas" and "shouts of joy" from the crowd of spectators in the courtroom. Chief Justice Delancey demanded order, even threatening spectators with arrest and imprisonment, but the celebration continued unabated. Defeated, Delancey "left the courtroom to the jubilant crowd."

Trial Aftermath

Anti-administration supporters hosted a congratulatory dinner for Andrew Hamilton at the Black Horse Tavern. The next day, on the start of his return trip to Philadelphia, a "grand salute of cannon was fired in his honor."

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. 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."

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