It Is Dangerous to Be Right When the Government Is Wrong - Andrew P. Napolitano [112]
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Jury to the Rescue
In 1733, the newly installed New York colonial governor, William Cosby, had caused quite a controversy by prosecuting and removing a number of important government officials who had opposed him. Outraged at this manifest injustice, a number of influential citizens established the New York Weekly Journal, the first independent political newspaper in the colonies, in order to criticize the governor and his actions. John Peter Zenger was hired as its first editor and printer.
Floored at public criticism, Governor Crosby had the New York Weekly Journal’s newspapers burned and Zenger arrested and charged with the crime of seditious libel. The prosecution argued that the newspaper sought to “traduce, scandalize, and vilify” the governor, and thus, Zenger should be punished accordingly. Andrew Hamilton, the lawyer for Zenger, responded that it would be manifestly unlawful to punish “the just complaints of a number of men who suffer under a bad administration.” The difficulty for Hamilton was that he had no established cases supporting this position; truth could not be a defense to a charge of seditious libel.
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Hamilton, one of the most brilliant lawyers in the colonies at the time, thus devised the following strategy: Convince the jury that the law was not just, and they should therefore acquit Zenger, even if he was genuinely guilty according to the established law, a device known today as jury nullification. In his address to the jury, Hamilton framed the significance of the case:
[T]he 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[land] 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 . . . by speaking and writing truth.3(Emphases added)
The jury, roused by the eloquence of Hamilton, disregarded the established law and returned a verdict of not guilty. Stated differently, the jury ignored corrupt man-made laws and ruled according to the Natural Law. Unable to control the jubilations of the courtroom spectators, the governor’s Chief Justice sulked out of the courtroom, having failed to suppress the right to speak out against the government’s injustices.
Unlike the discussions here which have dealt with the process of drafting and promulgating a law, litigation procedure relates to how those laws are actually applied to individuals. Typically when we think of due process, it is these sorts of laws that come to mind: Juries, rules of evidence, habeas corpus, and so on. The importance of these rules of procedure is brilliantly highlighted in the John Peter Zenger trial; without a jury, the governor’s judges would have found Zenger guilty and thrown him in jail, thus eviscerating his natural right to criticize the government. As Hamilton urged the jury, they were capable of countering tyranny in their capacity as jurors, thus ensuring the just application of the law. There are much too many rules of procedure to cover even briefly in this remainder of this chapter. Thus, we shall focus on the role that litigation plays in properly constraining the government and on one of the most important components of