Hamilton quickly focused on the last part of his opponent’s argument as support for his attempt to introduce evidence of the truthfulness of his client’s publications. Hamilton offered the following brilliantly ironic response:

Well, suppose it were so, and let us agree for once that truth is a greater sin than falsehood: Yet as the offenses are not equal, and as the punishment is arbitrary, that is, according as the judges in their discretion shall direct to be inflicted; is it not absolutely necessary that they should know whether the libel is true or false, that they may by that means be able to proportion the punishment? For would it not be a sad case if the judges, for want of a due information, should chance to give as severe a judgment against a man for writing or publishing a lie as for writing or publishing a truth? And yet this (with submission), as monstrous and ridiculous as it may seem to be, is the natural consequence of Mr. Attorney’s doctrine that truth makes a worse libel than falsehood, and must follow from his not proving our papers to be false, or not suffering us to prove them to be true.

I'm trying to apprehend why this rseponse is 'ironic' and confirm my reading comprehension.

I'd summarise this to have reversed the importance of truth and falsity, so is this swap the irony? Here, Alexander Hamilton first hypothesises (for the sake of this argument) that truth is worse than falsehood, then argues that it would be a 'sad case' if judges by chance punish a liar more severely than a truthteller? Finally, Hamilton submits that this is a monstrous counterargument, because he's trying to confute "Mr. Attorney's doctrine." Did I read this 100% rightly?

Source: P38, America on Trial by Alan Dershowitz

  • Is this really about English language? Is it litcrit? – Kris Jun 19 '14 at 5:34
  • I think it is an instance of 'proof-understanding' :) – user66974 Jun 19 '14 at 6:16

The irony is that what he could not bring to the court's attention for the benefit of this client, he attempts to argue should be brought to the court's attention to his client's detriment.

The basic principle of a court hearing is that facts and claims that are relevant to the case are brought before the juror or jurors, who then decide upon guilt and penalty as appropriate.

For the same reason, a court hearing should not hear facts or claims that are irrelevant to the case; these could prejudice a jury for or against the defendant unfairly, so that they might release the thief who happened to be a war-hero or convict the notorious thug who had not committed the particular crime they were accused of.

In this case Hamilton wanted to argue that Zenger should be acquitted on the grounds that he had said only true things. This was not a defence under British law at the time of the trial (though Hamilton hoped to set precedent), but it could still influence the opinion of the jury.

Because it was not a defence the judge disallowed such evidence being brought.

Now, consider that I cannot libel you by saying you murdered Santa Claus, because this is so clearly not true that it can't cause you any damage. A statement must convince people before it is libellous (whether civil, seditious or what have you) and the more convincing the more libellous. Therefore evidence that a statement was believed by people is relevant to a libel case; the more the statement is believed then both the more likely it is that the speaker committed libel and the more grievous the harm caused by their crime.

So, Hamilton argued that the court should consider evidence about the truth of the statements because a factual statement would generally be more believable than a false one, and hence that evidence is evidence that the statements did harm, and therefore that the defendant is guilty or conversely (if the balance of evidence suggests that the statements were not true) that the statements may not have done harm and the defendant is innocent.

The irony is in Hamilton arguing that the evidence he was not allowed to put before the jury to demonstrate Zenger's innocence should be put before the jury to demonstrate his guilt.

(Of course, Hamilton's hope was that in being allowed to do so, he would achieve his original goal. In the end he still wasn't allowed to present such evidence, but the jury acquitted largely, it would seem, because they believed Zenger had published the truth even without it being demonstrated in court).

  • +1. Thank you effusively for your care and detail. You seem very familiar with the law, so I thought to mention the Area 51 proposal for law (on my profile)? – Greek - Area 51 Proposal Jul 21 '14 at 12:59
  • @LePressentiment I know nothing about the law bar a few things that are amusing as anecdotes, which does fit in here, but not more generally. – Jon Hanna Jul 21 '14 at 15:04

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