Article 3, Section 2, Clause 3
Cincinnatus, no. 11 Nov. 1787Storing 6.1.7--8
Let us suppose then, that what has happened, may happen again: That a patriotic printer, like Peter Zenger, should incur the resentment of our new rulers, by publishing to the world, transactions which they wish to conceal. If he should be prosecuted, if his judges should be as desirous of punishing him, at all events, as the judges were to punish Peter Zenger, what would his innocence or his virtue avail him? This constitution is so admirably framed for tyranny, that, by clear construction, the judges might put the verdict of a jury out of the question. Among the cases in which the court is to have appellate jurisdiction, are--controversies, to which the United States are a party:--In this appellate jurisdiction, the judges are to determine, both law and fact. That is, the court is both judge and jury. The attorney general then would have only to move a question of law in the court below, to ground an appeal to the supreme judicature, and the printer would be delivered up to the mercy of his judges. Peter Zenger's case will teach us, what mercy he might expect. Thus, if the president, vice-president, or any officer, or favorite of state, should be censured in print, he might effectually deprive the printer, or author, of his trial by jury, and subject him to something, that will probably very much resemble the Star Chamber of former times. The freedom of the press, the sacred palladium of public liberty, would be pulled down;--all useful knowledge on the conduct of government would be withheld from the people--the press would become subservient to the purposes of bad and arbitrary rulers, and imposition, not information, would be its object.
The printers would do well, to publish the proceedings of the judges, in Peter Zenger's case--they would do well to publish lord Mansfield's conduct in, the King against Woodfall;--that the public mind may be properly warned of the consequences of agreeing to a constitution, which provides no security for the freedom of the press, and leaves it controversial at least--whether in matter of libels against any of our intended rulers; the printer would even have the security of trial by jury. Yet it was the jury only, that saved Zenger, it was a jury only, that saved Woodfall, it can only be a jury that will save any future printer from the fangs of power.
Storing, Herbert J., ed. The Complete Anti-Federalist. 7 vols. Chicago: University of Chicago Press, 1981.
© 1987 by The University of Chicago