490. The Trial of Mr. JOHN PETER ZENGER, of New-York, Printer, · Province of New-York; and the Hon. Frederick Phillipse, esq. second Judge; at New-York, on August 4th: 9 GEORGE II

490. The Trial of Mr. JOHN PETER ZENGER, of New-York, Printer,

for printing and publishing a Libel against the Government;

before the Hon. James de Lancey, esq. Chief Justice of the

Province of New-York; and the Hon. Frederick Phillipse, esq.

second Judge; at New-York, on August 4th: 9 GEORGE II.

A. D. 1735.*

AS there was but one printer in the provinceof New York, that printed a public news-pa-per, I was in hopes, if I undertook to publishanother, I might make it worth my while;and I soon found my hopes were not ground-less. My first paper was printed, Nov.5th, 1733, and I continued printing and pub-lishing of them, I thought to the satisfac-tion of every body, till the January follow-ing; when the chief justice was pleased toanimadvert upon the doctrine of libels, in a longcharge given in that term to the grand jury,and afterwards on the third Tuesday of Octo-ber, 1734, was again pleased to charge thegrand jury in the following words:

"Gentlemen, I shall conclude with readinga paragraph or two out of the same book, con-

* This Trial (or rather part of a trial) pub-lished by Mr. Zenger himself, having made agreat noise in the world, is here inserted;though the doctrines advanced by Mr. Hamil-ton in his speeches, are not allowed in thecourts here to be law. — See lord Raymond'sopinion in the foregoing Trial, p. 672. — Towhich we have subjoined some remarks on thistrial, published soon after it made its first ap-pearance. Former Edition. See also stat.32 Geo. 3, c. 60, as referred to in a note toFrancklin's Case, ante, p. 672, and the otherparts of that note.

cerning libels; they are arrived to that height,that they call loudly for your animadversion;it is high time to put a stop to them; for at therate things are now carried on, when all orderand government is endeavoured to be trampledon, reflections are cast upon persons of all de-grees. Must not these things end in sedition,if not timely prevented? Lenity, you have seen,will not avail; it becomes you then to enquireafter the offenders, that we may, in a duecourse of law, be enabled to punish them. Ifyou, gentlemen, do not interpose, considerwhether the ill consequences that may arisefrom any disturbances of the public peace,may not in part lie at your door?

"Hawkins, in bis chapter of Libels, considersthree points: 1st, What shall be said to be alibel. 2dly, Who are liable to be punished forit. 3dly, In what manner they are to bepunished. Under the 1st, he says, § 7, 'Nor

can there be any doubt, but that a writing,which defames a private person only, is asmuch a libel as that which defames persons in-trusted in a public capacity, in as much as itmanifestly tends to create ill blood, and to causea disturbance of the public peace; however, itis certain, that it is a very high aggravationof a libel, that it tends to scandalize the go-vernment, by reflecting on those who are en-trusted with, the administration of public af-fairs, which does not only endanger the public

peace, as all other libels do, by stirring; up theparties immediately concerned in it, to acts ofrevenge, but also has a direct tendency tobreed in the people a dislike of their governorsand incline them to faction and sedition.' Asto the 2d point he says, § 10, ' It is certain,not only he who composes or procures ano-ther to compose it, but also that he who pub-lishes, or procures another to publish it, are indanger of being punished for it; and it is saidnot to be material, whether he who disperses alibel, knew any thing of the contents or effectsof it or not; for nothing could be more easythan to publish the most virulent papers withthe greatest security, if the concealing thepurport of them from an illiterate publisherwould make him safe in the dispersingthem. Also it has been said, that if he whohath either read a libel himself, or hath heardit read by another, do afterwards maliciouslyread or report any part of it in the presence,of others, or lend or shew it to another, he isguilty of an unlawful publication of it. Also,it hath been holden, that the copying of alibel libel be a conclusive evidence of the pub-lication of it, unless the party can prove thathe delivered it to a magistrate to examine it,in which case the act subsequent is said toexplain the intention precedent. But it seemsto be the better opinion, that he who firstwrites a libel, dictated by another, is therebyguilty of making of it, and consequentlypunishable for the bare writing; for it wasno libel till it was reduced to writing.'"These, gentlemen, are some of the offences

which are to make part of your enquiries;and if any other should arise is the course ofyour proceedings, in which you are at a loss,or conceive any doubts, upon your applicationhere, we will assist and direct you."

The grand jury not indicting me as was ex-pected, the gentlemen of the Council proceededto take my Journals into consideration, and sentthe following Message to the General As-sembly :

"Die Jons, 3 p. M. 17th of October, 1734.

"A Message from the Council by PhilipCortlandt, in these words, to wit: 'That boardhaving had several of Zenger's New YorkWeekly Journals laid before them, and otherscurrilous papers, tending to alienate the af-fections of the people of this province fromhis majesty's government, to raise seditionsand tumults among the people of this pro-vince, and to fill their minds with a contemptof his majesty's government: And consider-ing the pernicious consequences that may at-tend such growing evils, if not speedily andeffectually put a stop to: And conceiving thatthe most likely method to put a stop to suchbold and seditious practices, to maintain thedignity of his majesty's government, and topreserve the peace thereof, would be by a con-ference between a Committee of this board,and a Committee of the Assembly; it is there-

fore ordered, that the gentlemen of this board,now assembled, or any seven of them, be acommittee, to join a committee of the Houseof Representatives, in order to confer together,and to examine and enquire into the saidpapers, and the authors and writers thereof.'

"Which Message being read,"Ordered, That the members of this House,

or any fourteen of them, do meet a Committeeof the Council, at the time and place thereinmentioned.

"Die Veneris, 9 A. M. 18 October, 1734.

"Mr. Garretson, from the Committee of thisHouse, reported, That they last night met theCommittee of the Council, on the subject-matterof their Message of yesterday to this House; andthat after several preliminaries between the saidCommittees, the gentlemen of the Council re-duced to writing, what they requested of thisHouse, and delivered the same to the chairman,who delivered it in at the table, and being read,is in the words following :

" 'At a Committee of the Council held the'17th of October, 1734: PRESENT; Mr.

Clarke, Mr. Harrison, Dr. Colden, Mr.Livingston, Mr. Kennedy, Mr. ChiefJustice, Mr. Cortlandt, Mr. Lane, Mr.Horsmanden.

" 'Gentlemen; The matters we requestyour concurrence in are, That Zenger's pa-pers, No. 7, 47, 48, 49, which were read, andwhich we now deliver, be burnt by the handsof the common hangman, as containing inthem many things derogatory of the dignityof his majesty's government, reflecting uponthe legislature, upon the most considerablepersons in the most distinguished stations inthe province, and tending to raise seditionsand tumults among the people thereof." 'That you concur with us in the address-

ing the governor, to issue his proclamation,with a promise of reward for the discovery ofthe authors or writers of these seditious libels." 'That you concur with us in an Order for

prosecuting the printer thereof." 'That you concur with us in an Order to

the magistrates, to exert themselves in theexecution of their offices, in order to preservethe public peace of the province. By orderof the Committee,

" 'FRED. MORRIS, Cl. Con.'

"Mr. Garretson delivered likewise to theHouse the several papers referred to in the saidrequest.

"Ordered, That the said papers be lodgedwith the clerk of this House; and that theconsideration thereof, and the said request, bereferred till Tuesday next.

"Die Martis, 9 A. M. 22 October, 1734.

"The House according to Order proceededto take into consideration the request of a Com-mittee of Council, delivered to a Committee ofthis House, on the 16th instant, as likewise of

the several papers therein referred to. Andafter several debates upon the subject-matters,it was ordered, That the said papers and re-quests lie on the table."

The Council finding the General Assemblywould not do any thing about it, they sent thefollowing Message to the House:

"Die Sabbati, 9 A. M. 2 November, 1734.

"A Message from the Council by Mr. Liv-ingston, desiring this House to return by himto that board the several seditious Journals ofZenger's, No. 7, 47, 48, 49, which were deli-vered by a Committee of that Board to a Com-mittee of this House the 17th of October last,together with the proposals of the Committeeof that Board, delivered therewith to a Com-mittee of this House; and then withdrew."

On Tuesday the 5th of November, 1734, thequarter-sessions for the city of New York be-gan, when the sheriff delivered to the Court anOrder, which was read in these words:

"At a Council held at Fort George, in NewYork, the 2d of November, 1734: PRE-SENT; His Excellency William Cosby,Captain General and Governor in Chief,&c. Mr. Clarke, Mr. Harrison, Dr. Col-den,* Mr. Livingston, Mr. Kennedy, Mr.Chief Justice, Mr. Cortlandt, Mr. Lane,Mr. Horsmanden.

"Whereas by an Order of this Board, of thisday, some of John Peter Zenger's Journals,entitled, ' The New York Weekly Journal,

containing the freshest Advices, foreign anddomestic,' No. 7, 47, 48, 49, were ordered to

be burnt by the hands of the common hang-man, or whipper, near the pillory in this city,on Wednesday the 6th instant, between thehours of eleven and twelve in the forenoon, ascontaining in them many things tending to se-dition and faction, to bring his majesty's go-vernment into contempt, and to disturb thepeace thereof, and containing in them likewisenot only refections upon his excellency the go-vernor in particular, the legislature in general,tut also upon the most considerable persons inthe most distinguished stations in this province:it is therefore ordered, That the mayor andmagistrates of this city do attend at the burningof the several Papers or Journals aforesaid,numbered as above mentioned.

"FRED. MORRIS, D. Cl. Con.""To Robert Lurling, esq. mayor of the

city of New York, and the rest of themagistrates for the said city andcounty."

"Upon reading of which Order, the Courtforbad the entering thereof in their books atthat time; and many of them declared, that if

* "N. B. Dr. Colden was that day atEsopus, 90 miles from New York, though men-tioned as present in council." — Former Edi-tion.

it should be entered, they would have theirprotest entered against it.

On Wednesday the 6th of November, thesheriff of New York moved the Court of Quar-ter-sessions to comply with the said Order;upon which one of the aldermen offered a Pro-test, which was read by the clerk, and approvedof by all the aldermen, either expressly or bynot objecting to it, and is as followeth:

"Whereas an Order has been served on thisCourt, in these words." [The Order as aboveinserted.] "And whereas this Court conceives,they are only to be commanded by the king'smandatory writs, authorised by law, to whichthey conceive they have the right of shewingcause why they don't obey them, if they believethem improper to be obeyed; or by Orders,whichhave some known laws to authorise them; andwhereas this Court conceives this Order to beno mandatory writ warranted by law, norknows of no law that authorises the making theOrder aforesaid; so they think themselvesunder no obligation to obey it: which obedi-ence, they think would be in them, an openinga door for arbitrary commands, which, whenonce opened, they know not what dangerousconsequences may attend it. Wherefore thisCourt conceives itself bound in duty (for thepreservation of the rights of this corporation,and, as much as they can, the liberty of thepress, and the people of the province, since anassembly of the province, and several grandjuries, have refused to meddle with the papers,when applied to by the Council) to protestagainst the Order aforesaid, and to forbid allthe members of this corporation to pay anyobedience to it, until it be shewn to this Court,that the same is authorised by some knownlaw, which they neither know, nor believe thatit is."

Upon reading of which, it was required ofthe honourable Francis Harrison, recorder ofthis corporation, and one of the members of theCouncil, (present at making the said Order) toshew by what law or authority the said Orderwas made; upon which he spoke in support ofit, and cited the case of Dr. Sacheverell's Ser-mon, which was by the House of Lords orderedto be burnt by the hands of the hangman, andthat the mayor and aldermen of London shouldattend the doing of it. To which one of the al-dermen answered to this purpose: That heconceived the case was no ways parallel, be-cause Dr. Sacheverell and his Sermon wereimpeached by the House of Commons of Eng-land, which is the grand jury of the nation,and representative of the whole people of Eng-land : that this their impeachment they prose-cuted before the House of Lords, the greatestcourt of justice of Britain, and which, beyondmemory of man, has had cognizance of thingsof that nature: that there Sacheverell had afair hearing in defence of himself and of hisSermon; and after that fair hearing, he andhis Sermon were justly, fairly, and legallycondemned: that be had read the case of Dr.

Sacheverell, and thought he could charge hismemory, that the judgment of the House ofLords in that case was, That the mayor andsheriffs of London and Middlesex only shouldattend the burning of the Sermon, and not thealdermen; and farther he remembered, that theOrder upon that judgment was only directed tothe sheriffs of London, and not even to themayor, who did not attend the doing it: andfarther said, that would Mr. Recorder shew,that the governor and council had such autho-rity as the House of Lords, and that the papersordered to be burnt were in like manner legallyprosecuted and condemned, there the case ofDr. Sacheverell might be to the purpose; butwithout shewing that, it rather proved that acensure ought not to be pronounced, till a fairtrial by a competent and legal authority werefirst had. Mr. Recorder was desired to pro-duce the books from whence he cited his autho-rities, that the Court might judge of themthemselves, and was told, that if he could pro-duce sufficient authorities to warrant this Or-der, they would readily obey it, but otherwisenot. Upon which he said, he did not carry hisbooks about with him. To which it was an-swered, he might send for them, or order aconstable to fetch them. Upon which hearose, and at the lower end of the table he men-tioned, that bishop Bumet's Pastoral Letter wasordered, by the House of Lords, to be burnt* bythe high bailiff of Westminster; upon whichhe abruptly went away, without waiting for ananswer, or promising to bring his books, anddid not return sitting the Court.

After Mr. Recorder's departure, it wasmoved, that the Protest should be entered; towhich it was answered, that the Protest couldnot be entered, without entering also theOrder, that it was not fit to take any notice ofit; and therefore it was proposed that no no-tice should be taken in their books of either,which was unanimously agreed to by theCourt.

The sheriff then moved, that the Court woulddirect their whipper to perform the said Or-der; to which it was answered, That as hewas the officer of the corporation, they wouldgive no such Order. Soon after which theCourt adjourned, and did not attend the burn-ing of the papers. Afterwards about noon,the sheriff, after reading the numbers of theseveral papers which were ordered to be burnt,delivered them unto the hands of his own negro,and ordered him to put them into the fire,which he did; at which Mr. Recorder, Je-remiah Dunbar, esq. and several of the offi-cers of the garrison, attended.

On the Lord's day, the 17th of November,

* Bishop Kennet says, that this Letterseemed to be sacrificed to a poor jest on theauthor's name [Burnet]. Complete Hist. ofEng. vol. 3, p. 587, 2 Ed. in Lond, 1719. —Former Edition.

1734, I was taken and imprisoned by virtue ofa warrant in these words :

"At a Council held at Fort George in NewYork, the 2d day of November, 1734.PRESENT; bis Excellency William Cosby,Captain General and Governor in Chief,&c. Mr. Clarke, Mr. Harrison, Mr.Livingston, Mr. Kennedy, Chief-Justice,Mr. Cortlandt, Mr. Lane, Mr. Hors-manden,

"It is ordered, that the sheriff for the cityof New York do forthwith take and ap-prehend John Peter Zenger, for printing andpublishing several seditious libels, dispersedthroughout his Journals or News-papers, in-tituled, ' The New York Weekly Journal, con-taining the freshest advices, foreign and do-mestic;' as having in them many things tend-ing to raise factions and tumults among thepeople of this province, inflaming their mindswith contempt of his majesty's government,and greatly disturbing the peace thereof; andupon his taking the said John Peter Zenger, tocommit him to the prison or common jail ofthe said city and county.

"FRED. MORRIS, D. Cl. Con."

And being, by virtue of that warrant, so im-prisoned in the jail, I was for several days de-nied the use of pen, ink, and paper, and the li-berty of speech with any persons. — Upon mycommitment, some friends soon got a HabeasCorpus to bring me before the chief-justice, inorder to my discharge, or being bailed; on thereturn whereof, on Wednesday the 20th of No-vember, my counsel delivered exceptions tothe return, and the chief-justice ordered themto be argued publicly at the city hall, on theSaturday following.

On Saturday the 23d of November, the saidexceptions came to be argued, by JamesAlexander and William Smith, of counsel forme, and by Mr. Attorney General, and Mr.Warrel, of counsel against me, in presence ofsome hundreds of the inhabitants; where mycounsel (saving the benefit of exception to theillegality of the warrant) insisted that I mightbe admitted to reasonable bail. And to shewthat it was my right to be so, they offeredMagna Charta, the Petition of Right, 3 Car.the Habeas Corpus Act of 31 Car. 2. which di-rects the sum, in which bail is to be taken, tobe, 'according to the quality of the prisoner,and nature of the offence.' Also 2 Hawkins,cap. 15, §. 5, in these words, 'But justices musttake care, that, under pretence of demandingsufficient security, they do not make so exces-sive a demand as, in effect, amounts to a denialof bail; for this is looked on as a great griev-ance, and is complained of as such, by 1 W. &M. sess. 2, by which it is declared, 'That ex-cessive bail ought not to be required,' It wasalso shewn, that the Seven Bishops, who, inking James the 2d's time, were charged withthe like crime that I stood charged with, wereadmitted to bail on their own recognizances,

the archbishop in 200l. and each of the othersix in 100l a-piece only. Sundry other au-thorities and arguments were produced and in-sisted on by my counsel, to prove my right tobe admitted to moderate bail, and to such bailas was in my power to give; and sundry partsof history they produced, to shew how muchthe requiring excessive bail had been reseatedby parliament. And, in order to enable theCourt to judge what surety was in my power togive, I made affidavit, That (my debts paid)I was not worth forty pounds, (the tools of mytrade, and wearing-apparel excepted.)

Some warm expressions (to say no worse ofthem) were dropt on this, occasion, sufficientlyknown and resented by the auditory, which,for my part, I desire may be buried in obli-vion : upon the whole, it was ordered, that Imight be admitted to bail, myself in 400l. withtwo sureties, each in 200l. and that I shouldbe remanded till I gave it. And as this was tentimes more than was in my power to counter-secure any person in giving bail for me, I con-ceived I could not ask any to become my bailon these terms; and therefore I returned tojail, where I lay until Tuesday the 28th of Ja-nuary, 1734-5, bring the last day of that term;and the grand jury having found nothingagainst me, I expected to have been dischargedfrom my imprisonment: but my hopes provedTain; for the Attorney General then chargedme, by information, for printing and publishingparts of my Journals No. 13 and 23, as beingfalse, scandalous, malicious, and seditious.

To this information my Counsel appeared,and offered Exceptions, leaving a blank for in-serting the judges commissions, which theCourt were of opinion not to receive till thoseblanks were filled up. In the succeeding va-cation the judges gave copies of their commis-sions; and on Tuesday the 15th of April last,the first day of the succeeding term, myCounsel offered these Exceptions; which wereas follow:

"The ATTORNEY GENERAL, v. JOHN PETERZENGER. — On Information for a Misde-meanor.

"Exceptions humbly offered by John PeterZenger, to the honourable James de Lancey,esq. to judge in this cause.

"The defendant comes and prays hearingof the commission, by virtue of which the ho-nourable James de Lancey, esq. claims thepower and authority to judge in this cause, andit is read to him in these words:

"'George the 2d, by the grace of God,of Great Britain, France and Ireland, king,defender of the faith, &c. To our trustyand well beloved James de Lancey, esq.We, reposing special trust and confidence inyour integrity, ability and learning, haveassigned, constituted and appointed, and wedo by these presents assign, constitute, andappoint you, the said James de Lancey, tobe chief justice in and over our province ofNew York, in America, in the room of Lewis

Morris, esq. giving and by these presentsgranting unto you full power and lawful au-thority to hear, try, and determine all pleaswhatsoever, civil, criminal, and mixt, accord-ing to the laws, statutes, and customs of ourkingdom of England, and the laws and usagesof our said province of New York, not beingrepugnant thereto, and executions of all judg-ments of the said court to award, and to makesuch rules and orders in the said court, as maybe found convenient and useful, and, as nearas may be, agreeable to the rules and ordersof our courts of King's-bench, CommonPleas, and Exchequer in England. To have,hold, and enjoy the said office or place of chiefjustice in and over our said province, with alland singular the rights, privileges, profits andadvantages, salaries, fees and perquisites untothe said place belonging, or in any ways ap-pertaining, in as full and ample manner asany person heretofore chief justice of our saidprovince hath held and enjoyed, or of rightought to have held and enjoyed the same, toyou the said James De Lancey, esq. for andduring our will and pleasure. In testimonywhereof we have caused these our letters tobe made patent, and the. great seal of ourprovince of New York to be hereunto affixed.Witness our trusty and well-beloved WilliamCosby, esq. our captain-general and governorin chief of our provinces of New York, NewJersey, and the territories thereon dependingin America, vice-admiral of the same, andcolonel in our army, at Fort George in NewYork, the 21st day of August, in the 7th yearof our reign, Anno Domini, 1733.'"Which being read and heard, the said John

Peter Zenger, by protestation not confessingnor submitting to the power of any other per-son to judge in this cause, doth except to thepower of the honourable James de Lancey,esq. aforesaid, to judge in this cause, by virtueof the commission aforesaid, for these reasons,viz.

"1st. For that the authority of a judge ofthe King's-bench, in that part of Great Britaincalled England, by which the cognizance ofthis cause is claimed, is by the said commissiongranted to the honourable James de Lancey,esq. aforesaid, only during pleasure; whereasthat authority (by a statute in that case madeand provided) ought to be granted during goodbehaviour.

"2nd. For that, by the said commission, thejurisdiction and authority of a justice of thecourt of Common Pleas at Westminster, in thatpart of Great Britain called England, is grantedto the said James de Lancey, esq. which juris-diction and authority cannot be granted to, andexercised by, any one of the justices of theKing's-beneh.

"3rd. For that the form of the said commis-sion is not founded on, nor warranted by thecommon law, nor any statute of England, norof Great Britain, nor any act of assembly ofthis colony.

"4th. For that it appears, by the commis-

sion aforesaid, that the same is granted underthe sea! of this colony by his excellency Wil-liam Cosby, esq. governor thereof; and it ap-pears not, that the same was granted, neitherwas the same granted, by and with the adviceand consent of his majesty's council of thiscolony; without which advice and consent, hisexcellency could not grant the same.

"Wherefore, and for many other defects inthe said commission, this defendant humblyhopes, that the honourable James de Lancey,esq. will not take cognizance of this cause, byvirtue of the commission aforesaid.

"JAMES ALEXANDER."WILLIAM SMITH."

The Exceptions to the Commission of thehonourable Frederick Phillipse, esq. were thesame with the foregoing, including therein hiscommission, which is in these words:

'George the 2d, by the grace of God, ofGreat Britain, France and Ireland, king, de-fender of the faith, &c. To our trusty andwell-beloved Frederick Phillipse, esq. greet-ing : whereas it is our care, that justice beduly administered to our subjects within ourprovince of New York, and territories thereondepending in America; and we, reposingespecial confidence in your integrity, abilityand learning, have assigned, constituted andappointed, and we do by these presents as-sign, constitute and appoint you, the saidFrederick Phillipse, to be second justice ofour supreme court of judicature for our pro-vince of New York, in the room of James deLancey, esq. giving and granting to you, thesaid Frederick Phillipse, full power and au-thority, with our other justices of our saidsupreme court, to hear, try, and determine allpleas whatsoever, civil, criminal, and mixed,according to the laws, statutes and customsof our kingdom of England, and the laws andusages of our said province of New York, notbeing repugnant thereto; and executions of alljudgments of the said court to award, and to actand do all things, which any of our justices ofeither bench, or barons of the Exchequer, inour said kingdom of England, may or oughtto do, and also to assist in the making suchrules and orders in our said court, as shall befor the good and benefit of our said province;and, as near as conveniently may be, to therules and orders of our said courts in our saidkingdom of England: to have, hold, and en-joy the said office or place of second justice ofour said province of New York, together withall and singular the rights, privileges, salaries,fees, perquisites, profits and advantages there-to, now or at any time heretofore belonging,or in any wise of right appertaining, unto you,the said Frederick Phillipse, for and duringour pleasure. In testimony whereof, we havecaused these our letters to be made patent, andthe great seal of our said province of New Yorkto be hereunto affixed. Witness our trustyand well-beloved William Cosby, esq. ourcaptain general and governor in chief of our

provinces of New York, New Jersey, andterritories thereon depending in America,vice-admiral of the same, and colonel in ourarmy, &c. at Fort George in New York, the21st day of August, in the 7th year of ourreign, Anno Domini, 1733.

'FRED. MORRIS, D. Secretary.'

Tuesday, April 15, 1735.

Mr. Alexander offered the above Exceptionsto the Court, and prayed that they might befiled. Upon this the chief justice said to Mr.Alexander and Mr. Smith, that they oughtwell to consider the consequences of what theyoffered. To which both answered, that theyhad well considered what they offered, and allthe consequences. And Mr. Smith added, thathe was so well satisfied of the right of the sub-ject to take an exception to the commission ofa judge, if he thought such commission ille-gal, — that he durst venture his life upon thatpoint. As to the validity of the Exceptionsthen offered, he said, he took that to be a se-cond point; but was ready to argue them both,if their honours were pleased to hear him. Towhich the chief justice replied, that he wouldconsider the Exceptions in the morning; andordered the clerk to bring them to him.

Wednesday, April 16.

The chief justice delivered one of the Excep-tions to the clerk, and justice Phillipse theother; upon which Mr Smith arose, and ask-ed the judges, whether their honours wouldhear him upon these two points. 1st. Thatthe subject has a right to take such Exceptions,if they judged the commission illegal. 2dly.That the Exceptions tendered were legal andvalid. To which the chief justice said, thatthey would neither hear nor allow the Excep-tions; for (said he) you thought to have gain-ed a great deal of applause and popularity byopposing this court, as you did the court ofExchequer; but you have brought it to thatpoint, that either we must go from the bench,or you from the bar: therefore we exclude youand Mr. Alexander from the bar; and deliver-ed a paper to the clerk, and ordered it to beentered; which the clerk entered accordingly,and returned the paper to the chief justice;after which the chief justice ordered the clerkto read publicly what he had written; an at-tested copy whereof follows:

"At a Supreme Court of Judicature held for theProvince of New York, at the City-Hallof the City of New York, on Wednesdaythe 16th day of April, 1735. PRESENT;the Hon. James de Lancey, esq. chiefjustice. The Hon. Frederick Phillipse,esq. second justice.

"James Alexander, esq. and William Smith,attornies of this Court, having presumed, (not-withstanding they were forewarned by theCourt of their displeasure, if they should do it)to sign, and having actually signed, and putinto court. Exceptions, in the name of John

Peter Zenger; thereby denying the legalityof the judges their commissions; though inthe usual form, and the being of this SupremeCourt. It is therefore ordered, that, for thesaid contempt, the said James Alexander, andWilliam Smith, be excluded from any fartherpractice in this Court; and that their namesbe struck out of the roll of attornies of thisCourt. Per Cur'. JAMES LYNE, Cl."

After the order of the Court was read, Mr.Alexander asked, whether it was the order ofMr. Justice Phillipse as well as of the chief-justice? To which both answered, that it wastheir order; upon which Mr. Alexander added.That it was proper to ask that question, thatthey might know how to have their relief:he farther observed to the Court, upon readingof the Order, that they were mistaken in theirwording of it, because the Exceptions wereonly to their commissions, and not to the beingof the Court, as is therein alleged; and prayedthat the Order might be altered accordingly.The chief-justice said, they conceived the Ex-ceptions were against the being of the Court.Both Mr. Alexander and Mr. Smith deniedthat they were, and prayed the chief-justiceto point to the place that contained such excep-tions; and further added, that the Court mightwell exist, though the commissions of all thejudges were void; which the chief-justice con-fessed to be true: and therefore they prayedagain, that the Order in that point might bealtered; but it was denied.

Then Mr. Alexander desired to know, whe-ther they over-ruled or rejected the Excep-tions? The chief-justice said, He did not un-derstand the difference; to which said Alex-ander replied, that if he rejected the Excep-tions, then they could not appear upon theproceedings, and in that case the defendantwas entitled to have them made part of theproceedings by bills of exceptions : but if theyover-ruled them, then, by so doing, they onlydeclared them, not sufficient, to hinder themfrom proceeding by virtue of those commis-sions; and the Exceptions would remain asrecords of the Court, and ought to be enteredon the record of the cause, as part of the pro-ceedings. The chief-justice said, They mustremain upon the file, to warrant what we havedone: as to being part of the record of theproceedings in that cause, he said, You mayspeak to that point to-morrow.

Friday, April 18th, 1735.

Mr. Alexander signified to the Court, thaton Wednesday last their honours had said,that the counsel for Mr. Zenger might speakto the point, concerning the rejecting or over-ruling of Mr. Zenger's Exceptions, on the

. morrow: to which the chief-justice answered,that he said, You may get some person tospeak to that point on the morrow, not mean-ing that the said Alexander should speak to it,that being contrary to the Order. Both Mr.

Alexander and Mr. Smith said, they under-stood it otherwise.

They both also mentioned, that it was adoubt, whether by the words of the Order, theywere debarred of their practice as counsel, aswell as attornies, whereas they practised inboth capacities. To which the chief-justiceanswered, That the Order was plain, "ThatJames Alexander, esq. and William Smith,were debarred and excluded from their wholepractice at this bar; and that the Order was in-tended to bar their acting both as counsel andas attornies, and that it could not be construedotherwise." And it being asked Mr. Phillipse,whether he understood the Order so? He an-swered, That he did.

Upon this exclusion of my counsel, I peti-tioned the Court to order counsel for my de-fence; who thereon appointed John Cham-bers, esq. who pleaded Not Guilty for me tothe information. But as to the point, whethermy Exceptions should be part of the record, aswas moved by my former counsel, Mr. Cham-bers thought not proper to speak to it. Mr.Chambers also moved, that a certain day inthe next term might be appointed for my trial,and for a Struck Jury; whereupon my trialwas ordered to be on Monday the 4th of Au-gust, and the Court would consider till thefirst day of next term, whether I should havea struck jury or not; and ordered, that thesheriff should, in the mean time, at my charge,return the freeholders book.

At a Supreme Court of Judicature held for theProvince of New York, before the ho-nourable James De Lancey, esq. Chief-Justice of the said Province; and the ho-nourable Frederick Phillipse, esq. se-cond Justice of the said Province.

On Tuesday the 29th of July, 1735, theCourt opened; and on motion of Mr. Chambersfor a Struck Jury, pursuant to the rule of thepreceding term, the Court were of opinion,that I was entitled to have a Struck Jury;and that evening, at five of the clock, someof my friends attended the clerk, for strikingthe jury; when, to their surprize, the clerk,instead of producing the freeholders book, tostrike the jury out of it in their presence, asusual, he produced a list of 48 persons, whom,he said, he had taken out of the freeholdersbook: my friends told him, that a great numberof these persons were not freeholders; thatothers were persons holding commissions andoffices at the governor's pleasure; that otherswere of the late displaced magistrates of thiscity, who must be supposed to have resentmentagainst me, for what I had printed concerningthem; that others were the governor's baker,taylor, shoe-maker, candle-maker, joiner, &c.that as to the few indifferent men that wereupon that list, they had reason to believe (asthey had heard) that Mr. Attorney had a listof them to strike them out; and therefore re-quested, that be would either bring the free-holders book, and chuse out of it 48 unex-

ceptionable men in their presence, as usual;or else, that he would hear their objections,particularly to the list he offered; and that bewould put impartial men in the place of thoseagainst whom they could shew just objections.Notwithstanding this, the clerk refused tostrike the jury out of the freeholders book,and refused to hear any objections to the per-sons on his list; but told my friends, if anyobjections they had to any persons, they mightstrike those persons out; to which they an-swered, There would not remain a jury, ifthey struck out all the exceptionable men;and, according to the custom, they had only aright to strike out 12.

But finding no arguments could prevail withthe clerk to hear their objections to his list,nor to strike the jury as usual, Mr. Chamberstold him, he must apply to the Court, whichthe next morning he did; and the Court, uponhis motion, ordered, That the 48 should bestruck out of the freeholders book, as usual,in the presence of the parties; and that theclerk should hear objections to persons pro-posed to be of the 48, and allow of such ex-ceptions as were just. In pursuance of thatorder, a jury was that evening struck, to thesatisfaction of both parties, though my friendsand counsel insisted on no objections but wantof freeholders; and though they did not insist,that Mr. Attorney General (who was assistedby Mr. Blagge) should shew any particularcause, against any persons he disliked, but ac-quiesced that any person he disliked should beout of the 48.

Before James De Lancey. esq. Chief-justice of the province of New York, and Fre-derick Phillipse, second judge, came on mytrial, "on the fourth day of August, 1735,upon an information for printing and publish-ing two news-papers, which were calledlibels against our governor and his adminis-tration.

The defendant John Peter Zenger, beingcalled, appeared.

And the sheriff returned his Venire for thetrial of this said cause.

Mr. Chambers, of counsel for the defendant.I humbly move your honours, that we mayhave justice done by the sheriff, and that hemay return the names of the jurors in the sameorder as they were struck.

Mr. Chief Justice. How is that? Are theynot so returned?

Mr. Chambers. No, they are not; for someof the names that were last set down in thepannel, are now placed first.

Mr. Chief Justice. Make out that, and youshall be righted.

Mr. Chambers. I have the copy of the pannelin my hand, as the jurors were struck; and ifthe clerk will produce the original, signed byMr. Attorney and myself, your honour will seeour complaint is just.

Mr. Chief-Justice. Clerk, is it so? Lookupon that copy; is it a true copy of the pannelas it was struck?

Clerk. Yes, I believe it is.Mr. Chief Justice. How came the names of

the jurors to be misplaced in the pannel an-nexed to the Venire?

Sheriff. I have returned the jurors in thesame order In which the clerk gave themto me.

Mr. Chief-Justice. Let the names of thejurors be ranged in the order they were struck,agreeable to the copy here in court.

Which was done accordingly. And thejury, whose names were as follow, were calledand sworn:

JURY.

Hermanus Rutgers,Stanley Holmes,Edward Man,John Bell,Samuel Weaver,Andries Marsehalk,

Egbert Van Borson,Tho. Hunt, Foreman,Benjamin Hildreth,Abraham Keteltas,John Goelet,Hercules Wendover.

Mr. Attorney General opened the informa-tion, which was as follows:

Att. Gen. May it please your honours, andyou gentlemen of the jury; the informationnow before the Court, and to which the defen-dant Zenger, has pleaded Not Guilty, is an in-formation for printing and publishing a false,scandalous, and seditious libel, in which hisexcellency, the governor of this province, whois the king's immediate representative here, isgreatly and unjustly scandalized, as a personthat has no regard to law nor justice; with muchmore, as will appear upon reading the informa-tions. This [practice] of libelling is what has al-ways been discouraged, as a thing that tends tocreate differences among men, ill blood amongthe people, and oftentimes great bloodshed be-tween the party libelling and the party libelled.There can be no doubt but you, gentlemenof the jury, will have the same ill opinion ofsuch practices as the judges have alwaysshewn upon such occasions: But i shall sayno more at this time, until you hear the infor-mation, which is as follows:

"New-York, Supreme Court.

"Of the Term of January, in the eighth year ofthe reign of our Sovereign Lord KingGeorge the Second, &c.

"New York, ss. Be it remembered, thatRichard Bradley, esq. Attorney General of oursovereign lord the king for the province of New-York, who for our said lord the king in thispart prosecutes, in his own proper personcomes here into the Court of our said lord theking, and for our said lord the king gives theCourt here to understand, and be informed,that John Peter Zenger, late of the city ofNew-York, printer, (being a seditious person,and a frequent printer and publisher of falsenews and seditious libels, and wickedly andmaliciously devising the government of oursaid lord the king of this his majesty's provinceof New-York, under the administration of his

excellency William Cosby, esq. captain-generaland governor in chief of the said province, totraduce, scandalize and vilify, and his excel-lency the said governor, and the ministers andofficers of our said lord the king, of and for thesaid province, to bring into suspicion, and theill opinion of the subjects of our said lord theking residing within the said province) the 28thday of January in the 7th year of the reign ofour sovereign lord George the Second, by thegrace of God, of Great Britain, France andIreland, king, defender of the faith, &c. atthe city of New-York, did falsely, seditiouslyand scandalously print and publish, and causeto be printed and published a certain false, ma-licious, seditious, scandalous libel, intituled,'The New-York Weekly Journal, containingthe freshest advices, foreign and domestic;' inwhich libel (of and concerning his excellencythe said governor, and the ministers and of-ficers of our said lord the king, of and for thesaid province) among other things therein con-tained are the words, 'Your appearance in

print, at last, gives a pleasure to many,though most wish you bad come fairly intothe open field, and not appeared behind re-trenchments made of the supposed lawsagainst libelling, and of what other men havesaid and done before: These retrenchments,gentlemen, may soon be shewn 1o you, andall men, to be weak, and to have neither lawnor reason for their foundation, so cannot longstand you in stead: Therefore, you had muchbetter as yet leave them, and come to whatthe people of this city and province [the cityand province of New-York meaning] thinkare the points in question; (to wit) they[the people of the city and province of New-York meaning] think, as matters now stand,that their liberties and properties are pre-carious, and that slavery is like to be in-tailed on them and their posterity, if somepast things be not amended; and thisthey collect from many past proceedings.'

[Meaning many the past proceedings of his.excellency the said governor, and of the minis-ters and officers of our said lord the king, ofand for the said province.] And the said at-torney General of our said lord the king, for oursaid lord the king, likewise gives the Courthere to understand, and be informed, that thesaid John Peter Zenger afterwards, (to wit) theBill day of April, in the 7th year of the reignof our said lord the king, at the city of NewYork aforesaid, did falsely, seditiously, andscandalously print and publish, and cause to beprinted and published, another false, malicious,seditious and scandalous libel, entitled, 'The

New York Weekly Journal, containing thefreshest Advices foreign and domestic.' In

which libel, [of and concerning the governmentof the said province of New York, and of andconcerning his excellency the said governor,and the ministers and officers of our said lordthe king, of and for the said province] amongother things therein contained are these words,'One of our neighbours [one of the inhabitants

of New Jersey meaning] being in company,observing the strangers [some of the inha-bitants of New York meaning] full of com-plaints, endeavoured to persuade them to re-move into Jersey; to which it was replied,That would be leaping out of the frying-paninto the fire : for, says he, we both are underthe same governor [his excellency the saidgovernor meaning] and your Assembly haveshewn with a witness what is to be expectedfrom them; one that was then moving toPensylvania, [meaning one that was thenremoving from New York with intent to re-side at Pensylvania] to which place it is re-ported several considerable men are removing[from New York meaning] expressed in termsvery moving, much concern for the circum-stances of New York [the bad circumstancesof the province and the people of New Yorkmeaning] seemed to think them very muchowing to the influence that some men [whomhe called tools] had in the administration[meaning the administration of governmentof the said province of New York] said he wasnow going from them, and was not to be hurtby any measures they should take, but couldnot help having some concern for the welfareof his countrymen, and should be glad to bearthat the Assembly [meaning the General As-sembly of the province of New York] wouldexert themselves as became them, by shew-ing that they have the interest of their coun-try more at heart, than the gratification of anyprivate view of any of their members, or beingat all affected by the smiles or frowns of a go-vernor, [his excellency, the said governor,meaning] both which ought equally to be de-spised, when the interest of their country is atstake. You, says he, complain of the law-yers, but I think the law itself is at an end.We [the people of the province of New Yorkmeaning] see men's deeds destroyed, judgesarbitrarily displaced, new courts erected, with-out consent of the legislature [within the pro-vince of New York meaning] by which itseems to me, trials by juries are taken awaywhen a governor pleases, [his excellency thesaid governor meaning] men of known es-tates denied their votes, contrary to the re-ceived practice, the best expositor of any law:Who is then in that province [meaning theprovince of New York] that call [can callmeaning] any thing his own, or enjoy anyliberty [liberty meaning] longer than those inthe administration [meaning the administra-tion of government of the said province ofNew York] will condescend to let them do it,for which reason I have left it [the provinceof New York meaning] as I believe morewill;' to the great disturbance of the peace of

the said province of New York, to the greatscandal of our said lord the king, of his ex-cellency the said governor, and of all othersconcerned in the administration of the govern-ment of the said province, and against thepeace of our sovereign lord the king, hiscrown and dignity, &c. Whereupon the said

Attorney General of our said lord the king, forour said lord the king, prays the advisement ofthe Court here, in the premises, and the dueprocess of the law, against him the said JohnPeter Zenger, in this part to be done, to answerto our said lord the king of and in the premises,&c. R. BRADLEY, Attorney General."

To this information the defendant has plead-ed Not Guilty, and we are ready to prove it.

Mr. Chambers has not been pleased to favourme with his notes, so I cannot, for fear of do-ing him injustice, pretend to set down his argu-ment; but here Mr. Chambers set forth veryclearly, "The nature of a libel, the great al-lowances that ought to be made for what menspeak or write; that in all libels there must besome particular persons so clearly pointed outthat no doubt must remain about who is meant;that he was in hopes Mr. Attorney would failin his proof, as to this point; and therefore de-sired that he would go on to examine his wit-nesses."

Then Mr. Hamilton, who at the request ofsome of my friends, was so kind as to comefrom Philadelphia, to assist me on the trial,spoke:

Mr. Hamilton. May it please your honour:I am concerned in this cause on the part ofMr. Zenger, the defendant. The informationagainst my client was sent me, a few days be-fore I left home, with some instructions to letme know how far I might rely upon the truthof those parts of the papers set forth in the in-formation, and which are said to be libellous.And though I am perfectly of the opinion wi ththe gentleman who has just now spoke, on thesame side with me, as to the common course ofproceedings, I mean in putting Mr. Attorneyupon proving, that my client printed and pub-lished those papers mentioned in the informa-tion; yet I cannot think it proper for me (with-out doing violence to my own principles) todeny the publication of a complaint, which, Ithink, is the right of every free-born subject tomake, when the matters so published can besupported with truth; and therefore I'll saveMr. Attorney the trouble of examining his wit-nesses to that point; and I do (for my client)confess, that he both printed and published thetwo newspapers set forth in the information,and I hope in so doing he has committed nocrime.

Mr. Attorney. Then, if your honour pleases,since Mr. Hamilton has confessed the fact, Ithink our witnesses may be discharged; wehave no further occasion for them.

Mr. Hamilton. If you brought them hereonly to prove the printing and publishing ofthese newspapers, we have acknowledged that,and shall abide by it.

Here my journeyman and two sons (withseveral others subpœna'd by Mr. Attorney, togive evidence against me) were discharged,and there was silence in the Court for sometime.

Mr. Chief Justice. Well, Mr. Attorney, willyou proceed?

Mr. Attorney. Indeed, Sir, as Mr. Hamil-ton has confessed the printing and publishingthese libels, I think the jury must find a ver-dict for the king; for supposing they woretrue, the law says that they are not the less li-bellous for that; nay indeed the law says,their being true is an aggravation of the crime.

Mr. Hamilton, Not so neither, Mr. Attorney,there are two words to that bargain: I hope itis not our bare printing and publishing a paper,that will make it a libel: you will have some-thing more to do, before you make my client alibeller; for the words themselves must be li-bellous, that is false, scandalous, and seditious,or else they are not guilty.

As Mr. Attorney has not been pleased to fa-vour us with his argument which he read, orwi th the notes of it, we cannot take upon us toset down his words, but only to shew the bookcases he cited, and the general scope of hisargument, which he drew from those authori-ties. 'He observed upon the excellency, aswell as use of government, and the great re-gard and reverence which had been constantlypaid to it, both under the law and the gospel.That by government we were protected in ourlives, religion and properties; and that, forthese reasons, great care had always been takento prevent every thing that might tend to scan-dalize magistrates, and others concerned in theadministration of the government, especiallythe supreme magistrate. And that there weremany instances of very severe judgments, andof punishments inflicted upon such as had at-tempted to bring the government into con-tempt; by publishing false and scurrilouslibels against it, or by speaking evil and scan-dalous words of men in authority; to thegreat disturbance of the public peace.' Andto support this, he cited 5 Coke 121. (I sup-pose it should be 125.) Wood's Instit. 430.2 Lilly 168. 1 Hawkins 73. 11. 6. Fromthese books he insisted, 'That a libel was amalicious defamation of any person, expressedeither in printing or writing, signs or pictures,to asperse the reputation of one that is alive, orthe memory of one that is dead; if he is a pri-vate man, the libeller deserves a severe punish-ment, but if it is against a magistrate, or otherpublic person, it is a greater offence; for thisconcerns not only the breach of the peace, butthe scandal of the government; for what greaterscandal of government can there be, than tohave corrupt or wicked magistrates to be ap-pointed by the king, to govern his subjectsunder him? And a greater imputation to thestate cannot be, than to suffer such corrupt mento sit in the sacred seat of justice, or to haveany meddling in, or concerning the administra-tion of justice.' And from the same booksMr Attorney insisted, that whether the persondefamed is a private man or a magistrate, whe-ther living or dead, whether the libel is true orfalse, or if the party against whom it is made isof good or evil fame, it is nevertheless, a libel.

For in a settled state of government, the partygrieved ought to complain for every injurydone him, in the ordinary course of the law.And as to its publication, the law had taken sogreat care of men's reputations, that if one ma-liciously repeats it, or sings it in the presenceof another, or delivers the libel or a copy of itover, to scandalize the party, he is to be pu-nished as a publisher of a libel. He said it waslikewise evident, that libelling was an offenceagainst the law of God. Acts xxiii. 5. Then,said Paul, I wist not, brethren, that he was thehigh priest: For it is written, Thou shalt notspeak evil of the ruler of the people. 2 Peterii. 10. Despise government, presumptuous arethey, self-willed, they are not afraid to speakevil of dignities, &c. He then insisted that itwas clear, both by the law of God and man,that it was a very great offence to speak evil of,or to revile those in authority over us; andthat Mr. Zenger had offended in a most noto-rious and gross manner, in scandalizing his ex-cellency our governor, who is the king's im-mediate representative, and the supreme ma-gistrate of this province : for can there be anything more scandalous said of a governor thanwhat is published in those papers? Nay, notonly the governor, but both the council andassembly are scandalized; for there it is plainlysaid, That 'as matters now stand, their libertiesand properties are precarious, and that slaveryis like to be entailed on them and their pos-terity. And then again Mr. Zenger says,The assembly ought to despise the smiles orfrowns of a governor; that he thinks the lawis at an end; that we see men's deeds destroyed,judges arbitrarily displaced, new courts erected,without consent of the legislature; and, that itseems trials by juries are taken away when agovernor pleases; that none can call any thingtheir own, longer than those in the adminis-tration will condescend to let them do it.' —And Mr. Attorney added, ' That he did notknow what could be said in defence of a man,that had so notoriously scandalized the governorand principal magistrates and officers of the go-vernment, by charging them with deprivingthe people of their rights and liberties, andtaking away trials by juries; and in short,putting an end to the law itself. — If this wasnot a libel, he said he did not know what wasone. Such persons as will take those libertieswith governors and magistrates, he thought,ought to suffer for stirring up sedition and dis-content among the people. And concluded,by saying, that the government had been verymuch traduced and exposed by Mr. Zenger,before he was taken notice of; that at last itwas the opinion of the governor and council,that he ought not to be suffered to go on, todisturb the peace of the government, by pub-lishing such libels against the governor, andthe chief persons in the government; andtherefore they had directed this prosecution, toput a stop to this scandalous and wicked prac-tice, of libelling and defaming his majesty's go-vernment and disturbing his majesty's peace.'

Mr. Chambers then summed up to the jury,observing with great strength of reason onMr. Attorney's defect of proof, that the papersin the information were false, malicious or se-ditious, which was incumbent on him to proveto the jury, and without which they could noton their oaths say, that they were so ascharged.

Mr. Hamilton. May it please your ho-nour : I agree with Mr. Attorney, that govern-ment is a sacred thing; hut I differ verywidely from him, when be would insinuate,that the just complaints of a number of men,who suffer under a bad administration, is libel-ling that administration. Had I believed thatto be law, I should not have given the Courtthe trouble of hearing any thing that I could sayin this cause. I own, when I read the informa-tion, I had not the art to find out (without thehelp of Mr. Attorney's innuendos) that the go-vernor was the person meant in every period ofthat news-paper; and I was inclined to believe,that they were wrote by some, who from an ex-traordinary zeal for liberty, had misconstruedthe conduct of some persons in authority intocrimes; and that Mr. Attorney, out of his toogreat zeal for power, had exhibited this infor-mation, to correct the indiscretion of myclient; and at the same time, to shew his Su-periors the great concern he had, lest theyshould be treated with any undue freedom.But from what Mr. Attorney has just now said,to wit, That this prosecution was directed by thegovernor and council, and from the extraordi-nary appearance of people of all conditionswhich I observe in Court upon this occasion, Ihave reason to think, that those in the admi-nistration have by this prosecution somethingmore in view, and that the people believethey have a good deal more at stake than Iapprehended; and, therefore, as it is become myduty, to be both plain and particular in thiscause, I beg leave to bespeak the patience ofthe Court.

I was in hopes, as that terrible court, wherethose dreadful judgments were given, and thatlaw established, which Mr. Attorney has pro-duced for authorities to support this cause, waslong ago laid aside, as the most dangerouscourt to the liberties of the people of Englandthat ever was known in that kingdom; thatMr, Attorney knowing this, would not haveattempted to set up a Star-Chamber here, nor tomake their judgments a precedent to us : forit is well known, that what would have beenjudged treason in those days for a man to speak,I think, has since not only been practised aslawful, but the contrary doctrine has been heldto be law.

In Brewster's case, for printing, That thesubjects might defend their rights and libertiesby arms, in case the king should go about todestroy them, he was told, by the chief-justice,that it was a great mercy he was not proceededagainst for his life; for that to say the kingcould be resisted, by arms in any case what-

soever, was express treason. And yet we see,since that time, Dr. Sacheverell was sentencedin the highest court in Great Britain, for say-ing, that such a resistance was not lawful.Besides, as times have made very greatchanges in the laws of England, so in myopinion, there is good reason that places shoulddo so too.

Is it not surprising to see a subject, upon hisreceiving a commission from the king to be agovernor of a colony in America, immediatelyimagining himself to be vested with all theprerogatives belonging to the sacred person ofhis prince? And which is yet more astonishing,to see that a people can be so wild as to allowof and acknowledge those prerogatives and ex-emptions, even to their own destruction? Is itso hard a matter to distinguish between themajesty of our sovereign, and the power of agovernor of the plantations? Is not this makingvery free with our prince, to apply that regard,obedience and allegiance to a subject which isdue only to our sovereign? And yet in all thecases which Mr. Attorney has cited to shewthe duty and obedience we owe to the suprememagistrate, it is the king that is there meantand understood, though Mr. Attorney is pleasedto urge them as authorities to prove the hei-nousness of Mr. Zenger's offence against thegovernor of New-York. The several planta-tions are compared to so many large corpora-tions, and perhaps not improperly; and canany one give as instance, that the mayor orhead of a corporation ever put in a claim to thesacred rights of majesty? Let us not (whilewe are pretending to pay a great regard to ourprince and his peace) make bold to transferthat allegiance to a subject, which we owe toour king only. What strange doctrine is it, topress every thing for law here which is so inEngland? I believe we should not think it afavour, at present at least, to establish thispractice. In England so great a regard andreverence is had to the judges, (C. 3 Inst.140.) that if any man strikes another in West-minster-hall, while the judges are sitting, heshall lose his right-hand, and forfeit his landand goods for so doing. And though thejudges here claim all the powers and autho-rities within this government, that a court ofKing's-bench has in England, yet I believeMr. Attorney will scarcely say, that such apunishment could he legally inflicted on a manfor committing such an offence, in the pre-sence of the judges sitting in any court withinthe province of New-York. The reason is ob-vious; a quarrel or riot in New-York cannotpossibly be attended with those dangerous con-sequences that it might in Westminster-hall;nor (I hope) will it be alleged, that any misbe-haviour to a governor in the plantations, will,or ought to be judged of or punished, as a likeundutifulness would be to our sovereign. Fromall which, I hope Mr. Attorney will not thinkit proper to apply his law-cases (to support thecause of his governor), which have only beenjudged, where the king's safety or honour was

concerned. It will not be denied but that afreeholder, in the province of New-York, hasas good a right to the sole and separate use ofhis lands, as a freeholder in England, who hasa right to bring an action of trespass againsthis neighbour, for suffering his horse or cowto come and feed upon his lands, or eat hiscorn, whether inclosed or not inclosed; andyet I believe it would be looked upon as astrange attempt for one man here to bring anaction against another, whose cattle and horsesfeed upon his grounds not inclosed, or indeedfor eating and treading down his corn, if thatwere not inclosed. Numberless are the in-stances of this kind that might be given, toshew, that what is good law at one time, andin one place, is not so at another time, and inanother place; so that I think the law seemsto expect, that in these parts of the world, menshould take care, by a good fence, to preservetheir property from the injury of unruly beasts.And perhaps there may be as good a reasonwhy men should take the same care, to makean honest and upright conduct a fence andsecurity against the injury of unruly tongues.

Mr. Attorney. I don't know what the gen-tleman means, by comparing cases of free-holders in England with the freeholders here.What has this case to do with actions of tres-pass, or men's fencing their ground? Thecase before the Court is, Whether Mr. Zengeris guilty of libelling his excellency the go-vernor of New-York, and indeed the wholeadministration of the government? Mr. Hamil-ton has confessed the printing and publishing,and I think nothing is plainer, than that thewords in the information are scandalous, andtend to sedition, and to disquiet the minds ofthe people of this province. And if suchpapers are not libels, I think it may be said,there can be no such thing as a libel.

Mr. Hamilton. May it please your honour,I cannot agree with Mr. Attorney; for thoughI freely acknowledge that there are such thingsas libels, yet I must insist at the same time,that what my client is charged with, is not alibel; and I observed just now, that Mr. At-torney, in defining a libel, made use of thewords, scandalous, seditious, and tend to dis-quiet the people; but (whether w i th design, ornot, I will not say) he omitted the word false.

Mr. Attorney. I think I did not omit theword false: but it has been said already, thatit may be a libel, notwithstanding it may betrue.

Mr. Hamilton. In this I must still differ withMr. Attorney; for I depend upon it, we areto be tried upon this information now beforethe Court and jury, and to which we harepleaded Not Guilty, and by it we are chargedwith printing and publishing a certain false,malicious, seditious and scandalous libel. Thisword false must have some meaning, or elsehow came it there? I hope Mr. Attorney willnot say he put it there by chance, and I am ofopinion his information would not be goodwithout it. But to shew that it is the princi-

gal thing, which, in my opinion, makes alibel, I put the case, the information had

been for printing and publishing a certain truelibel, would that be the same thing? Or couldMr. Attorney support such an information byany precedent in the English law? No, thefalshood makes the scandal, and both makethe libel. And to shew the Court that I amin good earnest, and to save the Court's time,and Mr. Attorney's trouble, I will agree; thatif he can prove the facts, charged upon us tobe false, I'll own them to be scandalous, se-ditious, and a libel. So the work seems nowto be pretty much shortened, and Mr. Attorneyhas now only to prove the word false, in orderto make us guilty.

Mr. Attorney. We have nothing to prove;you have confessed the printing and publish-

ing; but if it was necessary (as I insist it isnot), how can we prove a negative? But Ihope some regard will be had to the autho-rities that have been produced; and that sup-posing all the words to be true, yet that willnot help them; that chief justice Holt, in hischarge to the jury, in the case of Tutchin,made no distinction, whether Tutchin's paperswere true or false; and as chief justice Holthas made no distinction in that case, so noneought to he made here; nor can it be shewnin all that case, there was any question madeabout their being false or true.

Mr. Hamilton. I did expect to hear, that anegative cannot be proved; but every bodyknows there are many exceptions to that ge-neral rule; for if a man is charged with kill-ing another, or stealing his neighbour's horse;if be is innocent in the one case, he mayprove the man said to be killed to be reallyalive; and the horse said to be stolen, never tohave been out of his master's stable, &c. andthis I think is proving a negative. But wewill save Mr. Attorney the trouble of provinga negative, and take the onus probandi uponourselves, and prove those very papers that arecalled libels to be true.

Mr. Chief Justice. You cannot be admitted,Mr. Hamilton, to give the truth of a libel inevidence. A libel is not to be justified; for itis nevertheless a libel that it is true.

Mr. Hamilton. I am sorry the Court has sosoon resolved upon that piece of law; I ex-pected first to have been heard to that point.I have not in all my reading met with an au-thority that says, we cannot be admitted togive the truth in evidence, upon an informa-tion for a libel.

Mr. Chief Justice. The law is clear, thatyou cannot justify a libel.

Mr. Hamilton. I own that, may it pleaseyour honour, to he so; but with submission Iunderstand the word, justified, there to be ajustification by plea, as it is in the case uponan indictment for murder, or an assault andbattery; there the prisoner cannot justify, butplead Not Guilty: yet it will not be denied buthe may, and always is admitted to give thetruth of the fact, or any other matter in evi-

dence, which goes to his acquittal; as inmurder he may prove it was in defence of hislife, his house, &c. and in assault and battery,he may give in evidence, that the other partystruck first, and in both cases he will be ac-quitted. And in this sense I understand theword justify, when applied to the case beforethe Court.

Mr. Chief Justice. I pray shew that you cangive the truth of a libel in evidence.

Mr. Hamilton. I am ready, both from whatI understand to be the authorities in the case,

and from the reason of the thing, to shew thatwe may lawfully do so. But here I beg leaveto observe, that informations for libels is achild, if not born, yet nursed up, and broughtto full maturity, in the Court of the Star-Chamber.

Mr. Chief Justice. Mr. Hamilton, you'llfind yourself mistaken; for in Coke's Insti-tutes you'll find informations for libels, longbefore the Court of Star-Chamber.

Mr. Hamilton. I thank your honour; thatis an authority I did propose to speak to by andbye: but as you have mentioned it, I'll readthat authority now. I think it is in the 3 Co.Inst. under title Libel; it is the case of Johnde Northampton for a letter wrote to Robert deFerrers, one of the king's privy council, (Coke3 Inst. 174,) concerning sir William Scot, chiefjustice, and his fellows; but it does not appearto have been upon information; and I have goodgrounds to say it was upon indictment, as wasthe case of Adam de Ravensworth, just men-tioned before by lord Coke under the sametitle; and I think there cannot be a greater, atleast a plainer authority for us, than the judg-ment in the case of John de Northampton,which my lord has set down at large. "Etquia prædictus Johannes cognovit dictam Lite-ram per se scriptam Roberto de Ferrers, quiest de Concilio Regis, quæ litera continet in senullam veritatem," &c. Now Sir, by thisjudgment it appears the libellous words wereutterly false, and there the falshood was thecrime, and is the ground of that judgment:and is not that what we contend for? Do notwe insist that the falshood makes the scandal,and both make the libel? And how shall it beknown whether the words are libellous, that is,true or false, but by admitting us to prove themtrue, since Mr. Attorney will not undertake toprove them false? Besides, is it not againstcommon sense, that a man should be punishedin the same degree for a true libel (if any suchthing could be) as for a false one? I know it issaid, that truth makes a libel the more provok-ing, and therefore the offence is the greater,and consequently the judgment should be theheavier. Well, suppose it were so, and let usagree for once, that truth is a greater sin thanfalshood: yet as the offences are not equal, andas the punishment is arbitrary, that is, accord-ing as the judges in their discretion shall directto be inflicted; is it not absolutely necessarythat they should know whether the libel is trueor false, that they may by that means be able

to proportion the punishment? For would itnot be a sad case, it the judges, for want of adue information, should chance to give as se-vere a judgment against a man for writing orpublishing a lie, as for writing or publishing atruth? And yet this (with submission,) asmonstrous and ridiculous as it may seem to be,is the natural consequence of Mr. Attorney'sdoctrine, that truth makes a worse libel thanfalshood, and must follow from his not provingour papers to be false, or not suffering us toprove them to be true. But this is only rea-soning upon the case, and I will now proceedto shew, what in my opinion will be sufficientto induce the Court to allow us to prove thetruth of the words, which in the informationare called libellous. And first I think therecannot be a greater authority for us, than thejudgment I just now mentioned in the case ofJohn de Northampton, and that was in earlytimes, and before the Star-chamber came to itsfulness of power and wickedness. In thatjudgment, as I observed, the falshood of theletter which was wrote, is assigned as the veryground of the sentence. And agreeable to thisit was urged by sir Robert Sawyer in the trialof the Seven Bishops,* that the falsity, the ma-lice, and seditions of the writing, were all factsto be proved. But here it may be said, sirRobert was one of the Bishops' counsel, and hisargument is not to be allowed for law: but Iofter it only to shew, that we are not the firstwho have insisted, that to make a writing alibel, it must be false. And if the argument ofa counsel must have no weight, I hope therewill be more regard shewn to the opinion of ajudge; and therefore I mention the words ofjustice Powel in the same trial, where he says(of the Petition of the Bishops, which wascalled a libel, and upon which they were pro-secuted by information,) that, to make it alibel, it must be false and malicious, and tend tosedition; and declared, as he saw no falshoodor malice in it, he was of opinion, that it was nolibel. Now, I should think this opinion alone,in the case of the king, and in a case whichthat king had so much at heart, and which tothis day has never been contradicted, might bea sufficient authority, to entitle us to the libertyof proving the truth of the papers, which inthe information are called false, malicious, se-ditious, and scandalous. If it be objected, thatthe opinion of the other three judges wereagainst him, I answer, that the censures thejudgments of these men have undergone, andthe approbation justice Powel's opinion, hisjudgment and conduct upon that trial, has metwith, and the honour he gained to himself, fordaring to speak truth at such a time, upon suchan occasion, and in the reign of such a king, ismore than sufficient, in my humble opinion, towarrant our insisting on his judgment, as a fullauthority to our purpose; and it will lie uponMr. Attorney to shew, that this opinion has,since that time, been denied to be law; or that

* See the Case, vol. 12, p. 183.

justice Powel, who delivered it, has ever beencondemned or blamed fur it, in any law-bookextant at this day; and this, I will venture tosay, Mr. Attorney cannot do. But, to makethis point yet more clear, if any thing can beclearer, I will, on our part, proceed and shew,that in the case of sir Samuel Barnardiston, hiscounsel, notwithstanding he stood before oneof the greatest monsters that ever presided inan English court (judge Jefferies,) insisted onthe want of proof to the malice and seditiousintent of the author, of what was called a libel.And in the case of Tutchin, which seems to beMr. Attorney's chief authority, that case isagainst him; for he was, upon his trial, putupon shewing the truth of his papers, but didnot; at least the prisoner was asked by theking's counsel,* whether he would say theywere true? And as he never pretended thatthey were true, the chief justice was not to sayso. But the point will still be clearer, on ourside, from Fuller's case,† for falsely and wick-edly causing to be printed a false and scandalouslibel, in which (amongst other things) werecontained these words. "Mr. Jones has alsomade oath, that he paid 5,000l. more, by thelate king's order, to several persons in places oftrust, that they might complete my ruin, andinvalidate me for ever. Nor is this all; forthe same Mr. Jones will prove, by undeniablewitness and demonstration, that he has distri-buted more than 180,000l. in eight years lastpast, by the French king's order, to persons inpublic trust in this kingdom." Here, you see,is a scandalous and infamous charge againstthe late k ing; here is a charge, no less thanhigh treason, against the men in public trust,for receiving money of the French king, thenin actual war with the crown of Great Britain;and yet the Court were far from bearing himdown with that Star-chamber doctrine, to wit,that it was no matter, whether what he saidwas true or false; no, on the contrary, lordchief justice Holt asks Fuller, "Can you makeit appear they are true? Have you any wit-nesses? You might have had subpoenas foryour witnesses against this day. If you takeupon you to write such things as you arecharged with, it lies upon you to prove themtrue, at your peril. If you have any witnesses,I will hear them. How came you to writethose books which are not true? If you haveany witnesses produce them. If you can offerany matter to prove what you have wrote, letus hear it." Thus said, and thus did, that greatman, lord chief justice Holt, upon a trial of thelike kind with ours; and the rule laid down byhim, in this case, is, that he who will take uponhim to write things, it lies upon him to provethem at his peril. Now, Sir, we have acknow-ledged the printing and publishing of thosepapers, set forth in the information, and (withthe leave of the Court) agreeable to the rule

* See his Case, vol. 14, p. 1123.† See his Case, vol. 14, p. 513.

laid down by chief justice Holt, we are readyto prove them to be true, at our peril.

Mr. Chief Justice. Let me see the book.

Here the Court had the Case under conside-ration a considerable time, and every one wassilent.

Mr. Chief Justice. Mr. Attorney, you havebeard what Mr. Hamilton has said, and thecases he has cited, for having his witnessesexamined, to prove the truth of several factscontained in the papers set forth in the infor-mation. What do you say to it?

Att. Gen. The law, in my opinion, is veryclear: they cannot be admitted to justify alibel; for, by the authorities I have alreadyread to the Court, it is not the less a libel be-cause it is true. I think I need not troublethe Court with reading the cases over again;the thing seems to be very plain, and I submitit to the Court.

Mr. Chief Justice. Mr. Hamilton, the Courtis of opinion, you ought not to be permitted toprove the facts in the papers: these are thewords of the book, "It is far from being a jus-tification of a libel, that the contents thereofare true, or that the person upon whom it ismade had a bad reputation, since the greaterappearance there is of truth in any maliciousinvective, so much the more provoking it is."

Mr. Hamilton. These are Star-chambercases, and I was in hopes that practice hadbeen dead with the Court.

Mr. Chief Justice. Mr. Hamilton, theCourt have delivered their opinion, and we ex-pect you will use us with good manners: youare not to be permitted to argue against the opi-nion of the Court.

Mr. Hamilton. With submission, I have seenthe practice in very great courts, and neverheard it deemed unmannerly to —

Mr. Chief Justice. After the Court have de-clared their opinion, it is not good-manners toinsist upon a point in which you are over-ruled.

Mr. Hamilton. I will say no more at thistime: the Court, I see, is against us in thispoint; and that I hope I may be allowed tosay.

Mr. Chief Justice. Use the Court withgood-manners, and you shall be allowed allthe liberty you can reasonably desire.

Mr. Hamilton. I thank your honour. Then,gentlemen of the jury, it is to you we mustnow appeal, for witnesses to the truth of thefacts we have offered, and are denied the li-berty to prove; and let it not seem strange,that I apply myself to you in this manner; Iam warranted so to do, both by law and reason.The law supposes you to be summoned out ofthe neighbourhood where the fact is alleged tobe committed; and the reason of your beingtaken out of the neighbourhood is, because youare supposed to have the best knowledge of thefact that is to be tried. And were you to finda verdict against my client, you must takeupon you to say, the papers referred to in theinformation, and which we acknowledge we

printed and published, are false, scandalous,and seditious; but of this I can have no appre-hension. You are citizens of New York : youare really, what the law supposes you to be,honest and lawful men; and, according to mybrief, the facts which we offer to prove werenot committed in a corner; they are noto-riously known to be true; and therefore inyour justice lies our safety. And as weare denied the liberty of giving evidence, toprove the truth of what we have published,will beg leave to lay it down as a standing rulein such cases, That the suppressing of evi-dence ought always to be taken for thestrongest evidence; and I hope it will havethat weight with you. But since we are notadmitted to examine our witnesses, I will en-deavour to shorten the dispute with Mr. At-torney; and to that end, I. desire he would fa-vour us with some standard definition of a libel,by which it may be certainly known, whethera writing be a libel, yea or not.

Att. Gen. The books, I think, have given avery full definition of a libel: they say (1Hawk. chap. 73, § 1, et seq.) it is, "in a strictsense, taken for a malicious defamation, ex-pressed either in writing or printing, and tend-ing either to blacken the memory of one who isdead, or the reputation of one who is alive, andto expose him to public hatred, contempt or ri-dicule. § 2. But it is said, That, in a largersense the notion of a libel may be applied toany defamation whatsoever, expressed eitherby signs or pictures, as by fixing up a gallowsagainst a man's door, or by painting him in ashameful and ignominious manner. §. 3. Andsince the chief cause for which the law so se-verely punishes all offences of this nature, isthe direct tendency of them to a breach of pub-lic peace, by provoking the parties injured,their friends and families, to acts of revenge,which it would be impossible to restrain by theseverest laws, were there no redress from pub-lic justice for injuries of this kind, which, of allothers, are most sensibly felt; and since theplain meaning of such scandal, as is expressedby signs or pictures, is as obvious to commonsense, and as easily understood by every com-mon capacity, and altogether as provoking asthat which is expressed by writing or printing,why should it not be equally criminal? § 4.And from the same ground it seemeth alsoclearly to follow, that such scandal, as is ex-pressed in a scoffing and ironical manner,makes a writing as properly a libel, as thatwhich is expressed in direct terms; as where awriting, in a taunting manner reckoning up se-veral acts of public charity done by one, says,You will not play the Jew, nor the Hypocrite,and so goes on in a strain of ridicule to insi-nuate, that what he did was owing to his vain-glory; or where a writing, pretending to re-commend to one the characters of several greatmen for his imitation, instead of taking no-tice of what they are generally esteemed fa-mous for, pitched on such qualities only whichtheir enemies charge them with the want of;

as by proposing such a one to be imitated forhis courage, who is known to be a great states-man, but no soldier; and another to be imitatedfor his learning, who is known to be a greatgeneral, but no scholar, &c. which kind ofwriting is as well understood to mean only toupbraid the parties with the want of these qua-lities, as if it had directly and expressly doneso."

Mr. Hamilton. Ay, Mr. Attorney; but whatcertain standard rule have the books laid down,by which we can certainly know whether thewords or the signs are malicious? Whetherthey are defamatory? Whether they tend tothe breach of the peace, and are a sufficientground to provoke a man, his family, orfriends, to acts of revenge, especially those ofthe ironical sort of words? And what rule haveyou to know when I write ironically? I think itwould be hard, when I say, Such a man is avery worthy, honest gentleman, and of fineunderstanding, that therefore I meant he was aknave or a fool.

Ait. Gen. I think the books are very full : itis said in 1 Hawk. p. 193, just now read,"That such scandal as is expressed in a scoff,ing and ironical manner, makes a writing asproperly a libel, as that which is expressed indirect terms; as where a writing, in a taunt-ing manner says, reckoning up several acts ofcharity done by one, You will not play the Jewor the hypocrite; and so goes on to insinuate,that what he did was owing to his vain-glory,&c. which kind of writing is as well under-stood to mean only to upbraid the parties withthe want of these qualities, as if it had directlyand expressly done so." I think nothing canbe plainer or more full than these words.

Mr. Hamilton. I agree the words are veryplain; and I shall not scruple to allow (whenwe are agreed that the words are false andscandalous, and were spoken in an ironical andscoffing manner, &c.) that they are reallylibellous; but here stiil occurs the uncertainty,which makes the difficulty to know what wordsare scandalous, and what not; for you say,they may be scandalous, true or false : besides,how shall we know whether the words werespoke in a scoffing and ironical manner, orseriously? Or how can you know, whetherthe man did not think as he wrote? For, byyour rule, if he did, it is no irony, and conse-quently no libel. But, under favour, Mr. At-torney, I think the same book, and the samesection, will shew us the only rule by whichall these things are to be known. The wordsare these; 'which kind of writing is as wellunderstood to mean only to upbraid the par-ties with the want of these qualities, as if theyhad directly and expressly done so.' Here, itis plain, the words are scandalous, scoffing, andironical, only as they are understood; I knowno rule laid down in the books but this; Imean, as the words are understood.

Mr. Chief Justice. Mr. Hamilton, do youthink it so hard to know when words are iro-nical, or spoke in a scoffing manner?

Mr. Hamilton. I own it may be known;but I insist, the only rule to know is, as I do orcan understand them : I have no other rule togo by, but as I understand them.

Mr. Chief Justice. That is certain. Allwords are libellous, or not, as they are under-stood. Those who are to judge of the words,must judge whether they are scandalous orironical, tend to the breach of the peace, or areseditious : there can be no doubt of it.

Mr. Hamilton. I thank your honour; I.amglad to find the Court of this opinion. Thenit follows, that those twelve men must under-stand the words in the information to be scan-dalous, that is to say, false; for I think it isnot pretended they are of the ironical sort; andwhen they understand the words to be so, theywill say we are guilty of publishing a falselibel, and not otherwise.

Mr. Chief Justice. No, Sir. Hamilton; thejury may find that Mr. Zenger printed and pub-lished those papers, and leave it to the Court tojudge whether they are libellous. You knowthis is very common: it is in the nature of aSpecial Verdict, where the jury leave the mat-ter of law to the Court.

Mr. Hamilton. I know, may it please yourhonour, the jury may do so; but I do likewiseknow they may do otherwise. I know theyhave the right, beyond all dispute, to determineboth the law and the fact; and where they donot doubt of the law, they ought to do so.This of leaving it to the judgment of the Court,whether the words are libellous or not, ineffect, renders juries useless (to say no worse)in many cases; but this I shall have occasionto speak to by-and-bye : and I will, with theCourt's leave, proceed to examine the inconve-niences that must inevitably arise from thedoctrines Mr. Attorney has laid down; and Iobserve, in support of this prosecution, he hasfrequently repeated the words taken from thecase of Libellis Famosis, in 5 Co. This is in-deed the leading case, and that to which almostall the other cases upon the subject of libels dx>refer; and I must insist upon saying, that, ac-cording as this case seems to be understood by theCourt and Mr. Attorney, it is not law at thisday : for though I own it to be base and un-worthy to scandalize any man, yea, I think itis even villainous to scandalize a person of pub-lic character; and I will go so far into Mr.Attorney's doctrine as to agree, that if thefaults, mistakes, nay even the vices, of such aperson be private and personal, and don't affectthe peace of the public, or the liberty or pro-perty of our neighbour, it is unmanly and un-mannerly to expose them, either by word orwriting. But when a ruler of the people bringshis personal failings, but much more his vices,into his administration, and the people findthemselves affected by them, either in theirliberties or properties, that will alter the casemightily; and all the high things that are saidin favour of rulers, and of dignities, and uponthe side of power, will not be able to stop peo-ple's mouths when, they feel themselves op-

pressed, I mean in a free government. It is Itrue, in times past, it was a crime to speaktruth; and in that terrible court of Star-chamber, many worthy and brave men sufferedfor so doing; and yet, even in that court, andin those bad times, a great and good man durstsay, what I hope will not be taken amiss of meto say in this place, to wit, "The practice ofinformations tor libels is a sword in the handsof a wicked king, and an arrand coward, to cutdown and destroy the innocent; the one cannotbecause of his high station, and the other daresnot, because of his want of courage, revengehimself in another manner."

Alt. Gen. Pray, Mr. Hamilton, have a carewhat you say; don't go too far neither : I don'tlike those liberties.

Mr. Hamilton. Sure, Mr. Attorney, youwon't make any applications: All men agree,that we are governed by the best of kings; andI cannot see the meaning of Mr. Attorney'scaution: My well known principles, and thesense I have of the blessings we enjoy underhis present majesty, make it impossible for meto err, and, I hope, even to be suspected, inthat point of duty to my king. May it pleaseyour honour, I was saying, that notwithstand-ing all the duty and reverence claimed by Mr.Attorney to men in authority, they are not ex-empt from observing the rules of commonjustice, either in their private or public capa-pacities; the laws of our mother-country knowno exception. It is true, men in power are harderto be come at, for wrongs they do, cither to aprivate person, or to the public; especially agovernor in the plantations, where they insistupon an exemption from answering complaintsof any kind in their own government. We areindeed told, and it is true they are obliged toanswer a suit in the king's courts at West-minster, for a wrong done to any person here:But do we not know how impracticable thisis to most men among us, to leave their families,(who depend upon their labour and care fortheir livelihood) and carry evidences to Britain,and at a great, nay, a far greater expence,than almost any of us are able to bear, only toprosecute a governor for an injury done here?But when the oppression is general, there is noremedy even that way : No, our constitutionhas (blessed be God) given us an opportunity,if not to have such wrongs redressed, yet, byour prudence and resolution, we may in a greatmeasure prevent the committing of suchwrongs, by making a governor sensible, thatit is his interest to be just to those under hiscare; for such is the sense that men in genera!(I mean freemen) have of common justice,that when they come to know that a chief ma-gistrate abuses the power with which he is in-trusted for the good of the people, and is at-tempting to turn that very power against theinnocent, whether of high or low degree, I say,mankind in general seldom fail to interpose,and, as far as they can, prevent the destructionof their fellow subjects. And has it not often

been seen (and, I hope, it will always be seen)that when the representatives of a free peopleare, by just representations or remonstrances,made sensible of the sufferings of their fellowsubjects, by the abuse of power in the handsof a governor, they have declared (and loudlytoo) that they were not obliged by any law tosupport a governor who goes about to destroy aprovince or colony, or their privileges, whichby his majesty he was appointed, and by thelaw he is bound, to protect and encourage.But I pray it may be considered, of what use isthis mighty privilege, if every man that suffersmust be silent? And if a man must be takenup as a libeller, far telling his sufferings to hisneighbour, I know it may be answered, Haveyou not a legislature? have you not a Houseof Representatives, to whom you may com-plain? And to this I answer, We have : Butwhat then? Is an Assembly to be troubled withevery injury done by a governor? Or are theyto hear of nothing but what those in the admi-nistration will please to tell them? Or whatsort of a trial must a man have? And howis he to be remedied; especially if the casewere, as I have known it to happen inAmerica in my time, that a governor who hasplaces (I will not say pensions, for, I believethey seldom give that to another which theycan take to themselves) to bestow, and can orwill keep the same Assembly (after he has mo-delled them so as to get a majority of theHouse in his interest) for near twice seven yearstogether? I pray, what redress is to be ex-pected for an honest man, who makes his com-plaint against a governor to an Assembly, whomay properly enough be said to be made bythe same governor against whom the complaintis made? The thing answers itseif. No, it isnatural, it is a privilege — I will go farther,it is a right which all freemen claim, and areintitled to, to complain when they are hurt; theyhave a right publicly to remonstrate against theabuses of power, in the strongest terms, to puttheir neighbours upon their guard, against thecraft or open violence of men in authority, andto assert with courage the sense they have ofthe blessings of liberty, the value they put uponit, and their resolution at all hazards to pre-serve it, as one of the greatest blessings heavencan bestow. And when a House of Assembly,composed of honest freemen, sees the generalbent of the people's inclinations, that is itwhich must and will (I'm sure it ought to)weigh with a legislature, in spite of all thecraft, caressing, and cajoling, made use of bya governor, to divert them from hearkening tothe voice of their country. As we all very wellunderstand the true reason, why gentlementake so much pains, and make such great in-terest, to be appointed governors, so the designof their appointment is not less manifest. Weknow his majesty's gracious intentions to hissubjects; he desires no more than that his peo-ple in the plantations should be kept up to theirduty and allegiance to the crown of Great Bri-tain; that peace may be preserved amongst

them, and justice impartially administered;that we may be governed so as to render us use-ful to our mother-country by encouraging us tomake and raise such commodities as may beuseful to Great Britain. But w i l l any one say,that all or any of these good ends are to be ef-fected by a governor's setting his people toge-ther by the ears, and by the assistance of onepart of the people to plague and plunder theother? The commission which governors bear,while they execute the powers given them, ac-cording to the intent of the royal grantor, ex-pressed in their commissions, requires and de-serves very great reverence and submission; butwhen a governor departs from the duty enjoinedhim by his sovereign, and acts as if he was lessaccountable than the royal hand that gave himall that power and honour which he is possessedof, this sets people upon examining and enquir-ing into the power, authority, and duty of sucha magistrate, and to compare those with hisconduct; and just as far as they find he exceedsthe bounds of his authority, or falls short in do-ing impartial justice to the people under his ad-ministration, so far they very often, in return,come short in their duty to such a governor.For power alone will not make a man beloved;and I have heard it observed, that the man whowas neither good nor wise before his beingmade a governor, never mended upon his pre-ferment, but has been generally observed to beworse: for men who are not endowed withwisdom and virtue, can only be kept in boundsby the law : and by how much the far ther theythink themselves out of the reach of the law,by so much the more wicked and cruel theyare. I wish there were no instances of the kindat this day. And wherever this happens to bethe case of a governor, unhappy are the peopleunder his administration, and in the end he w i l lfind himself so too; for the people will neitherlove him nor support him. I make no doubtbut there are those here, who are zealouslyconcerned for the success of this prosecution;and yet I hope they are not many; and evensome of those, I am persuaded (when theyconsider to what lengths such prosecutions maybe carried, and how deeply the liberties of thepeople may be affected by such means) will notall abide by their present sentiments; I say, notall: for the man who, from an intimacy andacquaintance with a governor, has conceived apersonal regard for him; the man who has feltnone of the strokes of his power; the man whobelieves that a governor has a regard for him,and confides in him; it is natural for such mento wish well to the affairs of such a governor;and as they may be men of honour and genero-sity, may, and no doubt will, wish him success,so far as the rights and privileges of their fel-low-citizens are not affected. But as men ofhonour, I can apprehend nothing from them;they will never exceed that point. There areothers that are under stronger obligations, andthose are such as are in some sort engaged insupport of a governor's cause, by their own ortheir relations dependence on his favour for

some post or preferment: such men have,what is commonly called, duty and gratitudeto influence their inclinations, and oblige themto go his lengths. I know men's interests arevery near to them, and they will do much,rather than forego the favour of a governor,and a livelihood at the same time; but I canwith very just grounds hope, even from thosemen, whom I wil t suppose to be men of honour,and conscience too, that when they see the li-berty of their country is in danger, either bytheir concurrence, or even by their silence,they will, like Englishmen, and like them-selves, freely make a sacrifice of any prefer-ment or favour, rather than be accessary todestroying the liberties of their country, andentailing slavery upon their posterity. Thereare indeed another set of men, of whom I haveno hopes; I mean, such who lay aside all otherconsiderations, and are ready to join with powerin any shape, and with many or any sort ofmen, by whose means or interest they may beassisted to gratify their malice and envy, againstthose whom they have been pleased to hate;and that for no other reason, but because theyare men of abilities and integrity, or at leastare possessed of some valuable qualities far su-perior to their own. But as envy is the sin ofthe devil, and therefore very hard, if at all, tobe repented of, I will believe there are but fewof this detestable and worthless sort of men, norwill their opinions or inclinations have any in-fluence upon this trial. But to proceed : I begleave to insist, tha t the right of complaining orremonstrating is na tura l ; and the restraintupon this natural r ight is the law only, andtha t those restraints can only extend to what isf a l s e : for as it is truth alone which can excuseor justify any man for complaining of a bad ad-ministration, I as frankly agree, that nothingought to excuse a man who raises a falsecharge or accusation, even against a privateperson, and that no manner of allowance oughtto be made to him who does so against a pub-lic magistrate. Truth ought to govern thewhole affair of libels, and yet the party accusedruns risk enough even then; for if he fails ofproving every tittie of what he has wrote, andto the satisfaction of the Court and Jury too,he may find to his cost, that when the prosecu-tion is set on foot by men in power, it seldomwants friends to favour it. And from thence(it is said) has arisen the great diversity of opi-nions among judges, about what words were orwere not scandalous or libellous. I believe itwill be granted, that there is not greater un-certainty in any part of the law, than aboutwords of scandal: it would be mis-spending ofthe Court's time to mention the cases; theymay be said to be numberless; and thereforethe utmost care ought to be taken in followingprecedents; and the times when the judgmentswere given, which are quoted for authorities inthe case of libels, are much to be regarded. Ithink it will be agreed, that ever since thetime of the Star-Chamber, where the most ar-bitrary and destructive judgments and opinions

were given, that ever an Englishman heard of,at least in his own country: I say, prosecutionsfor libels since the time of that arbitrary court,and until the glorious Revolution, have gene-rally been set on foot at the instance of thecrown, or its ministers; and it is no small re-proach to the law, that these prosecutions weretoo often and too much countenanced by thejudges, who held their places at pleasure (adisagreeable tenure to any officer, but a dan-gerous one in the case of a judge). To saymore to this point may not be proper. Andyet I cannot think it unwarrantable, to shewthe unhappy influence that a sovereign hassometimes had, not only upon judges, but evenupon parliaments themselves.

It has already been shewn, how the judgesdiffered in their opinions about the nature of alibel, in the case of the Seven Bishops. Thereyou see three judges of one opinion, that is, ofa wrong opinion, in the judgment of the bestmen in England, and one judge of a right opi-nion. How unhappy might it have been forall of us at this day, if that jury had understoodthe words in that information as the Court did?Or if they had left it to the Court to judge,whether the Petition of the Bishops was or wasnot a libel? No! they took upon them, to theirimmortal honour, to determine both law andfact, and to understand the Petition of the Bi-shops to be no libel, that is, to contain no false-hood nor sedition, and therefore found themNot Guilty. And remarkable is the case of sirSamuel Barnardiston, who was fined 10,000l,for writing a letter, in which, it may be said,none saw any scandal or falsehood but theCourt and Jury; for that judgment was after-wards looked upon as a cruel and detestablejudgment, and therefore was reversed by par-liament. Many more instances might be givenof the complaisance of court-judges about thosetimes, and before; but I will mention only onecase more, and that is the case of sir EdwardHales, who, though a Roman Catholic, was byking James 2, preferred to be a colonel of hisarmy, notwithstanding the statute of 25 Ch. 2,chap. 2, by which it is provided, That everyone that accepts of an office, civil or military,&c. shall take the oaths, subscribe the declara-tion, and take the sacrament, within 3 months,&c. otherwise he is disabled to hold such office,and the grant for the same to be null and void,and the party to forfeit 500l, Sir EdwardHales did not take the oaths or sacrament, andwas prosecuted for the 500l. for exercising theoffice of a colonel by the space of three months,without conforming as in the act is directed.Sir Edward pleads, That the king, by his let-ters patent, did dispense with his taking theoaths and sacrament, and subscribing the de-claration, and had pardoned the forfeiture of500l. And whether the king's dispensationwas good, against the said act of parliament?was the question. I shall mention no more ofthis case, than to shew how in the reign of anarbitrary prince, where judges hold their seatsat pleasure, their determinations have not al-

ways been such as to make precedents of, butthe contrary; and so it happened in this case,where it was solemnly judged, That, notwith-standing this act of parliament, made in thestrongest terms, for preservation of the Protes-tant religion, that yet the king had, by hisroyal prerogative, a power to dispense withthat law; and sir Edward Hales* was ac-quitted by the judges accordingly. So theking's dispensing power being by the judgesset up above the act of parliament, this law,which the people looked upon as their chief se-curity against Popery and arbitrary power,was, by this judgment, rendered altogether in-effectual. But this judgment is sufficiently ex-posed by sir Robert Atkins, late one of thejudges of the Court of Common Pleas, in hisEnquiry into the King's Power of Dispensingwith Penal Statutes; wherein it is shewn, whoit was that first invented dispensations; howthey came into England; what ill use has beenmade of them there; and all this principallyowing to the countenance given them by thejudges. He says of the dispensing power, ' ThePope was the inventor of it; our kings haveborrowed it from them; and the judges have,from time to time, nursed and dressed it up,and given it countenance; and it is still uponthe growth, and encroaching, till it has almostsubverted all law, and made the regal powerabsolute, if not dissolute.' This seems not onlyto shew how far judges have been influencedby power, and how little cases of this sort,where the prerogative has been in question informer reigns, are to be relied upon for law : butI think it plainly shews too, that a man mayuse a greater freedom with the power of his so-vereign, and the judges in Great Britain, thanit seems he may with the power of a governorin the plantations, who is but a fellow-subject.Are the words with which we are charged, likethese? Do Mr. Zenger's papers contain anysuch freedoms with his governor, or his coun-cil, as sir Robert Atkins has taken with the re-gal power and the judges in England? And yetI never heard of any information brought againsthim for these freedoms.

If then, upon the whole, there is so great anuncertainty among judges (learned and greatmen) in matters of this kind; if power hashad so great an influence on judges, how cau-tious ought we to be in determining by theirjudgments, especially in the plantations, andin the case of libels? There is heresy in law aswell as in religion, and both have changed verymuch; and we well know that it is not twocenturies ago that a man would have beenburnt as an heretic, for owning such opinionsin matters of religion as are publicly wrote andprinted at this day. They were fallible men,it seems, and we take the liberty not only todiffer from them in religious opinions, but tocondemn them and their opinions too; and Imust presume, that in taking these freedoms inthinking and speaking about matters of faith

* See his Case, vol. 11, p, 1166.

or religion, we are in the right: For, thoughit is said there are very great liberties of thiskind taken in New-York, yet I have heard ofno information preferred by Mr. Attorney forany offences of this sort. From which Ithink it is pretty clear, that in New-York a manmay make very free with his God, but he musttake special care what he says of his governor.It is agreed upon by all men, that this is areign of liberty; and while men keep withinthe bounds of truth, I hope they may withsafety both speak and write their sentiments ofthe conduct of men in power, I mean of thatpart of their conduct only, which affects theliberty or property of the people under theiradministration; were this to be denied, then thenext step may make them slaves. For whatnotions can be entertained of slavery, beyondthat of suffering the greatest injuries and op-pressions, without the liberty of complaining;or if they do, to be destroyed, body and estate,for so doing.

It is said, and insisted upon by Mr. Attorney:That government is a sacred thing; that it isto be supported and reverenced; it is govern-ment that protects our persons and estates;that prevents treasons, murders, robberies, riots,and all the train of evils that overturns king-doms and states, and ruins particular, persons;and if those in the administration, especiallythe supreme magistrates, must have all theirconduct censured by private men, governmentcannot subsist This is called a licentiousnessnot to be tolerated. It is said, that it bringsthe rulers of the people into contempt, and theirauthority not to be regarded and so in the endthe laws cannot be put in execution. These, Isay, and such as these, are the general topicsinsisted upon by men in power, and their ad-vocates. But I wish it might be considered atthe same time, how often it has happened, thatthe abuse of power has been the primary causeof these evils, and that it was the injustice andoppression of these great men, which has com-monly brought them into contempt with thepeople. The craft and art of such men isgreat, and who, that is the least acquaintedwith history or law, can be ignorant of thespecious pretences, which have often beenmade use of by men in power, to introduce arbi-trary rule, and destroy the liberties of a freepeople. I will give two instances, and as theyare authorities not to be denied, nor can be mis-understood, I presume they will be sufficient.

The first is the statute of 3d of Hen. 7, cap.1. The preamble of the statute will prove all,and more than I have alleged. It begins:'The king our sovereign lord remembereth, howby unlawful maintenances, giving of liveries,signs and tokens, &c. untrue demeanings ofsheriffs in making of pannels, and other untruereturns, by taking of money, by injuries, bygreat riots and unlawful assemblies; the policyand good rule of this realm is almost subdued;and for the not punishing these inconveniencies,and by occasion of the premisses, little or no-thing may be found by enquiry, &c. to the in-

crease of murders, &c. and unsureties of all menliving, and losses of their lands and goods.'Here is a fine and specious pretence for intro-ducing the remedy, as it is called, which isprovided by this act; that is, instead of beinglawfully accused by twenty-four good and law-ful men of the neighbourhood, and afterwardstried by twelve like lawful men, here is a powergiven to the lord chancellor, lord treasurer, thekeeper of the king's privy seal, or two of them,calling to them a bishop, a temporal lord, andother great men mentioned in the act, (who, itis to be observed, were all to be dependants onthe court) to receive information against anyperson for any of the misbehaviours recited inthat act, and by their discretion to examine,and to punish them according to their demerit.

The second statute I proposed to mention, isthe 11th of the same king, chap. 3d, the pre-amble of which act has the like fair pretences asthe former; for the king calling to his re-membrance the good laws made against thereceiving of liveries, &c. unlawful extortions,maintenances, embracery, &c. unlawful games,&c. and many other great enormities, and of-fences committed against many good statutes,to the displeasure of Almighty God, which, theact says, could not, nor yet can, be conve-niently punished by the due order of the law,except it were first found by twelve men, &c.which, for the causes aforesaid, will not findnor yet present the truth. And therefore thesame statute directs, that the justices of assize,and justices of the peace, shall upon informa-tion for the king before them made, have fullpower, by their discretion, to hear and determineall such offences. Here are two statutes thatare allowed to have given the deepest wound tothe liberties of the people of England of anythat I remember to have been made, unless itmay be said that the statute made in the timeof Henry 8th, by which his proclamationswere to have the effect of laws, might in itsconsequence be worse. And yet we see theplausible pretences found out by the great mento procure these acts. And it may justly besaid, that by those pretences the people ofEngland were cheated or awed into the deliver-ing up their ancient and sacred right of trialsby grand and petit juries. I hope to be excusedfor this expression, seeing my lord Coke callsit (4 Inst.) 'unjust and strange act, that tendedin its execution to the great displeasure of Al-mighty God, and the utter subversion of thecommon law.'

These, I think, make out what I alleged, andare flagrant instances of the influence of menin power, even upon the representatives of awhole kingdom. From all which, I hope, itwill be agreed, that it is a duty which all goodmen owe to their country, to guard against theunhappy influence of ill men when entrustedwith power, and especially against theircreatures and dependents, who, as they aregenerally more necessitous, are surely morecovetous and cruel. But it is worthy of obser-vation, that though the spirit of liberty was

borne down and oppressed in England thattime, yet it was not lost; for the parliamentlaid hold of the first opportunity to free thesubject from the many insufferable oppressionsand outrages committed upon their persons andestates by colour of these acts, the last ofwhich being deemed the most grievous, wasrepealed in the first year of Hen. 8th. Thoughit is to be observed, that Hen. 7th, and hiscreatures, reaped such great advantages by thegrievous oppressions and exactions, grindingthe faces of the poor subjects, as my lord Cokesays, by colour of this statute by informationonly, that a repeal of this act could never beobtained during the life of that prince. Theother statute being the favourite law for sup-porting arbitrary power, was continued muchlonger. The execution of it was by the greatmen of the realm; and how they executed it,the sense of the kingdom, expressed in the 7thof Charles 1st, (by which the Court of Star-Chamber, the soil where informations grewrankest) will best declare. In that statuteMagna Charta, and the other statutes made inthe time of Edw. 3, which, I think, are noless than five, are particularly enumerated asacts, by which the liberties and privileges ofthe people of England were secured to them,against such oppressive courts as the Star-Chamber, and others of the like jurisdiction.And the reason assigned for their pulling downthe Star-Chamber, is, That the proceedings, cen-sures and decrees of the Court of Star-Cham-ber, even though the great men of the realm,nay, and a bishop too (holy man) were judges,had by experience been found to be an intoler-able burthen to the subject, and the means tointroduce an arbitrary power and government.And therefore that court was taken away, withall the other courts in that statute mentioned,having like jurisdiction.

I do not mention this statute, as if by thetaking away the Court of Star-Chamber, theremedy for many of the abuses or offencescensured there, was likewise taken away; no,I only intend by it to shew, that the people ofEngland saw clearly the danger of trustingtheir liberties and properties to be tried, evenby the greatest men in the kingdom, withoutthe judgment of a jury of their equals. Theyhad felt the terrible effects of leaving it to thejudgment of these great men to say what wasscandalous and seditious, false or ironical. Andif the parliament of England thought thispower of judging was too great to be trustedwith men of the first rank in the kingdom,without the aid of a jury, how sacred soevertheir characters might be, and therefore re-stored to the people, their original right of trialby juries, I hope to be excused for insisting,that by the judgment of a parliament, fromwhence no appeal lies, the jury are the properjudges of what is false at least, if not of what isscandalous and seditious. This is an authority,not to be denied, it is as plain as it is great,and to say, that this act indeed did restore tothe people trials by juries, which was not the

practice of the Star-Chamber, but that it didnot give the jurors any new authority, or anyright to try matters of law, I say this objectionwill not avail; for I must insist, that wherematter of law is complicated with matter offact, the jury have a right to determine both.As for instance; upon indictment for murder,the jury may, and almost constantly do, takeupon them to judge whether the evidence willamount to murder or manslaughter, and findaccordingly; and I must say, I cannot see,why in our case the jury have not at least asgood a right to say, whether our news-papersare a libel or no libel, as "another jury has tosay, whether killing of a man is murder ormanslaughter. The right of the jury to findsuch a verdict as they in their conscience dothink is agreeable to their evidence, is sup-ported by the authority of Bushel's case,* inVaughan's Reports, page 135, beyond anydoubt. For, in the argument of that case, thechief-justice who delivered the opinion of theCourt, lays it down for law : (Vaughan's Rep.p. 150.) That in all general issues, as uponnon. cul. in trespass, non tort. nul disseizin inassize, &c. though it is matter of law, whetherthe defendant is a trespasser, a disseizer, &c.in the particular cases in issue, yet the jury,find not (as in a special verdict) the fact ofevery case, leaving the law to the Court; butfind for the plaintiff or defendant upon theissue to be tried, wherein they resolve both lawand fact complicately. It appears by the samecase, that though the discreet and lawful as-sistance of the judge, by way of advice to thejury, may be useful, yet that advice or directionought always to be upon supposition, and notpositive and upon coercion. The reason givenin the same book is, (page 144, 147.) Becausethe judge (as judge) cannot know what theevidence is which the jury have, that is, hecan only know the evidence given in court;but the evidence which the jury have, may beof their own knowledge, as they are returnedof the neighbourhood. They may also knowfrom their own knowledge, that what is swornin court is not true; and they may know thewitnesses to be stigmatized, to which the Courtmay be strangers. But what is to my purpose,is, that suppose that the Court did really knowall the evidence which the jury know, yet inthat case it is agreed, That the judge and jurymay differ in the result of their evidence, as Iwell as two judges may, which often happens.And in page 148, the judge subjoins the reason,why it is no crime for a jury to differ in opi-nion from the Court, where he says, That aman cannot see with another's eye, nor hearby another's ear; no more can a man concludeor infer the thing by another's understandingor reasoning. From all which (I insist) it isvery plain, that the jury are by law at liberty(without any affront to the judgment of theCourt) to find both the law and the fact, in ourcase, as they did in the case I am speaking to,

* See it, vol. 6, p. 999.

which I will beg leave just to mention, and itwas this: Mr. Penn and Mead being Quakers,and having met in a peaceable manner, afterbeing shut out of their meeting-house, preach-ed in Grace-Church-street in London, to thepeople of their own persuasion, and for this theywere indicted; and it was said, That they withother persons, to the number of 300, unlawfullyand tumultuously assembled, to the disturbanceof the peace, &c. To which they pleaded,Not Guilty. And the petit jury being sworn totry the issue between the king and the pri-soners, that is, whether they were guilty, ac-cording to the form of the indictment? Herethere was no dispute but they were assembledtogether, to the number mentioned in the in-dictment; but, whether that meeting togetherwas riotously, tumultuously, and to the dis-turbance of the peace? was the question. Andthe Court told the jury it was, and ordered thejury to find it so; for (said the Court) the meet-ing was the matter of fact, and that is confess-ed, and we tell you it is unlawful, for it isagainst the statute; and the meeting being un-lawful, it follows of course that it was tumul-tuous, and to the disturbance of the peace. Butthe jury did not think fit to take the Court'sword for it, for they could neither find riot, tu-mult, or any thing tending to the breach of thepeace committed at that meeting; and theyacquitted Mr. Penn and Mead.* In doing ofwhich they took upon them to judge both thelaw and the fact; at which the Court (beingthemselves true courtiers) were so much of-fended, that they fined the jury 40 marks a-piece, and committed them till paid. But Mr.Bushel, who valued the right of a juryman andthe liberty of his country more than his own,refused to pay the fine, and was resolved(though at a great expence and trouble too)to bring, and did bring, his Habeas Corpus, tobe relieved from his fine and imprisonment, andhe was released accordingly; and this beingthe judgment in his case, it is established forlaw, That the judges, how great soever theybe, have no right to fine, imprison, or punish ajury, for not finding a verdict according to thedirection of the Court. And this, I hope, issufficient to prove, that jurymen are to seewith their own eyes, to hear with their ownears, and to make use of their own consciencesand understandings in judging of the lives, li-berties, or estates of their fellow subjects. Andso I have done with this point.

This is the second information, for libellingof a governor, that I have known in America.And the first, though it may look like a ro-mance, yet, as it is true, I will beg leave tomention it. Governor Nicholson, who happen-ed to be offended with one of his clergy, methim one day upon the road; and as it wasusual with him (under the protection of hiscommission) used the poor parson with theworst of language, threatened to cut off hisears, slit his nose, and at last to shoot himthrough the head. The parson, being a reve-

* See the Case, vol. 6, p. 951.

rend man, continued all this time uncovered inthe heat of the sun, until he found an opportu-nity to fly for it; and coming to a neighbour'shouse, felt himself very ill of a fever, and im-mediately writes for a doctor; and that hisphysician might be the better judge of his dis-temper, he acquainted him with the usage hehad received; concluding, that the governorwas certainly mad; for that no man in hissenses would have behaved in that manner.The doctor unhappily shews the parson's letter:The governor came to hear of it, and so an in-formation was preferred against the poor manfor saying, He believed the governor was mad;and it was laid in the information to be false,scandalous and wicked, and wrote with in-tent to move sedition among the people, andbring his excellency into contempt. But byan order from the late queen Anne, there wasa stop put to the prosecution, with sundry othersset on foot by the same governor against gen-tlemen of the greatest worth and honour in thatgovernment.

And may not I be allowed, after all this, tosay, that, by a little countenance, almost anything which a man writes, may, with the helpof that useful term of art called an innuendo,be construed to be a libel, according to Mr. At-torney's definition of it, that whether the wordsare spoke of a person of a public character, orof a private man, whether dead or living, goodor bad, true or false, all make a libel; for ac-cording to Mr. Attorney, after a man hears awriting read, or reads and repeats it, or laughsat it, they are all punishable. It is true, Mr.Attorney is so good as to allow, after the partyknows it to be a l ibel; but he is not so kind asto take the man's word for it.

[Here were several cases put to shew, thatthough what a man writes of a governor wastrue, proper, and necessary, yet, according tothe foregoing doctrine, it might be construed tobe a libel. But Mr. Hamilton, after the trialwas over, being informed, that some of thecases he had put had really happened in thisgovernment, he declared he had never heard ofany such; and as he meant no personal reflec-tions, he was sorry he had mentioned them,and therefore they are omitted here.]

Mr. Hamilton. If a libel is understood in thelarge and unlimited sense urged by Mr. At-torney, there is scarce a writing I know thatmay not be called a libel, or scarce any personsafe from being called to account as a libeller:for Moses, meek as he was, libelled Cain; andwho is it that has not libelled the Devil? For,according to Mr. Attorney, it is no justificationto say one has a bad name. Echard has li-belled our good king William; Burnet has li-belled, among many others, king Charles andking James; and Rapin has libelled them all.How must a man speak or write, or what musthe hear, read, or sing? Or when must helaugh, so as to be secure from being taken upas a libeller? I sincerely believe, that weresome persons to go through the streets of NewYork, now-a-days, and read a part of the

Bible, if it was not known to be such, Mr. At-torney, with the help of his innuendos, wouldeasily turn it into a libel. As for instance,Is. xi. 16. "The leaders of the people causethem to err, and they that are led by them aredestroyed." But should Mr. Attorney goabout to make this a libel, he would read itthus: 'The leaders of the people' [innuendo,the governor and council of New-York] 'cause

them' [innuendo, the people of this province]to err, and they' [the governor and council

meaning] 'are destroyed' [innuendo, are de-ceived into the loss of their liberty]; which isthe worst kind of destruction. Or if somepersons should publicly repeat, in a mannernot pleasing to his betters, the 10th and the11th verses of the 56th chap. of the same book,there Mr. Attorney would have a large field todisplay his skill, in the artful application of hisinnuendos. The words are; 'His watchmen

are blind, they are ignorant, &c. Yea, theyare greedy dogs, that can never have enough.'

But to make them a libel, there is, accordingto Mr. Attorney's doctrine, no more wantingbut the aid of his skill, in the right adaptinghis innuendos. As tor instance; 'His watch-

men' [innuendo, the governor's council andassembly] ' are Wind, they are ignorant,'[innuendo, will not see the dangerous designsof his excellency.] 'Yea, they' [the go-vernor and council meaning] 'are greedy

dogs, which can never have enough' [innu-endo, enough of riches and power.] Such an

instance as this seems only fit to be laughedat; but I may appeal to Mr. Attorney him-self, whether these are not at least equallyproper to be applied to his excellency, and hisministers, as some of the inferences and innu-endos in his information against my client.Then if Mr. Attorney is at liberty to come intocourt, and file an information in the king'sname, without leave, who is secure, whom beis pleased to prosecute as a libeller? And asthe crown law is contended for in bad times,there is no remedy for the greatest oppressionof this sort, even though the party prosecutedis acquitted with honour. And give me leaveto say, as great men as any in Britain haveboldly asserted, that the mode of prosecutingby information (when a grand jury will notfind Billa vera) is a national grievance, andgreatly inconsistent with that freedom whichthe subjects of England enjoy in most othereases. But if we are so unhappy as not to beable to ward off this stroke of power directly,let us take care not to be cheated out of ourliberties by forms and appearances; let usalways be sure that the charge in the infor-mation is made out clearly, even beyond adoubt; for though matters in the informationmay be called form upon trial, yet they maybe, and often have been found to be, mattersof substance upon giving judgment.

Gentlemen, the danger is great, in propor-tion to the mischief that may happen throughour too great credulity. A proper confidencein a court is commendable; but as the verdict(whatever it is) will be yours, you ought to

refer no part of your duty to the discretion ofother persons. If you should be of opinion,that there is no falsehood in Mr. Zenger'spapers, you will , nay, (pardon me for the ex-pression) you ought to say so; because you.don't know whether others (I mean the Court)may be of that opinion. It is your right to doso, and there is much depending upon yourresolution, as well as upon your integrity.

The loss of liberty, to a generous mind, isworse than death; and yet we know therehave been those in all ages, who, for the sakeof preferment, or some imaginary honour, havefreely lent a helping hand to oppress, nay, todestroy their country. This brings to mymind that saying of the immortal Brutus,when he looked upon the creatures of Caesar,who were very great men, but by no meansgood men: "You Romans," said Brutus,"if yet I may call you so, consider what youare doing; remember that you are assistingCæsar to forge those very chains, which oneday he will make yourselves wear." This iswhat every man (that values freedom) oughtto consider: he should act by judgment, andnot by affection or self-interest; for wherethose prevail, no ties of either country or kin-dred are regarded; as upon the other hand,the man who loves his country, prefers itsliberty to all other considerations, well know-ing that without liberty life is a misery.

A famous instance of this you will find in thehistory of another brave Roman, of the samename; I mean Lucius Junius Brutus, whosestory is well known; and therefore I shallmention no more of it, than only to shew thevalue he put upon the freedom of his country.After this great man, with his fellow-citizens,whom he had engaged in the cause, hadbanished Tarquin the Proud, the last king ofRome, from a throne which he ascended byinhuman murders, and possessed by the mostdreadful tyranny and proscriptions, and had bythis means amassed incredible riches, evensufficient to bribe to his interest many of theyoung nobility of Rome, to assist him in re-covering the crown; but the plot being dis-covered, the principal conspirators were ap-prehended, among whom were two of the sonsof Junius Brutus. It was absolutely necessarythat some should be made examples of, to deterothers from attempting the restoring of Tar-quin, and destroying the liberty of Rome.And to effect this it was, that Lucius JuniusBrutus, one of the consuls of Rome, in thepresence of the Roman people, sat judge, andcondemned his own sous, as traitors to theircountry : and to give the last proof of his ex-alted virtue, and his love of liberty, he with afirmness of mind, (only becoming so great aman) caused their heads to be struck off inhis own presence; and when he observed thathis rigid virtue occasioned a sort of horroramong the people, it is observed he only said:"My fellow-citizens, do not think that thisproceeds from any want of natural affection:No, the death of the sons of Brutus can affectBrutus only; but the loss of liberty will affect

my country." Thus highly was liberty es-teemed in those days, that a father could sa-crifice his sons to save his country. But whydo I go to heathen Rome, to bring instancesof the love of liberty? The best blood in Bri-tain has been shed in the cause of liberty; andthe freedom we enjoy at this day, may be saidto be (in a great measure) owing to the glo-rious stand the famous Hampden, and othersof our countrymen, in the Case of Ship-Money,* made against the arbitrary demands,and illegal impositions, of the times in whichthey lived; who, rather than give up the rightsof Englishmen, and submit to pay an illegaltax of no more, I think, than three shillings,resolved to undergo, and, for the liberty oftheir country, did undergo the greatest extre-mities in that arbitrary and terrible court ofStar-Chamber; to whose arbitrary proceedings(it being composed of the principal men of therealm, and calculated to support arbitrary go-vernment) no bounds or limits could be set,nor could any other hand remove the evil but aparliament.

Power may justly be compared to a greatriver; while kept within its due bounds, it isboth beautiful and useful; but when it over-flows its banks, it is then too impetuous to bestemmed; it bears down all before it, and bringsdestruction and desolation wherever it comes.If then this is the nature of power, let us atleast do our duty, and like wise men (who va-lue freedom) use our utmost care to supportliberty, the only bulwark against lawless power,which, in all ages, has sacrificed to its wildlust, and boundless ambition, the blood of thebest men that ever lived.

I hope to be pardoned, Sir, for my zeal uponthis occasion: it is an old and wise caution,"That when our neighbour's house is on fire,we ought to take care of our own." For though,blessed be God, I live in a government whereliberty is well understood, and freely enjoyed;yet experience has shewn us all (I'm sure ithas to me), that a bad precedent in one govern-ment, is soon set up for an authority in ano-ther; and therefore I cannot but think it mine,and every honest man's duty, that (while wepay all due obedience to men in authority) weought at the same time to be upon our guardagainst power, wherever we apprehend that itmay affect ourselves or our fellow-subjects.

I am truly very unequal to such an under-taking, on many accounts. And you see I la-bour under the weight of many years, and amborne down with great infirmities of body; yetold and weak as I am, I should think it myduty, if required, to go to the utmost part ofthe land, where my service could be of anyuse, in assisting to quench the flame of prose-cutions upon informations, set on foot by thegovernment, to deprive a people of the right ofremonstrating, (and complaining too) of thearbitrary attempts of men in power. Men whoinjure and oppress the people under their ad-

* See it in this Collection, vol. 3. p. 826.

ministration, provoke them to cry out and com-plain; and then make that very complaint thefoundation for new oppressions and prosecu-tions. I wish I could say there were no in-stances of this kind. But to conclude; thequestion before the Court, and you, gentlemenof the jury, is not of small nor private concern;it is not the cause of a poor printer, nor of NewYork alone, which you are now trying: No!It may, in its consequence, affect every free-man that lives under a British government onthe main of America. It is the best cause; itis the cause of liberty; and I make no doubtbut your upright conduct, this day, will notonly entitle you to the love and esteem of yourfellow-citizens; but every man, who prefersfreedom to a life of slavery, will bless and ho-nour you, as men who have baffled the attemptof tyranny; and, by an impartial and uncor-rupt verdict, have laid a noble foundation forsecuring to ourselves, our posterity, and ourneighbours, that to which nature and the lawsof our country have given us a right — the li-berty — both of exposing and opposing arbitrarypower (in these parts of the world, at least) byspeaking and writing truth.

Here Mr. Attorney observed, that Mr. Ha-milton had gone very much out of the way,and had made himself and the people verymerry; but that he had been citing cases notat all to the purpose. He said, there was nosuch cause as Mr. Bushel's, or sir EdwardHale's, before the Court; and he could notfind out what the Court or Jury had to do withdispensations, riots, or unlawful assemblies:all that the jury had to consider of, was Mr.Zenger's printing and publishing two scanda-lous libels, which very highly reflected on hisexcellency, and the principal men concernedin the administration of this government, whichis confessed; that is, the printing and publish-ing of the Journals set forth in the informationis confessed. And concluded, that as Mr.Hamilton had confessed the printing, and therecould be no doubt but they were scandalouspapers, highly reflecting upon his excellency,and the principal magistrates in the province;and therefore he made no doubt hut the jurywould find the defendant guilty, and would re-fer to the Court for their direction.

Mr. Chief Justice. Gentlemen of the jury,the great pains Mr. Hamilton has taken to shewhow little regard juries are to pay to the opinionof the judges, and his insisting so much upon theconduct of some judges in trials of this kind, isdone, no doubt, with a design that you shouldtake but very little notice of what I may sayupon this occasion. I shall therefore only ob-serve to you, that, as the facts or Words in theinformation are confessed, the only thing thatcan come in question before you is, whetherthe words, as set forth in the information, makea libel; and that is a matter of law, no doubt,and which you may leave to the Court. ButI shall trouble you no further with any thingmore of my own; but read to you the wordsof a learned and upright judge, in a case of the

like nature. [Lord Chief Justice Holt, inTutchin's Case.*]

"To say that corrupt officers are appointedto administer affairs, is certainly a reflection onthe government. If people should not be calledto account for possessing the people with an illopinion of the government, no government cansubsist; for it is necessary for all governmentsthat the people should have a good opinion ofit; and nothing can be worse to any govern-ment, than to endeavour to procure animosities.As to the management of it, this has been al-ways looked upon as a crime, and no govern-ment can be safe without it be punished."

Now you are to consider, whether thesewords I have read to you do not tend to begetan ill opinion of the administration of the go-vernment; to tell us, that those that areemployed know nothing of the matter, andthose that do know are not employed. Menare not adapted to offices, but offices to men,out of a particular regard to their interest, andnot to their fitness for the places. This is thepurport of these papers.

Mr. Hamilton. I humbly beg your honour'spardon; I am very much misapprehended, ifyou suppose what I said was so designed.

Sir, you know I made an apology for thefreedom I found myself under a necessity ofusing upon this occasion. I said, there wasnothing personal designed; it arose from thenature of our defence.

The Jury withdrew, and in a small time re-turned; and being asked by the clerk,

Whether they were agreed of their verdict,and whether John Peter Zenger was Guilty ofprinting and publishing the libels in the infor-mation mentioned?

They answered, by Thomas Hunt, theirforeman, Not Guilty.

Upon which there were three huzzas in theHall, which was crowded with people; andthe next day I was discharged from my im-prisonment.

City of New York, ss.

At a Common Council, held at the City-hallof the said city, on Tuesday the 16thday of September, A. D. 1735. — PRESENT,Paul Richards, esq. Mayor; GerardusStuyvesant, esq. Deputy Mayor; DanielHorsemanden, esq. Recorder. — Aldermen,William Roome, esq. Simon Johnson, esq.John Walter, esq. Christopher Fell, esq.Stephen Bayard, esq. Johannes Burger,esq. — Assistants, Mr. Johannes Waldron,Mr. Ede Myer, Mr. John Moore, Mr.John Fred, Mr. Charles Le Roux, Mr.Evert Byvank.

Ordered, That Andrew Hamilton, esq. ofPhiladelphia, barrister at law, be presentedwith the Freedom of this Corporation: and thatalderman Bayard, alderman Johnson, and al-

* See his Case, vol. 14, p. 1095.

derman Fell, be a Committee to bring in adraught thereof.


At a Common Council, held at the City-hallof the said city, on Monday the 29th dayof September, being the feastday of St.Michael the Archangel, A. D. 1735. —PRESENT, Paul Richards, esq. Mayor;Daniel Horsemanden, esq. Recorder. — Al-dermen, William Roome, esq. SimonJohnson, esq. John Walter, esq. Chris-topher Fell, esq, Stephen Bayard, esq.Johannes Burger, esq. — Assistants, Mr,Johannes Waldron, Mr. John Fred, Mr.Charles le Roux, Mr. Evert Byvank,Mr. Henry Bogert.

Stephen Bayard, Simon Johnson, and Chris-topher Fell, esqrs. aldermen, to whom it wasreferred to prepare the draught of the Freedomof this Corporation, to be presented to AndrewHamilton, esq. make the Report thereon in thewords following, (to wit) That they have pre-pared the form of the grant to the said AndrewHamilton, esq. of the Freedom of the city ofNew York, in these words, (to wit.)

"City of New York, ss.

"Paul Richards, esq. the Recorder, Alder-men , and Assistants of the city of New York, con-vened in Common Council, to all to whom thesepresents shall come greeting. Whereas honouris the just reward of virtue, and public benefitsdemand a public acknowledgment: We there-fore, under a grateful sense of the remarkableservice done to the inhabitants of this city andcolony by Andrew Hamilton, esq. of Pennsyl-vania, barrister at law, by his learned andgenerous defence of the rights of mankind, andthe liberty of the press, in the case of JohnPeter Zenger, lately tried on an informationexhibited in the supreme court of this colony,do, by these presents, bear to the said AndrewHamilton, esq. the public thanks of the free-men of this Corporation for that signal service,which he cheerfully undertook under greatindisposition of body, and generously performed,refusing any fee or reward : and in testimonyof our great esteem for his person, and sense ofhis merit, do hereby present him with theFreedom of this Corporation. These are there-fore to certify and declare, that the said An-drew Hamilton, esq. is hereby admitted, re-ceived, and allowed a freeman and citizen ofthe said city: to have, hold, enjoy, and partakeof all the benefits, liberties, privileges, freedomsand immunities whatsoever, granted or belong-ing to a freeman and citizen of the same city.In testimony whereof, the Common Councilof the said city, in Common Council as-sembled, have caused the seal of the said cityto be hereunto affixed, this 29th day of Sep-tember, A. D. 1735. By order of the Com-mon Council.

WILLIAM SHARPAS, Clerk.

"And we do further report, that sundry ofthe members of this corporation, and gentlemenof this city, have voluntarily contributed suffi-cient for a gold-box of five ounces and a half,for inclosing the seal of the said freedom; uponthe lid of which, we are of opinion, should beengraved the arms of the city of New-York.Witness our hands this 29th day of Sept. 1735.

STEPHEN BAYARD.SIMON JOHNSON.CHRISTOPHER FELL."

Which Report is approved by this Court, andordered, That the Freedom and Box be forthwithmade, pursuant to the said Report; and thatMr. Sbarpas, the common clerk of this city, doaffix the seal of the same Freedom, and incloseit in the said Box.

Mr. Alderman Bayard going to Philadelphia,and offering to be the bearer, of the said Free-dom to Mr. Hamilton; Ordered, That Mr.Sharpas deliver it to Alderman Bayard for thatpurpose; and that Alderman Bayard do deliverit to Mr. Hamilton, with assurances of thegreat esteem that this corporation have for hisperson and merit.


At a Common Council, held at the City hall ofthe said city, on Wednesday the 15th dayof October, A. D. 1735. — PRESENT, PaulRichards, esq. Mayor; Daniel Horse-manden, esq. Recorder. — Aldermen, JohnWalter, esq. Simon Johnson, esq. WilliamRoome, esq. Johannes Burger, esq. — As-sistants, Mr. Johannes Waldron, Mr.Abraham De Peyster, Mr. Gerardus Beek-man, Mr. Peter Stoutenburgh, Mr. HenryBogert.

Ordered, That the Freedom granted by thisCorporation to Andrew Hamilton, esq. withthe Report of the Committee for preparing adraught of the same, and the order of this courtthereon, may be printed. WM. SHARPAS.

Round on the lid of the box, mentioned in theabovesaid Report and Order, there are engravednot only the arms of the city of New York,but also this motto in a garter; "DemersæLeges — timefacta Libertas — hæc tandem emer-gunt."

On the inner side of the lid of the box, shew-ing itself at the same time with the certificateof the freedom, there are engraven, in a flyinggarter, these words; "Non nummis, Virtuteparatur."

As an incentive to public virtue, on the frontof the rim of the said box, there is engraven apart of Tully's wish; "Ita cuique eveniat, utde republica meruit.", Which Freedom and Box were presented inthe manner that had been directed, and gratefullyaccepted by the said Andrew Hamilton, esq.*

* In the celebrated Tract, intitled, "A Letterconcerning Libels, Warrants, Seizure of Pa-

REMARKS

ON THE TRIAL OF JOHN PETER ZEN-GER, PRINTER OF THE NEW YORKWEEKLY JOURNAL, WHO WASLATELY TRIED AND ACQUITTED, FORPRINTING AND PUBLISHING TWO LI-BELS AGAINST THE GOVERNMENT OFTHAT PROVINCE.†

Sir; It has been a common remark amongthose who have observed upon the capriciousdispensation's of fortune, that great events are

pers, &c. by The Father of Candour;" whichhas been ascribed to Lord Chancellor Camden,and also to Lord Ashburton, it is noticed that thePreface to Zenger's Trial contains many thingsvery well worth reading.

† "These Remarks were written by twoeminent lawyers in one of our colonies inAmerica, immediately after the publication ofthe Trial of Mr. Zenger, which it seems hadbeen industriously spread over that part of theworld, before it reached England.

"As the doctrines contained in that trial, orrather in the speech of Mr. Hamilton, are ofso new a cast, and so absolutely contradictoryto all the resolutions and judgments that havebeen settled and established for so many ages,and by judges of the highest reputation, andmost unquestionable characters, for their in-tegrity, virtues and abilities, it could not beimagined so wild and idle an harangue couldhave had any weight, or have met with anyreception here, where the laws relating to libelshave been so often canvassed, and are generallyso well understood; and therefore the personto .whom these Remarks were sent, neverthought of making any other use of them thanto satisfy his own curiosity, and that of hisfriends.

"But seeing, to his great surprize, that thisextraordinary declamation has been mentionedwith an air of applause and triumph in severalnews-papers, as striking out some new lightswith regard to the doctrine of libels; and, uponthe credit of that recommendation, the wholeTrial not only twice printed here, but retailedout in scraps in the public news-papers, wherebymany well meaning people may be deceived,and led into wrong notions concerning thelaws of their country in this point: He hasthought fit to communicate these Remarks tothe public, in order to remove any mistakes orerrors that persons may fall into for want ofan adequate judgment in these matters; andthe rather, because if such false opinionsshould happen to influence the conduct orpractice of any, the consequences may be verydangerous; it being an established maxim inour law, that neither ignorance nor mistake isan excuse to any one who has broke it, fromthe penalty of it." Preface to the Remarks,

often produced by instruments that are notseemingly adequate; nay, that the same ap-parent causes have quite contrary effects; andthe road that leads one man to wealth, honour,and power, sometimes carries another to po-verty, infamy, and ruin. Hence comes thatconfused distribution of axes and coronets,halters and ribbons, which history displays bynumerous shocking examples; and thus it is,that fate seems to play at cross-purposes withmankind; or to speak in Scripture-phrase, inthis sense as well as many others, "the wisdomof this world is foolishness."

I find myself drawn into these grave reflec-tions, by reading the Trial of John PeterZenger, at New-York, upon an information forprinting and publishing a libel. This piece,it seems, has been lately printed there, and wasput into my hand the other day by a friend,who has both a general acquaintance and acorrespondence with the northern colonies, asa rare production, containing many things newand surprising. And, in truth, I must say itaffords a lively specimen, in miniature, of thejustness of the foregoing remarks: I mean thatpart of it which is attributed to AndrewHamilton, esq. of Philadelphia, barrister atlaw; together with the sequel, describing themunificent behaviour of the citizens, in com-mon council assembled, to the learned gen-tleman, for his singular performance on thatoccasion.

I must at the same time assure you, that ifZenger's trial had been printed by order of theCourt that tried him, or from a copy taken bya private hand at the trial, or by any othermeans that excluded Mr. Hamilton's approba-tion or privity, I should have enjoyed my ownopinion without troubling you or any body elseabout it, and had the charity to resolve all theextravagancies that occur throughout his de-clamation, into a right discernment of thepeople he talked to, and a dexterity in capti-vating them, which had its effect in the ac-quittal of his client. But when a gentlemanof the bar takes the pains to write over a longdiscourse (he being the only lawyer, of eitherside, who gave the printer his notes), in orderto send it abroad through the world, as a speci-men of his abilities, sentiments and principles;as a solemn argument in the law, fit to see thelight, and abide the test in all places; and,above all, as a task of duty, which he thoughthimself bound to perform, even by going tothe utmost parts of the land for the purpose;and all this, without fee or reward, under theweight of many years, and great infirmities ofbody : When a barrister, I say, thus becomesa volunteer for error, and presumes to obtrudebad law and false reasoning upon the sense ofmankind, because the sage magistrates ofNew-York have put their seal to it; I thinkmyself at liberty, without using any otherapology, to exercise the judging privilege of areader, since the gentleman himself has putme into the possession of it.

In doing this, I shall not in the least gratify

a vain itch of writing; for there are no extra-ordinary talents necessary for refuting grossabsurdities; but I shall have the honest meritof endeavouring to undeceive such of my fellow-subjects in the plantations as may, from thelate uncommon success of the doctrine, mistakethe liberty of the press for a licence to writeand publish infamous things of their superiors,and of all others, at their pleasure, providedthey write and publish nothing but what istrue. In the next place, I would preserve, asfar as I am able, the dignity of the profession ofthe law in these remote parts of the British do-minions; and prevent its learned professors inEngland, who probably wilt see the renownedpiece above mentioned (if we may judge fromthe industry used in dispersing it), from sus-pecting that all their American brethren usethe like arts 1o gain popularity and honourablerewards. The former, having the advantageof going daily to the great school of law atWestminster, are already apt enough to thinkmeanly of the accomplishments of the latter,who are far removed from instruction; andtheir opinion must be strongly confirmed in thisrespect, if such a rhapsody, as was uttered atNew-York, should not only be applauded andrewarded publicly there, but printed and scat-tered in reams through the other colonies, with-out being followed by a suitable animadversion.

Neither will it be amiss to take some notice,in this place, of the quackery of the professionin general, without any particular application,as it has been practised with vast success insome of our colonies. You will often see (ifcommon fame may be trusted) a self-sufficiententerprising lawyer, compounded of somethingbetween a politician and a broker, who, makingthe foibles of the inhabitants his capital study,and withal taking advantage of the weaknessof his judges, the ignorance of some of hisbrethren, the modesty of others, and the honestscruples of a third sort (without having any ofhis own), becomes insensibly an oracle in thecourts, and acquires by degrees a kind of do-minion over the minds, as well as the estates ofthe people; an influence never to be obtainedbut by the help of qualities very different fromlearning and integrity. Whenever such a manis found, the wonder is not great, if, from along habit of advancing what he pleases, andhaving it received for law, he comes in time tofancy that what he pleases to advance is reallylaw.

I have taken the pains, during this short va-cation between our monthly courts, candidly toexamine this new system of libels, lately com-posed and propagated on the continent; thediscovery of which cost the good city of New-York five ounces and a half of gold, a scrip ofparchment, and three Latin sentences. My in-tention is to consider things, not persons,having no other knowledge of the gentlemanprincipally concerned, than what is derivedfrom the paper now before me; and beingwholly a stranger to the merit of those disputesthat gave rise to the prosecution of this printer.

Much less shall I turn advocate for anylawless power in governors; God forbid I shouldbe guilty of such a prostitution, who know byexperience of what stuff they are commonlymade: the wrong impressions they are apt toreceive of themselves and others; their pas-sions, prejudices, and pursuits; though whenall reasonable allowances are made for certaincircumstances that attend their mission fromhome, and their situation abroad, a considerateperson may be tempted to think — it is well theyare no worse than they are.

But to come to my remarks on Mr. Zenger'strial.

In considering the Defence made for the de-fendant (Mr. Zenger) by his counsel (Mr. Ha-milton), upon Not Guilty pleaded to an in-formation for printing and publishing a libel,it is not to the purpose to inquire how far thematters charged in the information are in theirnature libellous; nor whether the innuendoesare properly used, to apply the matters to per-sons, things and places. It is only necessaryto examine the truth of this single proposition,upon which the whole Defence is grounded,and to which the several parts of it refer;namely, That the several matters charged inthe information are not, and cannot be libellous,because they are true in fact.

This is the cardinal point upon which thelearned gentleman's whole argument turns,and which he lays down, over and over,as the first principle that governs the doc-trine of libels; and accordingly he confessesthe printing and publishing of the paperslaid in the information, and puts it upon theking's counsel to prove the facts contained inthem to be false; alleging, at the same time,that, unless that were done, the defendantcould not be guilty; but if the same wereproved to be false, he would own the paperscontaining them to be libels. To this, it seemsthe Attorney General answered, that a nega-tive is not to be proved; and the other repliedin these words, which I choose to set down,that I may not be thought to do him wrong —"I did expect to hear that a negative cannot beproved; but every body knows, there aremany exceptions to that general rule: For if aman is charged with killing another, or steal-ing his neighbour's horse; if he is innocentin the one case, he may prove the man said tobe killed to be still alive; and the horse said tobe stolen never to have been out of bis master'sstable, &c. and this, I think, is proving a ne-gative." Now, I must think, that it is strange agentleman of his sagacity, who owns he wasprepared for the objection, could not yet hitupon some of these many exceptions whichevery body knows; for he does no more thangive two instances of one affirmative being de-stroyed by another, that infers a negative of thefirst; at which rate most negatives may beproved, and then the old rule may be discard-ed. Thus, if it is shewn that a man is alive,it follows clearly that he was not killed; andif a horse is proved to have been always in

his master's stable (for this is what must beunderstood of his being never out of the stable),it certainly follows that he could not be stolen.So that, according to this new scheme of proof,he who is accused of killing a man, or stealingan horse, is to be put upon proving that hedid not kill or steal, because it is possible thatsuch proof may be had sometimes : And so,in the principal case, if a question arises whe-ther a certain magistrate has done particular

acts of injustice or not, the method is to shewthat he did not do such acts, not that he didthem. I have touched upon this, not for itsimportance, but as a specimen of the learnedbarrister's manner of reasoning, and of thespirit with which he sets out from the begining.

At length however he takes the onus pro-bandi upon himself; and rather than the thingshould go unproved, generously undertakes,at his client's peril, to prove the matters, chargedin the information as libellous, to be true. ButI would be glad to know, by the way, how thisundertaking gentleman could have proved thetruth of divers facts contained in the paper whichthe defendant published, supposing the Courthad been so much overseen as to let him into aproof of this sort. Could he prove for exam-ple, that judges were arbitrarily displaced,and new courts erected, in the province ofNew York, without consent of the legislature?For, I am credibly informed, there never was apretence or surmise of more than one judgebeing displaced, or more than one court erected,under Mr. Cosby's administration, both whichhappened upon one and the same occasion.Now I would not have this esteemed a captiousexception, when I have to deal with a man oflaw, who must or ought to know, that, if sucha justification as he offered were at all allow-able, it ought to be full and express, so as toleave no room for a libeller to multiply and ex-aggerate facts at his pleasure, when he is dis-posed to traduce persons in authority; therebeing a manifest difference between a singleact of power without or against law (fromwhich perhaps few governments have beenfree), and an habitual abuse of power in re-peated instances of the same species. I wouldfurther ask, how he could prove, that the lawitself was at an end, and that trials by jurieswere taken away when a governor pleased;for, if I mistake not, he was at that time speak-ing to a jury in a regular court of law, and in aprosecution which the governor had much atheart (as the gentleman himself insinuates),and would have been highly pleased to con-vict his client; yet would not attempt it, butin the ordinary course of trial by a jury; andthen too, could not find a jury that would con-vict him. I think I am warranted in puttingthese questions, even by the authority of thebarrister himself, who says, "Truth ought togovern the whole affair of libels, and yet theparty accused runs risk enough even then; forif he fails of proving every tittle he has wrote,and to the satisfaction of the court and jurytoo, he may find to his cost," &c.

But for the present, I will suppose Mr.Hamilton was able to prove all these things;nay, that the jury knew them all to be true. Iwill go further, and allow, that juries in cri-minal cases may determine both law and fact,when they are complicated, if they will takesuch a decision upon their consciences (whichis almost the only point in which I can have thehonour of agreeing with him); yet, after allthese concessions, the main question rests stillbetween us, viz. Whether a writing can be alibel, in legal acceptation, if the matter con-tained in it be true? He is pleased, indeed, toexpress his dislike of infamous papers, evenwhen they are true, if levelled against privatevices and faults; and in this case he calls thembase, unworthy, scandalous, unmanly and un-mannerly. But surely it might be expected,when a point of law was in question, that hewould have told us, whether they were lawfulor unlawful, innocent, or criminal, since theselast are the only epithets that were relative tohis subject, though the first might have theirweight in a sermon or moral essay. But, it isplain, he was aware of the consequence of be-ing explicit upon this head; for had he ownedsuch writings to be lawful, because true, hewould have alarmed the common sense of man-kind, by opening a door for exposing at mercythe frailties, vices, defects and misfortunes ofevery person, high and low, which must ine-vitably destroy the peace of families, and be-get ill blood and disorders. If, on the otherhand be had acknowledged such writings to beunlawful, inasmuch as they concerned privatemiscarriages and transactions; hut that everyman might write as much truth as be pleasedabout the administration of the government,not only by pointing out faults and mistakes,but by publishing bis own comment and in-ferences, in order to fill the minds of the peoplewith all the jealousies and apprehensions hisimagination can form; it must have shockedmen of understanding to be thus told, that thelaw bad provided against private quarrels andbreaches of the peace, occasioned by virulentwriting; but had taken no care to prevent se-dition and public disturbance arising from thesame cause.

His favourite position, however, was to bemaintained at all events; and therefore, whenthe Chief-justice rightly instructed him, that hecould not be admitted to give the truth of alibel in evidence, that the law was clear that hecould not justify a libel; for it is nevertheless alibel, though it is true; the discerning gentle-man was pleased to understand by the wordjustify, a justification by plea, as it is in the caseof an indictment for murder, or an assault andbattery: there (says he) the prisoner cannotjustify, but plead Not Guilty; yet in murder,he may prove it was in defence of his life, hishouse, &c. and in assault and battery, he may

f ive in evidence, that the other party struckfirst; and in both these cases he will be ac-

quitted.If the party in either case is acquitted, the

reason is, I presume, because the matter givenin evidence amounts to a justification in law ofthe fact charged on him, and is equivalent to aconfession and avoidance in pleading. In likemanner, if truth be a sufficient justification ofa libel, the defendant will be acquitted uponproving the contents of his paper to be true.Now let it be observed, that the words of thebook which the chief-justice relied on arethese: — — It is far from being a justification ofa libel, that the contents thereof are true —since the greater appearance there is of truthin any malicious invective, so much the moreprovoking it is. That this is good law, I hopeI shall be able to shew fully hereafter, as Ishall shew, in the mean time, that it is an ex-press authority against the well-read barrister,who declares, he has not in all his reading metwith an authority that says, he cannot be ad-mitted to give the truth in evidence, &c.

He seems to take it for granted (and I shallnot dispute it with him now) that matter ofjustification cannot, in any case, be pleadedspecially to an indictment of assault or murder;but the party is to take advantage of it in evi-dence upon Not Guilty pleaded. Let it be so;yet still this matter must be a sufficient justifi-cation, or the party can have no benefit from itany way. In an action of assault and battery,where the first assault must be pleaded spe-cially; the matter of justification is just thesame, as in an indictment for the same offence,where it must be given in evidence upon thegeneral issue. I ask then, Whether the firstassault is a justification in an indictment ofassault and battery? If the barrister shouldanswer negatively, such answer is against allsense, for the party is acquitted by virtue ofthe justification only. If he should answer af-firmatively, he is inconsistent with himself;for he has but just affirmed that when the booksays, truth is no justification, it must be un-derstood of a justification by plea, by which hemust mean that nothing else is a justificationbut what is pleaded, or he must mean nothingat all. For the words of the book are — it isfar from being a justification, &c. it is not said,— you are far from being at liberty to plead itin bar. In truth, the author is not there speak-ing of the forms and rules of proceedings uponlibels, (1 Hawk. chap. 73, § 5, 6, 7,) but uponthe substance and nature of the crime, whatshall and what shall not excuse or justify it.This is manifest from the reason subjoined tosupport his assertion, viz. Since the greater ap-pearance there is of truth, &c. which is a solidreason grounded on the wisdom of the law,which punishes libels even against private per-sons, as public offences, because they provokemen to acts of revenge and breaches of thepeace. I hope it will not be said that a libel isless provoking, because the truth of it is to begiven in evidence, than if it was to be pleadedin bar.

But all this is Star-chamber doctrine withthe barrister, and the very mention of thatcourt serves him for an answer to every thing,

for which he has no other answer; because thememory of that tribunal is justly detested onaccount of many illegal and exorbitant pro-ceedings. No; this is the authority of Mr.serjeant Hawkins (though he uses marginalreferences to some Star-chamber cases), whosename is too great to receive any addition fromthis paper, and who, after a long and studioussearch in the crown-law, laid down this propo-sition for law at the time he wrote his book;and I believe it will appear in the sequel thathe was not mistaken. And now I come to joinissue with the barrister upon this point, whe-ther Mr. Serjeant or he is in the right; or, inother words, whether falsity in fact be essen-tial to a libel, so that the truth of the fact maybe given in evidence to prove a writing to be nolibel.

He maintains the affirmative of the question,both from what he understands to be the au-thorities in the case, and from the reason ofthe thing. All which shall be considered intheir older.

The authorities cited by Mr. Hamilton tosupport the proposition formerly stated, consistprincipally of four cases, which I shall considerin the order as they were produced.

The first is the case of John de Northamp-ton, 18 Edw. 3, 3 Inst. 174, which he ob-serves does not appear to have been a case uponan information, but that he has good groundsto say it was upon an indictment. This iswhat I shall not contest with him, because it isnot material, or indeed easy to be determined,without seeing the record; though I conceivethere are grounds to say it was not upon an in-dictment, as was the case of Adam de Ravens-worth, mentioned by lord Coke in the samechapter. The case, however, stands thus:'John de Northampton, an attorney of the

King's-bench, wrote a letter to one Ferrers,one of the king's council, that neither sir Wil-

liam Scot, a chief justice, nor his fellows theking's justices, nor their clerks, any greatthing would do by the commandment of ourlord the king, &c. which said John beingcalled, confessed the letter, &c. Et quiaprædictus Johannes cognovit dictam lite-ram per se scriptam Roberto de Ferrers,qui est de concilio Regis, quæ litera continetin se nullam veritatem: Prætextu cujus Dom.Rex erga Curiam et Justiciarios suos habereposset indignationem, quod esset in scanda-lum Justic. et Curiæ. Ideo dictus Johannescommittitur, &c.' Here says the barrister,

by this judgment it appears the libellous wordswere utterly false, and there the falsehood wasthe crime, and is the ground of the judgment.For my own part, I can neither see truth norfalsehood in the words at the time they werewrote, for they refer to a future contingencythat might, or might not be as he said; and inthis respect, they were the same as if the manhad said, the roof of Westminster-hall wouldfall upon sir William Scot and his fellows. Be-sides, the words taken by themselves have noill meaning; for I imagine it will be allowed

that most of the great things which judges doas judges, are such as ought neither to be done,nor left undone by the king's commandment.Where then was the offence? The record, Ithink, shews that in the following words:"prætextu cujus Dom.Rex erga Curiam et Jus-

tic. suos habere posset indignationem." &c."Ideo dictus Johannes committitur," &c. Itis observable, that the author of this letter wasan attorney of the Court, and by the contentsthereof he presumes to undertake for the beha-viour of the judges in some great matters thatconcerned their office. The letter was ad-dressed to a person who was of the king'scouncil, and might possibly communicate thecontents of such a letter to the king; the con-sequence of which might naturally be, that"Dom. Rev habere posset indignationem erga

Curiam," &c. for great things were some-times done, in those days, by the king's com-mandment; and the judges, besides, held theirposts at will and pleasure.

The words "quæ litera centinel in se nullamveritatem," were therefore proper for thejudges to insert, in order to acquit themselvesto the king; but they are no more the groundof the judgment than these other words, "quiest de Concilio Regis;" both being only inci-dental clauses that come in by way of descrip-tion; for it is not said, "Quia litera prædictacontinet in se nullam veritatem." After all, Iwould not have this construction of the case,plain and natural as it is, pass merely upon myown credit; for I shall shew that this casewas so understood by one of the greatest law-yers of his time, before lord Coke's 3d Inst.appealed in the world.

21 Jac. B. R. Tanfield v. Hiron. Godbolt405, 6.

The plaintiff brought an action upon thecase against the defendant, for delivering of ascandalous writing to the prince, &c. Noy forthe plaintiff cited, 18 Ed. 3, a letter was sentto Ferrers one of the king's council, the effectof which was, that Scot chief-justice, and hiscompanions of the same bench, would not do avain thing at the command of the king; yetbecause he sent such a letter to the king'scouncil, although he spake no ill, yet because itmight incense the king against the judges, hewas punished. If no ill was said, will it bepretended that the falshood of what was saidcould be a reason for punishing a man? Is itnot ridiculous to say, that the falshood of inno-cent or insignificant words can be criminal?This book, therefore, follows the record ofNorthampton's case, and says, because it mightincense the king against the judges, he waspunished; which is almost a translation of'prætextu cujus,' &c. which Was the ground ofthe judgment, "Ideo committitur.'

The next case which the barrister called tohis aid, is that of the Seven Bishops.* Andhere he relies on a flourish of one of the counselfor the bishops, and a dubious expression of

* See it in this Collection, vol. 12, p. 183.

one of the judges, separated from the rest ofbis discourse.

Sir Robert Sawyer, it is true, says, "Boththe falsity of it (the libel) and that it was mali-cious and seditious, ate all matters of fact,which they (the king's counsel) have offered tothe jury no proof of," &c. This, I must con-fess, proves one point to which the barristeradduced it, viz. that he was not the first whoinsisted that to make a writing a libel, it mustbe false. And when I have allowed this, Imay almost venture to say, it is the only pointhe does prove from the beginning to the endingof his long elaborate speech. — Let me, however,oppose to this the reply of sir Thomas Powls,in these words: "Whether a libel be true ornot, as to the matter of fact; was it ever yetpermitted in any court of justice to be made aquestion, whether the party be punishable forit? And therefore J wonder to hear these gen-tlemen say, that because it is not a false one,therefore it is not a libel." Fol. 382.

Mr. Justice Powel also does say, that tomake it a libel, it must be false; it must bemalicious; and it must tend to sedition. Uponwhich words of this learned and worthy judge,I would not presume to offer any comment ex-cept that which other words of his own afford,that plainly shew in what sense he then spoke.His subsequent words are these : "They," thebishops "tell his majesty, it is not out ofaverseness to pay all due obedience; nor wantof tenderness to their dissenting fellow-sub-jects, but because they do conceive the thingthat was commanded them, was against theJaw of the land. They say, they apprehendthe Declaration is illegal, because it is foundedon a dispensing power. I do not remember inany case in all our law, that there is any suchpower in the king; and the case must turnupon that. In short, if there be no such dispen-sing power in the king, then that can be nolibel which they presented to the king, whichsays that the Declaration being founded uponsuch a pretended power, is illegal." So thatthe judge put the whole upon that single point,whether it be true that the king had such adispensing power, or not; which is a questionof law, and not of fact; and accordingly thejudge appeals to his own reading in the law,not to witnesses or other testimony, for a deci-sion of it. In truth, the Petition of the Bishopsis not capable of having falshood or truth ap-plied to it in any other sense, there being no-thing else affirmed or denied in it, but that theythought they could not do what was com-manded them, because it was against the law.This was the behaviour, these were the senti-ments of that upright judge, that gained him somuch honour among all good men, as the bar-rister takes notice; not any opinion of his,that the contents of a libel must be false infact, to make it a libel; as he would unfairlyinsinuate.

Sir Samuel Barnardiston's case is the thirdthat is touched upon; and here too the gentle-man finds nothing that can be strained to his

purpose, but the defendant's counsel insistingon the want of proof to the malice and sedi-tious intent of the author. He seems to haveforgot that the same gentleman insisted also tohave it proved, that the defendant was a personof a turbulent and unquiet spirit, because thesewords were set forth in the information; andhe takes no manner of notice how all this wasanswered, which I must now do for him, in thewords of the Court: "Certainly the law sup-plies the proof, if the thing itself speaks maliceand sedition. As it is in murder; we say al-ways in the indictment, he did it by the insti-gation of the devil: can the jury, if they findthe fact, find he did it not by such instigation?No, that does necessarily attend the very na-ture of such an action or thing. So in infor-mations for offences of this nature, we say, hedid it falsely, maliciously, and seditiously,which are the formal words; but if the natureof the thing be such as necessarily imports ma-lice, reproach and scandal to the government,there needs no proof but of the fact done; thelaw supplies the rest." How shall any manprove another person's malice, which is athing that lies only in a man's mind? Howshould any man know that I am maliciousagainst the government, but by my actions?These words, indeed, were pronounced by thechief justice Jefferies, who was then the mouthof the Court; but though he was really an in-temperate judge, (or a monster, as the barrister,in his bar-language, delights to call him) yet Imay safely refer it to all men of law, whetherthese words could have discredited the bestmouth that ever spoke upon that bench.

An instance of this sort may not be imperti-nent, where a chief justice (who was no mon-ster) addresses himself to a jury, that was tryinga libel in this manner: "I will not repeat theparticulars to you, only something to what thedefendant has said, that you may not be misled.He says, it does not appear that, he did it mali-ciously or knowingly. There are some thingsthat you that are of the jury are not to expectevidence for, which it is impossible to knowbut by the act itself. Malice is conceived inthe heart; no man knows it, unless he declaresit: as in murder, I have malice to a man; noman knows it. I meet this man and kill him;the law calls this malice. If a man speakscandalous words against a man in his callingor trade, he lays his action, malice; though hecannot prove it but by the words themselves;yon may see, there is malice supposed to aprivate person in that slander, much more tothe king and the slate."

Tutchin's case, the barrister does not proper-ly cite, but endeavours to answer as a caseurged against him by the king's counsel; andtherefore I shall observe upon it in anotherplace.

But the case of cases is still behind, whichhe reserved for the last, to make the point cleareron his side, than all the rest put together coulddo. It is Fuller's case. And it deserves no-tice, that although Fuller was charged with writ-

ing a libel, yet that was not the gist of the in-formation. He was, in t ruth, prosecuted forbeing a cheat and impostor, by order of theHouse of Lords, as the king's counsel declarein the opening.

The information accordingly sets forth,"That W. F. intending the late king Williamand his subjects to deceive, and to get severalgreat sums of money fraudulently and deceit-fully from the said king, concerning a corres-pondency between divers officers and subjectsof the said late king, and the late king James,falsely pretended to be had; did write and printa libel, intituled, Original Letters, &c. with thedeposition of T. J. and T. F. esqrs. proving thecorruption lately practised in this nation; andthe said W. F. afterwards did publish, utter,and for truth affirm, the said several false andscandalous libels, without any lawful authority;whereas in truth, the said T. J. did not depose,upon his oath, as is contained in the said falseand scandalous libel; but the said scandalouslibels are false, feigned, and altogether contraryto truth, &c." Here it is manifest he was ac-cused of a cheat, in forging the correspondenceand the depositions just mentioned, with a de-sign of getting money by his pretended disco-very. And hence it comes, that the judge veryproperly asks him, "Have you any witnesses?If you take upon you to write such things asyou are charged with, it lies upon you to provethem true, at your peril. How came you towrite these books that are not true? If youhave any witnesses, produce them." Thus saidand thus did that great man, lord chief justiceHolt; hut not upon a trial of the like kind withMr. Zenger's, as his counsel would have itthought. For, in this case, the cheat and theimposture was the offence, which consistedwholly in the falsity; that is, in affirming suchthings for realities, when they were noughtbut fictions. On the contrary, had he beenable to prove those letters and those depositionsto be authentic, the discovery would have beenvaluable, and might intitle him perhaps to fa-vour and protection, instead of punishment,however irregular he was in taking such a me-thod to publish matters of that high conse-quence. After this, let the learned barrister,in all his reading, shew an information or in-dictment for a libel, where the falsity is assign-ed in form with an ubi re vera, as the founda-tion of the offence, which is done in Fuller'scase; and then I will acknowledge, that thequestions put here by lord Holt would havebeen proper, upon the trial of his client.

This is the sum of the barrister's law-cases.And is it not high time to ask, whether suchgross misrepresentations of the books can proceedfrom ignorance or disingenuity? Be that as itwill, it might certainly be expected, that a pro-position, advanced with so much assurance, bya man of years and reading, should have beensupported by some one authority in point, ra-ther than by a series of low prevarication andquibble. Could he not find, in all the book-cases and trials at large, concerning libels

(which are sufficient of themselves to make alarge volume,) one example of proof being re-ceived to the truth or falsity contained in alibellous writing? Indeed, there is nothinglike it to be found; though the occasions havebeen many, where such proof might be had, ifit were proper; nay, where the truth of thething was notorious to all men, and yet noquestion ever moved concerning it. This shallfully appear in the sequel.

If any thing can be necessary further to ex-pose Mr. Hamilton's doctrine of libels, afteranswering his own cases, it is only to subjoinsome others, that will shew how much he ismistaken in almost every thing he has offeredon the subject. I shall therefore mention avery few, that will bear a particular applicationto his crude notions, without entering into amult i tude of others, to tire the reader.

16 Car. 2, the King v. Pym, 1 Sid. 219,B. R.

Pym was indicted at Exeter for a libel, whichhe delivered to a parson to be published inchurch there, and was to this effect: "Youare desired to bewail the sodomitry, wicked-ness, whoredom, lewdness, that is of late brokenout in this formerly well-governed city; thatGod would turn their hearts from committingthose wickednesses which go unpunished bythe magistrates." Pym confessed the indict-ment, and was fined 100l. He afterwardsbrought a Writ of Error, and assigned forerror, that this was no offence, because thoughhe says, go unpunished by the magistrates;yet be does not say that the magistrates knewof it, and wickedness unknown cannot be pu-nished. It was answered by the Court, thatthis contains matter of great scandal to the go-vernment of the city; for it makes the lategovernment better than the present, &c. Hide,Twisden, Keelyng, Windham, Just.

I have pitched upon this case, because thebarrister is fond of comparing the plantationsto large corporations; and he will find here,that even those are not left to the mercy oflibellers, although they do not put in a claim tothe sacred rights of majesty : and that a mis-behaviour of this kind to the magistrates of acorporation is not entirely innocent, because itis not to be judged of, or punished, as a likeundutifulness would be to our sovereign.

This case was adjudged about four yearsafter the Restoration, when the memory of thepreceding usurpation was fresh in every body'smind. It is strange, therefore, Mr. Pym didnot put himself on his trial at Exeter; for itwas evident, beyond contradiction, to the peopleof that age from their own knowledge, as it isnow to us from history, that the wickednessspecified in the libel was restrained by a stricterhand before, than after the Restoration. Butthis notorious truth, it seems, did not avail Mr.Pym.

22 Car. 2, the King v. Saunders. Raym.201. B. R.

Information for writing a scandalous libel toH. Rich, who was indebted to him, and kept

him out of his money three years by obtaininga protection, and at length getting into the pri-son of the King's-bench. Saunders wrote hima letter, wherein he tells him, That if he hadany honesty, civility, sobriety, or humanity, hewould not deal so by h im; and that he wouldthe day be damned, and be in hell for hischeating; and cited several places of Scriptureto make good his allegations. The defendantwas found guilty, and moved in arrest of judg-ment, that the substance of the letter is notscandalous, but impertinent and insignificant,&c. Cur. The letter is provocative, and tendsto the incensing Mr. Rich to break the peace.The Court adjudged the letter scandalous, andfined him 40 marks. Keelyng, Twisden,Rainsford, Moreton, Just.

I would intreat the clear-sighted barrister tolook carefully into the words of this libel, andtry if he can discover any truth or falshood inthem that was capable of proof. And I mustremark upon both these cases, that thoughthey were adjudged in the reign of kingCharles 2, yet neither of them was upon astate prosecution, or at a time when the spiritof plots and factions had infected the courtsof justice; but they remain unquestionableauthorities at this day.

The case of Tutchin is strong against h i m ;a case adjudged since the Revolution, beforethat learned and upright judge sir John Holt,and plainly shew the fallacy that runsthroughout his whole argument.

The points insisted on by this chief justice,in his charge to the jury, were these: "Tosay that corrupt officers are appointed to ad-minister affairs, is certainly a reflection on thegovernment. If people should not he calledto an account for possessing the people withan ill opinion of the government, no govern-ment can subsist: Now you are to consider,whether these words I have read to you donot tend to beget an ill opinion of the admi-nistration of the government; to tell us, thatthose that are employed know nothing of thematter, and those that do know are not em-ployed. Men are not adapted to offices, butoffices to men, out of a particular regard totheir interest, and not to their fitness for theplaces. This is the purport of these papers."If this was the purport of the papers, and socriminal as hath been just said, it is amazingsurely, that Mr. Tutchin did not offer to provethe truth of these allegations, and therebytake out their sting! Could not he possiblyth ink of as many corrupt or incompetentofficers, ecclesiastical, civil, or military inEngland, preferred by interest rather thanmerit, as there were judges displaced andcourts erected in New-York? Or if he wasrestrained, by the hard-hearted judge, fromdisporting himself in this pleasant and spaciousfield, could he not apply to the private know-ledge which the jurors (as well as the rest ofmankind) had of these matters? For I ima-gine it will be allowed, that if no instances ofthis sort could be shown at the time of

Tutchin's trial, it was the only period withinthe memory of man, or the reach of history,that wanted the like.

But the misfortune was, the poor man wasnot blessed with such skilful counsel as is tobe had in Philadelphia, to think of these goodthings for h im; otherwise you might haveheard an alert advocate (after returning thanksto his lordship for nothing) address himself tothe jury in this or the like eloquent strain:"Then, gentlemen of the jury, it is to you wemust appeal for witnesses to the truth of thefacts we have offered, and are denied theliberty to prove: the law supposes you to besummoned out of the neighbourhood wherethe fact is alleged to be committed; and thereason of your being taken out of the neigh-bourhood is, because yon are supposed to havethe best knowledge of the fact that is to betried. And were you to find a verdict againstmy client, you must take upon you to say,the papers referred to in the information, andwhich are proved to be written and publishedby us, are false, scandalous, and seditious.You are citizens of London, honest and lawfulmen, and the facts which we offer to provewere not committed in a corner; they are no-toriously known to be true. And as we aredenied the liberty of giving evidence to provethe truth of what we have published, I willbeg leave to lay it down as a standing rule insuch cases, that the suppressing of evidenceought always to be taken for the strongest evi-dence; and I hope it will have that weightwith you. Lay your hands upon your hearts,gentlemen, and recollect: do none of youknow, nay, do not all of you know, certainpersons, who shall be nameless, that have beenlately promoted, by favour and interest, toplaces of trust and profit, both in church andstate, army and navy, whom you must knowand believe in your consciences, to be ill men,and no way qualified for such preferment; asmy sagacious client has most seasonably re-monstrated to the neighbours, by virtue of thatright which every free-born subject hath ofpublishing his complaints, when the mattersso published can be supported with truth?"But is lord Holt asleep all this time? Canany reasonable man, who has but common no-tions of judicature, imagine that this greatjudge would suffer such trash as this to bethrown out in any court where he sat in judg-ment? But what must he have said, if thelibeller before him had offered to prove, thatthe law itself was at an end; that trials byjuries were taken away when a ministerpleased; that no man could call any thinghis own, or enjoy any liberty, longer thanthose in the administration would condescendto let him do i t ? Would he have said, thatthese things did not tend to possess the peoplewith an ill opinion of the government; andthat governments might well subsist, thoughmen should not be called to an account forpunishing the l ike? Or would he have said,it was no matter what opinion the people had

of the government, nor whether it subsistedor not, provided these assertions were true;and so have discharged the man as a publisherof precious and useful truths, to put theneighbours on their guard?

But here also the barrister lays hold of arandom question, put by one of the king'scounsel to Mr. Montague, who was for thedefendant, and was then touching upon theaffairs of the navy: Saith the former, Willyou say they are true? Now the latter hadhinted as much as that these things were true;but did it with that caution which a man ofskill uses, when he would say something insupport of a lame cause, but don't care to pressan impropriety too far. For that learned gen-tleman was very sensible, that if he had pre-sumed to insist expressly on the truth of thematters contained in his client's papers, asevere reprimand was the best thing that couldhave befallen him. His words are these :"Nobody can say, that we never had any mis-managements in the royal navy; and when-ever that has happened; the merchants ofEngland, in all probability, have suffered forit." But does the judge, in his charge to thejury, vouchsafe to give this matter any answer,or so much as to mention it? Lord Holt didnot usually pass by material things, that wereoffered in defence of persons tried before him;yet, in this case, he makes no question OFscruple about the truth or falshood of Tutchin'spapers, although they contained many thingswhich his lordship, the jury, and all theworld knew to be ****. This candid judge,however, puts the merits of the whole uponthe scandal of the government, and the eviltendency of such writings. And therefore Imust once more call upon the northern barristerto shew a single instance, where witnesseshave been produced by counsel, and admittedby the Court to prove the truth of a libel.When he does this, it will deserve consi-deration; but till then, he may talk by thehour without any meaning.

I could mention some cases of a more mo-dern date, that have been adjudged in West-minster-hall, when this wild doctrine was notso much as thought of, and when it would nothave been altogether useless, had it been prac-ticable; but I have chose to mention suchonly as are reported, that the books may speakfor themselves, and judge between us.

But this lawyer seems to be above havinghis points of law decided by the authoritiesof the law; and has something in reserve,which may serve to overthrow not only whathas been offered in this paper, but even all thebooks of the law. This is what he calls thereason of the thing; but is truly and properlya sketch of his own politics; which leads meto shew, that the true reason of the thing hereagrees with the law, and consequently boththese are against this expert master of lawand reason.

The reason of the thing, as well as it canbe collected from a heap of particulars huddled

together without order and method, may bereduced to the three following heads:

1. The form of an information for a libel,and the necessity of knowing the truth orfalshood of its contents, in order to direct thejudges in awarding arbitrary punishrnent.

2. The right every man hath of publishinghis complaints, when the matters so publishedcan be supported with truth.

3. The necessity there is of using this right,in the plantations especially, by reason of thedifficulty of obtaining redress against evil go-vernors by any other means.

1. It will not be improper to premise, underthe first head, that a gentleman of the law,who takes upon him to pronounce so magiste-rially as the northern barrister has done con-cerning libels, ought to have considered wellthe nature and extent of his subject, it mightbe expected, that he is not unknowing in anypart of learning necessary to fix his idea of a li-bel; and yet the present case would appear tobe quite different. This learned gentlemanmight have informed himself, by reading someof the ancient laws before the Conquest, thatwhen the falsity of virulent writings andspeeches was taken into the description of thecrime, there was a specific penalty annexed,viz. Cutting out the offender's tongue, Lamb.Sax. Laws. But this severity seems to havefallen into disuse under the Norman kings; andaccordingly Bracton, who wrote in the reign ofHenry 3, gives a description of these offences,as they were understood in his days, whereinfalsity is neither expressed nor implied. Theseare his words : "Fit autem injuria, non solumcum quis pugno percussus fuerit, verberatus,vulneratus, vel fustibus cæsus; verum cum eiConvitium dictum fuerit, vel de eo factum Car-men famosum et hujusmodi," fol. 155. In-deed, here is no mention of libels against theking, or the state; the reason of which seemsplainly to be, that offences of this sort were con-sidered as a species of treason, not only in thatage, but in several ages after, notwithstandingthe statute 25 Ed. 3, and though they have byhappy degrees dwindled into misdemeanours,yet nobody, except the barrister, wil l say theyare come to have a greater indulgence from thelaw, than the like offences against private per-sons. How far, therefore, Bracton's accepta-tion of a libel has prevailed ever since, must besubmitted upon what has been offered in thepreceding part of the Remarks.

Here the barrister throws in a shrewd ques-tion, arising from the form of the information,which charges the libel to be false : This word'false,' says he, must have some meaning,else how came it there? I hope Mr. Attorneywill not say he put it there by chance; and, Iam of opinion, his information would not begood without it. By way of answer to this, Imust take leave to put a question or two in thesame strain. Suppose a man brings an actionof trespass for violating his wife, and he fairlysets forth the troth of the case, viz. That thedefendant, by amorous addresses, letters, pre-

sents, &c. did gain the consent of the plaintiff'swife, and at length debauched her: I wouldask, whether an action of trespass thus laid canbe supported? I fancy not; and yet this is amore just account of the matter, than when viet armis, viz. swords, staves, knives, &c. areintroduced as instruments of invading thistender part of our neighbour's property. Sup-pose further, a man kills another, whom henever saw or heard of before, and he is accusedof murdering him of malice fore-thought, howcome such words to be put into an indictmentfor a fact so circumstanced? They must havesome meaning; surely they are not put thereby chance; and, I am of opinion, the indict-ment would not be good without them? Why,there is this short answer to be given to allthese childish questions: there are many wordsused in pleadings of most kinds, sometimes foraggravations, sometimes for comprehension,often in compliance with ancient usage, whichare not traversable, and many times are incapa-ble of proof. The form of indictments and in-formations follows the nature of the fact, andsets it out in its worst dress; and if the fact ismade appear to he unlawful, all the hard namesare supplied by implication of law.

This is not all, quoth the counsellor: "It issaid, that truth makes a libel the more provok-ing: well, let us agree for once, that truth is agreater sin than falsehood; yet, as the offencesare not equal, and as the punishment is arbi-trary, is it not absolutely necessary that theyshould know whether the libel it. true or false,that they may by that means be able to propor-tion the punishment? For would it not be a sadcase, if the judges, for want of a due informa-tion, should chance to give as severe a judg-ment against a man for writing or publishing alie, as for writing or publishing a truth?" Nowis it not a sad case, that he should want to betold, that human laws don't strictly regard themoral pravity of actions, but their tendency tohurt the community, whose peace and safetyare their principal objects; so that by thisstandard only are punishments measured? Ifthis profound sophister is of another opinion,let him give a reason why it should be agreater crime in our law for a man to counter-feit a silver shilling, than to cut his father'sthroat.

2. The right of remonstrating or publishingjust complaints, the barrister thinks the rightof all freemen; and so think I, provided suchremonstrances and complaints are made in alawful way. But when he comes to explain,it is not a court of justice, it is not a house ofrepresentatives, it is not a legislature that is tohe troubled (as he phrases it) with these things.Who then, I pray, is to be troubled with them;for the king, it seems, is out of the question?Let the barrister speak for himself; They havea right, (says he) publicly to remonstrateagainst the abuses of power in the strongestterms, to put their neighbours upon their guard,&c. and in another place, he speaks of it as ahardship, if a man must be taken. up as a li-

beller, for telling his sufferings to his neighbour.Now, though I wish and hope, as earnestly ashe can do, that a free people may never wantthe means of uttering their just complaints, andof redressing their wrongs too, when theircomplaints are not beard; yet I always thoughtthese things were better understood than ex-pressed in a court of law; and I shall probablyremain in that opinion, till the learned gentle-man can produce something from the commonor statute law to shew, that a British subjecthas a right of appealing publicly to his neigh-bours (that is, to the collective body of the peo-ple) when he is injured in his person, rights orpossessions. When I am assured that he cando this, I promise him I shall not grudge avoyage to that country, where liberty is so wellunderstood, and so freely enjoyed, that I mayreceive the important discovery from bis owninstructive mouth.

I know the law-books assert the right ofcomplaining to the magistrates and courts ofjustice, to the parliament, to the king himself;but a right of complaining to the neighbours iswhat has not occurred to me. After all, Iwould not be thought to derogate, by any thingI have said, or shall say, from that noble privi-lege of a free people, the liberty of the press.I think it the bulwark of all other liberty, andthe surest defence against tyranny and oppres-sion. But still it is a two-edged weapon, capa-ble of cutting both ways, and is not therefore tobe trusted in the hands of every discontentedfool, or designing knave. Men of sense andaddress (who alone deserve public attention)will ever be able to convey proper ideas to thepeople, in a time of danger, without runningcounter to all order and decency, or crying fireand murder through the streets, if they chanceto awake from a frightful dream. But I mustagain urge, that these points are not fit to bediscussed in a court of justice, whose jurisdic-tion is circumscribed by positive and knownlaws. Besides, they take place properly in asovereign state, which has no superior on earth;and where an injured people can expect no re-lief, but from an appeal to heaven. This is farfrom being the case of colonies; and thereforeI come to shew, under the third head, that thebarrister's reason of the thing is no other thanreason inverted, which possibly may help theprojects of a demagogue in America, but cannever be reconciled to the sentiments of a law-yer, or the principles of a patriot, considered asa subject of Great Britain.

3. I have hitherto been taught to believe,that when a brave and free people have resort-ed to measures unauthorised by the ordinarycourse of the laws, such measures have beenjustified by the extraordinary necessity of thecase, which excluded all other means of re-dress: and, as far as I understand the consti-tution, and have heard accounts of the Britishcolonies, such a case cannot well happen, andhas never yet happened among them. Buthere the barrister is ready to ask, how must webehave when we are oppressed by a governor,

in a country where the courts of law are saidto have no coercive power over his person, andwhere the representatives of the people are, byhis intrigues, made accomplices of his iniquity?Certainly it can't be a new discovery to tellthis lawyer that as the governor is a creatureof the crown, so the most natural and easycourse is to look up to the hand that made him.And I imagine it may be affirmed (withoutcatching an occasion of offering incense to ma-jesty) that if one half of the facts contained inZenger's papers, and vouched for true by biscounsel, had been fairly represented and provedat home, Mr. Cosby would not have continuedmuch longer in his government; and then thecity of New York might have applied to itselfthe inscription of the gold box, "Demersæ le-ges, timefacta libertas hæc tandem emergunt,"with greater propriety and security, than couldpossibly be derived from the impetuous ha-rangue of any lawyer whatsoever. I am themore emboldened to say thus much, becausethough it is my lot to dwell in a colony whereliberty has not always been well understood, atleast not freely enjoyed, yet I have known a go-vernor brought to justice, within these last 20years, who was not only supported by a counciland assembly, besides a numerous party here,but also by powerful friends at home; allwhich advantages were not able to screen himfrom censure, disgrace, and a removal fromthe trust he had abused.

It is not always necessary, that particularpersons should leave their affairs and familiesin the plantations to prosecute a governor inWestminster-hall, unless their fortunes areequal to the expence; for it is seldom seen,that the violence of a bad governor terminatesin private injuries, inasmuch as he can't findhis account in any thing less than what is of ageneral and public nature. And when this isthe case, I hope none of our colonies are, evenat this time, so destitute, but that they canfind the means of making a regular applicationto their sovereign, either in person, or in hiscourts at Westminster, as their case may re-quire.

But the wild inconsistency that shinesthrough most parts of this orator's speech, ispeculiarly glaring in that part of it now beforeme. The remedy which he says our constitu-tion prescribes, for curing or preventing thediseases of an evil administration in the colo-nies, I shall give in his own words: "Has itnot been often seen (and I hope it will alwaysbe seen) that when the representatives of a freepeople are, by just representations or remon-strances, made sensible of the sufferings of theirfellow-subjects, by the abuse of power in thehands of a governor, they have declared (andloudly too) that they were not obliged by anylaw to support a governor, who goes about todestroy a province or colony," &c. One wouldimagine, at first sight, that this man had thesame notion, with the rest of mankind, of justrepresentations and remonstrances to the re-presentatives of a free people, which has ever

been understood to be by way of petition or ad-dress, directed and presented to them in form;in which case it is hoped that they, beingmoved by the complaints of the people, willstretch forth their arms to help them. But,alas ! we are all mistaken; for he tells us, inthe same breath, that the right way is by tell-ing our sufferings to our neighbours in gazettesand newspapers; for the representatives arenot to be troubled with every injury done by agovernor; besides, they are sometimes in theplot with the governor, and the injured partycan have no redress from their hands; so thatthe first complaint (instead of the last resort)must be to the neighbours, and so come aboutto the representatives through that channel.

Now I would be very glad to know, what theneighbours can do towards effecting the desiredreformation, that will be attended with so goodsuccess, and so few ill consequences, as a re-gular application to his majesty would be. Itwould be pleasant, doubtless, to hear this poli-tician speak out and explain himself at forgeupon this subject. I confess it surpasses mycomprehension to conceive what the neigh-bours, inspired with weekly revelations fromthe city journalist, can do with their governorand assembly, unless it be to reform them bythose persuasive arguments which the majorvis never wants good store of. If this be thepatriot's meaning, his words may possibly beunderstood; but without this meaning they aremere jargon,

In a word, I shall agree with the barrister(and so take my leave of him), that the libertyof exposing and opposing arbitrary power isthe right of a free people; and he ought, atthe same time, to admit, that the order ofthings, and the peace of society, require thatextraordinary means should not be used for thispurpose, till the ordinary have failed in theexperiment. The supreme magistrate of anindependent kingdom or state, cannot alwaysbe controuled by the one, and then the other isjustified by that consideration. But in coloniesthat are from their creation subordinate to theirmother-country, there is no person who is notcontroulable by regular and well known me-thods of proceeding; and consequently therecan be no absolute necessity of flying to extre-mities, at least in the first instance. From allwhich, I conceive, it follows, that local consi-derations, upon which the gentleman lays sogreat stress, conclude directly against h im;and I hope the security which the British con-stitution affords to every man's person, pro-perty, and reputation, as well as to the publictranquillity, is not lessened by any distancefrom the fountain of power and justice; butthat a libel is a libel, and punishable as such inAmerica, as well as in Europe.

I am sensible, there is a freedom of expres-sion used in these papers, of which I shoulddisapprove in the common cases of controversy:but I found myself under a necessity of shew-ing no respect to the performance under consi-deration, unless I were to forfeit the little that

might be flue to the Remarks. For though alawyer is free, nay obliged by the duty of hisprofession, to make the most of the cause heespouses, (his real sentiments being suspendedfor that time, by reason of the biass under whichhe acts) yet when he draws his private opinioninto the debate, and interests his passions inthe success of it, he then departs from his cha-racter, and becomes a party, rather than an ad-vocate. In short, there is an air of self-suffi-ciency and confidence mixed with the wholeJump, enough to give a disrelish even to goodsense and good law; but is nauseous, beyondall bearing, when neither of these is found.Among lawyers, I was sure this lawyer de-served no answer; and yet an answer seemedindispensable, not only for the reasons given atmy setting out, but also in order to save manywell-meaning people from reverencing a pieceof buffoonery, that had been thrust into theworld with so much florid conceit, and a goldbox tagged to the end of it: a piece, whereinthe whole common-place of popular declama-tion (equally adapted to all popular occasions)is exhausted, and the Holy Scriptures broughtin to season his jokes. But as this last seemsdesigned only for a sally of wit and humour, Ishall not offer to detract from its merit; con-sidering too, it had so happy an effect as to setthe good people a laughing, when they heardthe Word of God most ingeniously burlesquedin a Christian court: a piece that hardlyshews the author to have been serious when hepronounced it, or his wise benefactors whenthey rewarded him; but that his solemn pro-fessions of principle and duty compel a chari-table mind to suspect ins knowledge ratherthan his sincerity; and citizens are everthought to be in earnest, when they part withtheir gold and shew their learning.

Sir, I ought to make an apology to you fortrespassing so long upon your patience, whichmight have been better employed; but I flattermyself with the hopes of having some allowancemade for an honest, though weak attempt torescue the profession of the law, and the in-terest of lawful liberty from the disgrace thrownupon both in one of our sister-colonies. Thisis the truth, and let it be my excuse. I amyours, &c. ANGLO-AMERICANUS.

LETTER II.

Sir; It must be mortifying, no doubt, to aperson who has received peculiar marks ofpublic approbation, to be told, that the very actwhich procured it was so far from being com-mendable, that it really deserved a severe cen-sure; and one would the rather decline suchan office, how just soever the occasion, becauseit cannot be done without condemning at thesame time the judgment of those whose suf-frage had been thus unworthily obtained. Butwhen the laws are openly perverted, and courtsof justice, with an air of gravity, drolled outof their established rules, by such whose pro-

fession supposes them ministers of justice;and when this too shall be dignified with ap-plause, and made highly meritorious; I con-ceive neither good-nature, nor the solemnity ofpublic seals, should restrain an honest pen fromexploding the practice, in order as well to stopthe progress of its evil effects, as to prevent thelike attempts for the future.

Virtue and merit, it is most certain, ought tobe encouraged, especially by all in authority;bat when that which is merely counterfeit shallgain esteem, stand in the room of what is trulygenuine, and be actually loaded with the rewardsthereof, it does not only frustrate the originalintention of such rewards, but likewise givecountenance to the impostor, and furnish himwith still farther means of vending his falsewares, in prejudice of the public. Now this,with all due submission, I take to be the caseof the Corporation in North America, with re-gard to the honours they were lately pleased toconfer on a noted barrister in those parts, forhis supposed services in the affair of Zenger theprinter, whose trial has been so plentifully dis-persed here, and in other places. Aggregatebodies, we find, may be mistaken, and toooften are, as well as private men; and whenthey do err, it is of the more dangerous conse-quence, on account of the extent of their powerand influence. The province in general ofNew York, or the city in particular, might, foraught I know, have sufficient cause of com-plaint, in some respects, against their then com-mander in chief, and his administration; butit is to be considered, that as there never wasone absolutely free from faults, so it is thegreat privilege of the inhabitants of every Bri-tish government, that a proper channel ischalked out, in all such events, and a wayopen for relief. The method, therefore, whichthe constitution prescribes ought to be strictlypursued; and any illegal deviation is not onlyinconsistent, and unjustifiable in itself, but hasbesides, a tendency to introduce mischiefs moreto be dreaded even than those that were soughtto be redressed. It is the law which must bethe standard of right and wrong; and whoeverhas recourse to any other aid, or knowinglyadvises thereto, in the case of particular griev-ances, cannot act on a true principle of publicspirit, but must be influenced by unworthymotives, and is always more or less an enemyto the community, according to his situation,and in proportion to the talents he happens topossess. If Mr. Zenger then will avowedlypublish seditious libels against the governmentunder which he lives, and his counsel will offerto support him by artifices unbecoming thelong robe, and advancing propositions mani-festly contrary to law; as the former deservesto be punished by it, so the latter, I humblypresume to say, whatever he may claim fromhis client, ought not to be paid his wages byany set of men who owe their being to thelaw, and cannot exist without it.

But I shall not scruple to acknowledge here,and I do it on no superficial observation, that

there can't he a more pernicious creature, in adistant colony, than that of a practitioner of thelaw, with much assurance, little knowledge,and no morals; a character not unheard of inmore than one of his majesty's plantations, andwhich yet I would by no means apply to Mr.Hamilton, any otherwise than may appear tobe just, from the performance he has, it seems,taken so much pains to publish to the world.The judicious Remarks already made upon it byAnglo-Americanus, wil l hardly leave room forany thing to be added that is very material;and therefore I shall content myself with a fewgleanings only, and make some cursory reflec-tions thereon, whilst (hey afford me an oppor-tunity of bearing my testimony also againstwhat I think the most indecent behaviour atleast, if it may not be called the boldest outrage,that ever was exhibited from the bar, without asuitable chastisement.

Whoever has enquired into the doctrine oflibels, and the reason of their punishment, willperceive, that they take their degrees as theyaffect private persons, particular magistrates,or are aimed against the government itself;and I may venture to say, that no lawyer ofreputation will deny but what is set forth in theinformation against John Peter Zenger was ofthis last kind, and that too conceived in thegrossest terms, such as will not admit of a dif-ferent construction, or of any other meaningthan what is put upon them by the prosecutorfor the crown. Now I am sensible, that greatallowances are, with good reason, made tocounsel in the heat of argument, and when sup-posed to be animated with a laudable zeal fortheir clients. Nor has it been usual to correctthem for every harsh and hasty expression,provided they keep within bounds, and stick tothat which is their duty, without running intomatters that have no relation to the issue, andcannot fairly serve the side they espouse. Yet,as the lord chancellor Nottingham occasionallysaid, Counsel should not speak as if they wouldabet the guilt of their clients rather than ad-vocate for their innocency. And since youringenious correspondent has clearly evinced,that the truth of a libel cannot be given in evi-dence, that it is no justification, on the generalissue, and consequently no proper defence to acharge of that nature (of all which Mr. Hamil-ton could not, or ought not to have been igno-rant), it is worthy of consideration whether hedid not involve himself in his client's crime,and partake of his guilt, by declaring in themost public manner, that the facts published inthe news-papers, and contained in the informa-tion, were true; and offering to prove them tobe so before a court, which had no power to re-dress the grievances complained of, 4 Co. 14.Hob. 166, 7.

Sir Bartholomew Shower, I remember, inhis argument in the case of the king againstBerchet et al. asserts, that "in all cases ofcontempts to a court, no presentment is neces-sary, no not so much as to convict; for if donein Facie Curiæ, a record may be made of it,

and a punishment judicially inflicted, and thaiexecuted immediately." Show. Rep. 110.And agreeable hereto, we find, that in a latecase of the king against Thorogood, Trin. 9Geo. primi, the defendant having made an affi-davit in C. B. and appealing on summons, con-fessed that he made it, and that it was false;whereupon the Court recorded his confession,and ordered that he should be taken into cus-tody and stand in the pillory, &c. which wasexecuted accordingly the last day of the term.Mod. Ca. in Law & Eq. 179, 180. This is themore remarkable, because it was in the Courtof Common-Pleas, which has ordinarily nojurisdiction in criminal cases. — May it notfrom hence be inferred (I hint it with a duesaving to all the just privileges of the bar) thatthe Court at New-York might well have re-corded some of the most seditious expressions inMr. Hamilton's rhapsody, and committed himfor the same, &c.? If they had, I doubt theblame must have centered in himself, and hisown conduct; of which therefore he mightthen have had leisure to repent, as well as ofhis long journey to so ill a purpose.

But it will not be amiss, perhaps, for ex-ample sake, to give an instance of what hasbeen done on the like occasion with that beforeus; and to this end I. shall cite a case in theCourt of King's-bench, many years after thatof the Star Chamber was at an end, and which,in the words of sir Thomas Raymond, was asfolloweth: "Memorandum, June 18, 1C80,Mr. Nathaniel Reading having been convicted(before justices of Oyer and Terminer by virtueof a special commission (for endeavouring topersuade Bedlow, who was a witness againstthe noblemen imprisoned in the Tower of Lon-don, to forbear his prosecution of them; andhe the said Mr. Reading having had judgmentexecuted upon him, by being set in the pillory,and fined 1,000l. and imprisoned for the same,but his fine since pardoned by the king, camethis day into court, and demanded that an in-formation, which he there brought in his hand,might be received by Mr. Astrey against thecommissioners who condemned him, of whichmy brother Jones and brother Dolben were two,and that the information might be filed. Butthe Court did declare, that he was in the wrongway to exhibit, any information in this manner,and did cause his words, whereby he did accusethe two judges of oppression, to be recorded;and for these words, and for that he was in-famous by having been on the pillory, the gen-tlemen at the bar did pray that his gown mightbe pulled over his ears, he having been for-merly a practiser at the bar, which was or-dered and executed in court; and he was alsocondemned in court to pay the king 500l. andto lie in prison till he paid it," Raym. Rep. 376.The trial of this gentleman referred to here,may be seen in the State Trials, on which occa-sion the lord chief-justice North made a speechaggravating the defendant's offence as he was acounsel, one who ought to be a man of know-ledge, and a minister of justice to assist the

Court wherein he pleaded. He said, he thoughtthe Court ought to shew a more than ordinaryseverity against such an one; and that it is agreat credit and benefit to the profession, thatthe members of it for such offences should bedealt with more severely than we should dealin other cases. Id. p. 374, 5. Far be it fromme to make any invidious comparison here be-twixt the present practiser in Pennsylvania, andthe quondam one in Westminster-hall, thoughthey are both celebrated, the one in the trial ofMr. Zenger, and the other in his own. It mayhowever be noted, that the latter was said to beartful and affectedly eloquent, and to havestrove to lead the judges out of the way, whilehe was told by the chief-justice, that his defencewas artificial, because it was nothing to thepurpose; and by another of the judges, thathe disgraced his profession by making so weaka defence. But without adverting to any par-ticular beauties in the modern performance,this is certain, that counsellor Reading lost thebar-gown by his art, and counsellor Hamiltongot a gold-box of five ounces, with the freedomof the city of New-York, by his. A pregnantinstance of the capriciousuess of fate, and ofthe justness of your late correspondent's obser-vation at the entrance to his excellent Remarks!

The gentlemen at the bar (as indeed it mightwell be expected from their education, and thenature of their business) have been remarkablefor observing the regard that is due to all inauthority with the utmost delicacy; and in re-turn have always been used with suitable re-spect. But that the lawyer of Philadelphiamay see the courts of justice in former ages,as well as of late years, did not spare the un-ruly members of the profession any more thanothers, tor much less faulty behaviour than thatof the leading counsel in Zenger's trial, I willrefer him to a ease which happened Mich. 13Eliz. Rot. 39, when Henry Blaundford, acounsellor at law, was committed to the Fleet,and fined, for falsely reporting the opinion ofthe lord Leicester and secretary Cecil withthese words, 'Humanum est errare.' And thateven noblemen met with the like treatment onsuch occasions, will appear from the case ofthe lord Stourton, who, 19 Hen. 8, was com-mitted by the Court, and fined for saying thesewords, "I am sorry to see rhetoric rule wherelaw should."

Before I proceed, I will mention one casemore, purely to shew how dangerous it is toafford any unlawful helps to persons on theirtrials in criminal prosecutions, even though itbe merely by way of private instructions, whensuch instructions are to be publicly made use of,and import scandal to the government. It isthe case of the King against Aaron Smith,Mich. 35 Car. 2, in B. R. "This term (saysthe book, which has the allowance of all thejudges) Aaron Smith was brought into court,being formerly convicted on a trial at bar, fordelivering to Stephen College, being upon histrial at Oxford for high-treason, a paper of in-structions, full of scandalous reflections upon

the king and government; as, That they mightas well have hanged him at Tyburn as he cameby, as brought him thither, only to murderhim with a little more formality. For whichthe Court gave judgment, that he should paya fine of 500l. stand on the pillory twice, andbe of the good behaviour for a twelvemonth,"Skinner's Rep. 124. I shall only observe thiscase was on an information, so much inveighedagainst by Zenger's counsel, and yet I neverheard it censured at all, as was that of poorCollege, I own, with too good reason.

It is now time to take notice, that there is,amidst a heap of jargon and absurdities, oneobvious mistake, which runs throughout Mr.Hamilton's ostentatious harangue, and that isin relation to the Court of Star-chamber. Hewould suggest, that because that court wasabolished by act of parliament, on account ofsome insufferable abuses that had crept into it,all the cases that had been adjudged there, oninformations for libels, were consequently of noauthority. Whereas the judgments giventhere, in matters properly cognizable beforethem, which libelling especially was, are al-lowed to be good law at this day, and are con-stantly quoted as such in the Court of King's-bench. Indeed it is said, that the reason ofdisallowing the Star-Chamber-Court was be-cause their authority was before, and now is,in B. R. and consequently that court unneces-sary, Comb. 36. So the lord chief justice Holtdeclared, that B. R. possessed all the lawfulpower the Star-Chamber had, Id. 142. Andthat the Court of Star-Chamber was takenaway, because the crimes were punishable here,5 Mod. 464, which is likewise intimated by thestatute itself. Now though [ am as well sa-tisfied perhaps with the taking away of theCourt of Star-Chamber, considering the occa-sion that had been given, as our northern bar-rister can possibly be, and should equally re-joice, I hope, at the redressing any other public

grievance; yet I cannot, with him, condemnby the lump, and argue, that because that

court did some things amiss, therefore it didnothing right. At this rate, every court thathad, or has a being, may be in danger of thesame epithets he loves to bestow on that weare speaking of; and it may as well be sup-posed, that because a certain set of citizens,not unknown to Mr. Hamilton, lately did avery silly thing, they therefore never did a wiseone. For which reason I presume it will notbe altogether impertinent to produce the senti-ments of that oracle of the law, sir EdwardCoke, concerning the Court of Star-Chamber."I t is (says he) the most honourable court,our parliament excepted, that is in the Chris-tian world, both in respect to the judges, and oftheir honourable proceedings according to theirjust jurisdiction, and the ancient and justorders of the Court. For the judges of thesame are, the grandees of the realm, the lordchancellor, the lord treasurer, the lord presi-dent of the king's council, the lord privy seal,all the lords spiritual and temporal, and others

of the king's most honourable privy council,and the principal judges of the realm, and suchother lords of parliament as the king shallname. And they judge upon confession, ordeposition of witnesses. And the Court cannotsit for hearing of causes under the number ofeight at the least. And it is truly said,"Curia Cameræ Stellatæ si vetustatem spec-temus, est antiquissirna, si dignitatem, honora-tissima." This court, the right institution andancient orders thereof being observed, dothkeep all England in quiet." 4th Inst. p. 64.Conformable hereto, a late learned writer, whowas advanced to the highest posts in the lawin a neighbouring kingdom to that of ourmother country, and wherein he died, has aparagraph, which I believe will give us a trueraccount of the Court itself, and the abolishmentof it, than what is to be learned from our barris-ter's speech at New York, and therefore I willinsert it here.* "The court of Star-chamber,whilst kept within due bounds, was certainly ofthe greatest use to preserve the peace and se-curity of the kingdom; and perhaps was theonly court which by its ordinary and properjurisdiction, could effectually prevent and pu-nish riots, perjuries, and other misdemeanors ofthe highest nature. But being made use of bythe Court to support proclamations and ordersof state, and to vindicate illegal commissionsand monopolies, that extension of their powerbecame a grievance insupportable, and the na-tion was never easy till that court was entirelysuppressed by act of parliament. The Houseof Commons were so eager in their zeal to de-stroy what they called a Court of Inquisition,that though the Bill was of so great conse-quence, yet they sent it up to the Lords, withonly once reading it, and without its being evercommitted, which was a thing, perhaps, neverbefore heard of in parliament." Cla. v. 1. 223.

I need only add on this head, that the crimeof libelling is the same now as it was while theCourt of the Star Chamber subsisted, and thenature of the offence the same then as now; acrime that must necessarily be punished aslong as there are states and communities esta-blished in the world. And our assuming bar-rister will not find an author that treats of thecrown law since the statute of 16 Cha. 1. cap.10, any more than before, but makes use of thecases adjudged in the Star-Chamber generallyas good law, and of equal authority in thosematters with such as were afterwards adjudgedin the King's-bench. Some indeed are justlyliable to exception in the former, as we havealso known too many in the latter, particularlyduring the next succeeding reign of Cha. 2,none whereof are, however, God be praised,to be met with, or heard of since the glorious

* See A Discourse concerning Treasons andBills of Attainder, p. 94, printed anno 1716,wrote by Mr. West, afterwards Lord Chan-cellor of Ireland, who also wrote an ingeniousand learned treatise, entitled, An Inquiry intothe Manner of creating Peers. Former Edit.

and happy Revolution in 1688, which, I trust,has for ever excluded all partiality and oppres-sion from Westminster-hall.

But the learned lawyer of Philadelphia de-clares, That he has not, in all his reading,met with an authority that says we cannot beadmitted to give the truth in evidence upon aninformation for a libel. I don't know whatthis gentleman's reading may be; but if hehad read some of the cases above-mentioned,which could not well escape him, it might rea-sonably have been expected he would havetaken warning, been a little more cautious,and not have ventured to incur the penaltieswhich others before him had so justly suffered.By all his reading, he would insinuate, I sup-pose, that he had read al l : and if that was true,it might we!l be thought he had read to verylittle purpose, who could make so ill an use ofit, or think it a duty on him to go to the ut-most parts of the land, to propagate doctrinesand principles diametrically opposite to, andjust the reverse of what he must have read.We shall soon discover that the barrister'sreading is not quite so extensive as he wouldhave it imagined. But it is previously to beobserved, that if there was no such authorityin terminis as that he calls for, a man whoreads with any tolerable understanding wouldof course infer the same thing, when all thebooks on the subject of libels lay it down as arule, which they unanimously do, that it is notmaterial whether the libel be t rue or false. Forif that be not material, to what end should thetruth be offered in evidence? Or, how shouldit be rejected before it was offered, which un-doubtedly is the reason that there have beenno late instances of that sort. It might sufficetherefore to undertake, as often as this well-read lawyer produced a precedent of its beingdemanded from the bar to give evidence of thetruth of a libel, to shew that it was as oftendented by the Court. And though I admit ithas been attempted before, on trials for libels ofthe less enormous kinds, yet he is probably theonly one that has done it in any case withinthese hundred years. However, if we wouldfind an instance of that sort, we must necessa-rily have recourse to the proceedings of theCourt where that crime was usually punished.The Star-Chamber Reports then may satisfyMr. Hamilton, that Term Pasc. 7 Car. 1, therewas the case of Coston, gent. v. Hitcham,Mil. Servient. ad legem, as follows : "Thedefendant, the morning before he went to thesessions, being a justice of the peace, receivedscandalous and libellous articles against theplaintiff, carried them to the sessions in hispocket, and, in open court, in disgrace of theplaintiff, pulled them out and said, You shallsee what a lewd fellow this is, and not fit tospeak in this place; and then caused the saidlibellous articles to be read in the public ses-sions. And the plaintiff then desiring a copyof them, and to be tried upon them, the wit-nesses to prove them being noted in the mar-gin, the defendant did not suffer him to have a

copy, or to be tried thereupon, nor took anycourse that he might at the next sessions, or atany time after be questioned for them, buttook the articles again out of the sessions andcarried them away. And after, further to dis-grace the plaintiff in his practice (being anattorney,) sent the said articles to Mr. JusticeHarvey, at the reference of a cause to him,which Coston attended; and a jury havinggiven a verdict against the defendant, he sentfor the jurors and questioned them about theirverdict, and told them they were a company offools, and that if there had been but one viseman among them, their verdict had not beenso. And tor these offences he was committedto the Fleet, and fined 200l. In this cause,the defendant would have had witnesses toprove the matter of the said scandalous articlesto be true, but that was disallowed by the Court."Rush. Col. vol. 3, p. 36, in Append. This, Ipresume, the barrister, when he is serious, willallow to be in point, though it happened not tofall in the way of his reading. He cannot ob-ject, surely, that it does not appear to be on aninformation preferred by the Attorney-General,since it is a much stronger case than if it bad.For if the Court would not receive such evi-dence in a cause depending on the complaintof a petty solicitor for being libelled, and thistoo preferred against a justice of peace, a knight,and a serjeant at law; a fortiori, they wouldnever admit it on an information exhibited, bybis majesty's attorney general, against a pri-vate person, for libelling the government.

There was also, as I have learned, diversyears before, viz. Mich. 2 Jac. the case ofPeter Brereton, clerk, for writing a scandalousletter to Loyd, register to the bishop of St.Asaph, and sent to himself, who was thereincharged with bribery and extortion in his of-fice; for which libellous letter the defendantwas sentenced, though, as the book has it, hewould have undertaken to prove the contentsof the letter to be true. Here then are twoprecedents of what the barrister himself hadnever met with all in his reading; the one in aease for libelling a practising attorney, and theother of the register of a bishop's court; but Ibelieve I may defy this gentleman, if he wereto read as many more years as he has done,to produce a third, where the offence underprosecution, being of the highest degree, andlevelled at the government, like that tor whichhe was so zealous an advocate, the counsel forthe defendant dared to offer evidence of thetruth of it. On the contrary, if he had diptinto the lord chief justice Keelyng's Reports,fol. 23, (before he left his chambers) he wouldhave there found it resolved by the wholecourt, that though a counsellor at law mayplead his client's cause against the king, yet, ifunder colour of that he takes upon him to ventsedition, he is to be punished.

ft is no Wonder, indeed, if our barristershould be unapprized of Brereton's case, itnot being (at least to my knowledge) in print;and you perceive I was under no necessity ofmentioning it, being before provided with an

authority to my purpose. But it is reported,as above, in sir Thomas Mallet's MS. Treatiseof the Court of Star-Chamber, a copy whereofhas fallen into my hands by the favour of afriend. And since I have named this work, Ishall, with his leave, take a paragraph out ofit, which, I am persuaded, wil l not be deemedunsuitable to the present debate, after hintingthat the book seems to be wrote in the time ofJames 1, when the doctrine now revived, andso tenaciously advanced by Mr. Hamilton, issaid to have been long before exploded as agross error. "There are," says sir Thomas,"two gross errors crept into the world con-cerning libels; the one, that it is no libel ifthe party put his hand unto it, and the other,that it is not a libel if it be true; both whichhave been long since exploded out of thiscourt. For the first, the cause why the lawpunisheth libels is, for that they tend to raisethe breach of the peace, which may as well bedone, and more easily, when the hand is sub-scribed, than when it is not. And for theother, it hath been ever agreed, that it is notthe matter but the manner which is punishable.For libelling against a common strumpet is asgreat an offence as against an honest woman,and perhaps more dangerous to the breach ofthe peace; for, as the woman said, she shouldnever grieve to be told of her red nose, if shehad not one indeed. Neither is it a groundto examine the truth or falshood of a libel, be-cause it is sub judice, whether it be a libel ornot ; for that takes away subjectum questionis,and determines it to be no libel, by admittingthe defendant to prove the truth; and the de-fendant in that case ought to plead a justifica-tion and demur in law. But if he plead NotGuilty, the question is gone, whether it be alibel or not." Thus, according to this author'sopinion, who, if I mistake not, was one of thejustices of the court of King's-bench in histime, Mr. Hamilton, could he really have per-suaded himself that the matters charged in theinformation were not libellous, as he insiststhey are not, would have discovered more ac-curacy in his profession, as well as candour inhis practice, by advising his client to demur toit, whereby he would have admitted no morethan what was avowed at the trial on the ge-neral issue. Then, indeed, it would have fairlycome before the Court to be considered whe-ther the papers were libellous or not, and he,as counsel for the defendant, might regularlyhave been heard to it.

He would then have been at liberty to exerthis uncommon talents, manifest his extraor-dinary reading, his superior genius and greatskill in language, and in explaining the trueimport of words, without so directly flying inthe face of every authority, and opposing allthe cases that ever were adjudged concerninglibels, before he was born and since. Butalas! that would not have answered the inten-tion of our eloquent barrister. He would notthen have had it in his power to use his arts,and play his game with a dozen honest men,of as good natural understandings, perhaps,

though not of equal experience and cunningwith himself. If he had gone that way towork, he would have had no chance for theprize. Vain had been his expedition, and lost,entirely lost, all his labour. In a word, if thelearning and integrity of the bar only were re-quired, he might as well have staid at home,where, if I am rightly informed, there are in-stances in abundance of the blessed effects ofMr. Hamilton's well-known principles.

This sagacious gentleman begs leave to ob-serve, that informations for libels is a child,if not born, yet nursed up and brought to fullmaturity in the Court of Star-Chamber: butwhat is particularly to be inferred from thisshrewd observation, he does not at present tellus. If the Star-Chamber was the Court wherecrimes of this nature were generally punished,according to its ordinary and proper jurisdic-tion, as it certainly was, how should it beotherwise than that informations for libelsmust be met with there? And considering theantiquity of that court, it is more than pro-bable the crime was first prosecuted andpunished in it. But what then? Is the legi-timacy of the child (if I may be allowed tocarry on the metaphor) therefore to be calledin question; or its education the less ho-nourable? I might put our witty barrister inmind, that what I have mentioned is the veryreason why the spurious brat he is so fond of,which was never brought to full maturity, norever will, first appeared in the Star-Chamber,though it has not been heard of since in anyother court, till very lately, at New-York; Imean that of making falshood to be essential toa libel, and claiming a right to give evidenceof the truth of it by way of justification.

He must, however, intend by the foregoingpassage, to impeach the legality of informationsqua such (which by some words that dropfrom him many pages after, would seem to bewhat he aims at), or as they relate only tolibels; and in either case he will again betraythe scantiness of his reading and knowledge inthe law. As to informations in general, it hasbeen incontestibly proved, that this method ofproceeding is no way contrariant to any funda-mental rule of law, but agreeable to it. "Thatit was the constant usage, and had the appro-bation of the judges and lawyers of all ages,and in all reigns," Show. Rep. 106, to 125.And in the case of the information againstseventy poor persons for a riot in pulling downfences, &c. 2 W. and M. (which probably maybe the same) it was said by lord chief justiceHolt, that "the lord chief justice Hales com-plained of the abuse of informations, but notthat they were unlawful; that he shouldnot come now and impeach the judgment ofall his predecessors; that the Star Chamberwas not set up by the statute of Hen. 7, butwas as common-law, and informations wereaccordingly brought in that court and others.And the whole court were of opinion, that in-formations lay at common-law." 5 Mod. 463,4. Now this I take to be as good an authority

as the extrajudicial opinions of those anony-mous great men who, Mr. Hamilton says,have boldly asserted that the mode of prosecu-tion by information is a national grievance, andgreatly inconsistent with the freedom whichthe subjects of England enjoy in most othercases; nor can one forbear observing, enpassant, that he seems much more disposed,where there is no danger at least, to follow theexample of bold, than of wise and judiciousmen.

This then being a legal course of proceedingin criminal cases, and for all public offences, itmust undeniably be as proper in the case oflibels as in any other. And sir B. Shower inreckoning up the several crimes that were cog-nizable in the court of Star-Chamber, includeslibels among the rest, for which he says,There were always informations in the Star-Chamber and King's-bench. Show. 119. Iam the more free in borrowing what I do fromthat eminent practiser, on the subject of in-formations, because he had studied it well, andtaken more than usual pains therein; and asthe judgment afterwards given by the courtof King's-bench was pursuant thereto, so itseems to have put a period in Westminster-hallto all cavils against thai mode of prosecution.

If the barrister means notwithstanding tosuggest moreover, that informations for libelsare but of modern date, or little longer stand-ing than about the time of the expiration ofthat court, where he supposes they had theirorigin, let him be further refuted by the above-mentioned sir Thomas Mallet, who wrote pro-fessedly on the court of Star-Chamber, andmay be supposed to be pretty well acquaintedwith his subject: he tells us, [Treatise of thecourt of Star-Chamber, ubi supra] that "inall ages libels have been severely punished inthis court, but most specially when they beganto grow frequent about 42 and 43 Eliz. whensir Edward Coke was her attorney general."And, treating of the antiquity of that court,he makes it very probable [Id. 1 Part, 4thConsid.] that it was the most ancient of anycourt of justice, and the mother-court of thekingdom; wherein he does not differ from sirEdward himself, in his 4th Inst. (54, alreadyquoted. Now it was while this consummatelawyer, it seems, was attorney-general to therenowned queen Elizabeth, that informationsfor libels began to be most frequent, or, in Mr.Hamilton's elegant stile, when the child wasbrought to full maturity : and it is readily sub-mitted to all who are versed in our history andconstitution, whether that period will be anydisparagement to the offspring.

But if informations for libels in particular,were one of the grievances of that court, naythe chief, as the barrister would labour to makehis hearers believe, how came they to be prac-tised after the abolishment of it? Or what willhe say to the case of the king against Darby,which was an information exhibited againstthe defendant, being an attorney of the Com-mon-Pleas, for defamatory words only of sir

John Kay, a justice of peace, concerning theexercise of his office? The words were, as theyare set forth in Comb. 65. "Sir John Kay is abuffle-headed fellow, (a pretty thing to beproved in court!) understands not law, and isnot fit to discourse it with me; he hath notdone justice to my client." There it was arguedfor the defendant on a demurrer, (and I chuseto recite it because of the concessions of hiscounsel, against our northern advocate,) "Thatan information would not lie for scandalouswords spoken only of a particular person, be-cause he might have an action on the case torecompence him in damages. — It is true, sucha proceeding might be warranted for libels, orfor dispersing defamatory letters, because bysuch means the public peace might be dis-turbed, and discords fomented amongst neigh-bours, which might at last be a public injury :but there is no such thing alleged in this case,only words in common discourse, for which anaction on the case might lie, but no informa-tion. On the other side it was insisted, thatthis information was founded on sufficientmatter, because the prosecution is not onlyas it respects the person of sir John Kay, butit relates to him as he is a public magistrate,and who is subordinate to the government, andtherefore such defamatory words are a reproachto the supreme governor, by whom magis-trates are intrusted, and from whom they de-rive their authority; and it will not be denied,but that words reflecting on the public go-vernment are punishable at the suit of theking by an information. And for this reasonthe Court held that an information would lie,and thereupon gave judgment against the de-fendant, and fined him an hundred marks."Carth. 14, 15.

Mr. Hamilton, who would seem to be moreknowing than his neighbours in many things,affects to be move ignorant than every body,of what constitutes a libel; and therefore, al-though he pretends freely to acknowledgethere are such things as libels, yet he insists atthe same time, that what his client is chargedwith, is not one; and if it be not, I will asfreely acknowledge there can be no such thing.He desires the Attorney General to favourthem with some standard definition of a libel,by which it may be certainly known, whethera writing be a libel, yea or not. And what isthis for? Why, truly, to shorten the dispute.But what dispute does he speak of? The onlypoint that could admit of dispute had beengiven up before by his confessing the mattersin issue, and the prosecutor's witnesses beingthereupon discharged. As to what he requires,either there was such a definition to be met within the books, or there was not; if there was, heought to have known it; if there was not, whyshould he desire Mr. Attorney to favour himwith one? Yet after he had been indulged be-yond measure, and a definition was producedfrom a good author, who besides refers to se-veral others that are unquestionable, all whichconclude against his client; is this loquacious

advocate contented? No; there are two wordsto that bargain, as he had said before. Hemakes it a foundation for further disputes, andaccording to his wonted ingenuity and candourthroughout his reverie, calls the concurrentsense of our books Mr. Attorney's rule, andMr. Attorney's doctrine.

"But what certain standard rule," quothhe, "have the books laid down, by whichwe can certainly know whether the wordsare malicious? Whether they are defama-tory? Whether they tend to a breach of thepeace? and are a sufficient ground to pro-voke a man, his family or friends to actsof revenge?" &c. Now, these queries me-thinks do not so well become the mouth of anadvocate, as they might that of his client,when abandoned to his own defence in a des-perate cause. But I answer, no rules cer-tainly can be of use to those who are deter-mined to act without any, or in opposition toall rules, in which class our northern barristermust be placed, if we are to frame a judgmentof him from the share he bore in this trial.The rule laid down in our books concerninglibels (I speak of libels in the strict sense, ac-cording to the definition of Mr. Serjeant Haw-kins, referred to in the trial, and which aloneconcerns the present case) is founded on thereason of the thing; and is the same whichis to be observed in other matters that dependupon the construction of words and writings,which are signs only, or images of ideas in-tended to be conveyed to the understanding ofthe reader. There may, indeed, be divers rulesapplied, according to the circumstances of thecase; and this, among the rest, that wherewords are capable of two senses, the onefaulty, the other innocent, the latter is to betaken, provided such a construction may bemade without violence to their natural importand meaning. From whence it will follow,that the same cases may happen that aredoubtful, and do not come under any standardrule, on all which occasions honest and uprightjudges will incline to the favourable side: Theremay be others again so clear and evident, thata man must resign his reason, or resolve to sa-crifice his conscience, that does not discern, orwill not allow them to be libellous. But innone of these cases can it come properly to bea question before the jury) whether a libel ornot, on the plea of Not Guilty, though it mightafterwards be so, before the Court, in arrest ofjudgment. By what has been said, there ap-pears to be latitude enough for a skilful pen(who notwithstanding must do it at his peril)to lash public and private vices, to caution thepeople against measures that may be hurtfulto them, or to remonstrate against the evilpractices even of those in power, without be-ing always exposed to the penalties of the law.Such a liberty of writing and printing, underdue restrictions, I own Englishmen ought not,and I hope never will, be deprived of; andwhere this is dexterously done, it would beridiculous for private persons to put the cap on

their own heads, and no less impolitic for thosein high stations to apply every thing to theiradministration. When such a work is under-taken by able hands, and with a generous viewof serving the public, it is always laudable,and often very useful; but to succeed herein,requires a capacity and talents not to be dis-covered in Mr, Zenger's news-papers, or hiscounsel's speech.

I perceive my letter is unawares run to agreat length, by the quotations that are inter-spersed, and which yet I am sensible is theleast exceptionable part of it. I shall thereforetake notice but of one thing more in this match-less harangue, which indeed ought not to beforgot, because it is made the basis and foun-dation of the whole; and that is, concerningthe "right of freemen to complain when theyare hurt." This our lawyer often asserts ingeneral terms, with some variation only of theexpression. As to which, I would ask, whetherby it he means a right to remonstrate and com-plain in a legal way, or a right in all cases toappeal to the people by seditious and scandalouslibels? If the former, nobody ever denied it,and what he said was not ad idem; so that hewas fighting with the air, and quarrelling with-out an adversary : if the latter, he dishonouredhis gown, by advancing what is notoriouslyrepugnant to all laws, human and divine. Itwas ruled in the Court of B. R. Trin. 16 Car.That although a bill be preferred in the Star-Chamber against a judge for corruption, orany other for any great misdemeanor, yet ifthe plaintiff will tell the effect of his bill in atavern, or any open place, and by that meansscandalize the defendant, the same is punish-able in another court. March, Rep. 76, 77.So in the Case of Hole and Mellers, 28 Eliz,in C. B. it was said by the Court, that althoughthe queen is the head and fountain of justice,and therefore it is lawful for all her subjects toresort unto her ' ad faciendam Querimoniam;'yet if a subject, after the bill once exhibited,will divulge the matter therein comprehended,to the disgrace and discredit of the person in-tended, it is good cause of action, 3 Leon. 138.And to the same purpose, in a much later case,viz. that of Lake and King, reported in manyof our books, to which Mr. Serjeant Hawkinsrefers, it seems agreed, as he observes, thatwhoever delivers a paper full of reflections onany person, in nature of a petition to a com-mittee of parliament, to any other person ex-cept the members of parliament, may be pu-nished as the publisher of a libel, in respect ofsuch a dispersing thereof among those whohave nothing to do with it. 1 Hawk. c. 74, § 12.

But our forward barrister, aged and infirmas he represents himself (which compared withhis conduct, is the keenest satire that could beSuggested of him), ought to be further in-structed, that even where complaints are to theking himself, they must be made in a properand regular manner; a decency is to be ob-served, and a regard always had to the cha-racters and stations of the persons against whom

such complaints are made. In 13 R. 2, Rot.Parliament, No 45, the Commons desired theymight not he troubled for any matter thatshould be contained in petitions to the king;and the king answered, Let every man com-plain, so it be with law and reason. It is law-ful therefore, no doubt, as it has been resolved,for any subject to petition to the king for re-dress, in an humble and modest manner, wherehe finds himself aggrieved by a sentence orjudgment; for access to the sovereign mustnot be shut up, in case of the subjects distresses.But, on the other side, it is not permitted, un-der colour of a petition and refuge to the king,to rail upon the judge or his sentence, and tomake himself judge in his own cause, by pre-judging it before a re-hearing. Hob 220. Yetsir Rowland Flaxing was committed, and deep-ly fined, for reporting to the king, that he couldhave no indifferency before the Lords of theCouncil, 7 Feb. 18 Hen. 8. So likewise, inthe time of Hen. 7, sir Richard Terrets wascommitted, fined, sent to the pillory, and ad-judged to lose both his ears, for his slanderouscomplaint exhibited to the king, in a writtenbook, against the chief-justice Fitz James.Which Cases are cited by chief-justice Mon-tague, in the Case of Wraynham (who wasseverely punished for an offence of the samenature), as may be seen in this Collection, vol.2, p. 1059. To these may be added, Jeffe'sCase in the King's-bench, Mich. 5 Car. Jeffewas indicted for exhibiting an infamous libel,directed to the king, against sir Edward Coke,late chief-justice of the King's-bench, andagainst the said court, for a judgment given inthe said court, in the Case of Magdalen-College,affirming the said judgment to be treason, andcalling him therein traitor, perjured judge, andscandalizing all the professors of the law. Hefixed this libel upon the great gate at the en-trance of Westminster hall, and in divers otherplaces; and being hereupon arraigned, prayedthat counsel might be assigned him, which wasgranted; and he had them; but would not heruled to plead as they advised, but put in ascandalous plea; and insisting upon it, affirmedhe would not plead otherwise. Whereupon itwas adjudged he should be committed to themarshal, and that he should stand upon thepillory at Westminster and Cheapside, with apaper mentioning the offence, and with such apaper be brought to all the courts of West-minster, and be continued in prison until hemade his submission in every court; and thathe should be bound with sureties to be of goodbehaviour during his life, and pay 1,000l. fineto the king. Cro. Car. 175, 6.

What now shall we say, or what must bethought of one, who, while ho pretends to greatreading, and a thorough knowledge of thesethings, could yet, in the face of a court, and indefiance of its authority, and indeed of all au-thority, presume to justify the publication ofthe most audacious libels, against that very go-vernment under which he was breathing thesedition! A person, who, as a counsellor at law,

boasting at the same time of having seen thepractice in very great courts, would dare tocall such publication, addressed to the people,the just complaints of a number of men whosuffer under a bad administration! Some of thewords charged in the information, and whichMr. Hamilton offered to prove, are, That thelaw was at an end. I can't tell what proof hehad to give of this fact; hut surely if his doc-trine were to prevail, it must soon be the case;and, for my own part, I will confess, I have nothitherto heard of any thing, in that province,which looked so much like it, as that such abehaviour should not only go unpunished, butbe attended with public munificence and ap-plause. The truth is, this gentleman, thoughstiled a barrister at law in the order of the com-mon-council of the city of New York, andwhich title, therefore, I have likewise givenhim, seems notwithstanding, instead of main-taining that character, in the trial before us, tobe rather possessed with a fit of knight erran-try, and to have sallied out from Philadelphiato the other province, with a full resolution toto encounter every thing that was law, and tolevel all to the ground that stood in his way.

. Let the reader then be judge, upon the whole,whether he comes within the description of thatmischievous animal I mentioned towards thebeginning of these sheets.

After all, I flatter myself if will not be ima-gined, that I was s t imulated to these hasty ani-madversions by a principle of envy to Mr. Ha-milton, or any disrespect to those who werepleased to patronize his performance, since

they are utter strangers to sue, and probablywill ever remain so. On the contrary, theymay believe me, when I declare, that if theone had really merited what the others were ofopinion he did, I should with much more plea-sure have signified my approbation of the con-duct of both, than I now take in shewing mydislike. It is on this score, Sir, that I cannotconclude, without publicly returning my shareof the thanks that are due from the fraternityto your friend, the polite author of the formerletter, who has done justice to the bar by hisRemarks, which, in my humble apprehension,are worthy of any gentleman at it, either hereor elsewhere. I am, &c. INDUS-BRITANNICUS.

With respect to Mr. Hamilton's mention (p.719), that "as great men as any in Britain haveboldly asserted that the mode of prosecutingby information (when a grand jury will notfind Billa vera), is a national grievance, andgreatly inconsistent with that freedom whichthe subjects of England enjoy in most othercases;" See in a Note to sir William Williams'sCase, vol. 13, p. 1369, an account of whatpassed in parliament at the time of the Revo-lution respecting informations. See, also, Parl.Debates, vol. 19, 129, 548; vol. 20, p. 596;vol. 23, p. 1069.

The proceedings concerning Informationsex officio, which were had in parliament at thetime of the Revolution, are noticed in the Let-ter concerning Libels, Warrants, &c. but I didnot recollect this when I prepared sir W. Wil-liams's Case.

Documents

490. The Trial of Mr. JOHN PETER ZENGER, of New-York, Printer, · Province of New-York; and the Hon. Frederick Phillipse, esq. second Judge; at New-York, on August 4th: 9 GEORGE II