- tu chemnitz · declamation has been mentioned with an air of applause and triumph in the paper...

<TEI.2><teiHeader><fileDesc><titleStmt><title>Remarks on the trial of John-Peter Zenger , printer of theNew-York Weekly Journal, who was lately try'd and acquitted for printing andpublishing two libels [...] [lawb1738]</title></titleStmt><publicationStmt>Distributed as part of the Lampeter Corpus</publicationStmt><sourceDesc><bibl><idno type="estc">t089134</idno><idno type="lamp">T24/6912</idno><date>1738</date><pubPlace>London</pubPlace><bookSeller>James Roberts</bookSeller><pubFormat>quarto</pubFormat></bibl></sourceDesc></fileDesc><profileDesc><particDesc><person>Unknown author</person></particDesc><textClass><catRef target="dom2 law1 nstru3 nau0 dec10"/><keywords scheme="lamtop"><term>freedom of the press</term></keywords><keywords scheme="lamgen"><term type="self">remarks</term><term type="self">letter</term></keywords><keywords scheme="lamstruc"><term>front (preface)</term><term> body(2)</term></keywords></textClass></profileDesc></teiHeader><text id="lawb1738" rend="ro"><front><titlePage><docTitle><titlePart>REMARKS<lb/>ON THE <lb/>TRIAL <lb/>OF <lb/>John-Peter Zenger, <lb/>PRINTER of the<lb/>NEW-YORK Weekly Journal, <lb/>Who was lately Try'd and Acquitted for<lb/>Printing and Publishing TWO LIBELS <lb/>Against the <lb/>Government of thatPROVINCE.</titlePart></docTitle>&horbar;&horbar;<docImprint><lb/><it>LONDON:</it> <lb/>Printed for J. <sc>Roberts</sc> in<it>Warwick-Lane</it>, <sc>MDCCXXXVIII</sc> <lb/>(Price OneShilling.)</docImprint></titlePage><pb n="[iii]"/><div type="preface"><gap desc="ornament"/><head><bo>Preface</bo>.</head>&Tic;HE following <it>Remarks</it> were written by two Eminent Lawyers in oneof our Colonies in <it>Ame&rehy;rica</it>, immediately after the Publication ofthe <it>Trial</it> of Mr. <it>Zenger</it>, which it seems had been industriouslyspread over that Part of the World, before it reached <it>England</it>.As the Doctrines contain'd in that Trial, or rather in the Speech of Mr.<it>Hamilton</it>, are of so new a Cast, and so absolutely contradictory to allthe Resolutions and Judg&rehy;ments that have been settled and established forso many Ages, and by Judges of the highest Reputation, and most unquestionableCharacters, for their Integrity, Virtues and Abilities, it could not be imaginedso wild and idle an Harangue, could have had any Weight, or have met with anyReception here, where the Laws relating to Libels have been so often canvass'd,and are generally so well understood; and therefore the Person to whom these<it>Remarks</it> were sent, never thought of making any other Use of them thanto satisfy his own Curiosity, and that of his Friends.<pb n="iv"/>But seeing, to his great surprize, that this extraordinaryDeclamation has been mentioned with an air of Applause and Triumph in the Papercalled <it>Common-Sense</it>, as stri&rehy;king out some new Lights with regardto the Doctrine of Libels; and upon the credit of that recommendation (as it isto be presum'd) the whole Trial, not only twice printed here, but retailed outin Scraps in the Publick News-Papers, whereby many well-meaning People may bedeceiv'd and led into wrong Notions concerning the Laws of their Country in thisPoint: He has thought fit to commu&rehy;nicate these Re&rehy;marks to thePublick, in order to remove any Mistakes or Errors that Persons may fall intofor want of an adequate Judgment in these Matters; and the rather, because ifsuch false Opinions should happen to in&rehy;fluence the Conduct of Practice ofany, the Consequences may be very dangerous, it being an establish'd Maxim in

our Law, that neither Ignorance nor Mistake, is an Excuse to any one who hasbroke it, from the Penalty of it.<gap desc="ornament"/></div></front><pb n="[1]"/><group><text><body><gap desc="ornament"/><head>REMARKS ON THE TRIAL OF <it>John Peter Zenger</it>, Printer.</head><it>SIR</it>,&Iic;T has been a common Remark among those who have observed upon thecapricious Dispensations of Fortune, that great Events are often produced byInstruments that are not seemingly adequate; nay, that the same apparent Causeshave quite contrary Effects; and the Road that leads one Man to Wealth, Honour,and Power, sometimes carries another to Pover&rehy;ty, Infamy and Ruin. Hencecomes that confused Distribution of Axes and Coronets, Halters and Ribbons,which History dis&rehy;plays by numerous shocking Examples; and thus it is, thatFate seems to play at Cross&rehy;purposes with Mankind; or to speak inScripture-phrase, in this Sense as well as many others, <it>the Wisdom of thisWorld is Foolishness</it>.I find myself drawn into these grave Re&rehy;flections, by reading the Trialof <it>John Peter Zenger</it>, at <it>New-York</it>, upon <it>an Information forPrinting and Publishing a Libel.</it> This Piece, it seems has been latelyprinted there, and was put into my Hands, t'other Day, by a Friend who has botha general Ac&rehy;quaintance and a Correspondence with the <corrsic="nothern">Northern</corr> Colonies, as a rare Production, containing manyThings new and surpri&rehy;sing. And in Truth I must say it affords a livelySpecimen, in Miniature, of the Justness of the fore-going Remarks. I mean thatPart of it which is attributed to <it>Andrew Hamilton</it>, Esq; of<it>Philadelphia, Barrister at Law</it>; together with the Sequel, describingthe munificent Behavior of the Citizens in Common Council assembled, to thelearned Gentleman, for his singular Performance on that Occasion.I must at the same Time assure you, that if <it>Zenger</it>'s Trial had beenprinted by Order of the Court that tried him, or from a Copy taken by a privateHand at the Trial, or by any other Means that excluded Mr. <it>Hamilton</it>'sApprobation or Privity, I should have enjoy'd my own Opinion, with&rehy;outtroubling you or any body else about it, and had the Charity to resolve all theEx&rehy;travagancies that occur throughout his De&rehy;clamation, into a rightDiscernment of the People he talk'd to, and a Dexterity in cap&rehy;tivatingthem, which had its Effect in the acquittal of his Client. But when aGentle&rehy;man of the Bar takes the Pains to write over a long Discourse (hebeing the only Lawyer of either side who gave the Printer his Notes) in order tosend it abroad through the World, as a Specimen of his Abilities, Sentiments andPrinciples; as a solemn Argument in the Law, fit to see the light and abide theTest in all Places; and, <pb n="2"/>above all, <it>as a Task of Duty, which hethought himself bound to perform, even by go&rehy;ing to the utmost Parts of theLand</it> for the Purpose; and all this, <it>without Fee or Reward, under theWeight of many Years and great Infirmities of Body</it>: <note type="marginalia"place="inline">Zeng. <it>Trial</it>, P. 29, 31,</note> When a Barrister, I say,thus becomes a Volun&rehy;teer for Error, and presumes to obrude bad Law andfalse Reasoning upon the Sense of Mankind, because the sage Magistrates of<it>New-York</it> have put their Seal to it; I think my self at Liberty withoutusing any other Apology, to exercise the judging Pri&rehy;vilege of a Reader,since the Gentleman himself has put me into the Possession of it.In doing this, I shall not in the least gra&rehy;tify a vain Itch of Writing,for there are no extraordinary Talents necessary for refuting gross Absurdities;but I shall have the honest merit of endeavouring to undeceive such of myFellow-Subjects in the Plantations as may, from the late uncommon Success of theDoctrine, mistake the Liberty of the Press for a Licence to write and publishin&rehy;famous Things of their Superiours and of all others, at their Pleasure,provided they write and publish nothing but what is true. In the next place, Iwould preserve, as far as I am able, the Dignity of the Profession of the Law inthese remote Parts of the <it>British</it> Dominions; and prevent its learnedPro&rehy;fessors in <it>England</it>, who probably will see the renowned Pieceabove mentioned (if we may judge from the industry used in dispersing it) fromsuspecting that all their <it>American</it> Brethren use the like Arts to gainPopularity and honourable Rewards. The former, having the Advantage of going

daily to the great School of Law at <it>Westmin&rehy;ster</it>, are already aptenough to think meanly of the Accomplishments of the latter who are far removedfrom Instruction; and their Opinion must be strongly confirmed in this Respect,if such a Rhapsody as was utter'd at <it>New-York</it>, should not only beapplauded and rewarded publickly there, but printed and scatter'd in Reamsthrough the other Colonies, without being followed by a sui&rehy;tableAnimadversion.Neither will it be amiss to take some Notice, in this Place, of the Quackeryof the Profession in general, without any particular Application, as it has beenpractised with vast Success in some of our Colonies. You will often see (ifcommon Fame may be trusted) a self-sufficient enterprising Lawyer, compounded ofsomething between a Po&rehy;litician and a Broker, who making the Foi&rehy;blesof the Inhabitants his Capital Study, and withal taking Advantage of theWeakness of his Judges, the Ignorance of some of his Brethren, the Modesty ofothers, and the honest Scruples of a third Sort (without having any of his own)becomes insensibly an Oracle in the Courts, and acquires by Degrees a kind ofDominion over the Minds as well as the Estates of the People. An Influence neverto be obtained but by the Help of Qualities very different from Learn&rehy;ingand Integrity. Wherever such a Man is found, the Wonder is not great, if from along Habit of advancing what he pleases, and having it received for Law, hecomes in Time to fancy that what he pleases to ad&rehy;vance is really Law.I have taken the Pains, during this short Vacation between our MonthlyCourts, candidly to examine this new System of <it>Libels</it> lately composedand propagated on the Continent; the Discovery of which cost the good City of<it>New York, five Ounces and a half of Gold, a Scrip of Parchment, and threeLatin Sentences.</it> <note type="marginalia" place="inline"><it>P.</it> 31,32.</note> My intention is to consider Things, not Persons, having no otherKnow&rehy;ledge of the Gentleman principally con&rehy;cern'd than what isderiv'd from the Paper now before me; and being wholly a Stranger to the Meritof those Disputes that gave Rise to the Prosecution of this<it>Printer</it>.Much less shall I turn Advocate for any Lawless <it>Power</it> in Governors.God forbid I should be guilty of such a Prostitution, who know by Experience ofwhat Stuff they are commonly made; the wrong Impessions they are apt to receiveof themselves and others; their passions, prejudices and pursuits; tho' when allreasonable Allowances are made for certain Circumstances that attend theirMis&rehy;sion from home and their Situation abroad, a considerate Person may betempted to think: --- it is well they are no worse than they are.<pb n="3"/>But to come to my Remarks on <ro>Zen&rehy;ger's</ro>Trial.&Iic;N considering the Defence made for the Defendant (Mr. <it>Zenger</it>)by his Council (Mr. <it>Hamilton</it>) upon <it>not Guilty</it> pleaded to an<it>Information for printing and publishing a Libel</it>, it is not to thepurpose to enquire how far the Matters charged in the Infor&rehy;mation are intheir Nature Libellous, nor whether the <it>Innuendoes</it> are properly used toapply the Matters to Persons, Things and Places. It is only necessary to examinethe Truth of this single Proposition, upon which the whole Defence is grounded,and to which the several parts of it refer; namely, <it>that the several matterscharged in the In&rehy;formation, are not and cannot be libellous, because theyare true in Fact.</it>This is the Cardinal Point, upon which the learned Gentleman's whole Argumentturns, and which he lays down over and over, as the first Principle that governsthe Doctrine of Libels; <note type="marginalia" place="inline"><it>Zeng.</it>Trial, <it>p.</it> 12, 13, 22.</note> and accordingly he confesses the printingand publishing of the Papers laid in the Information, and puts it upon theKing's Council to prove the Facts contain'd in them to be false; alledging, atthe same Time, that unless that were done, the Defendant could not be Guilty;<note type="marginalia" place="inline"><it>p.</it> 15,16.</note> but if the samewere prov'd to be false, he would own the Papers containing them to be Libels.To this, it seems, the Attorney-General answer&rehy;ed, <q rend="it">that aNegative is not to be proved</q>; and the other replied in these Words, which Ichuse to set down, that I may not be thought to do him wrong. <notetype="marginalia" place="inline"><it>p.</it> 19.</note> ------- <q rend="it">I

did expect to hear that a Negative cannot be proved; but every body knows thereare many Ex&rehy;ceptions to that general Rule: For if a Man is charged withkilling another, or stealing his Neighbour's Horse; if he is innocent in the oneCase, he may prove the Man said to be killed to be still alive; and the Horsesaid to be stolen, never to have been out of his Master's Stable, &c. Andthis I think is proving a Negative.</q> Now I must think, that it is strange aGentleman of his Saga&rehy;city, who owns he was prepar'd for theOb&rehy;jection, could not yet hit upon some of these many Exceptions whichevery body knows. For he does no more than give two In&rehy;stances of OneAffirmative being destroy'd by another that infers a Negative of the first; atwhich Rate most Negatives may be prov&rehy;ed, and then the old Rule may bediscard&rehy;ed. Thus, if it is shewn that a Man is a&rehy;live, it followsclearly that he was not kill'd; and if a Horse is proved to have been always inhis Master's Stable (for this is what must be understood of his being never outof the Stable) it certainly follows that he could not be stolen. So that,according to this new Scheme of Proof, he who is accus'd of killing a Man, orstealing a Horse, is to be put upon proving that he did not kill or steal;because it is possible that such Proof may be had sometimes: And so in theprinci&rehy;pal Case, if a Question arises whether a cer&rehy;tain Magistratehas done particular Acts of Injustice of not, the Method is to shew that he didnot do such Acts, not that he did them. I have touch'd upon this, not for itsimport&rehy;ance, but as a Specimen of the learned Barri&rehy;ster's manner ofreasoning, and of the Spirit with which he sets out from the beginning.At length, however, he takes the <foreign rend="it" lang="lat">Onusprobandi</foreign> upon himself, and rather than the Thing should go un-prov'd,generously undertakes, at his Client's Peril, to prove the Matters char&rehy;gedin the Information as libellous, to be true. <note type="marginalia"place="inline"><it>p.</it> 18.</note> But I would be glad to know, by the way,how this undertaking Gentleman could have proved the Truth of divers Factscontained in the paper which the Defen&rehy;dant published, supposing the Courthad been so much over-seen as to let him into a Proof of this Sort. Could heprove, for Example, that <it>Judges</it> were arbitrarily dis&rehy;placed, andnew Courts erected, in the Pro&rehy;vince of <it>New-York</it>, without Consentof the Legislature? For I am credibly inform'd, there never was a Pretence orSurmise of more than <it>One Judge</it> being displaced, or more than one Courterected under Mr. <it>Cosby</it>'s Administration, both which hap&rehy;pen'dupon one and the same Occasion. <pb n="4"/>Now I would not have this esteem'd acap&rehy;tious Exception, when I have to deal with a Man of Law, who must orought to know, that if such a Justification as he offer'd were at all allowable,it ought to be full and ex&rehy;press, so as to leave no Room for the Libellerto multiply and exaggerate Facts, at his Plea&rehy;sure, when he is disposed totraduce Persons in Authority; there being a manifest Diffe&rehy;rence between asingle Act of Power without or against Law (from which perhaps few Governmentshave been free) and an habitual Abuse of Power in repeated Instan&rehy;ces ofthe same Species. I would further ask, how he could prove <it>that the Law itself was at an End, and that Trials by Ju&rehy;ries were taken away when aGovernor pleased</it>; for if I mistake not, he was, at that Time speaking to aJury in a regular Court of Law, and in a Prosecution which the Governor had muchat Heart (as the Gentle&rehy;man himself insinuates) and would have been highlypleased to convict his Client, yet would not attempt it but in the ordinaryCourse of Trial by a Jury, and then too could not find a Jury that would convicthim. I think I am warranted in putting these Que&rehy;stions, even by theAuthority of the Barrister himself, who says, &horfill; <q>Truth ought to governthe whole Affair of Libels, and yet the Party accused runs risque enough eventhen; for if he fails of proving every Tittle he has wrote, and to theSatisfaction of the Court and Jury too, he may find to his cost,</q> &c.<note type="marginalia" place="inline"><it>p.</it> 22.</note>But for the present I will suppose Mr. <it>Ha&rehy;milton</it> was able toprove all these Things; nay, that the Jury knew them all to be true. I will gofarther and allow, that Juries in Criminal Cases may determine both Law and Factwhen they are complicated, if they will take such a Decision upon theirConsciences (which is almost the only Point in which I can have the Honour ofagree&rehy;ing with him) yet after all these Con&rehy;cessions, the main

Question rests still between us, <it>viz. Whether a Writing can be a Libel, inlegal Acceptation, if the matter contained in it be true.</it> He is pleasedindeed, to ex&rehy;press his Dislike of infamous Papers, even when they aretrue, if levell'd against pri&rehy;vate Vices and Faults; and in this Case hecalls them <it>base, unworthy, scandalous, un&rehy;manly and unmannerly</it>.<note type="marginalia" place="inline"><it>p.</it> 19, 20.</note> But surely itmight be expected, when a Point of Law was in question, that he would have toldus whether they were lawful or unlawful, inno&rehy;cent or criminal, since theselast are the on&rehy;ly Epithets that were relative to his Subject, tho' thefirst might have their Weight in a Sermon or moral Essay. But it is plain, hewas aware of the Consequence of being ex&rehy;plicit upon this Head, for had heown'd such Writings to be lawful, because true, he would have alarmed the CommonSense of Mankind, by opening a Door for exposing at Mercy, the Frailties, Vices,Defects and Misfortunes of every Person high and low, which must inevitablydestroy the Peace of Families, and beget ill Blood and Disorders. If on theother hand, he had acknowledg'd such Writings to be unlawful inasmuch as theyconcern'd private Miscarriages and Transactions; but that every Man might writeas much Truth as he pleased about the Administration of the Government, not onlyby pointing out Faults and Mistakes, but by publishing his own Comment andInferences in Order to fill the Minds of the People with all the Jealousies andAppre&rehy;hensions his Imagination can form; it must have shock'd Men ofUnderstanding to be thus told, that the Law had provided a&rehy;gainst privateQuarrels and Breaches of the Peace occasion'd by virulent Writing, but had takenno Care to prevent Sedition and publick Disturbance arising from the sameCause.His Favourite Position, however, was to be maintain'd at all Events; andthere&rehy;fore when <it>the Chief Justice</it> right&rehy;ly instructed him,that he could not be admitted to give the Truth of a Libel in Evidence, <it>thatthe Law was clear that he could not justify a Libel; for it is nevertheless aLibel that it is true</it>; <note type="marginalia" place="inline"><it>p.</it>16.</note> the discerning Gentleman was pleas'd to understand by the Word <qrend="it">justify, a Justification by Plea, as it is in the Case of anIndictment for Murder, or an Assault and Battery; there <ro>(says he)</ro> thePrisoner cannot <pb n="5"/>justify, but plead not guilty; yet in Murder, he mayprove it was in Defence of his Life, his House, &c. and in Assault andBattery, he may give in Evidence, that the other Par&rehy;ty struck first, andin both these Cases he will be acquitted.</q>If the Party in either Case is acquitted, the Reason is I presume, becausethe Matter given in Evidence amounts to a Justi&rehy;fication in Law of the Factcharged on him, and is equivalent to a Confession and Avoi&rehy;dance inpleading. In like manner, if Truth be a sufficient Justification of a Libel, theDefendant will be acquitted upon prov&rehy;ing the Contents of his Paper to betrue. Now let it be observed, that the Words of the Book which the Chief Justicerelied on are these. &horfill; <q rend="it">It is far far from being aJustification of a Libel, that the Contents thereof are true &horfill; since thegreater Appearance there is of Truth in any malicious Invective, so much themore provoking it is.</q> That this is good Law, I hope I shall be able to shewfully hereafter, as I shall shew, in the mean time, that it is an expressAuthority against the well-read Barrister, who declares, <q rend="it">he has notin all his reading, met with an Authority that says, he cannot be admitted togive the Truth in Evidence</q>, &c. <note type="marginalia"place="inline"><it>p.</it> 16</note>He seems to take it for granted (and I shall not dispute it with him now)that Mat&rehy;ter of Justification cannot, in any Case, be pleaded specially toan Indictment of <it>As&rehy;sault</it> or <it>Murder</it>; but the Party is totake Advantage of it in Evidence upon <it>not Guilty</it> pleaded. Let it be so;yet still this Matter must be a sufficient justification, or the Par&rehy;ty canhave no Benefit from it any way. In an Action of Assault and Battery, where the<it>first Assault</it> must be pleaded specially; the Matter of Justification isjust the same, as in an Indictment for the same Offence, where it must be givenin Evidence upon the General Issue. I ask then, whether the <it>firstAssault</it> is a Justification in an Indict&rehy;ment of Assault and Battery?If the Barrister should answer Negatively, such Answer is a&rehy;gainst all

Sense, for the Party is acquitted by virtue of the Justification only. If heshould answer Affirmatively, he is inconsistent with himself, for he has butjust affirm'd that when the Book says, <it>Truth is no Justification</it>, itmust be understood of a Justification by Plea, by which he must mean thatnothing else is a Justification but what is pleaded, or he must mean nothing atall. For the Words of the Book are, &horfill; <q rend="it">it is far from beinga Justification</q> &c. it is not said, &horfill; <it>you are far from beingat Liberty to plead it in Bar</it>. In truth, the Author is not there speakingof the Forms and Rules of Proceedings upon Libels, but upon the Substance andNature of the Crime, what shall and what shall not ex&rehy;cuse or justify it.<note type="marginalia" place="inline">1 <it>Hawk. Ch.</it> 73. §5,6,7.</note> This is manifest from the Reason subjoined to sup&rehy;port hisAssertion, <it>viz. since the greater Ap&rehy;pearance there is of Truth,</it>&c. which is a solid Reason grounded on the Wisdom of the Law, whichpunishes Libels even against private Persons, as Publick Offences, be&rehy;causethey provoke Men to Acts of Revenge and Breaches of the Peace. I hope it willnot be said that a Libel is less provoking, because the Truth of it is to begiven in Evidence, than if it was to be pleaded in Bar.But all this is <it>Star-Chamber-Doctrine</it> with the Barrister, and thevery mention of that Court serves him for an Answer to every Thing, for which hehas no other Answer; because the Memory of that Tribunal is justly detested onaccount of many illegal and exorbitant proceedings. No; this is the Authority of<it>Mr. Serjeant Hawkins</it> (tho' he uses Marginal References to some Start-Chamber Cases) whose Name is too great to receive any Addition from thisPa&rehy;per, and who after a long and studious Search in the Crown-Law, laiddown this Proposition for Law at the Time he wrote his Book; and I believe itwill appear in the Sequel that he was not mistaken. And now I come to join Issuewith the Barrister upon this Point, whether Mr. Serjeant or he is in the right;or in other Words, whether Falsity in Fact be essential to a Libel, so that theTruth of the Fact may be given in Evi&rehy;dence to prove Writing to be noLibel.<pb n="6"/>He maintains the Affirmative of the Que&rehy;stion, <it>both fromwhat he understands to be the Authorities in the Case, and from the Reason ofthe Thing</it>. <note type="marginalia" place="inline"><it>Zeng.</it> Trial,<it>p.</it> 16.</note> All which shall be consider'd in their Order.The Authorities cited by Mr. <it>Hamilton</it> to support the Propositionformerly stated consist principally of Four Cases, which I shall consider in theOrder as they were pro&rehy;duced.The first is the Case of <it>John de Northampton</it>, 18 <it>Ed.</it> III. 3Inst. 174. which he ob&rehy;serves does not appear to have been a Case upon anInformation, but that <it>he has good Grounds to say it was upon anIn&rehy;dictment</it>. <note type="marginalia" place="inline"><it>Zeng.</it>Trial, <it>p.</it> 16.</note> This is what I shall not contest with him, becauseit is not material, or in&rehy;deed easy to be determin'd, whithout seeing theRecord; tho' I conceive there are Grounds to say it was not upon anIndict&rehy;ment, as was the Case of <it>Adam de Ravens&rehy;worth</it>,mentioned by Lord<it>Coke</it> in the same Chapter. The Case, however, standsthus;<it>"John de Northampton</it>, an Attorney of the King's Bench wrote a Letterto one <it>Fer&rehy;rers</it>, one of the King's Council, that nei&rehy;ther Sir<it>William Scot</it> Chief Justice, nor his Fellows the King's Justices, northeir Clerks, any great Thing would do by the Commandment of our Lord the King<it>&c.</it> which said <it>John</it> being called, con&rehy;fessed theLetter, <it>&c.</it> <q rend="it"><foreign lang="lat">Et quiaprædictus Johannes cognivit dictam literam per se scriptam, Roberto deFerrers, qui est de con&rehy;cilio Regis, quæ litera continet in se nullamveritatem: Prætextu cujus Dom. Rex erga Curiam, & Justiciarios suoshabere posset indignationem, quod esset in Scandalum Justic. & Curiæ.Ideo dictus Johannes committitur</foreign></q>, &c." Here says theBarrister, <q rend="it">by this Judgment it appears the libellous Words wereutterly false, and there the Fals&rehy;hood was the Crime, and is the Ground ofthe Judgment.</q> For my own part, I can neither see <it>Truth nor Falshood</it>in the Words at the Time they were wrote, for they refer to a future Contingency

that might or might not be as he said; and in this respect, they were the sameas if the Man had said, the Roof of <it>Westminster</it>-Hall would fallup&rehy;on Sir <it>William Scot</it> and his Fellows. Besides, the Words takenby themselves have no ill meaning; for I imagine it will be allowed that most of<it>the great Things</it> which Judges do, as Judges, are such as ought neitherto be done nor left undone by the King's Com&rehy;mandment. Where then was theOffence? The Record, I think, shews that in the fol&rehy;lowing Words; <qrend="it"><foreign lang="lat">prætextu cujus Dom. Rex erga Curiam &Justic. suos habere posset in&rehy;dignationem, <ro>&c.</ro> Ideo dictusJohannes com&rehy;mittitur</foreign></q>, &c. It is observable, that theAu&rehy;thor of this Letter was an Attorney of the Court, and by the Contentsthereof he pre&rehy;sumes to undertake for the Behaviour of the Judges in somegreat Matters that concern&rehy;ed their Office. The Letter was address'd to aPerson who was of the King's Council and might possibly communicate theCon&rehy;tents of such a Letter to the King; the consequence of which mightnaturally be that <foreign rend="it" lang="lat">Dom. Rex habere possetindignationem erga Curiam</foreign>, &c. for great Things were some timesdone, in those Days, by the King's Commandment; and the Judges, besides, heldtheir Posts at Will and Plea&rehy;sure.The Words, <q rend="it"><foreign lang="lat">quæ litera continet in senul&rehy;lam veritatem</foreign></q>, were therefore proper for the Judges toinsert, in order to acquit themselves to the King; but they are no more theGround of the Judgment than these other Words, <q rend="it"><foreignlang="lat">qui est de Consilio Regis</foreign></q>; both being only incidentalClauses that some in by way of Description: For it is not said; <foreignrend="it" lang="lat">Quia litera a prædicta continet in se nullamve&rehy;ritatem</foreign>. After all, I would not have this Construction of theCase, plain and natural as it is, pass meerly upon my own Credit; for I shallshew that this Case was so under&rehy;stood by one of the greatest Lawyers ofhis Time, before Lord <it>Coke's</it> 3d Inst. ap&rehy;pear'd in the World.21. Jac. <it>B.R. Tanfield v. Hiron.</it> Godb. 405, 6.The Plaintiff brought an Action upon the Case against the Defendant, fordelivering of a scandalous Writing to the Prince, <it>&c. Noy</it> for thePlaintiff cited, 18 Ed. III. a Let&rehy;ter was sent to <it>Ferrers</it>, one ofthe King's <pb n="7"/>Council, the Effect of which was, that <it>Scot</it> ChiefJustice, and his Companions of the same Bench, would not do a vain Thing at theCommand of the King; <it>yet because he sent such a Letter to the King'sCouncil, altho' he spake no Ill, yet because it might in&rehy;cense the Kingagainst the Judges, he was punished</it>. If no Ill was said, will it bepre&rehy;tended that the Falshood of what was said could be a Reason forpunishing a Man? Is it not ridiculous to say that the Falshood of innocent orinsignificant Words can be Criminal? This Book, therefore follows the Record of<it>Northampton</it>'s Case, and says; because it might incense the King againstthe Judges he was punish'd; which is almost a Translation of <foreign rend="it"lang="lat">prætextu cujus</foreign>, &c. which was the Ground of theJudgment, <it><foreign lang="lat">Ideo Committitur</foreign></it>.The next Case which the Barrister called to his Aid, is that of <it>theSeven</it> Bishops. <it>State Trials</it>, Vol. 4 and here he relies on aFlourish of one of the Council for the Bishops, and a dubious Expression of oneof the Judges, separated from the rest of his Discourse.Sir <it>Robert Sawyer</it>, 'tis true says, <q rend="it">Both the Falsity ofit <ro>(the Libel)</ro> and that it was malicious and seditious, are all Mattersof Fact, which they <ro>(the King's Council)</ro> have offer'd to the Jury noProof of</q>, &c. This I must confess, proves on Point to which theBarrister adduced it, viz. <it>that he was not the first who insisted, that tomake a Writing a Libel, it must be false</it>. <note type="marginalia"place="inline"><it>p.</it> 17.</note> And when I have allow'd this, I may almostventure to say, it is the only Point he does prove from the Beginning to theEnding of his long, elaborate Speech. Let me how&rehy;ever, oppose to this theReply of Sir <it>Thomas Powis</it>, in these Words; <q rend="it">whether a Libelbe true or not, as to the Matter of Fact; was it ever yet permitted in any Courtof Justice to be made a Question; on whether the Party is punishable for it? And

therefore I wonder to hear these Gentlemen say, that because it is not a falseone therefore it is not a Libel</q>, fol. 382.Mr. Justice <it>Powel</it> also does say, <q rend="it">that to make it aLibel, it must be false; it must be malicious; and it must tend to Sedition</q>.Upon which Words of this learned and worthy Judge; I would not presume to offerany Comments, except that which other Words of his own afford; that plainly shewin what Sense he then spoke. His subsequent Words are these; <q rend="it">they<ro>(the Bishops)</ro> tell his Majesty, it is not out of Averseness to pay alldue Obe&rehy;dience; nor want of tenderness to their Dissen&rehy;ting Fellow-Subjects; but because they do con&rehy;ceive the Thing that was commanded them,was against the Law of the Land; they say, they apprehend the Declaration isillegal, be&rehy;cause it is founded on a Dispensing Power; I do not remember inany Case in all our Law, that there is any such Power in the King; and the Casemust turn upon that. In short, if there be no such Dispensing Power in the King,then that can be no Libel, which they presented to the King, which says that theDeclaration, being founded upon such a pre&rehy;tended Power, is illegal.</q> Sothat the Judge put the whole upon that single Point, whe&rehy;ther it be truethat the King had such a Dispensing Power, or not; which is a Question of Law,and not of Fact; and accordingly the Judge appeals to his own Reading in theLaw, not to Witnesses or other Testimony, for a Decision of it. In truth thePetition of the Bishops is not capable of having Falshood or Truth apply'd to itin any other Sense, there being nothing else affirm'd or deny'd in it, <it>butthat they thought they could not do what was commanded them because it wasagainst the Law</it>. This was the Behaviour; these were the Senti&rehy;ments ofthat upright Judge, that gain'd him so much Honour among all good Men, as theBarrister takes Notice; not any Opi&rehy;nion of his, that the Contents of aLibel must be false in Fact, to make it a Libel; as he would unfairlyinsinuate.Sir <it>Samuel Barnardiston's Case</it> is the third that is touch'd upon;and here too the Gentleman finds nothing that can be strain'd to his Purpose,but the Defendant's Council <it>insisting on the want of proof to the Malice andseditious Intent of the Author</it>. He seems to have forgot that the sameGentleman insisted also to have it proved, <it>that the Defendant was a Person<pb n="8"/>of a turbulent and unquiet Spirit</it>, because these Words were setforth in the Informa&rehy;tion,and he takes no manner of Notice how all this wasanswer'd, which I must now do for him, in the Words of the Court; <qrend="it">cer&rehy;tainly the Law supplies the Proof, if the Thing it selfspeaks Malice and Sedition. As it is in Murder; we say always in theIn&rehy;dictment, he did it by the Instigation of the Devil: Can the Jury, ifthey find the Fact, find he did it not by such Instigation? No, that doesnecessarily attend the very Nature of such an Action or Thing. So inInforma&rehy;tions for Offences of this nature, we say, he did it falsely,maliciously, and seditiously, which are the formal Words; but if the Nature ofthe Thing be such as necessarily imports Ma&rehy;lice, Reproach and Scandal tothe Government, there needs no Proof but of the Fact done; the Law supplies therest. How shall any Man prove another Person's Malice, which is a Thing thatlies only in a Man's mind? How should any Man know that I am malicious againstthe Government, but by my Actions?</q> These Words, indeed, were pronounc'd by<it>the Chief Justice Jefferies</it>, who was then the Mouth of the Court; buttho' he was really an intemperate Judge (or a <it>Mon&rehy;ster</it>, as theBarrister, in his Bar-Language, delights to call him) yet I may safely refer itto all Men of Law, whether these Words could have discre&rehy;dited the bestMouth that ever spoke upon that Bench. <note type="marginalia"place="inline"><it>p.</it> 17.</note> State-Trials, vol. 3. 851.An Instance of this Sort may not be im&rehy;pertinent, where a Chief Justice(who was no <it>Monster</it>) addresses himself to a Jury, that was trying aLibel, in this manner: <q rend="it">I will not repeat the Particulars to you,only something to what the Defendant has said, that you may not be misled. Hesays, it does not appear that he did it maliciously or know&rehy;ingly. Thereare some Things that you that are of the Jury are not to expect Evidence for,which it is impossible to know but by the Act it self. Malice is conceiv'd inthe Heart, no Man knows it, unless he declares it: As in Murder, I have Maliceto a Man; no Man knows it. I meet this Man and kill him; the Law calls this

Malice. If a Man speak scandalous Words against a Man in his Calling or Trade;he lays his Action, Malice; tho' he cannot prove it but by the Words themselves;you may see, there is Malice sup&rehy;posed to a private Person in that Slander,much more to the King and the State.</q> State-Trials, vol. 2. 537.<it>Tuchin's Case</it>, the Barrister does not pro&rehy;perly cite, butendeavours to answer as a Case urged against him by the King's Coun&rehy;cil;and therefore I shall observe upon it in another Place.But the Case of Cases is still behind, which he reserved for the last, <it>tomake the Point clearer on his side</it>, than all the rest put together coulddo. <note type="marginalia" place="inline"><it>p.</it> 17.</note> It is<it>Fuller's Case</it>. State-Trials, vol. 5. 445, 6, 7, 8. And it deservesnotice, that altho' <it>Fuller</it> was charged with writing a Libel, yet<it>that</it> was not the Gift of the In&rehy;formation. He was, in truth,prosecuted for being <it>a Cheat and Impostor</it>, by Order of the House ofLords, as the King's Council declare in the Opening.The Information accordingly sets forth, <q>"That <it>W.F.</it> intending thelate <it>King William</it> and his Subjects to deceive, and to get several greatSums of Money fraudulently and deceitfully from the said King; con&rehy;cerninga Correspondency between di&rehy;vers Officers and Subjects of the said lateKing, and <it>the late King James</it> falsely pre&rehy;tended to be had; didwrite and Print a Libel, intituled, Original Letters, <it>&c.</it> with theDeposition of <it>T.J.</it> and <it>T.F.</it> Esqrs. proving the Corruptionlately practised in this Nation; and the said <it>W.F.</it> afterwards didpublish, utter, and for Truth affirm the said several false and scan&rehy;dalousLibels, without any lawful Autho&rehy;rity; <it>whereas in Truth the said T.J.did not depose upon his Oath as is contained in the said false and scandalousLibel; but the said scandalous libels are false, feigned, and altogethercontrary to Truth</it></q>, &c." Here it is manifest he was accused of aCheat, in Forging <it>the Correspondence and the Deposi&rehy;tions</it> justmentioned, with a Design of get&rehy;ting Money by his pretended Discovery. Andhence it comes, that the Judge very properly asks him, <q rend="it">have you anyWitnesses? If you take upon you to write such Things as you <pb n="9"/>arecharged with, it lies upon you to prove them true, at your Peril. How come youto write those Books that are not true? If you have any Witnesses, producethem.</q> Thus said, and thus did that great Man, Lord Chief Justice<ro>Holt</ro>; <note type="marginalia" place="inline"><it>p.</it> 17</note> butnot upon a Trial of the like kind with Mr. <it>Zenger</it>'s, as his Councilwould have it thought. For in this Case the <it>Cheat</it> and the<it>Imposture</it> was the Offence, which consisted wholly in the falsity; thatis, in affirming such Things for <it>Realities</it>, when they were nought but<it>Fictions</it>. On the contrary, had he been able to prove those<it>Letters</it> and those <it>Depositions</it> to be authentick, the discoverywould have been valuable, and might intitle him perhaps to Favour and Protectionin&rehy;stead of Punishment; however irregular he was in taking such a Method topublish Matters of that high Consequence. After this, let the learned Barrister,<it>in all his Reading</it>, shew an Information or Indict&rehy;ment for a<it>Libel</it>, where the <it>Falsity</it> is assigned in Form with <foreignrend="it" lang="lat">ubi re vera</foreign>, as the Foundation of the Offence;which is done in <it>Fuller</it>'s Case; and then I will acknow&rehy;ledge thatthe Questions put here by <it>Lord Holt</it>, would have been proper upon theTrial of his Client.This is the Sum of the Barrister's Law-Cases. And is it not high Time to ask,whe&rehy;ther such gross Misrepresentations of the Books can proceed fromIgnorance or Disingenuity? Be that as it will; it might certainly be expected,that a Proposition ad&rehy;vanced with so much Assurance, <it>by a Man of Yearsand Reading</it>, should have been supported by some One Authority in Point,rather than by a Series of low Prevarication and Quibble. Could he not find inall the Book-Cases and Trials at large concerning <it>Libels</it> (which aresufficient of themselves to make a large Volume) one Example of Proof beingreceived to the Truth or Falsity con&rehy;tained in a libellous Writing? Indeedthere is nothing like it to be found; tho' the Oc&rehy;casions have been many,where such Proof might be had, if it were proper; nay, where the Truth of the

Thing was notorious to all Men, and yet no Question ever moved concerning it.This shall fully appear in the Sequel.If any thing can be necessary further to expose Mr. <it>Hamilton's</it>Doctrine of <it>Libels</it> after answering his own Cases, it is only to subjoinsome others that will shew how much he is mistaken in almost every thing he hasoffer'd on the Subject. I shall there&rehy;fore mention a very few, that willbear a particular Application to his crude Notions, without entering into aMultitude of others, to tire the Reader.16 <it>Car.</it> 2. The <it>King</it> v. <it>Pym.</it> I Sid. 219, B.R.<it>Pym</it> was indicted at <it>Exeter</it> for a Libel, which he deliver'dto a Parson to be pub&rehy;lish'd in Church there, and was to this Ef&rehy;fect;<q rend="it">you are desired to be wail the Sodomitry, Wickedness, Whoredom,Lewdness, that is of late broken out in this formerly well&rehy;govern'd City;that God would turn their Hearts from committing those Wickednesses which gounpunished by the Magistrates.</q> <it>Pym</it> confess'd the Indictment, andwas fined 100 l. He afterwards brought a Writ of Error, and assign'd for Errorthat this was no Offence, because tho' he says, <it>go un&rehy;punished by theMagistrate</it>; yet he does not say that the Magistrate knew of it, andWickedness unknown can't be punished. It was answer'd by the Court, that thiscon&rehy;tains matter of great Scandal to the Govern&rehy;ment of the City, forit makes the late Government better than the present, &c. <it>Hide, Twisden,Keelyng, Windham</it> Just.I have pitch'd upon this Case, because the Barrister is fond of comparing thePlan&rehy;tations to large Corporations; and he will find here, that even thoseare not left to the Mercy of Li&rehy;bellers, <it>altho' they do not put in aClaim to the Sacred Rights of Majesty</it>: <note type="marginalia"place="inline"><it>Zeng.</it> Trial, <it>p.</it> 14.</note> And that aMisbehaviour of this kind to the Magistrates of a Corporation is not entirelyinnocent, <it>because it is not to be judged of, or punished, as a likeUndutiful&rehy;ness would be to our Sovereign</it>. <note type="marginalia"place="inline"><it>p.</it> 14</note>This Case was adjudged about four Years after the <it>Restoration</it>, whenthe Memory of the preceding Usurpation was fresh in every body's Mind. It isstrange therefore Mr. <it>Pym</it> did not put himself on his Trial at<it>Exe<pb n="10"/>ter</it>, for it was evident beyond Contradiction to thePeople of that Age, from their own knowledge, as it is now to us from History,that the Wickedness specified in the Libel was restrain'd by a stricter Handbefore, than after the Restoration. But this noto&rehy;rious Truth, it seems,did not avail Mr. <it>Pym</it>.22 <it>Car.</it> 2. the <it>King</it> v. <it>Saunders.</it> Raym. 201.B.R.Information for writing a scandalous Libel to <it> H. Rich.</it> who wasindebted to him, and kept him out of his Money three Years by obtaining aProtection, and at length getting into the Prison of the King's Bench.<it>Saun&rehy;ders</it> wrote him a Letter, wherein he tells him; <qrend="it">that if he had any Honesty, Civility, Sobriety or Humanity, he wouldnot deal so by him; and that he would one Day be damned, and be in Hell for hisCheating</q>; and cited several Places of Scripture to make good hisAllegations. The Defendant was found <it>Guilty</it>, and moved in Arrest ofJudgment, that the Substance of the Letter is not Scan&rehy;dalous, butimpertinent and insignificant, &c. <it>Cur.</it> The Letter is provocativce,and tends to the incensing Mr. <it>Rich</it> to break the Peace. The Courtadjudged the Letter scandalous, and fin'd him 40 Marks. <it>Keelyng, Twisden,Rainsford, Moreton</it>, Inst.I would entreat the clear-sighted Barrister to look carefully into the Wordsof this Libel, and try if he can discover any Truth or Falshood in them that wascapable of Proof. And I must remark upon both these Cases, that tho' they wereadjudged in the Reign of K. <it>Charles</it> II. yet neither of them was upon aState Prosecution, or at a Time when the Spirit of <it>Plots andFacti&rehy;ons</it> had infested the Courts of Justice; but they remainunquestionable Authorities at this Day.State-Trial vol. 5. The Case of <it>Tutchin</it> is strong against him; aCase adjudged since the Revolution, before that learn'd and up&rehy;right Judge

Sir <it>John Holt</it>, and plainly shews the Fallacy that runs throughout hiswhole Argument.The Points insisted on by this <it>Chief-Justice</it>, in his Charge to theJury, were these; <q rend="it">to say that corrupt Officers are appointed toad&rehy;minister Affairs is certainly a reflection on the Government. If Peopleshould not be called to an Account for possessing the People with an ill Opinionof the Government, no Government can subsist; now you are to con&rehy;sider,whether these Words I have read to you do not tend to beget an ill Opinion ofthe Administration of the Government; to tell us that those that are employ'dknow nothing of the Matter, and those that do know are not employ'd. Men are notadapted to Offices, but Offices to Men, out of a particular Regard to theirInterest, and not to their Fitness for the Places. This is the Purport of thesePapers.</q> If this was the Purport of the Papers, and so criminal as hath beenjust said, it is amazing surely that Mr. <it>Tutchin</it> did not offer to provethe Truth of these Allegations, and thereby take out their Sting! Could not hepossibly think of as many corrupt or incompetent Officers, Ecclesiastical, Civilor Military in <it>England</it> prefer'd by Interest rather than Merit, <it>asthere were Judges dis&rehy;placed and Courts erected in New-York</it>? Or if hewas restrain'd by the hard-hearted Judge, from desporting himself in thisplea&rehy;sant and spacious Field; could he not apply to the private Knowledgewhich the Jurors (as well as the rest of Mankind) had of these Matters? For Iimagine it will be allowed, that if no Instances of this sort could be shewn atthe Time of <it>Tutchin</it>'s Trial, it was the only Period within the Memoryof Man, or the reach of History, that wanted the like.But the misfortune was, the poor Man was not bless'd with such skilfulCouncil as is to be had in <it>Philadelphia</it>, to think of these good thingsfor him; <note type="marginalia" place="inline"><it>p.</it> 18.</note> otherwiseyou might have heard an alert Advocate (<it>after returning thanks to hisLord&rehy;ship for nothing</it>) address himself to the Jury in this or the likeeloquent Strain; <q rend="it">then, Gentlemen of the Jury, it is to you we mustappeal for Witnesses to the Truth of the Facts we have offer'd, and are deny'dthe Liberty to prove; the Law supposes you to be summon'd out of theNeighbourhood where the Fact is alledged to be committed; and the Reason of yourbeing taken out of the Neighbourhood is, because you are suppos'd to have thebest Knowledge of the Fact that is <pb n="11"/>to be tried. And were you to finda Verdict against my Client, you must take upon you to say the Papers referr'dto in the Information, and which are proved to be written and published by us,are false, scandalous and se&rehy;ditious. You are Citizens of <ro>London</ro>,honest and lawful Men, and the Facts which we offer to prove were not committedin a Corner; they are notoriously known to be true. And as we are deny'd theLiberty of giving evi&rehy;dence to prove the truth of what we have published, Iwill beg leave to lay it down as a standing Rule in such Cases, that thesuppressing of Evidence ought always to be taken for the strongest Evidence, andI hope it will have that Weight with <ro>you.</ro> Lay your hands upon yourHearts, Gentlemen, and recollect. Do none of you know; nay, do not all of youknow certain Persons, who shall be nameless, that have been lately promoted byFavour and Interest, to Places of Trust and Profit both in Church and State,Army and Navy; whom you must know and believe in your Con&rehy;sciences to beill Men and no way qualified for such Preferment; as my sagacious Client hasmost seasonably remonstrated to the Neigh&rehy;bours, by virtue of that rightwhich every free-born Subject hath of publishing his Com&rehy;plaints, when theMatters so published can be supported with Truth?</q> <note type="marginalia"place="inline"><it>p.</it> 12, 22.</note> But is <it>Lord Holt</it> asleep allthis Time? Can any reasonable Man, who has but common Notions of Judicature,imagine that this great Judge would suffer such Trash as this to be thrown outin any Court where he sat in Judgment? But what must he have said if theLibeller be&rehy;fore him had offer'd to prove, <it>that the Law itself was atan end; that Trials by Juries were taken away when a Minister pleas'd; that noMan could call any thing his own, or enjoy any Liberty longer than those in theAdministration would condescend to let him do it</it>? Would he have said thatthese Things did not tend to possess the People with an ill Opinion of theGovernment; and that Governments might well subsist, tho' Men should not becall'd to an Account for pub&rehy;lishing the like? or would he have said, it

was no matter what Opinion the People had of the Government, nor whether itsubsisted or not, provided these Assertions were true; and so have dischargedthe Man as a Pub&rehy;lisher of precious and useful Truths <it>to put theNeighbours on their Guard</it>?But here also the Barrister lays hold of a Random-Question, put by one of theKing's Council to Mr. <it>Montague</it>, who was for the Defendant, and was thentouching upon the Affairs of the Navy. Saith the former; <it>will you say theyare true</it>? now the latter had hinted as much as that these Things were true,but did it with that Caution which a Man of Skill uses, when he would saysomething in Support of a lame Cause, but don't care to press an Impropriety toofar. For that learned Gentleman was very sensible, that if he had presum'd toinsist ex&rehy;pressly on the Truth of the Matters contain'd in his Client'sPapers, a severe Reprimand was the best thing that could have befallen him. HisWords are these; <q rend="it">no body can say, that we never had anyMismanagements in the Royal Navy; and whenever that has hap&rehy;pen'd, theMerchants of <ro>England</ro>in all Pro&rehy;bability have suffer'd for it</q>.But does the Judge, in his Charge to the Jury, vouchsafe to give this Matter anyAnswer, or so much as to mention it? <it>Lord Holt</it> did not usually pass bymaterial Things that were offer'd in Defence of Persons tried before him; yet inthis Case he makes no Questions or Scruple about the Truth or Falshood of<it>Tutchin</it>'s Papers, altho' they contain'd many Things which his Lordship,the Jury, and all the World knew to be **** This candid Judge, however, puts themerits of the whole upon the Scandal of the Government, and the evil Tendency ofsuch Writings. And therefore I must once more call upon the Northern Barristerto shew a single Instance where Witnesses have been produced by Council, andadmitted by the Court to prove the Truth of a Libel. When he does this, it willdeserve Consideration; but till then he may talk by the Hour without anyMeaning.I could mention some Cases of a more modern Date, that have been adjudged in<it>Westminster-Hall</it>, when this wild Doctrine was not so much as thoughtof, and when it would not have been altogether useless had <pb n="12"/>it beenpracticable; but I have chose to mention such only as are reported, that theBooks may speak for themselves, and judge between us.But this Lawyer seems to be above hav&rehy;ing his Points of Law decided bythe Au&rehy;thorities of the Law; and has something in Reserve, which may serveto overthrow not only what has been offer'd in this Paper, but even all theBooks of the Law. This is what he calls <it>the Reason of the thing</it>, but istruly and properly a Sketch of his own <it>Po&rehy;liticks</it>; which leads meto shew that <it>the true Reason of the thing</it> here, agrees with the<it>Law</it>, and consequently both these are against this expert Master of Lawand Reason.<it>The Reason of the Thing</it>, as well as it can be collected from a Heapof Particulars huddled together without Order and Method, may be reduced to thethree following Heads.1. The Form of an Information for a Libel, and the Necessity of knowing theTruth of Falshood of its Contents, in or&rehy;der to direct the Judges inawarding arbi&rehy;trary Punishment.2. The Right every Man hath of pub&rehy;lishing his Complaints, when theMatters so published can be supported with Truth.3. The Necessity there is of using this Right, in the Plantations especially,by rea&rehy;son of the Difficulty of obtaining Redress against evil Governoursby any other Means.1. It will not be improper to premise, under the first Head, that a Gentlemanof the Law, who takes upon him to pronounce so magisterially as the NorthernBarrister has done concerning <it>Libels</it>, ought to have consider'd well theNature and Extent of his Subject. It might be expected that he is not unknowingin any Part of Learning necessary to fix his Idea of <it>a Libel</it>. And yetthe present Case would appear to be quite different. This learned Gentlemanmight have inform'd himself by reading some of the ancient Laws before theConquest, that when the <it>Falsity</it> of virulent Writings and Speeches wastaken into the Description of the Crime, there was a specifick Penalty annex'd,viz. <it>Cutting out the Offender's Tongue, Lamb. Sax. Laws</it>. But thisSeverity seems to have fallen into Disuse under the <it>Norman</it> Kings; and

accordingly <it>Bracton</it>, who wrote in the Reign of <it>Henry</it> III.gives a Description of these Offences as they were understood in his Days,wherein <it>Falsity</it> is neither express'd nor imply'd. These are his Words;<q rend="it" lang="lat">Fit autem injuria, non solum cum quis pugno percussusfuerit, verberatus, vulneratus, vel fustibus cæsus; verum cum ei Convitiumdictum fuerit, vel de eo factum Carmen famo&rehy;sum & hujusmodi</q>. Fol.155. Indeed here is no mention of <it>Libels against the King or the State</it>;the Reason of which seems plainly to be, that Offences of this Sort wereconsidered as a Species of <it>Treason</it>, not only in that Age, but inseveral Ages after, notwithstanding the Statute 25 Ed. III. and tho' they haveby happy Degrees dwindled into <it>Misdemeanours</it>, yet no body except theBarrister will say they are come to have a greater Indulgence from the Law, thanthe like Offences against private Persons. How far therefore <it>Bracton</it>'sAcceptation of a <it>Libel</it> has prevailed ever since, must be submitted uponwhat has been offer'd in the preceding Part of the Remarks.Here the Barrister throws in a shrewd Question, arising from the Form of theIn&rehy;formation which charges the Libel to be <it>false.</it> <qrend="it">This Word FALSE, <ro>says he,</ro> must have some Mean&rehy;ing, elsehow came it there? I hope Mr. Attorney will not say he put it there by Chance;and I am of Opinion his Information would not be good without it.</q> <notetype="marginalia" place="inline"><it>Zeng.</it> Trial p. 15.</note> By way ofAnswer to this, I must take Leave to put a Question or two in the same Strain.Suppose an Man brings an Action of <it>Trespass</it>, for violating his Wife,and he fairly sets forth the Truth of the Case, <it>viz.</it> That the Defendant<it>by amorous Addresses, Letters, Presents</it>, &c. did gain the Consentof the Plaintiff's Wife, and at length debauched her. I would ask whether anAction of <it>Trespass</it> thus laid can be supported? I fancy not; and yetthis is a more just Account of the Matter, than when <foreign rend="it"lang="lat">vi & armis</foreign>, viz. <it>Swords, Staves, Knives</it>,&c. are introduced as Instruments of invading this tender part of ourNeigh&rehy;bour's Property. Suppose further, a Man kills another whom he neversaw or heard <pb n="13"/>of before; and he is accused of Murdering him <it>ofMalice fore-thought</it>. How come such Words to be put into an Indict&rehy;mentfor a Fact so circumstanc'd? they must have some meaning, surely they are notput there by Chance; and I am of O&rehy;pinion the Indictment would not be goodwithout them. Why, there is this short Answer to be given to all these ChildishQuestions: There are many Words used in Pleadings of most kinds, sometimes forAggravation, sometimes for Comprehension, often in Compliance with AntientUsage, which are not traversable, and many times are incapable of Proof. TheForm of In&rehy;dictments and Informations follows the Na&rehy;ture of the Fact,and sets it out in its worst Dress; and if the Fact is made appear to beunlawful, all the hard Names are sup&rehy;ply'd by Implication of Law.This is not all quoth the Counsellor; <q rend="it">it is said, that Truthmakes a Libel the more provoking; well, let us agree for once, that Truth is agreater Sin than Falshood: yet as the offences are not equal, and as thePunishment is arbitrary; is it not absolutely necessary that they should knowwhether the Libel is true or false, that they may by that means be able topro&rehy;portion the Punishment: for would it not be a sad Case, if the Judges,for want of a due Information, should chance to give as severe a Judgmentagainst a Man for writing or publishing a Lye, as for writing or publishing aTruth?</q> <note type="marginalia" place="inline"><it>p.</it> 16.</note> Now isit not a sad Case, that he should want to be told, that Human Laws don'tstrictly regard the moral Pravity of Actions, but their Tendency to hurt theCommunity, whose Peace and Safety are their principal Objects; so that by thisStandard only are Punishments measured. If this profound Sophister is of anotherO&rehy;pinion, let him give a Reason why it should be a greater Crime in ourLaw, for a Man to counterfeit a silver Shilling than to cut his Father'sThroat.2. The right of remonstrating or pub&rehy;lishing just Complaints, theBarrister thinks the Right of all Freemen: and so think I, provided suchRemonstrances and Com&rehy;plaints are made in a lawful way. But when he comesto explain, it is not a Court of Justice, it is not an House ofRepresenta&rehy;tives, it is not a Legislature that is to be troubled (as he

phrases it) with these Things. Who then, I pray, is to be troubled with them,for <it>the King</it> it seems is out of the Question? let the Barrister speakfor himself; <q rend="it">they have a Right (says he) publickly to remonstrateagainst the Abuses of Power, in the strongest Terms, to put their Neighboursupon their Guard</q>, &c. and in another Place, he speaks of it as aHardship, <q rend="it">if a Man must be taken up as a Libeller, for telling hisSufferings to his Neighbour</q>. Now tho' I wish and hope as earnestly as he cando, that a free People may never want the Means of uttering their justComplaints, and of redressing their Wrongs too, when their Complaints are notheard; yet I al&rehy;ways thought these Things were better un&rehy;derstood thanexpressed in a <corr sic="ourt">Court</corr> of Law; and I shall probably remainin that Opi&rehy;nion, till the learned Gentleman can pro&rehy;duce somethingfrom the <it>Common</it> or <it>Sta&rehy;tute Law</it>, to shew that a<it>British</it> Subject has a Right of appealing publickly <it>to hisNeigbours</it> (that is, to the Collective Body of the People) when he isinjur'd in his Person, Rights or Possessions. When I am assur'd that he can dothis, I promise him I shall not grudge a Voyage to that Country, <it>whereLiberty is so well understood and so freely enjoyed</it>, that I may receive theimportant Discovery from his own instructive Mouth. <note type="marginalia"place="inline">p. 29.</note>I know the Law-Books assert the Right of Complaining to the <it>Magistratesand Courts of Justice</it>, to the <it>Parliament</it>, to the <it>King</it>himelf; but a Right of Complaining to the <it>Neigbours</it> is what has notoccur'd to me. After all, I would not be thought to derogate, by any thing Ihave said or shall say, from that noble Privilege of a free People, <it>theLiberty of the Press</it>. I think it the Bulwark of all other Liberty, and thesurest Defence against Tyranny and Op&rehy;pression. But still it is a Two-edg'dWea&rehy;pon, capable of cutting both Ways, and is not therefore to be trustedin the Hands of every Discontented Fool or designing Knave. Men of Sense andAddress (who alone deserve publick Attention) will ever <pb n="14"/>be able toconvey proper Ideas to the Peo&rehy;ple, in a Time of Danger, without runningcounter to all Order and Decency, or cry&rehy;ing <it>Fire</it> and<it>Murder</it> thro' the Streets, if they chance to awake from a frightfulDream. But I must again urge, that these Points are not fit to be discuss'd in aCourt of Justice, whose Jurisdiction is circumscri&rehy;bed by positive andknown Laws. Besides, they take Place properly in a Sovereign State which has noSuperiour on Earth; and where an injured People can expect no Re&rehy;lief butfrom an Appeal to Heaven. This is far from being the Case of Colonies; andtherefore I come to shew, under the third Head, that the Barrister's <it>Reasonof the thing</it>is no other than <it>Reason inverted</it>, which possibly mayhelp the Projects of a <it>Demagogue</it> in <it>America</it>, but can never bereconciled to the Sentiments of a Lawyer, or the Principles of a Patriot;consider'd as a Subject of <it>Great Britain</it>.3. I have hitherto been taught to believe, that when a brave and free Peoplehave re&rehy;sorted to Measures unauthoris'd by the or&rehy;dinary Course of theLaws; such Measured have been justified by the extraordinary Ne&rehy;cessity ofthe Case, which excluded all o&rehy;ther Means of Redress. And as far as Iun&rehy;derstand the Constitution, and have heard Accounts of the<it>British</it> Colonies, such a Case cannot well hapen and has never yethappen'd among them. But here the Bar&rehy;rister is ready to ask, how must webehave when we are oppressed by a Governour, in a Country where the Courts ofLaw are said to have no coercive Power over his Per&rehy;son, and where theRepresentatives of the People are, by his Intrigues, made Accom&rehy;plices ofhis Iniquity? certainly it can't be a new Discovery to tell this Lawyer; that asthe Governour is a Creature of the <it>Crown</it>, so the most natural and easyCourse is to look up to the Hand that made him. And I imagine it may be affirm'd(without catch&rehy;ing an Occasion of offering Incense to<it>Ma&rehy;jesty</it>) that if one half of the Facts contained in<it>Zenger</it>'s Papers, and vouched for true by his Council, had been fairlyrepresented and proved at home, Mr. <it>Cosby</it> would not have continued muchlonger in his Govern&rehy;ment; and then the City of <it>New-York</it> mighthave applied to it self the Inscrip&rehy;tion of the Gold-Box; <qrend="it"><foreign lang="lat">demersæ leges, timefacta libertas, hæ

tandem emergunt</foreign></q>; <note type="marginalia"place="inline"><it>p.</it> 32.</note> with greater Propriety and Secu&rehy;rity,than could possibly be derived from the impetuous Harangue of any Lawyerwhatsoever. I am the more embolden'd to say thus much, because tho' it is my Lotto dwell in a Colony, <it>where Liberty has not always been well understood, atleast not freely enjoy'd</it>, yet I have known a Gover&rehy;nour brought toJustice, within these last twenty years, who was not only supported by a Counciland Assembly, besides a nume&rehy;rous Party here, but also by powerful Friendsat home; all which Advantages were not able to screen him from Censure,Disgrace, and a Removal from the Trust he had abu&rehy;sed.It is not always necessary that particular Persons should leave their Affairsand Fa&rehy;milies in the Plantations, to prosecute a Go&rehy;vernour in<it>Westminster-Hall</it>, unless their Fortunes are equal to the Expence. Forit is seldom seen that the Violence of a bad Governour terminates in privateInjuries; inasmuch as he can't find his Account in any Thing less than what isof a general and publick Nature. And when this is the Case, I hope none of ourColonies are, even at this time, so destitute, but that they can find the meansof making a regular Application to their <it>Sovereign</it>, either in Person orin his Courts at <it>Westminster</it>, as their Case may re&rehy;quire.But the wild Inconsistency that shines through most parts of thisO&rehy;rator's Speech, is peculiarly glaring in that part of it now before me.<note type="marginalia" place="inline"><it>p.</it> 20.</note> The Re&rehy;medywhich he says our Constitution prescribes for curing or preventing the Diseasesof an evil Administration in the Colonies, I shall give in his own Words; <qrend="it">has it not been of&rehy;ten seen (and I hope it will always be seen)that when the Representatives of a free Peo&rehy;ple are, by justRepresentations or Remon&rehy;strances made sensible of the Sufferings of theirFellow-Subjects, by the Abuse of Power in the Hands of a Governour, they havedecla&rehy;red (and loudly too) that they were not ob<pb n="15"/>liged by anyLaw to support a Governour who goes about to destroy a Province or Colony</q>,&c. One would imagine, at first Sight, that this Man had the same Notion,with the rest of Mankind, or just Representations and Re&rehy;monstrances to theRepresentatives of a free People, which has ever been understood to be by Way ofPetition or Address directed and presented to them in Form; in which Case it ishoped, that they, being moved by the Complaints of the People will stretch forththeir Arms to help them. <note type="marginalia" place="inline"><it>p.</it>21.</note> But alas! we are all mistaken; for he tells us, in the same Breath,that the right Way is by tell&rehy;ing our Sufferings to our Neighbours inGazettes and News-Papers; for the Repre&rehy;sentatives are not to be troubledwith eve&rehy;ry Injury done by a Governour; besides, they are sometimes in thePlot with the Go&rehy;vernour, and the injured Party can have no Redress fromtheir Hands; so that the first Complaint (instead of the last Resort) must be tothe <it>Neighbours</it>, and so come about to the Representatives through thatChan&rehy;nel.Now I would be very glad to know, what the <it>Neighbours</it> can do towardseffect&rehy;ing the desired Reformation, that will be at&rehy;tended with sogood Success and so few ill Consequences, as a regular Application to hisMajesty would be. I would be plea&rehy;sant, doubtless, to hear this Politicianspeak out and explain himself at large upon this Subject. I confess it surpassesmy Com&rehy;prehension to conceive what the <it>Neigh&rehy;bours</it> inspiredwith weekly Revelations from the City Journalist, can do with theirGo&rehy;vernour and Assembly, unless it be to re&rehy;form them by thosepersuasive Arguments which the <foreign rend="it" lang="lat">Major vis</foreign>never wants good Store of. If this be the <it>Patriot's</it> meaning, his Wordsmay possibly be understood; but without this meaning they are meer<it>Jar&rehy;gon</it>.In a word; I shall agree with the Bar&rehy;rister (and so take my leave ofhim) that <it>the Liberty of exposing and op&rehy;posing arbitrary Power</it> isthe right of a free People; <note type="marginalia" place="inline">p. 29.</note>and he ought at the same time to admit, That the Order of Things and the Peaceof Society, require that extraordinary Means should not be used for thisPurpose, till the ordinary have failed in the Experiment. The supreme Magistrateof an <it>independent Kingdom or State</it> cannot always be controul'd by the

one, and then the other is justified by that Consideration. But in<it>Colonies</it> that are from their Creation subordinate to their Mother-Country, there is no Person who is not controulable by re&rehy;gular and wellknown Methods of pro&rehy;ceeding; and consequently there can be no absoluteNecessity of flying to Extremi&rehy;ties, at least in the first Instance. Fromall which, I conceive, it follows, that <it>local Considerations</it>, uponwhich the Gentleman lays so great Stress, conclude directly against him; and Ihope the Secu&rehy;rity which the British Constitution affords to every Man'sPerson, Property and Reputation, as well as to the publick Tranquilli&rehy;ty,is not lessen'd by any Distance from the Fountain of Power and Justice; but thata <it>Libel</it> is a <it>Libel</it>, and punishable as such in <it>America</it>as well as in <it>Europe</it>.I am sensible, there is a Freedom of Expression used in these Papers, ofwhich I should disapprove in the common Cases of Controversy; but I found myself under a Necessity of shewing no Respect to the Per&rehy;formance underConsideration, unless I were to forfeit the little that might be due to the<it>Remarks</it>. For tho' a Lawyer is free, nay oblig'd by the Duty of hisProfession, to make the most of the Cause he espouses, (his real Sentimentsbeing suspended for that Time, by reason of the Biass under which he acts) yetwhen he draws his pri&rehy;vate Opinion into the Debate, and interests hisPassions in the success of it, he then de&rehy;parts from his Character, andbecomes a <it>Party</it> rather than an <it>Advocate</it>. In short, there is anAir of Self-sufficiency and Con&rehy;fidence mixt with the whole lump, enough togive a disrelish even to good Sense and good Law, but is nauseous beyond allbear&rehy;ing, when neither of these is found. A&rehy;mong Lawyers, I was surethis Lawyer de&rehy;serv'd no Answer, and yet an Answer seem&rehy;edindispensable, not only for the Reasons given at my setting out, but also inorder to <pb n="16"/>save many well meaning People from reve&rehy;rencing apiece of <it>Buffoonry</it>, that had been thrust into the World with so muchflorid Conceit and a Gold-Box tagg'd to the End of it. A piece, wherein thewhole com&rehy;mon-place of popular Declamation (equally adapted to all popularOccasions) is exhausted, and <it>the Holy Scriptures</it> brought in to seasonhis Jokes. <note type="marginalia" place="inline">p. 27.</note> But as this lastseems design'd only for a Sally of <it>Wit</it> and <it>Humour</it>, I shall notoffer to detract from its Merit; considering too it had so happy an Effect as toset the good People a laughing, when they heard <it>the Word of God</it> mostingeniously burlesqu'd in a <it>Christian Court</it>. A Piece that hardly shewsthe Author to have been serious when he pronounc'd it, or his wise Benefactorswhen they rewarded him; but that his solemn Professions of<it>Prin&rehy;ciple</it> and <it>Duty</it> compel a charitable Mind to suspecthis Knowledge rather than his Since&rehy;rity, and <it>Citizens</it> are everthought to be in earnest when they part with their <it>Gold</it> and shew their<it>Learning</it>. <note type="marginalia" place="inline">p. 31;32.</note><it>Sir, I ought to make an Apology to you for trespassing so long upon yourPatience, which might have been better employ'd; but I flatter my self with theHopes of having some Allowance made for an honest, tho' weak Attempt to rescuethe Profession of the Law, and the Interest of lawful Liberty from the Disgracethrown upon both in One of our Sister Colonies. Ths is the Truth, and let it bemy Excuse</it>.<it>I am yours, &c.</it> <lb/>Anglo-Americanus.</body></text><text><body><head>LETTER II.</head><it>SIR</it>,&Iic;T must be mortifying, no doubt, to a Person who has received peculiarMarks of Publick Approbation to be told, that the very Act which procur'd it wasso far from being commendable, that it really deserved a severe Censure; and onewou'd the rather decline such an Office, how just soever the Occasion, becauseit cannot be done with&rehy;out condemning at the same Time, the Judgment ofthose whose Suffrage had been thus unworthily obtain'd. But when the Laws areopenly perverted, and Courts of Justice, with an Air of Gravity,<it>droll'd</it> out of their established Rules by such whose Professionsupposes them Ministers of Justice, and when this too shall be dignify'd withApplause, and made highly meritorious, I conceive neither Good-nature, nor theSolemnity of <it>Publick Seals</it> shou'd restrain an honest Pen from exploding

the Practice, in order as well to stop the Progress of its evil Effects, as toprevent the like Attempts for the future.Virtue and Merit, it is most certain, ought to be encouraged, especially byall in Au&rehy;thority; but when that which is meerly counterfeit shall gainEsteem, stand in the room of what is truly genuine, and be actually loaded withthe Rewards thereof, it does not only frustrate the Original Inten&rehy;tion ofsuch Rewards, but likewise give Countenance to the Impostor, and furnish himwith still further Means of vending his false Wares, in Prejudice of thePublick. Now this, with all due Submission, I take to be the Case of the<it>Corporation</it> in <it>North America</it>, with Regard to the Honours theywere lately pleased to confer, on a <it>noted Barrister</it> in those Parts, forhis supposed Services in the Affair of <it>Zenger</it> the Printer, whose<it>Trial</it> has been so plentifully dispers'd here, and in other Places.Aggregate Bodies, we find may be mistaken, and too often are, as well as privateMen; and when they do err, it is of the more dangerous Conse&rehy;quence, onaccount of the Extent of their Power and Influence. The Province in general of<it>New-York</it>, or the City in parti&rehy;cular might, for ought I know, havesuf&rehy;ficient Cause of Complaint, in some Re&rehy;spects, against their thenCommander in Chief and his Administration; but it is to be considered that asthere never was one absolutely free from Faults, so it is the great Privilege ofthe Inhabitants of every <it>Bri&rehy;tish</it> Government that a proper Channelis chalk'd out, in all such Events, and a Way open for Relief. The Methodtherefore which the Constitution prescribes ought to <pb n="17"/>be strictlypursued, and any illegal Devia&rehy;tion is not only inconsistent andunjustifiable in it self, but has, besides, a Tendency to introduce Mischiefsmore to be dreaded even than those that were sought to be re&rehy;dress'd. It isthe Law which must be the Standard of Right and Wrong; and who&rehy;ever hasrecourse to any other Aid, or knowingly advises thereto, in the Case ofparticular Grievances, cannot act on a true Principle of Publick Spirit, butmust be in&rehy;fluenced by unworthy Motives; and is al&rehy;ways more or lessan Enemy to the Com&rehy;munity, according to his Situation, and in proportionto the Talents he happens to possess. If Mr. <it>Zenger</it> then will avowedlypublish Seditious Libels against the Govern&rehy;ment under which he lives, andhis Coun&rehy;cil will offer to support him by Artifices un&rehy;becoming thelong Robe, and advancing Propositions manifestly contrary to Law; as the formerdeserves to be punished by it, so the latter I humbly presume to say,what&rehy;ever he may claim from his Client, ought not to be paid his Wages byany Set of Men who owe their Being to the Law, and cannot exist without it.But I shall not scruple to acknowledge here, and I do it on no superficialObserva&rehy;tion, that there can't be a more pernicious Creature in a distantColony than that of a Practitioner of the Law, with much As&rehy;surance, littleKnowledge, and no Morals; a Character not unheard of in more than one of hisMajesty's Plantations, and which yet I would by no means apply to Mr.<it>Ha&rehy;milton</it>, any otherwise than may appear to be just from theperformance he has, it seems, taken so much Pains to publish to the World. Thejudicious Remarks already made upon it by <it>Anglo-Americanus</it> will hardlyleave room for any thing to be added that is very material, and therefore Ishall content my self with a few <it>Gleanings</it> only, and make some cursoryReflections thereon, whilst they afford me an Opportunity of bearing myTestimony also against what I think the most indecent Behaviour at least, if itmay not be called the boldest Out&rehy;rage that ever was exhibited from the Barwithout a suitable Chastisement.Whoever has enquired into the Doctrine of <it>Libels</it>, and the Reason oftheir Punish&rehy;ment, will perceive, that they take their De&rehy;grees asthey affect private Persons, parti&rehy;cular Magistrates, or are aim'd againstthe Government it self; and I may venture to say, that no Lawyer of Reputationwill de&rehy;ny but what is set forth in the Information against <it>John-PeterZenger</it> was of this last Kind, and <it>that</it> too conceived in thegrossest Terms, such as will not admit of a diffe&rehy;rent Construction, or ofany other mean&rehy;ing than what is put upon them by the Prosecutor for theCrown. Now I am sensible, that great Allowances are with good Reason made toCouncil in the Heat of Argument, and when supposed to be ani&rehy;mated with alaudable Zeal for their Clients. Nor has it been usual to correct them for every

harsh and hasty Expression, provided they keep within Bounds, and stick to thatwhich is their Duty, without running into Matters that have no Relation to theIssue, and cannot fairly serve the Side they es&rehy;pouse. Yet, as the LordChancellor <it>Not&rehy;tingham</it> occasionally said, <q rend="it">Councilshould not speak as if they would abet the Guilt of their Clients rather thanadvocate for their Innocency.</q> And since your ingenious Cor&rehy;respondenthas clearly evinced, that the Truth of a Libel cannot be given inEvi&rehy;dence, that it is no Justification, on the general Issue, andconsequently no proper De&rehy;fence to a Charge of that Nature; (of all whichMr. <it>Hamilton</it> could not, or ought not to have been ignorant,) it isworthy of Consideration whether he did not involve himself in his Client'sCrime, and partake of his Cuilt, by declaring in the most pub&rehy;lick Manner,that the Facts published in the News-Papers, and contained in theInfor&rehy;mation, were true, and offering to prove them to be so before a Courtwhich had no Power to redress the Grievances com&rehy;plain'd of, 4 <it>Co.</it>14. <it>Hob.</it> 166,7.Sir <it>Bartholomew Shower</it>, I remember in his Argument in the Case ofthe <it>King</it> a&rehy;gainst <it>Berchet & al.</it> asserts, that <q>"inall Cases of Contempts to a Court, no Pre&rehy;sentment is necessary, no not somuch as to convict; for if done <foreign rend="it" lang="lat">in FacieCuriæ</foreign>, a <pb n="18"/>Record may be made of it, and aPunish&rehy;ment judicially inflicted, and that exe&rehy;cuted immediately</q>,<it>Show. Rep.</it> 110. And agreeable hereto, we find that in a late Case ofthe <it>King</it> against <it>Thorogood, Trin. 9 Geor. primi</it>, the Defendanthaving made an Affi&rehy;davit in <it>C.B.</it> and appearing on Summons,confess'd that he made it, and that it was false; whereupon the Court recordedhis Confession, and ordered that he should be taken into Custody and stand inthe Pillory, <it>&c.</it> which was executed accordingly the last day of theTerm. <it>Mod. Ca. in Law & Eq.</it> 179, 180. This is the moreremark&rehy;able, because it was in the Court of Com&rehy;mon-Pleas, which hasordinarily no Juris&rehy;diction in the Criminal Cases. &horfill; May it notfrom hence be inferr'd (I hint it with a due saving to all the just Privilegesof the Bar) that the Court at <it>New-York</it> might well have recorded some ofthe most seditious Ex&rehy;pressions in Mr. <it>Hamilton</it>'s Rhapsody, andcommitted him for the same, <it>&c.</it>? If they had, I doubt the Blamemust have center'd in himself, and his own Conduct; of which therefore he mightthen have had leisure to repent, as well as of his <it>long Journey</it> to soill a Purpose.But it will not be amiss perhaps for Ex&rehy;ample sake, to give an Instanceof what has been done on the like Occasion with that before us; and to this EndI shall cite a Case in the Court of King's Bench many Years after that of theStar-Chamber was at an end, and which the Words of Sir <it>Thomas Raymond</it>was as followeth; <q>"<it>Me&rehy;morandum, June</it> 18. 1680, Mr.<it>Natha&rehy;niel Reading</it> having been convicted (be&rehy;fore Justices ofOyer and Terminer by virtue of a Special Commission) for en&rehy;deavouring topersuade <it>Bedlow</it>, who was a Witness against the Noblemenimpri&rehy;son'd in the Tower of <it>London</it>, to for&rehy;bear hisProsecution of them; and he the said Mr. <it>Reading</it> having had Judgmentexecuted upon him by being set in the Pillory, and fin'd 1000<it>l.</it> andimprison'd for the same, but his Fine since pardon'd by the King, came this dayinto Court, and demanded that an Information which he there brought in his Handmight be received by Mr. <it>Astrey</it> against the Com&rehy;missioners whocondemn'd him, of which my Brother <it>Jones</it> and Brother <it>Dolben</it>were two, and that the Information may be filed. But the Court did declare thathe was in the wrong way to exhibit any Information in this manner, and did causehis Words, whereby he did accuse the two Judges of Oppression, to be recorded;and for these Words, and for that he was infamous by having been on the Pillory,the Gentlemen at the Bar did pray that his Gown might be pull'd over his Ears,he having been formerly a Practiser at the Bar, which was ordered and executedin Court; and he was also condemn'd in Court to pay the King 500<it>l</it>, andto lie in Prison till he paid it, <it>Raym. Rep.</it>376"</q> The Trial of thisGentleman referr'd to here, may be seen in the State Trials, vol. 2 p. 253. onwhich Occasion the Lord Chief-Justice <it>North</it> made a Speech

aggra&rehy;vating the Defendant's Offence <it>as he was a Council, one who oughtto be a Man of Know&rehy;ledge, and a Minister of Justice to assist the Courtwherein he pleaded</it>. He said <q rend="it">he thought the Court ought to shewa more than ordi&rehy;nary Severity against such an one; and that 'tis a greatCredit and Benefit to the Pro&rehy;fession, that the Members of it for suchOf&rehy;fences should be dealt with more Severity than we should deal in otherCases.</q> Id. p. 374, 5. Far be it from me to make any invidious Comparisonhere betwixt the present Prac&rehy;tiser in <it>Pensilvania</it> and the<it>quondam</it> one in <it>Westminster-Hall</it>, tho' they are bothcele&rehy;brated, the one in the Trial of Mr. <it>Zenger</it>, and the other inhis own. It may how&rehy;ever be noted that the latter was said to be<it>artful, and affectedly eloquent</it>, and to have <it>strove to lead theJudges out of the Way</it>, while he was told by the Chief-Jus&rehy;tice thathis <it>Defence was artificial, because it was nothing to the purpose</it>; andby another of the Judges, that <it>he disgrac'd his Profession by making so weaka Defence</it>. But without adverting to any <corrsic="parricular">particular</corr> Beau&rehy;ties in the <it>modernPerformance</it>, this is certain that Counsellor <it>Reading</it> lost the Bar-Gown by his <it>Art</it>, and Counsellor <it>Hamilton</it> got a Gold-Box offive Ounces, with <pb n="19"/>the Freedom of the City of <it>New-York</it> by<it>his</it>. A pregnant Instance of the Caprici&rehy;ousness of Fate, and ofthe Justness of your late Correspondent's Observation at the En&rehy;trance tohis excellent Remarks!The Gentlemen of the Bar (as indeed it might well be expected from theirEdu&rehy;cation, and the Nature of their Business) have been remarkable forobserving the Re&rehy;gard that is due to all in Authority with the utmostDelicacy; and in Return, have al&rehy;ways been us'd with suitable Respect. Butthat the Lawyer of <it>Philadelphia</it> may see the Courts of Justice in formerAges, as well as of late Years, did not spare the unruly Members of theProfession, any more than others, for much less faulty Behaviour than that ofthe leading Councel in <it>Zenger</it>'s Trial, I will refer him to a Case whichhappen'd <it>Mich.</it> 13 <it>Eliz. Rot.</it> 39, when <it>HenryBlaund&rehy;ford</it> a Counsellor at Law was committed to the <it>Fleet</it>,and fin'd for falsly reporting the Opinion of the Lord <it>Leicester</it>, andSecretary <it>Cecil</it> with these Words, <foreign rend="it" lang="lat">Humanumest errare</foreign>. And that even Noblemen met with the like Treatment, onsuch Occasions, will ap&rehy;pear from the Case of the Lord <it>Stourton</it>,who, 19 <it>Hen.</it> VIII. was committed by the Court, and fin'd for sayingthese Words, <q rend="it">I am sorry to see Rhetorick rule where Lawshould.</q>Before I proceed, I will mention one Case more, purely to shew how dangerousit is to afford any unlawful Helps to Persons on their Trials in CriminalProsecutions, even tho' it be merly by way of private In&rehy;structions, whensuch Instructions are to be publickly made use of, and import Scandal to theGovernment. It is the Case of the <it>King</it> against <it>Aaron Smith,Mich.</it> 35 <it>Car.</it> 2. in <it>B.R.</it> <q>"This Term</q> (<it>says theBook which has the Allowance of all the Judges)</it><q><it>Aaron Smith</it> wasbrought into Court, being for&rehy;merly convicted on a Trial at Bar forde&rehy;livering to <it>Stephen College</it>, being upon his Trial at<it>Oxford</it> for High Treason, a Pa&rehy;per of Instructions, full ofscandalous Re&rehy;flections upon the King and Government; as that they might aswell have hang'd him at <it>Tyburn</it> as he came by, as brought him thither,only to murder him with a little more Formality. For which the Court gaveJudgment that he should pay a Fine of 500<it>l.</it> stand upon the Pillorytwice, and be of the good Behaviour for a Twelve&rehy;month,</q> <biblrend="it">Skin Rep. 124.</bibl> I shall only ob&rehy;serve this Case was upon an<it>Information</it>, so much inveigh'd against by <it>Zenger</it>'sCoun&rehy;cel, and yet I never heard it censur'd at all, as was that of poor<it>College</it>, I own, with too good Reason.It is now time to take notice, that there is, amidst a heap of Jargon andAbsurdities, one obvious Mistake which runs throughout Mr. <it>Hamilton</it>'sostentatious Harangue, and that is in Relation to the Court of Star-Chamber. Hewou'd suggest that because that Court was abolished by Act of Parlia&rehy;ment,

on account of some insufferable Abuses that had crept into it, all the Casesthat had been adjudged there, on Informa&rehy;tions for Libels, wereconsequently of no Authority. Whereas the Judgments given there, in Mattersproperly cognizable be&rehy;fore them, which Libelling especially was, areallowed to be good Law at this Day, and are constantly quoted, as such, in theCourt of King's Bench. Indeed it is said that the Reasons of disallowing theStar-Chamber-Court, was because their Autho&rehy;rity was before and now is in<it>B.R.</it> and con&rehy;sequently that Court unnecessary, <it>Comb.</it> 36.So the Lord Chief Justice <it>Holt</it> declared that <it>B.</it>R. possest allthe Lawful Power the Star-Chamber had, <it>Id.</it> 142. And that the Court ofStar-Chamber was taken away, because the Crimes were punishable here, 5.<it>Mod.</it> 464; which is likewise intimated by the Statute itself. Now tho' Iam as well satisfied, perhaps, with the taking away of the Court of Star-Chamber, considering the Occasion that had been given, as our Northern Barristercan possibly be, and shou'd equally rejoyce, I hope, at the re&rehy;dressing anyother publick Grievance; yet I cannot, with him, condemn by the Lump, and arguethat because that Court did some&rehy;things amiss, therefore it did nothingright. At this rate, every Court that had or has a Being may be in Danger of thesame Epi&rehy;thets he loves to bestow on that we are speaking of; and it may aswell be suppos'd <pb n="20"/>that because a certain Set of Citizens notun&rehy;known to Mr. <it>Hamilton</it>, lately did a very <it>silly</it> thing,they therefore never did a <it>wise</it> one. For which Reason I presume it willnot be altogether impertinent to produce the Sentiments of that Oracle of theLaw, Sir <it>Edward Coke</it>, concerning the Court of Star-Chamber. <q>"It is(<it>says he</it>) the most Honourable Court, our Parliament ex&rehy;cepted,that is in the Christian World, both in Respect of the Judges, and of theirHonourable Proceedings according to their just Jurisdiction, and the ancient andjust Orders of the Court. For the Judges of the same are, the Gran&rehy;dees ofthe Realm, the Lord Chancellor, the Lord Treasurer, the Lord President of theKing's Council, the Lord Privy Seal, all the Lords Spiritual and Tempo&rehy;ral,and others of the King's most Ho&rehy;nourable Privy Council, and the PrincipalJudges of the Realm, and such other Lords of Parliament as the King shall name.And they Judge upon Confession, or De&rehy;position of Witnesses. And the Courtcannot sit for hearing of Causes under the Number of eight at the least. And itis truy said, <foreign rend="it" lang="lat">Curia Cameræ Stellatæ,si ve&rehy;tustatem spectemus, est antiquissima, si dignitatem,honoratissima</foreign>. This Court, the Right Institution and ancient Ordersthereof being observed, doth keep all <it>England</it> in quiet."</q> <notetype="marginalia" place="inline">4th. <it>Inst. p.</it> 64.</note>Confor&rehy;mable hereto, a late learned Writer who was advanced to the highestPost in the Law in a Neigbouring Kingdom to that of our Mo&rehy;ther Country,and wherein he dy'd, has a Paragraph, which I believe will give us a truerAccount of the Court it self, and the Abolishment of it than what is to belearnt from our Barrister's Speech at <it>New-York</it>, and therefore I willinsert it here. <note n="*" place="foot"><it>Disc. concerning Treasons and Billsof Attaind.</it> p. 94. <it>Printed</it> <foreign lang="lat">Anno</foreign>1716.</note> <q>"The Court of Star-Chamber whilst kept with&rehy;in due Bounds,was certainly of the greatest use to preserve the Peace and Security of theKingdom; and perhaps was the only Court which by its <it>ordinary andproper</it> Jurisdiction, cou'd effectually prevent and punish Riots, Perjuriesand other Mis&rehy;demeanors of the highest Nature. But being made use of by theCourt to sup&rehy;port Proclamations and Orders of State, and to vindicateillegal Commissions and Monopolies, that Extension of their Power became aGrievance insupportable, and the Nation was never easy till that Court wasentirely suppress'd by Act of Parlia&rehy;ment. <it>The House of Commons</it>were so eager in their Zeal to destroy what they call'd <it>a Court ofInquisition</it>, that tho' the Bill was of so great Consequence, yet they sentit up to the Lords, with only once reading it, and without its being evercom&rehy;mitted, which was a Thing, perhaps never before heard of inParliament.</q> <it>Cla. V.</it> 1. 223.I need only add on this Head that the Crime of <it>Libelling</it> is the samenow, as it was while the Court of the Star-Cham&rehy;ber subsisted, and theNature of the Of&rehy;fence the same then, as now; a Crime that must necessarily

be punished as long as there are States and Communities esta&rehy;blished in theWorld. And our assuming Barrister will not find an Author that treats of theCrown Law since the Statute of 16 <it>Cha.</it> I <it>Ch.</it> 10. any more thanbefore, but makes use of the Cases adjudged in the Star-Chamber generally asgood Law, and of equal Authority in those Matters with such as were afterwardsadjudged in the King's Bench. Some indeed are justly liable to Exception in theformer, as we have also known too many in the latter, particularly during thenext succeeding Reign of <it>Ch.</it> II. none whereof are, how&rehy;ever, Godbe praised, to be met with, or heard of since the glorious and happyRe&rehy;volution in 1688, which I trust has for ever excluded all Partiality andOppressi&rehy;on from <it>Westminster-Hall</it>.But the learned Lawyer of <it>Philadelphia</it> declares, that <it>he has notin all his reading met with an Authority that says we can&rehy;not be admittedto give the Truth in Evi&rehy;dence upon an Information for a Libel</it>. Idon't know what this Gentleman's reading may be; but if he had read some of the<pb n="21"/>Cases above-mentioned which could not well escape him, it mightreasonably have been expected he would have taken Warn&rehy;ing, been a littlemore cautious, and not have ventur'd to incur the Penalties which others beforehim had so justly suffer'd. By <it>all his Reading</it>, he would insinuate, Isup&rehy;pose, that he had <it>read all</it>; and if that were true, it mightwell be thought he had read to very little Purpose, who could make so ill an Useof it, or think it a <it>Duty on him to go to the utmost Parts of the Land</it>,to propagate Doctrines and Principles dia&rehy;metrically opposite to, and justthe Reverse of what he must have read. We shall soon discover that theBarrister's Reading is not quite so extensive as he would have itima&rehy;gin'd. But it is previously to be ovserved, that if there were no suchAuthority <foreign rend="it" lang="lat">in ter&rehy;minis</foreign> as<it>that</it> he calls for, a Man who reads with any tolerable Understandingwould of course infer the same Thing, when all the Books of the Subject ofLibels lay it down as a Rule, which they unanimously do, <it>that it is notmaterial whether the Libel be true or false</it>. For if that be not material,to what End should the Truth be offer'd in Evidence? Or, how should it berejected before it was offer'd which undoubtedly is the Reason that there havebeen no late Instances of that Sort. It might suffice therefore to undertake asoften as this well&rehy;read Lawyer produced a Precedent of its being demandedfrom the Bar to give Evi&rehy;dence of the Truth of a Libel, to shew that it wasas often deny'd by the Court. And tho' I admit it has been attemptedbe&rehy;fore, on Trials for Libels of the less enor&rehy;mous Kinds, yet he isprobably the only one that has done it in any Case within these hundred Years.However, if we would find an Instance of that Sort, we must necessarily haveRecourse to the Pro&rehy;ceedings of the Court where that Crime was usuallypunished. The <it>Star-Chamber Re&rehy;ports</it> then may satisfy Mr.<it>Hamilton</it>, that <it>Term Pasc.</it> 7. <it>Car.</it> I. there was theCase of <it>Coston</it>, Gent. v. <it>Hitcham Mil. Servient. <foreignlang="lat">ad legem</foreign></it>, as follows. <q>"The Defendent, the Morningbefore he went to the Sessions, being a Justice of the Peace, receivedscandalous and libellous Articles against the Plaintiff, carry'd them to theSessions in his Pocket, and in open Court, in dis&rehy;grace of the Plaintiff,pull'd them out and said, you shall see what a lewd Fellow this is, and not fitto speak in this Place, and then caus'd the said libellous Articles to be readin the publick Sessions. And the Plaintiff then desiring a Copy of them, and tobe tried upon them, the Witnesses to prove them being noted in the Margin, theDefendant did not suffer him to have a Copy, or to be tried thereupon, nor tookany Course that he might at the next Sessions or at any Time after bequestio&rehy;ned for them, but took the Articles again out of the Sessions andcarried them away. And after, further to disgrace the Plain&rehy;tiff in hisPractice (being an Attorney) sent the said Articles to Mr. Justice<it>Harvey</it>, at the Reference of a Cause to him, which <it>Coston</it>attended; and a Jury having given a Verdict against the Defendant, he sent forthe Jurors and question'd them about their Verdict, and told them they were aCompany of Fools, and that if there had been but one wise Man among them theirVerdict had not been so. And for these Offences he was committed to the<it>Fleet</it> and fined 200<it>l.</it> In this Cause the De&rehy;fendant would

have had Witnesses to prove the Matter of the said scandalous Articles to betrue, but that was disallowed by the Court. <it>Rush. Col. vol.</it> 3.<it>p.</it> 36. <it>in Ap&rehy;pend.</it>"</q> This I presume the Barrister,when he is serious, will alow to be in Point, tho' it happen'd not to fall inthe way of his Reading. He cannot object surely, that it does not appear to beon an Information preferr'd by the Attorney General, since it is a much strongerCase than if it had. For if the Court would not receive such Evi&rehy;dence in aCause depending on the Com&rehy;plaint of a petty Sollicitor for being libell'd,and this too preferr'd against a Justice of Peace, a Knight, and a Serjeant atLaw; <it><foreign lang="lat">a fortiori</foreign></it>, they would never admitit on an Information exhibited by his Majesty's At&rehy;torney General, againsta private Person for libelling the Government.<pb n="22"/>There was also as I have learnt divers Years before, viz.<it>Mich.</it> 2 <it>Jac.</it> the Case of <it>Peter Brereton</it> Clerk, forwriting a scandalous Letter to <it>Loyd</it> Register of the Bishop of <it>St.Asaph</it>, and sent to himself, who was therein charg'd with Bribery andExtortion in his Office; for which libellous Letter the Defendant was sentenc'd,tho' as the Book has it, <it>he would have undertaken to prove the Contents ofthe Letter to be true</it>. Here then are two Precedents of what theBar&rehy;rister himself had never met with in all his Reading; the one in a Casefor libelling a practising Attorney, and the other of the Register of a Bishop'sCourt; but I believe I may defy this Gentleman, if he were to read as many moreYears as he has done, to produce a <it>third</it>, where the Offence underProsecution, being of the highest Degree, and levell'd at the Government, likethat for which he was so zealous an Advocate, the Council for the Defendantdar'd to of&rehy;fer Evidence of the truth of it. On the contrary, if he haddipt into the Lord Chief Justice <it>Keelyng's</it> Reports, fol. 23 (before heleft his Chambers) he would have there found it resolved by the whole Court,that <q rend="it">tho' a Counsellor at Law may plead his Client's Cause againstthe King, yet if under Colour of that, he takes upon him to vent Sedition, he isto be punished.</q>It is no wonder indeed if our Barrister should be unapprized of<it>Brereton</it>'s Case, it not being (at least to my knowledge) in Print; andyou perceive I was under no necessity of mentioning it, being before providedwith an Authority to my purpose. But it is reported as above in <note n="*"place="foot"><it>Part</it> 2. <it>Consid.</it> 12.</note> Sir <it>ThomasMallet's</it> MS. Treatise of the Court of Star-Chamber, a Copy whereof hasfallen into my Hands by the favour of a Friend. And since I have named thisWork, I shall with his leave, take a Paragraph out of it, which I am persuadedwill not be deemed unsuitable to the present Debate, after hint&rehy;ing thatthe Book seems to be wrote in the time of <it>James</it> I. when the Doctrinenow revived, and so tenaciously advanced by Mr. <it>Hamilton</it> is said tohave been <it>long be&rehy;fore exploded as a gross Error</it>. <q>"Thereare</q> (<it>says Sir Thomas</it>) <q>two gross Errors crept into the Worldconcerning Libels; the one, that it is no Libel if the Party put his hand untoit, and the other that it is not a Libel if it be true; both which have beenlong since exploded out of this Court. For the first, the Cause why the Lawpunisheth libels, is for that they tend to raise the Breach of the Peace, whichmay as well be done, and more easily when the Hand is subscribed, than when itis not. And for the other, it hath been e&rehy;ver agreed, that it is not theMatter but the Manner which is punishable. For li&rehy;belling against a commonStrumpet is as great an Offence, as against an honest Woman, and perhaps moredangerous to the Breach of the Peace; for as the Wo&rehy;man said, she shouldnever grieve to be told of her red Nose if she had not one indeed. Neither is ita Ground to exa&rehy;mine the Truth or Falsehood of a Libel, because it is<foreign rend="it" lang="lat">sub Judice</foreign>, whether it be a Libel ornot; for that takes away <it><foreign lang="lat">Sub&rehy;jectumQuæstionis,</foreign></it> and determines it to be no Libel by admittingthe Defendant to prove the Truth, and the Defendant in that Case ought to pleada Justification and Demur in Law. But if he plead not Guilty, the Question isgone whether it be a Libel or not."</q> Thus according to this Author's Opinion,who, if I mistake not, was one of the Justices of the Court of King's Bench inhis Time, Mr. <it>Hamilton</it>, cou'd he really have persuaded himself that the

Matter charged in the Information were not Libellous, as he <it>insists they arenot</it>, wou'd have discovered more Accuracy in his Profession, as well asCandour in his Practice, by advising his Client to <it>Demur</it> to it, wherebyhe wou'd have admitted no more than what was avowed at the Trial on the generalIssue. Then indeed it would have fairly come before the Court to be consideredwhether the Papers were libellous or not, and he as Council for theDefen&rehy;dant might regularly have been heard to it.He wou'd then have been at liberty to exert his uncommon Talents, manifesthis extraordinary Reading, his superiour Genius and great Skill in Language, andin explain<pb n="23"/>ing the true import of Words, without so directly flyingin the Face of every Autho&rehy;rity, and opposing all the Cases that ever wereadjudged concerning <it>Libels</it> before he was born and since. But alas! Thatwould not have answered the Intention of our e&rehy;loquent Barrister. He wouldnot then have had it in his power to use his Arts, and play his Game with adozen honest men of as good natural understandings perhaps, tho' not of equalExperience and Cunning with himself. If he had gone that way to work, he wouldhave had no chance for the Prize. Vain had been his Expedition, and lost,en&rehy;tirely lost, all his Labour. In a word, if the Learning and Integrity ofthe Bar only were required, he might as well have stayed at home, where, if I amrightly inform'd, there are Instances in abundance of the blessed effects of Mr.<it>Hamilton's well-known Principles</it>.This sagacious Gentleman <it>begs leave to observe, that Informations forLibels is a Child, if not born, yet nursed up and brought to full Maturity inthe Court of Star-Cham&rehy;ber</it>: But what is particularly to be inferr'dfrom this shrewd Observation, he does not at present tell us. If the Star-Chamber was the Court where Crimes of this Na&rehy;ture were generally punished,according to its ordinary and proper Jurisdiction, as it certainly was, howshould it be otherwise than that Informations for Libels must be met with there?And considering the Anti&rehy;quity of that Court, 'tis more than proba&rehy;blethe Crime was first prosectuted and pu&rehy;nished in it. But what then? Is theLegi&rehy;timacy of the Child (if I may be allowed to carry on the Metaphor)therefore to be called in question? Or its Education the less honourable? Imight put our witty Bar&rehy;rister in mind, that what I have mention'd is thevery Reason why the <it>spurious Brat</it> he is so fond of, which was neverbrought to full Maturity, nor ever will, first appear&rehy;ed in the Star-Chamber, tho' it has not been heard of since in any other Court till very latelyat <it>New-York</it>; I mean that of making Falshood to be essential to a Libel,and claiming a Right to give Evidence of the Truth of it by way ofJustification.He must however intend by the foregoing Passage to impeach the Legality ofInfor&rehy;mations <foreign rend="it" lang="lat">qua</foreign> such (which bysome Words that drop from him many Pages after, would seem to be what he aimsat) or as they re&rehy;late only to <it>Libels</it>; and in either Case he willagain betray the Scantiness of his Rea&rehy;ding and Knowledge in the Law. As toInformations in general, it has been incon&rehy;testably prov'd that this Methodof Proceed&rehy;ing is <q rend="it">no way contrarient to any fundamental Ruleof Law, but agreeable to it</q>. That it was the <q rend="it">constant Usage,and had the Appro&rehy;bation of the Judges and Lawyers of all Ages, and in allReigns</q>, Show. Rep. 106, to 125. And in the Case of the Information againstSeventy poor Persons for a Riot in pulling down Fences, <it>&c.</it> 2<it>W. & M.</it> (which probably may be the same) it was said by Lord ChiefJustice <it>Holt</it>, that <q>"the Lord Chief Justice <it>Hales</it> complain'dof the Abuse of Informations, but not that they were unlawful; ----- That heshou'd not come now and impeach the Judgment of all his Predecessors; ----- Thatthe Star-Chamber was not set up by the Statute of <it>Hen.</it> 7. but was asCommon-Law, and Informations were accordingly brought in that Court and others.And the whole Court were of Opinion that Informations lay at common Law, 5<it>Mod.</it> 463,4."</q> Now this I take to be as good an Authority as theextrajudicial Opinions of those anony&rehy;mous <it>Great Men</it> who Mr.<it>Hamilton</it> says, <q rend="it">have boldly asserted that the mode ofProsecution by Information is a National Grie&rehy;vance and greatlyinconsistent with the Free&rehy;dom which the Subjects of <ro>England</ro> enjoyin most other Cases</q>; nor can one forbear obser&rehy;ving, <it><foreign

lang="fra">en passant</foreign></it>, that he seems much more dispos'd, wherethere is no Danger at least, to follow the Example of <it>bold</it> than of<it>wise</it> and <it>judicious</it> Men.This then being a Legal Course of Pro&rehy;ceeding in Criminal Cases, and forall pub&rehy;lick Offences, it must undeniably be as pro&rehy;per in the Case ofLibels as in any others. And Sir <it>B. Shower</it> in reckoning up these&rehy;veral Crimes that were cognizable in the Court of <it>Star-Chamber</it>,includes <it>Libels</it> a<pb n="24"/>mong the rest, for which he says, <qrend="it">There were always Informations in the Star-Cham&rehy;ber and King's-Bench</q>. Show. 119. I am the more free in borrowing what I do from thateminent Practiser, on the Subject of Informations, because he had studied itwell, and taken more than usual Pains therein; and as the Judgment afterwardsgiven by the Court of King's Bench was pursuant there&rehy;to, so it seems tohave put a Period in <it>West&rehy;minster-Hall</it>, to all Cavils against that<it>Mode of Prose&rehy;cution</it>.If the Barister means notwithstanding to suggest moreover, that Informationsfor Libels are but of modern Date, or little longer Standing than about the Timeof the Expiration of that Court, where he supposes they had their Origine, lethim be further refuted by the above mentioned Sir <it>Thomas Mallet</it>, whowrote professedly on the Court of <it>Star-Chamber</it>, and may be supposed tobe pretty well acquainted with his Subject. He tells us, that <note n="*"place="foot"><it>Treatise of the Court of Star-Chamber</it>, <foreignlang="lat">ubi supra</foreign>.</note> <q>"In all Ages Libels have been severelypunished in this Court, but most specially when they began to grow frequentabout 42 and 43 <it>Eliz.</it> when Sir <it>Edward Coke</it> was her AttorneyGeneral."</q> And, treating of the Antiquity of that Court, he makes it veryprobably, that <note n="&dag;" place="foot">Id. I <it>Part</it>, 4th<it>Consid.</it></note> <it>It was the most ancient of any Court of Justice, andthe Mother-Court of the Kingdom</it>; wherein he does not differ from Sir<it>Edward</it> him&rehy;self, in his 4th <it>Inst.</it> 64, already quoted. Now'twas while this consummate Lawyer, it seems, was Attorney General to there&rehy;nowned Queen <it>Elizabeth</it>, that Informations for Libels began tobe most frequent, or in Mr. <it>Hamilton</it>'s elegant Stile, when <it>theChild was brought to full Maturity</it>: And it is readily submitted to all whoare vers'd in our History and Constitution, whether that Period will be anyDisparagement to the Off&rehy;spring.But if Informations for Libels in particu&rehy;lar were one of the Grievancesof that Court, nay the chief, as the Barrister would labour to make his Hearersbelieve, how came they to be practis'd after the Abolishment of it? Or what willhe say to the Case of the <it>King</it> against <it>Darby</it>, which was anIn&rehy;formation exhibited against the Defendant, being an Attorney of theCommon-Pleas, for <it>defamatory Words</it> only of Sir <it>John Kay</it> aJustice of Peace <corr sic="concerniug">concerning</corr> the Exer&rehy;cise ofhis Office? The Words were, as they are set forth in <it>Comb.</it> 65.<it>Sir</it> John Kay <it>is a Buffle-headed Fellow</it>, (a pretty Thing to beproved in Court!) <it>understands not Law, and is not fit to discourse it withme; he hath not done Justice to my Client</it>. There it was argued for theDe&rehy;fendant on a Demurrer, (and I chuse to re&rehy;cite it because of theConcessions of his Council against our Northern Advocate,) <q>"That anInformation would not lie for scandalous Words spoken only of a particularPerson, because he might have an Action on the Case to recom&rehy;pence him inDamages. &horfill; 'Tis true, such a Proceeding might be warranted for Libels,or for dispersing defamatory Let&rehy;ters, because by such Means the publickPeace might be disturbed, and Discords fomented amongst Neighbours, which mightat last be a publick Injury: But there is no such Thing alledged in this Case,only Words in common Discourse, for which an Action on the Case might lie, butno Information. On the other Side it was insisted, That this Information wasfounded on sufficient Matter, be&rehy;cause the Prosecution is not only as itre&rehy;spects the Person of Sir <it>John Kay</it>, but it relates to him as heis a publick Magistrate, and who is subordinate to the Government, and thereforesuch defamatory Words are a Reproach to the supreme Governor, by whomMagistrates are intrusted, and from whom they derive their Authority; and itwill not be deny'd, but that Words reflecting on the publisck Government are

punishable at the Suit of the King by an Information. ----- And for this reasonthe Court held that an Information would lie, and thereupon gave Judgmenta&rehy;gainst the Defendant, and fined him an Hundred Marks.</q> <it>Carth.</it>14, 15.<pb n="25"/>Mr. <it>Hamilton</it>, who would seem to be more knowing than hisNeighbours in ma&rehy;ny Things, affects to be more ignorant than every body, ofwhat constitutes a <it>Libel</it>; and therefore altho' he pretends <it>freelyto acknowledge there are such Things as Libels</it>, yet he <it>insists at thesame Time that what his Client is charged with, is not one</it>; and if it benot, I will as freely acknowledge there can be no such Thing. He desires theAttorney-General <q rend="it">to favour them with some Standard Definition of aLibel, by which it may be certainly known whether a Writing be a Libel, yea ornot.</q> And what is this for? Why truly to <it>shorten the Dispute</it>. Butwhat Dispute does he speak of? The only Point that could admit of Dispute hadbeen <it>given up</it> before by his confessing the Mat&rehy;ters in Issue, andthe Prosecutors Witnesses being thereupon discharged. As to what he requires,either there was such a Defi&rehy;nition to be met with in the Books, or therewas not: if there was, he ought to have known it; if there was not, why shouldhe desire Mr. Attorney to <it>favour</it> him with one? Yet after he had beenindulged be&rehy;yond measure, and a Definition was produced from a good Author,who besides re&rehy;fers to several others that are unquestiona&rehy;ble, allwhich conclude against his Client; is this loquacious Advocate contented? No.<it>There are two Words to that bargain</it>, as he had said before. He makes ita Founda&rehy;tion for further Disputes, and according to his wonted Ingenuityand Candour through&rehy;out his <it>Reverie</it> calls the concurrent Sense ofour Books, Mr. <it>Attorney's Rule</it>, and Mr. <it>Attorney'sDoctrine</it>.<q>"But what certain Standard-Rule</q>, <it>quoth he</it>, <q>have the Bookslaid down, by which we can certainly know whether the Words are malicious?Whether they are defamatory? Whether they tend to a Breach of the Peace? and area sufficient Ground to provoke a Man, his Family or Friends to Acts ofRevenge?</q> <it>&c.</it>" Now these Queries methinks do not so wellbe&rehy;come the Mouth of an Acvocate, as they might that of his Client whenabandoned to his own Defence in a desperate Cause. But I answer, no Rulescertainly can be of Use to those who are determined to act without any, or inOpposition to all Rules, in which Class our Northern Barrister must be placed,if we are to frame a Judgment of him from the Share he bore in this Trial. TheRule laid down in our Books concern&rehy;ing <it>Libels</it> (I speak of Libelsin the strict Sense according to the Definition of Mr. Serjeant <it>Hawkins</it>referred to in the Trial, and which alone concerns the present Case) is foundedon the Reason of the thing; and is the same which is to be observed in otherMatters that depend upon the Construc&rehy;tion of Words and Writings, which areSigns only, or Images of Ideas intended to be conveyed to the Understandings ofthe Reader. There may indeed, be divers Rules applied according to theCircum&rehy;stances of the Case; and this among the rest, that where Words arecapable of two Sen&rehy;ses, the one faulty, the other innocent; the latter isto be taken, provided such a Con&rehy;struction may be made without violence totheir natural Import and Meaning. From whence it will follow, that the sameCases may happen that are doubtful, and do not come under any Standard-Rule, onall which Occasions honest and upright Judges will incline to the favourableside: There may be others again so clear and evident, that a Man must resign hisReason, or resolve to sacrifice his Conscience that does not dis&rehy;cern, orwill not allow them to be Libel&rehy;lous. But in none of these Cases can itcome properly to be a Question before the Jury, whether a libel or not, on thePlea of not Guilty, tho' it might afterwards be so, before the Court in Arrestof Judgment. By what has been said, there appears to be Latitude enough for askilful Pen, (who notwithstanding must do it at his Peril) to lash publick andprivate Vices, to caution the People against Measures that may be hurt&rehy;fulto them, or to remonstrate against the evil Practices even of those in Power,with&rehy;out being always exposed to the Penalties of the Law. Such a Libertyof Writing and Printing, under due Restriction, I own <it>Englishmen</it> oughtnot, and I hope never will be deprived of; and where this is dextrous&rehy;lydone, it would be rediculous for private <pb n="26"/>Persons to put the Cap on

their own Heads, and no less impolitick for those in high Sta&rehy;tions toapply every thing to their Admi&rehy;nistration. When such a Work isunder&rehy;taken by able Hands, and with a generous View of serving the Publick,it is always laudable, and often very useful; but to suc&rehy;ceed herein,requires a Capacity and Ta&rehy;lents not to be discovered in Mr.<it>Zenger</it>'s News-Papers, or his <it>Council</it>'s Speech.I perceive my Letter is unawares run to a great Length, by the Quotationsthat are interspers'd, and which yet I am sensible is the least Exceptionablepart of it. I shall therefore take notice but of one thing more in thismatchless Harangue, which indeed ought not to be forgot because it is made theBasis and Foundation of the whole; and that is concerning the <it>Right ofFreemen to complain when they are hurt</it>. This our Lawyer often asserts ingeneral Terms, with some Variation only of the Expression. As to which, I wou'dask whether by it he means a Right to remonstrate and complain in a Legal way,or a Right in all Cases to appeal to the People by seditious andscanda&rehy;lous Libels? If the former, no body ever deny'd it, and what he saidwas not <foreign rend="it" lang="lat">ad idem</foreign>; so that he was fightingwith the Air, and quarrelling without an Adversary: If the latter, hedishonour'd his Gown by ad&rehy;vancing what is notoriously repugnant to allLaws human and divine. It was rul'd in the Court of <it>B. R. Trin. 16 Car.</it>That al&rehy;tho' a Bill be prefer'd in the Star-Chamber against a Judge forCorruption, or any other for any great Misdemeanor, yet if the Plain&rehy;tiffwill tell the Effect of his Bill in a Ta&rehy;vern, or any open Place, and bythat means scandalize the Defendant, the same is punishable in another Court.<it>March Rep.</it> 76, 77. So in the Case of <it>Hole</it> and<it>Mellers</it>, 28 <it>Eliz.</it> in <it>C. B.</it> it was said by the Court,that altho' the Queen is the Head and Foun&rehy;tain of Justice, and thereforeit is lawful for all her Subjects to resort unto her <it><foreign lang="lat">adfacien&rehy;dam Querimoniam</foreign></it>, yet if a Subject, after the Billonce exhibited, will divulge the Matter therein comprehended, to the Disgraceand Discredit of the Person intended, it is good Cause of Action, 3<it>Leon.</it> 138. And to the same Purpose, in a much later Case, <it>viz.</it>that of <it>Lake</it> and <it>King</it>, reported in many of our Books, to whichMr. Serjeant <it>Haw&rehy;kins</it> refers, it seems agreed, as he observes,that whoever delivers a Paper full of Re&rehy;flections on any Person in Natureof a Pe&rehy;tition to a Committee of Parliament, to any other Person except theMembers of Parliament, may be punished as the Pub&rehy;lisher of a Libel, inrespect of such a dispersing thereof among those who have nothing to do with it.I <it>Hawk. Chap.</it> 74. <it>Sect.</it> 12.But our forward Barrister, <it>aged and infirm</it> as he represents himself(which compar'd with the Conduct is the keenest Satyr that could be suggested ofhim) ought to be fur&rehy;ther instructed, that even where Complaints are to theKing himself, they must be made in a proper and regular Manner, a Decency is tobe observ'd, and a Regard always had to the Characters, and Stations of thePer&rehy;sons against whom such Complaints are made. In 13 <it>R.</it> II.<it>Rot. Parliament.</it> No. 45, the Commons desir'd they might not be troubledfor any Matter that should be con&rehy;tained in Petitions to the King; and theKing answer'd, let every Man complain, so it be with Law and Reason. <it>It islawful therefore</it>, no doubt, as it has been resolv'd, <q rend="it">for anySubject to petition to the King for Redress, in an humble and modest Manner,where he finds himself aggrieved by a Sentence of Judg&rehy;ment; for Access tothe Sovereign must not be shut up in Case of the Subjects Distresses. But on theother side, it is not permitted un&rehy;der Colour of a Petition and Refuge tothe King, to rail upon the Judge or his Sentence, and to make himself Judge inhis own Cause by prejudging it before a Rehearing.</q> Hob. 220. Yet Sir<it>Rowland Flaxing</it> was committed and deeply fined for reporting to theKing, that he could have no Indifferency before the Lords of the Council. 7<it>Feb.</it> 18 <it>Hen.</it> 8. So likewise in the Time of <it>Hen.</it> 7 Sir<it>Richard Terrets</it> was committed, fined, sent to the Pillory, and adjudgedto lose both his Ears, for his slanderous Complaint ex&rehy;hibited to the Kingin a written Book against the Chief Justice <it>Fitz-James</it>. Which Cases arecited by Chief Justice <it>Montague</it>, <pb n="27"/>in the Case of<it>Wraynham</it>, (who was severely punished for an Offence of the same

Na&rehy;ture) as reported in the Collections relating to the Life of Lord<it>Verulam</it>, P. 22. To these may be added, <it>Jeffe</it>'s Case in theKings-Bench, <it>Mich.</it> 5 Car. <it>Jeffe</it> was indicted, for exhibitingan infamous Libel directed to the King against Sir <it>Edward Coke</it>, lateChief Justice of the King's-Bench, and a&rehy;gainst the said Court, for aJudgment given in the said Court in the Case of <it>Magdalen-College</it>,affirming the said Judgment to be Treason, and calling him there&rehy;inTraitor, perjur'd Judge, and scandalizing all the Professors of the Law. Hefixed this Libel upon the great Gate at the En&rehy;trance of <it>Westminster-Hall</it>, and in divers o&rehy;ther Places; and being hereupon arraigned,prayed that Counsel might be assign'd him, which was granted; and he had them,but would not be ruled to plead as they advised, but put in a scandalous Plea;and insisting upon it, affirmed he would not plead other&rehy;wise. Whereupon itwas adjudged he should be committed to the Marshal, and that he should standupon the Pillory at <it>Westminster</it> and <it>Cheapside</it>, with a Papermentioning the Offence, and with such a Paper be brought to all the Courts of<it>Westminster</it>, and be con&rehy;tinued in Prison, until he made hisSubmis&rehy;sion in every Court, and that he should be bound with Sureties to beof good Beha&rehy;viour during his Life, and pay a thousand Pounds Fine to theKing. <it>Cro. Car.</it> 175, 6.What now shall we say, or what must be thought of one who, while he pretendsto great Reading and a thorow Knowledge of these Things, could yet in the Faceof a Court, and in Defiance of its Authority, and indeed of all Authority,presume to jus&rehy;tify the Publication of the most audacious Libels againstthat very Government under which he was breathing the Sedition! A Person, who,as a Counsellor at Law, boast&rehy;ing at the same time of <it>having seen thePractice in very great Courts</it>, would dare to call such Publication,address'd to the People, <it>The just Complaints of a Number of Men who sufferunder a bad Administra&rehy;tion!</it> Some of the Words charged in theInformation, and which Mr. <it>Hamilton</it> of&rehy;fer'd to prove, are,<it>That the Law was at an end</it>. I can't tell what Proof he had to give ofthis Fact, but surely if his Doc&rehy;trine were to prevail, it must soon be theCase; and for my own Part, I will confess, I have not hitherto heard of anyThing in that Province, which look'd so much like it, as that such a Behaviourshould not only go unpunish'd, but be attended with pub&rehy;lick Munificenceand Applause. The Truth is, this Gentleman, tho' stil'd a Barrister at Law inthe Order of the Common Council of the City of <it>New-York</it>, and whichTitle therefore I have likewise given him, seems notwithstanding, instead ofmaintaining that Character, in the Trial before us, to be ra&rehy;ther possess'dwith a Fit of <it>Knight Erran&rehy;try</it>, and to have sally'd out from<it>Philadel&rehy;phia</it> to the other Province, with a full Re&rehy;solutionto encounter every thing that was Law, and to level all to the Ground that stoodin his Way. &horfill; Let the Reader then be Judge upon the whole, whether hecomes within the Description of that <it>mischie&rehy;vous Animal</it> Imentioned towards the Be&rehy;ginning of these Sheets.After all, I flatter my self it will not be imagined, that I was stimulatedto these hasty Animadversions by a Principle of En&rehy;vy to Mr.<it>Hamilton</it>, or any Disrespect to those who were pleased to patronize hisPerformance, since they are utter Strangers to me, and probably will ever remainso. On the contrary, they may believe me, when I declare, that if the one hadreally merited what the others were of Opinion he did, I should with much morePleasure have sig&rehy;nify'd my Approbation of the Conduct of both, than I nowtake in shewing my Dis&rehy;like. 'Tis on this score, Sir, that I cannotconclude, without publickly returning my Share of the Thanks that are due fromthe <it>Fraternity</it> to your Friend, the polite Author of the former Letter,who has done Justice to the <it>Bar</it> by his <it>Remarks</it>, which in myhumble Apprehension, are worthy of any Gentleman <it>at it</it>, either here orelse&rehy;where.<it>I am Yours</it>, &c. <lb/><it>INDUS BRITANNICUS</it>.<trailer rend="it">FINIS.</trailer></body></text></group></text>

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- tu chemnitz · declamation has been mentioned with an air of applause and triumph in the paper...

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