490. The Trial of Mr. JOHN PETER ZENGER, of New-York, Printer, for printing and publishing a Libel against the Government; before the Hon. James de Lancey, esq. Chief Justice of the Province of New-York; and the Hon. Frederick Phillipse, esq. second Judge; at New-York, on August 4th: 9 GEORGE II. A. D. 1735.*

AS there was but one printer in the province of New York, that printed a public news-paper, I was in hopes, if I undertook to publish another, I might make it worth my while; and I soon found my hopes were not groundless. My first paper was printed, Nov. 5th, 1733, and I continued printing and publishing of them, I thought to the satisfaction of every body, till the January following; when the chief justice was pleased to animadvert upon the doctrine of libels, in a long charge given in that term to the grand jury, and afterwards on the third Tuesday of October, 1734, was again pleased to charge the grand jury in the following words:

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

* This Trial (or rather part of a trial) published by Mr. Zenger himself, having made a great noise in the world, is here inserted; though the doctrines advanced by Mr. Hamilton in his speeches, are not allowed in the courts here to be law. — See lord Raymond's opinion in the foregoing Trial, p. 672. — To which we have subjoined some remarks on this trial, published soon after it made its first appearance. Former Edition. See also stat. 32 Geo. 3, c. 60, as referred to in a note to Francklin's Case, ante, p. 672, and the other parts of that note.

cerning libels; they are arrived to that height, that they call loudly for your animadversion; it is high time to put a stop to them; for at the rate things are now carried on, when all order and government is endeavoured to be trampled on, reflections are cast upon persons of all degrees. Must not these things end in sedition, if not timely prevented? Lenity, you have seen, will not avail; it becomes you then to enquire after the offenders, that we may, in a due course of law, be enabled to punish them. If you, gentlemen, do not interpose, consider whether the ill consequences that may arise from any disturbances of the public peace, may not in part lie at your door?

"Hawkins, in bis chapter of Libels, considers three points: 1st, What shall be said to be a libel. 2dly, Who are liable to be punished for it. 3dly, In what manner they are to be punished. Under the 1st, he says, § 7, 'Nor can there be any doubt, but that a writing, which defames a private person only, is as much a libel as that which defames persons intrusted in a public capacity, in as much as it manifestly tends to create ill blood, and to cause a disturbance of the public peace; however, it is certain, that it is a very high aggravation of a libel, that it tends to scandalize the government, by reflecting on those who are entrusted with, the administration of public affairs, which does not only endanger the public

peace, as all other libels do, by stirring; up the parties immediately concerned in it, to acts of revenge, but also has a direct tendency to breed in the people a dislike of their governors and incline them to faction and sedition.' As to the 2d point he says, § 10, ' It is certain, not only he who composes or procures another to compose it, but also that he who publishes, or procures another to publish it, are in danger of being punished for it; and it is said not to be material, whether he who disperses a libel, knew any thing of the contents or effects of it or not; for nothing could be more easy than to publish the most virulent papers with the greatest security, if the concealing the purport of them from an illiterate publisher would make him safe in the dispersing them. Also it has been said, that if he who hath either read a libel himself, or hath heard it read by another, do afterwards maliciously read or report any part of it in the presence, of others, or lend or shew it to another, he is guilty of an unlawful publication of it. Also, it hath been holden, that the copying of a libel libel be a conclusive evidence of the publication of it, unless the party can prove that he delivered it to a magistrate to examine it, in which case the act subsequent is said to explain the intention precedent. But it seems to be the better opinion, that he who first writes a libel, dictated by another, is thereby guilty of making of it, and consequently punishable for the bare writing; for it was no libel till it was reduced to writing.' "These, gentlemen, are some of the offences which are to make part of your enquiries; and if any other should arise is the course of your proceedings, in which you are at a loss, or conceive any doubts, upon your application here, we will assist and direct you."

The grand jury not indicting me as was expected, the gentlemen of the Council proceeded to take my Journals into consideration, and sent the following Message to the General Assembly :

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

"A Message from the Council by Philip Cortlandt, in these words, to wit: 'That board having had several of Zenger's New York Weekly Journals laid before them, and other scurrilous papers, tending to alienate the affections of the people of this province from his majesty's government, to raise seditions and tumults among the people of this province, and to fill their minds with a contempt of his majesty's government: And considering the pernicious consequences that may attend such growing evils, if not speedily and effectually put a stop to: And conceiving that the most likely method to put a stop to such bold and seditious practices, to maintain the dignity of his majesty's government, and to preserve the peace thereof, would be by a conference between a Committee of this board, and a Committee of the Assembly; it is there-

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

"Which Message being read,

"Ordered, That the members of this House, or any fourteen of them, do meet a Committee of the Council, at the time and place therein mentioned.

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

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

" 'At a Committee of the Council held the '17th of October, 1734: PRESENT; Mr. Clarke, Mr. Harrison, Dr. Colden, Mr. Livingston, Mr. Kennedy, Mr. Chief Justice, Mr. Cortlandt, Mr. Lane, Mr. Horsmanden.

" 'Gentlemen; The matters we request your concurrence in are, That Zenger's papers, No. 7, 47, 48, 49, which were read, and which we now deliver, be burnt by the hands of the common hangman, as containing in them many things derogatory of the dignity of his majesty's government, reflecting upon the legislature, upon the most considerable persons in the most distinguished stations in the province, and tending to raise seditions and tumults among the people thereof.

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

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

" 'That you concur with us in an Order to the magistrates, to exert themselves in the execution of their offices, in order to preserve the public peace of the province. By order of the Committee,

" 'FRED. MORRIS, Cl. Con.'

"Mr. Garretson delivered likewise to the House the several papers referred to in the said request.

"Ordered, That the said papers be lodged with the clerk of this House; and that the consideration thereof, and the said request, be referred till Tuesday next.

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

"The House according to Order proceeded to take into consideration the request of a Committee of Council, delivered to a Committee of this House, on the 16th instant, as likewise of

the several papers therein referred to. And after several debates upon the subject-matters, it was ordered, That the said papers and requests lie on the table."

The Council finding the General Assembly would not do any thing about it, they sent the following Message to the House:

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

"A Message from the Council by Mr. Livingston, desiring this House to return by him to that board the several seditious Journals of Zenger's, No. 7, 47, 48, 49, which were delivered by a Committee of that Board to a Committee of this House the 17th of October last, together with the proposals of the Committee of that Board, delivered therewith to a Committee of this House; and then withdrew."

On Tuesday the 5th of November, 1734, the quarter-sessions for the city of New York began, when the sheriff delivered to the Court an Order, which was read in these words:

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

"Whereas by an Order of this Board, of this day, some of John Peter Zenger's Journals, entitled, ' The New York Weekly Journal, containing the freshest Advices, foreign and domestic,' No. 7, 47, 48, 49, were ordered to be burnt by the hands of the common hangman, or whipper, near the pillory in this city, on Wednesday the 6th instant, between the hours of eleven and twelve in the forenoon, as containing in them many things tending to sedition and faction, to bring his majesty's government into contempt, and to disturb the peace thereof, and containing in them likewise not only refections upon his excellency the governor in particular, the legislature in general, tut also upon the most considerable persons in the most distinguished stations in this province: it is therefore ordered, That the mayor and magistrates of this city do attend at the burning of the several Papers or Journals aforesaid, numbered as above mentioned.

"FRED. MORRIS, D. Cl. Con." "To Robert Lurling, esq. mayor of the city of New York, and the rest of the magistrates for the said city and county."

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

* "N. B. Dr. Colden was that day at Esopus, 90 miles from New York, though mentioned as present in council." — Former Edition.

it should be entered, they would have their protest entered against it.

On Wednesday the 6th of November, the sheriff of New York moved the Court of Quarter-sessions to comply with the said Order; upon which one of the aldermen offered a Protest, which was read by the clerk, and approved of by all the aldermen, either expressly or by not objecting to it, and is as followeth:

"Whereas an Order has been served on this Court, in these words." [The Order as above inserted.] "And whereas this Court conceives, they are only to be commanded by the king's mandatory writs, authorised by law, to which they conceive they have the right of shewing cause why they don't obey them, if they believe them improper to be obeyed; or by Orders,which have some known laws to authorise them; and whereas this Court conceives this Order to be no mandatory writ warranted by law, nor knows of no law that authorises the making the Order aforesaid; so they think themselves under no obligation to obey it: which obedience, they think would be in them, an opening a door for arbitrary commands, which, when once opened, they know not what dangerous consequences may attend it. Wherefore this Court conceives itself bound in duty (for the preservation of the rights of this corporation, and, as much as they can, the liberty of the press, and the people of the province, since an assembly of the province, and several grand juries, have refused to meddle with the papers, when applied to by the Council) to protest against the Order aforesaid, and to forbid all the members of this corporation to pay any obedience to it, until it be shewn to this Court, that the same is authorised by some known law, which they neither know, nor believe that it is."

Upon reading of which, it was required of the honourable Francis Harrison, recorder of this corporation, and one of the members of the Council, (present at making the said Order) to shew by what law or authority the said Order was made; upon which he spoke in support of it, and cited the case of Dr. Sacheverell's Sermon, which was by the House of Lords ordered to be burnt by the hands of the hangman, and that the mayor and aldermen of London should attend the doing of it. To which one of the aldermen answered to this purpose: That he conceived the case was no ways parallel, because Dr. Sacheverell and his Sermon were impeached by the House of Commons of England, which is the grand jury of the nation, and representative of the whole people of England : that this their impeachment they prosecuted before the House of Lords, the greatest court of justice of Britain, and which, beyond memory of man, has had cognizance of things of that nature: that there Sacheverell had a fair hearing in defence of himself and of his Sermon; and after that fair hearing, he and his Sermon were justly, fairly, and legally condemned: that be had read the case of Dr.

Sacheverell, and thought he could charge his memory, that the judgment of the House of Lords in that case was, That the mayor and sheriffs of London and Middlesex only should attend the burning of the Sermon, and not the aldermen; and farther he remembered, that the Order upon that judgment was only directed to the sheriffs of London, and not even to the mayor, who did not attend the doing it: and farther said, that would Mr. Recorder shew, that the governor and council had such authority as the House of Lords, and that the papers ordered to be burnt were in like manner legally prosecuted and condemned, there the case of Dr. Sacheverell might be to the purpose; but

without shewing that, it rather proved that a censure ought not to be pronounced, till a fair trial by a competent and legal authority were first had. Mr. Recorder was desired to produce the books from whence he cited his authorities, that the Court might judge of them themselves, and was told, that if he could produce sufficient authorities to warrant this Order, they would readily obey it, but otherwise not. Upon which he said, he did not carry his books about with him. To which it was answered, he might send for them, or order a constable to fetch them. Upon which he arose, and at the lower end of the table he mentioned, that bishop Bumet's Pastoral Letter was ordered, by the House of Lords, to be burnt* by the high bailiff of Westminster; upon which he abruptly went away, without waiting for an answer, or promising to bring his books, and did not return sitting the Court.

After Mr. Recorder's departure, it was moved, that the Protest should be entered; to which it was answered, that the Protest could not be entered, without entering also the Order, that it was not fit to take any notice of it; and therefore it was proposed that no notice should be taken in their books of either,

which was unanimously agreed to by the Court.

The sheriff then moved, that the Court would direct their whipper to perform the said Order; to which it was answered, That as he was the officer of the corporation, they would give no such Order. Soon after which the Court adjourned, and did not attend the burning of the papers. Afterwards about noon, the sheriff, after reading the numbers of the several papers which were ordered to be burnt, delivered them unto the hands of his own negro, and ordered him to put them into the fire,

which he did; at which Mr. Recorder, Jeremiah Dunbar, esq. and several of the officers of the garrison, attended.

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

* Bishop Kennet says, that this Letter seemed to be sacrificed to a poor jest on the author's name [Burnet]. Complete Hist. of Eng. vol. 3, p. 587, 2 Ed. in Lond, 1719. — Former Edition.

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

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

"It is ordered, that the sheriff for the city of New York do forthwith take and apprehend John Peter Zenger, for printing and publishing several seditious libels, dispersed throughout his Journals or News-papers, intituled, ' The New York Weekly Journal, containing the freshest advices, foreign and domestic;' as having in them many things tending to raise factions and tumults among the people of this province, inflaming their minds with contempt of his majesty's government, and greatly disturbing the peace thereof; and upon his taking the said John Peter Zenger, to commit him to the prison or common jail of the said city and county.

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

And being, by virtue of that warrant, so imprisoned in the jail, I was for several days denied the use of pen, ink, and paper, and the liberty of speech with any persons. — Upon my commitment, some friends soon got a Habeas Corpus to bring me before the chief-justice, in order to my discharge, or being bailed; on the return whereof, on Wednesday the 20th of November, my counsel delivered exceptions to the return, and the chief-justice ordered them to be argued publicly at the city hall, on the Saturday following.

On Saturday the 23d of November, the said exceptions came to be argued, by James Alexander and William Smith, of counsel for me, and by Mr. Attorney General, and Mr. Warrel, of counsel against me, in presence of some hundreds of the inhabitants; where my counsel (saving the benefit of exception to the illegality of the warrant) insisted that I might be admitted to reasonable bail. And to shew that it was my right to be so, they offered Magna Charta, the Petition of Right, 3 Car. the Habeas Corpus Act of 31 Car. 2. which directs the sum, in which bail is to be taken, to be, 'according to the quality of the prisoner, and nature of the offence.' Also 2 Hawkins, cap. 15, §. 5, in these words, 'But justices must take care, that, under pretence of demanding sufficient security, they do not make so excessive a demand as, in effect, amounts to a denial of bail; for this is looked on as a great grievance, and is complained of as such, by 1 W. & M. sess. 2, by which it is declared, 'That excessive bail ought not to be required,' It was also shewn, that the Seven Bishops, who, in king James the 2d's time, were charged with the like crime that I stood charged with, were admitted to bail on their own recognizances,

the archbishop in 200l. and each of the other six in 100l a-piece only. Sundry other authorities and arguments were produced and insisted on by my counsel, to prove my right to be admitted to moderate bail, and to such bail as was in my power to give; and sundry parts of history they produced, to shew how much the requiring excessive bail had been reseated by parliament. And, in order to enable the Court to judge what surety was in my power to give, I made affidavit, That (my debts paid) I was not worth forty pounds, (the tools of my trade, and wearing-apparel excepted.)

Some warm expressions (to say no worse of them) were dropt on this, occasion, sufficiently known and resented by the auditory, which, for my part, I desire may be buried in oblivion : upon the whole, it was ordered, that I might be admitted to bail, myself in 400l. with two sureties, each in 200l. and that I should be remanded till I gave it. And as this was ten times more than was in my power to counter-secure any person in giving bail for me, I conceived I could not ask any to become my bail on these terms; and therefore I returned to jail, where I lay until Tuesday the 28th of January, 1734-5, bring the last day of that term; and the grand jury having found nothing against me, I expected to have been discharged from my imprisonment: but my hopes proved Tain; for the Attorney General then charged me, by information, for printing and publishing parts of my Journals No. 13 and 23, as being false, scandalous, malicious, and seditious.

To this information my Counsel appeared, and offered Exceptions, leaving a blank for inserting the judges commissions, which the Court were of opinion not to receive till those blanks were filled up. In the succeeding vacation the judges gave copies of their commissions; and on Tuesday the 15th of April last, the first day of the succeeding term, my Counsel offered these Exceptions; which were as follow:

"The ATTORNEY GENERAL, v. JOHN PETER ZENGER. — On Information for a Misdemeanor.

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

"The defendant comes and prays hearing of the commission, by virtue of which the honourable James de Lancey, esq. claims the power and authority to judge in this cause, and it is read to him in these words:

"'George the 2d, by the grace of God, of Great Britain, France and Ireland, king, defender of the faith, &c. To our trusty and well beloved James de Lancey, esq. We, reposing special trust and confidence in your integrity, ability and learning, have assigned, constituted and appointed, and we do by these presents assign, constitute, and appoint you, the said James de Lancey, to be chief justice in and over our province of New York, in America, in the room of Lewis

Morris, esq. giving and by these presents granting unto you full power and lawful authority to hear, try, and determine all pleas whatsoever, civil, criminal, and mixt, according to the laws, statutes, and customs of our kingdom of England, and the laws and usages of our said province of New York, not being repugnant thereto, and executions of all judgments of the said court to award, and to make such rules and orders in the said court, as may be found convenient and useful, and, as near as may be, agreeable to the rules and orders of our courts of King's-bench, Common Pleas, and Exchequer in England. To have, hold, and enjoy the said office or place of chief justice in and over our said province, with all and singular the rights, privileges, profits and advantages, salaries, fees and perquisites unto the said place belonging, or in any ways appertaining, in as full and ample manner as any person heretofore chief justice of our said province hath held and enjoyed, or of right ought to have held and enjoyed the same, to you the said James De Lancey, esq. for and during our will and pleasure. In testimony whereof we have caused these our letters to be made patent, and the. great seal of our province of New York to be hereunto affixed. Witness our trusty and well-beloved William Cosby, esq. our captain-general and governor in chief of our provinces of New York, New Jersey, and the territories thereon depending in America, vice-admiral of the same, and colonel in our army, at Fort George in New York, the 21st day of August, in the 7th year of our reign, Anno Domini, 1733.' "Which being read and heard, the said John Peter Zenger, by protestation not confessing nor submitting to the power of any other person to judge in this cause, doth except to the power of the honourable James de Lancey, esq. aforesaid, to judge in this cause, by virtue of the commission aforesaid, for these reasons, viz.

"1st. For that the authority of a judge of the King's-bench, in that part of Great Britain called England, by which the cognizance of this cause is claimed, is by the said commission granted to the honourable James de Lancey, esq. aforesaid, only during pleasure; whereas that authority (by a statute in that case made and provided) ought to be granted during good behaviour.

"2nd. For that, by the said commission, the jurisdiction and authority of a justice of the court of Common Pleas at Westminster, in that part of Great Britain called England, is granted to the said James de Lancey, esq. which jurisdiction and authority cannot be granted to, and exercised by, any one of the justices of the King's-beneh.

"3rd. For that the form of the said commission is not founded on, nor warranted by the common law, nor any statute of England, nor of Great Britain, nor any act of assembly of this colony. "4th. For that it appears, by the commis-

sion aforesaid, that the same is granted under the sea! of this colony by his excellency William Cosby, esq. governor thereof; and it appears not, that the same was granted, neither was the same granted, by and with the advice and consent of his majesty's council of this colony; without which advice and consent, his excellency could not grant the same.

"Wherefore, and for many other defects in the said commission, this defendant humbly hopes, that the honourable James de Lancey, esq. will not take cognizance of this cause, by virtue of the commission aforesaid.

"JAMES ALEXANDER. "WILLIAM SMITH."

The Exceptions to the Commission of the honourable Frederick Phillipse, esq. were the same with the foregoing, including therein his commission, which is in these words:

'George the 2d, by the grace of God, of Great Britain, France and Ireland, king, defender of the faith, &c. To our trusty and well-beloved Frederick Phillipse, esq. greeting : whereas it is our care, that justice be duly administered to our subjects within our province of New York, and territories thereon depending in America; and we, reposing especial confidence in your integrity, ability and learning, have assigned, constituted and appointed, and we do by these presents assign, constitute and appoint you, the said Frederick Phillipse, to be second justice of our supreme court of judicature for our province of New York, in the room of James de Lancey, esq. giving and granting to you, the said Frederick Phillipse, full power and authority, with our other justices of our said supreme court, to hear, try, and determine all pleas whatsoever, civil, criminal, and mixed, according to the laws, statutes and customs of our kingdom of England, and the laws and usages of our said province of New York, not being repugnant thereto; and executions of all judgments of the said court to award, and to act and do all things, which any of our justices of either bench, or barons of the Exchequer, in our said kingdom of England, may or ought to do, and also to assist in the making such rules and orders in our said court, as shall be for the good and benefit of our said province; and, as near as conveniently may be, to the rules and orders of our said courts in our said kingdom of England: to have, hold, and enjoy the said office or place of second justice of our said province of New York, together with all and singular the rights, privileges, salaries, fees, perquisites, profits and advantages thereto, now or at any time heretofore belonging, or in any wise of right appertaining, unto you, the said Frederick Phillipse, for and during our pleasure. In testimony whereof, we have caused these our letters to be made patent, and the great seal of our said province of New York to be hereunto affixed. Witness our trusty and well-beloved William Cosby, esq. our captain general and governor in chief of our

provinces of New York, New Jersey, and territories thereon depending in America, vice-admiral of the same, and colonel in our army, &c. at Fort George in New York, the 21st day of August, in the 7th year of our reign, Anno Domini, 1733.

'FRED. MORRIS, D. Secretary.'

Tuesday, April 15, 1735.

Mr. Alexander offered the above Exceptions to the Court, and prayed that they might be filed. Upon this the chief justice said to Mr. Alexander and Mr. Smith, that they ought well to consider the consequences of what they offered. To which both answered, that they had well considered what they offered, and all the consequences. And Mr. Smith added, that he was so well satisfied of the right of the subject to take an exception to the commission of a judge, if he thought such commission illegal, — that he durst venture his life upon that point. As to the validity of the Exceptions then offered, he said, he took that to be a second point; but was ready to argue them both, if their honours were pleased to hear him. To which the chief justice replied, that he would consider the Exceptions in the morning; and ordered the clerk to bring them to him.

Wednesday, April 16.

The chief justice delivered one of the Exceptions to the clerk, and justice Phillipse the other; upon which Mr Smith arose, and asked the judges, whether their honours would hear him upon these two points. 1st. That the subject has a right to take such Exceptions, if they judged the commission illegal. 2dly. That the Exceptions tendered were legal and valid. To which the chief justice said, that they would neither hear nor allow the Exceptions; for (said he) you thought to have gained a great deal of applause and popularity by opposing this court, as you did the court of Exchequer; but you have brought it to that point, that either we must go from the bench, or you from the bar: therefore we exclude you and Mr. Alexander from the bar; and delivered a paper to the clerk, and ordered it to be entered; which the clerk entered accordingly, and returned the paper to the chief justice; after which the chief justice ordered the clerk to read publicly what he had written; an attested copy whereof follows:

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

"James Alexander, esq. and William Smith, attornies of this Court, having presumed, (notwithstanding they were forewarned by the Court of their displeasure, if they should do it) to sign, and having actually signed, and put into court. Exceptions, in the name of John

Peter Zenger; thereby denying the legality of the judges their commissions; though in the usual form, and the being of this Supreme Court. It is therefore ordered, that, for the said contempt, the said James Alexander, and William Smith, be excluded from any farther practice in this Court; and that their names be struck out of the roll of attornies of this Court. Per Cur'. JAMES LYNE, Cl."

After the order of the Court was read, Mr. Alexander asked, whether it was the order of Mr. Justice Phillipse as well as of the chief-justice? To which both answered, that it was their order; upon which Mr. Alexander added. That it was proper to ask that question, that they might know how to have their relief: he farther observed to the Court, upon reading of the Order, that they were mistaken in their wording of it, because the Exceptions were only to their commissions, and not to the being of the Court, as is therein alleged; and prayed that the Order might be altered accordingly. The chief-justice said, they conceived the Exceptions were against the being of the Court. Both Mr. Alexander and Mr. Smith denied that they were, and prayed the chief-justice to point to the place that contained such exceptions; and further added, that the Court might well exist, though the commissions of all the judges were void; which the chief-justice confessed to be true: and therefore they prayed again, that the Order in that point might be altered; but it was denied.

Then Mr. Alexander desired to know, whether they over-ruled or rejected the Exceptions? The chief-justice said, He did not understand the difference; to which said Alexander replied, that if he rejected the Exceptions, then they could not appear upon the proceedings, and in that case the defendant was entitled to have them made part of the proceedings by bills of exceptions : but if they over-ruled them, then, by so doing, they only declared them, not sufficient, to hinder them from proceeding by virtue of those commissions; and the Exceptions would remain as records of the Court, and ought to be entered on the record of the cause, as part of the proceedings. The chief-justice said, They must remain upon the file, to warrant what we have done: as to being part of the record of the proceedings in that cause, he said, You may speak to that point to-morrow.

Friday, April 18th, 1735.

Mr. Alexander signified to the Court, that on Wednesday last their honours had said, that the counsel for Mr. Zenger might speak to the point, concerning the rejecting or overruling of Mr. Zenger's Exceptions, on the . morrow: to which the chief-justice answered, that he said, You may get some person to speak to that point on the morrow, not meaning that the said Alexander should speak to it, that being contrary to the Order. Both Mr.

Alexander and Mr. Smith said, they understood it otherwise.

They both also mentioned, that it was a doubt, whether by the words of the Order, they were debarred of their practice as counsel, as well as attornies, whereas they practised in both capacities. To which the chief-justice answered, That the Order was plain, "That James Alexander, esq. and William Smith, were debarred and excluded from their whole practice at this bar; and that the Order was intended to bar their acting both as counsel and as attornies, and that it could not be construed otherwise." And it being asked Mr. Phillipse, whether he understood the Order so? He answered, That he did.

Upon this exclusion of my counsel, I petitioned the Court to order counsel for my defence; who thereon appointed John Chambers, esq. who pleaded Not Guilty for me to the information. But as to the point, whether my Exceptions should be part of the record, as was moved by my former counsel, Mr. Chambers thought not proper to speak to it. Mr. Chambers also moved, that a certain day in the next term might be appointed for my trial, and for a Struck Jury; whereupon my trial was ordered to be on Monday the 4th of August, and the Court would consider till the first day of next term, whether I should have a struck jury or not; and ordered, that the sheriff should, in the mean time, at my charge, return the freeholders book.

At a Supreme Court of Judicature held for the Province of New York, before the honourable James De Lancey, esq. Chief-Justice of the said Province; and the honourable Frederick Phillipse, esq. second Justice of the said Province.

On Tuesday the 29th of July, 1735, the Court opened; and on motion of Mr. Chambers for a Struck Jury, pursuant to the rule of the preceding term, the Court were of opinion, that I was entitled to have a Struck Jury; and that evening, at five of the clock, some of my friends attended the clerk, for striking the jury; when, to their surprize, the clerk, instead of producing the freeholders book, to strike the jury out of it in their presence, as usual, he produced a list of 48 persons, whom, he said, he had taken out of the freeholders book: my friends told him, that a great number of these persons were not freeholders; that others were persons holding commissions and offices at the governor's pleasure; that others were of the late displaced magistrates of this city, who must be supposed to have resentment against me, for what I had printed concerning them; that others were the governor's baker, taylor, shoe-maker, candle-maker, joiner, &c. that as to the few indifferent men that were upon that list, they had reason to believe (as they had heard) that Mr. Attorney had a list of them to strike them out; and therefore requested, that be would either bring the freeholders book, and chuse out of it 48 unex-

ceptionable men in their presence, as usual; or else, that he would hear their objections, particularly to the list he offered; and that be would put impartial men in the place of those against whom they could shew just objections. Notwithstanding this, the clerk refused to strike the jury out of the freeholders book, and refused to hear any objections to the persons on his list; but told my friends, if any objections they had to any persons, they might strike those persons out; to which they answered, There would not remain a jury, if they struck out all the exceptionable men; and, according to the custom, they had only a right to strike out 12.

But finding no arguments could prevail with the clerk to hear their objections to his list, nor to strike the jury as usual, Mr. Chambers told him, he must apply to the Court, which the next morning he did; and the Court, upon his motion, ordered, That the 48 should be struck out of the freeholders book, as usual, in the presence of the parties; and that the clerk should hear objections to persons proposed to be of the 48, and allow of such exceptions as were just. In pursuance of that order, a jury was that evening struck, to the satisfaction of both parties, though my friends and counsel insisted on no objections but want of freeholders; and though they did not insist, that Mr. Attorney General (who was assisted by Mr. Blagge) should shew any particular cause, against any persons he disliked, but acquiesced that any person he disliked should be out of the 48.

Before James De Lancey. esq. Chief-justice of the province of New York, and Frederick Phillipse, second judge, came on my trial, "on the fourth day of August, 1735, upon an information for printing and publishing two news-papers, which were called libels against our governor and his administration.

The defendant John Peter Zenger, being called, appeared.

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

Mr. Chambers, of counsel for the defendant. I humbly move your honours, that we may have justice done by the sheriff, and that he may return the names of the jurors in the same order as they were struck.

Mr. Chief Justice. How is that? Are they not so returned?

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

Mr. Chief Justice. Make out that, and you shall be righted.

Mr. Chambers. I have the copy of the pannel in my hand, as the jurors were struck; and if the clerk will produce the original, signed by Mr. Attorney and myself, your honour will see our complaint is just.

Mr. Chief-Justice. Clerk, is it so? Look upon that copy; is it a true copy of the pannel as it was struck?

Clerk. Yes, I believe it is.

Mr. Chief Justice. How came the names of the jurors to be misplaced in the pannel annexed to the Venire?

Sheriff. I have returned the jurors in the same order In which the clerk gave them to me.

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

Which was done accordingly. And the jury, whose names were as follow, were called and sworn:

JURY.

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

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

Mr. Attorney General opened the information, which was as follows:

Att. Gen. May it please your honours, and you gentlemen of the jury; the information now before the Court, and to which the defendant Zenger, has pleaded Not Guilty, is an information for printing and publishing a false, scandalous, and seditious libel, in which his excellency, the governor of this province, who is the king's immediate representative here, is greatly and unjustly scandalized, as a person that has no regard to law nor justice; with much more, as will appear upon reading the informations. This [practice] of libelling is what has always been discouraged, as a thing that tends to create differences among men, ill blood among the people, and oftentimes great bloodshed between the party libelling and the party libelled. There can be no doubt but you, gentlemen of the jury, will have the same ill opinion of such practices as the judges have always shewn upon such occasions: But i shall say no more at this time, until you hear the information, which is as follows:

"New-York, Supreme Court.

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

"New York, ss. Be it remembered, that Richard Bradley, esq. Attorney General of our sovereign lord the king for the province of New-York, who for our said lord the king in this part prosecutes, in his own proper person comes here into the Court of our said lord the king, and for our said lord the king gives the Court here to understand, and be informed, that John Peter Zenger, late of the city of New-York, printer, (being a seditious person, and a frequent printer and publisher of false news and seditious libels, and wickedly and maliciously devising the government of our said lord the king of this his majesty's province of New-York, under the administration of his

excellency William Cosby, esq. captain-general and governor in chief of the said province, to traduce, scandalize and vilify, and his excellency the said governor, and the ministers and officers of our said lord the king, of and for the said province, to bring into suspicion, and the ill opinion of the subjects of our said lord the king residing within the said province) the 28th day of January in the 7th year of the reign of our sovereign lord George the Second, by the grace of God, of Great Britain, France and Ireland, king, defender of the faith, &c. at the city of New-York, did falsely, seditiously and scandalously print and publish, and cause to be printed and published a certain false, malicious, seditious, scandalous libel, intituled, 'The New-York Weekly Journal, containing the freshest advices, foreign and domestic;' in which libel (of and concerning his excellency the said governor, and the ministers and officers of our said lord the king, of and for the said province) among other things therein contained are the words, 'Your appearance in print, at last, gives a pleasure to many, though most wish you bad come fairly into the open field, and not appeared behind retrenchments made of the supposed laws against libelling, and of what other men have said and done before: These retrenchments, gentlemen, may soon be shewn 1o you, and all men, to be weak, and to have neither law nor reason for their foundation, so cannot long stand you in stead: Therefore, you had much better as yet leave them, and come to what the people of this city and province [the city and province of New-York meaning] think are the points in question; (to wit) they [the people of the city and province of New-York meaning] think, as matters now stand, that their liberties and properties are precarious, and that slavery is like to be intailed on them and their posterity, if some past things be not amended; and this they collect from many past proceedings.' [Meaning many the past proceedings of his. excellency the said governor, and of the ministers and officers of our said lord the king, of and for the said province.] And the said attorney General of our said lord the king, for our said lord the king, likewise gives the Court here to understand, and be informed, that the said John Peter Zenger afterwards, (to wit) the Bill day of April, in the 7th year of the reign of our said lord the king, at the city of New York aforesaid, did falsely, seditiously, and scandalously print and publish, and cause to be printed and published, another false, malicious, seditious and scandalous libel, entitled, 'The New York Weekly Journal, containing the freshest Advices foreign and domestic.' In which libel, [of and concerning the government of the said province of New York, and of and concerning his excellency the said governor, and the ministers and officers of our said lord the king, of and for the said province] among other things therein contained are these words, 'One of our neighbours [one of the inhabitants

of New Jersey meaning] being in company, observing the strangers [some of the inhabitants of New York meaning] full of complaints, endeavoured to persuade them to remove into Jersey; to which it was replied, That would be leaping out of the frying-pan into the fire : for, says he, we both are under the same governor [his excellency the said governor meaning] and your Assembly have shewn with a witness what is to be expected from them; one that was then moving to Pensylvania, [meaning one that was then removing from New York with intent to reside at Pensylvania] to which place it is reported several considerable men are removing [from New York meaning] expressed in terms very moving, much concern for the circumstances of New York [the bad circumstances of the province and the people of New York meaning] seemed to think them very much owing to the influence that some men [whom he called tools] had in the administration [meaning the administration of government of the said province of New York] said he was now going from them, and was not to be hurt by any measures they should take, but could not help having some concern for the welfare of his countrymen, and should be glad to bear that the Assembly [meaning the General Assembly of the province of New York] would exert themselves as became them, by shewing that they have the interest of their country more at heart, than the gratification of any private view of any of their members, or being at all affected by the smiles or frowns of a governor, [his excellency, the said governor, meaning] both which ought equally to be despised, when the interest of their country is at stake. You, says he, complain of the lawyers, but I think the law itself is at an end. We [the people of the province of New York meaning] see men's deeds destroyed, judges arbitrarily displaced, new courts erected, without consent of the legislature [within the province of New York meaning] by which it seems to me, trials by juries are taken away when a governor pleases, [his excellency the said governor meaning] men of known estates denied their votes, contrary to the received practice, the best expositor of any law: Who is then in that province [meaning the province of New York] that call [can call meaning] any thing his own, or enjoy any liberty [liberty meaning] longer than those in the administration [meaning the administration of government of the said province of New York] will condescend to let them do it, for which reason I have left it [the province of New York meaning] as I believe more will;' to the great disturbance of the peace of the said province of New York, to the great scandal of our said lord the king, of his excellency the said governor, and of all others concerned in the administration of the government of the said province, and against the peace of our sovereign lord the king, his crown and dignity, &c. Whereupon the said

Attorney General of our said lord the king, for our said lord the king, prays the advisement of the Court here, in the premises, and the due process of the law, against him the said John Peter Zenger, in this part to be done, to answer to our said lord the king of and in the premises, &c. R. BRADLEY, Attorney General."

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

Mr. Chambers has not been pleased to favour me with his notes, so I cannot, for fear of doing him injustice, pretend to set down his argument; but here Mr. Chambers set forth very clearly, "The nature of a libel, the great allowances that ought to be made for what men speak or write; that in all libels there must be some particular persons so clearly pointed out that no doubt must remain about who is meant; that he was in hopes Mr. Attorney would fail in his proof, as to this point; and therefore desired that he would go on to examine his witnesses."

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

Mr. Hamilton. May it please your honour: I am concerned in this cause on the part of Mr. Zenger, the defendant. The information against my client was sent me, a few days before I left home, with some instructions to let me know how far I might rely upon the truth of those parts of the papers set forth in the information, and which are said to be libellous. And though I am perfectly of the opinion with the gentleman who has just now spoke, on the same side with me, as to the common course of proceedings, I mean in putting Mr. Attorney upon proving, that my client printed and published those papers mentioned in the information; yet I cannot think it proper for me (without doing violence to my own principles) to deny the publication of a complaint, which, I think, is the right of every free-born subject to make, when the matters so published can be supported with truth; and therefore I'll save Mr. Attorney the trouble of examining his witnesses to that point; and I do (for my client) confess, that he both printed and published the two newspapers set forth in the information, and I hope in so doing he has committed no crime.

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

Mr. Hamilton. If you brought them here only to prove the printing and publishing of these newspapers, we have acknowledged that, and shall abide by it.

Here my journeyman and two sons (with several others subpœna'd by Mr. Attorney, to give evidence against me) were discharged, and there was silence in the Court for some time.

Mr. Chief Justice. Well, Mr. Attorney, will you proceed?

Mr. Attorney. Indeed, Sir, as Mr. Hamilton has confessed the printing and publishing these libels, I think the jury must find a verdict for the king; for supposing they wore true, the law says that they are not the less libellous for that; nay indeed the law says, their being true is an aggravation of the crime.

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

As Mr. Attorney has not been pleased to favour us with his argument which he read, or with the notes of it, we cannot take upon us to set down his words, but only to shew the book cases he cited, and the general scope of his argument, which he drew from those authorities. 'He observed upon the excellency, as well as use of government, and the great regard and reverence which had been constantly paid to it, both under the law and the gospel. That by government we were protected in our lives, religion and properties; and that, for these reasons, great care had always been taken to prevent every thing that might tend to scandalize magistrates, and others concerned in the administration of the government, especially the supreme magistrate. And that there were many instances of very severe judgments, and of punishments inflicted upon such as had attempted to bring the government into contempt; by publishing false and scurrilous libels against it, or by speaking evil and scandalous words of men in authority; to the great disturbance of the public peace.' And to support this, he cited 5 Coke 121. (I suppose it should be 125.) Wood's Instit. 430. 2 Lilly 168. 1 Hawkins 73. 11. 6. From these books he insisted, 'That a libel was a malicious defamation of any person, expressed either in printing or writing, signs or pictures, to asperse the reputation of one that is alive, or the memory of one that is dead; if he is a private man, the libeller deserves a severe punishment, but if it is against a magistrate, or other public person, it is a greater offence; for this concerns not only the breach of the peace, but the scandal of the government; for what greater scandal of government can there be, than to have corrupt or wicked magistrates to be appointed by the king, to govern his subjects under him? And a greater imputation to the state cannot be, than to suffer such corrupt men to sit in the sacred seat of justice, or to have any meddling in, or concerning the administration of justice.' And from the same books Mr Attorney insisted, that whether the person defamed is a private man or a magistrate, whether living or dead, whether the libel is true or false, or if the party against whom it is made is of good or evil fame, it is nevertheless, a libel.

For in a settled state of government, the party grieved ought to complain for every injury done him, in the ordinary course of the law. And as to its publication, the law had taken so great care of men's reputations, that if one maliciously repeats it, or sings it in the presence of another, or delivers the libel or a copy of it over, to scandalize the party, he is to be punished as a publisher of a libel. He said it was likewise evident, that libelling was an offence against the law of God. Acts xxiii. 5. Then, said Paul, I wist not, brethren, that he was the high priest: For it is written, Thou shalt not speak evil of the ruler of the people. 2 Peter ii. 10. Despise government, presumptuous are they, self-willed, they are not afraid to speak evil of dignities, &c. He then insisted that it was clear, both by the law of God and man, that it was a very great offence to speak evil of, or to revile those in authority over us; and that Mr. Zenger had offended in a most notorious and gross manner, in scandalizing his excellency our governor, who is the king's immediate representative, and the supreme magistrate of this province : for can there be any thing more scandalous said of a governor than what is published in those papers? Nay, not only the governor, but both the council and assembly are scandalized; for there it is plainly said, That 'as matters now stand, their liberties and properties are precarious, and that slavery is like to be entailed on them and their posterity. And then again Mr. Zenger says, The assembly ought to despise the smiles or frowns of a governor; that he thinks the law is at an end; that we see men's deeds destroyed, judges arbitrarily displaced, new courts erected, without consent of the legislature; and, that it seems trials by juries are taken away when a governor pleases; that none can call any thing their own, longer than those in the administration will condescend to let them do it.' — And Mr. Attorney added, ' That he did not know what could be said in defence of a man, that had so notoriously scandalized the governor and principal magistrates and officers of the government, by charging them with depriving the people of their rights and liberties, and taking away trials by juries; and in short, putting an end to the law itself. — If this was not a libel, he said he did not know what was one. Such persons as will take those liberties with governors and magistrates, he thought, ought to suffer for stirring up sedition and discontent among the people. And concluded, by saying, that the government had been very much traduced and exposed by Mr. Zenger, before he was taken notice of; that at last it was the opinion of the governor and council, that he ought not to be suffered to go on, to disturb the peace of the government, by publishing such libels against the governor, and the chief persons in the government; and therefore they had directed this prosecution, to put a stop to this scandalous and wicked practice, of libelling and defaming his majesty's government and disturbing his majesty's peace.'

Mr. Chambers then summed up to the jury, observing with great strength of reason on Mr. Attorney's defect of proof, that the papers in the information were false, malicious or seditious, which was incumbent on him to prove to the jury, and without which they could not on their oaths say, that they were so as charged.

Mr. Hamilton. May it please your honour : I agree with Mr. Attorney, that government is a sacred thing; hut I differ very widely from him, when be would insinuate, that the just complaints of a number of men, who suffer under a bad administration, is libelling that administration. Had I believed that to be law, I should not have given the Court the trouble of hearing any thing that I could say in this cause. I own, when I read the information, I had not the art to find out (without the help of Mr. Attorney's innuendos) that the governor was the person meant in every period of that news-paper; and I was inclined to believe, that they were wrote by some, who from an extraordinary zeal for liberty, had misconstrued the conduct of some persons in authority into crimes; and that Mr. Attorney, out of his too great zeal for power, had exhibited this information, to correct the indiscretion of my client; and at the same time, to shew his Superiors the great concern he had, lest they should be treated with any undue freedom. But from what Mr. Attorney has just now said, to wit, That this prosecution was directed by the governor and council, and from the extraordinary appearance of people of all conditions which I observe in Court upon this occasion, I have reason to think, that those in the administration have by this prosecution something more in view, and that the people believe they have a good deal more at stake than I apprehended; and, therefore, as it is become my duty, to be both plain and particular in this cause, I beg leave to bespeak the patience of the Court.

I was in hopes, as that terrible court, where those dreadful judgments were given, and that law established, which Mr. Attorney has produced for authorities to support this cause, was long ago laid aside, as the most dangerous court to the liberties of the people of England that ever was known in that kingdom; that Mr, Attorney knowing this, would not have attempted to set up a Star-Chamber here, nor to make their judgments a precedent to us : for it is well known, that what would have been judged treason in those days for a man to speak, I think, has since not only been practised as lawful, but the contrary doctrine has been held to be law.

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

soever, was express treason. And yet we see, since that time, Dr. Sacheverell was sentenced in the highest court in Great Britain, for saying, that such a resistance was not lawful. Besides, as times have made very great changes in the laws of England, so in my opinion, there is good reason that places should do so too.

Is it not surprising to see a subject, upon his receiving a commission from the king to be a governor of a colony in America, immediately imagining himself to be vested with all the prerogatives belonging to the sacred person of his prince? And which is yet more astonishing, to see that a people can be so wild as to allow of and acknowledge those prerogatives and exemptions, even to their own destruction? Is it so hard a matter to distinguish between the majesty of our sovereign, and the power of a governor of the plantations? Is not this making very free with our prince, to apply that regard, obedience and allegiance to a subject which is due only to our sovereign? And yet in all the cases which Mr. Attorney has cited to shew the duty and obedience we owe to the supreme magistrate, it is the king that is there meant and understood, though Mr. Attorney is pleased to urge them as authorities to prove the heinousness of Mr. Zenger's offence against the governor of New-York. The several plantations are compared to so many large corporations, and perhaps not improperly; and can any one give as instance, that the mayor or head of a corporation ever put in a claim to the sacred rights of majesty? Let us not (while we are pretending to pay a great regard to our prince and his peace) make bold to transfer that allegiance to a subject, which we owe to our king only. What strange doctrine is it, to press every thing for law here which is so in England? I believe we should not think it a favour, at present at least, to establish this practice. In England so great a regard and reverence is had to the judges, (C. 3 Inst. 140.) that if any man strikes another in Westminster-hall, while the judges are sitting, he shall lose his right-hand, and forfeit his land and goods for so doing. And though the judges here claim all the powers and authorities within this government, that a court of King's-bench has in England, yet I believe Mr. Attorney will scarcely say, that such a punishment could he legally inflicted on a man for committing such an offence, in the presence of the judges sitting in any court within the province of New-York. The reason is obvious; a quarrel or riot in New-York cannot possibly be attended with those dangerous consequences that it might in Westminster-hall; nor (I hope) will it be alleged, that any misbehaviour to a governor in the plantations, will, or ought to be judged of or punished, as a like undutifulness would be to our sovereign. From all which, I hope Mr. Attorney will not think it proper to apply his law-cases (to support the cause of his governor), which have only been judged, where the king's safety or honour was

concerned. It will not be denied but that a freeholder, in the province of New-York, has as good a right to the sole and separate use of his lands, as a freeholder in England, who has a right to bring an action of trespass against his neighbour, for suffering his horse or cow to come and feed upon his lands, or eat his corn, whether inclosed or not inclosed; and yet I believe it would be looked upon as a strange attempt for one man here to bring an action against another, whose cattle and horses feed upon his grounds not inclosed, or indeed for eating and treading down his corn, if that were not inclosed. Numberless are the instances of this kind that might be given, to shew, that what is good law at one time, and in one place, is not so at another time, and in another place; so that I think the law seems to expect, that in these parts of the world, men should take care, by a good fence, to preserve their property from the injury of unruly beasts. And perhaps there may be as good a reason why men should take the same care, to make an honest and upright conduct a fence and security against the injury of unruly tongues.

Mr. Attorney. I don't know what the gentleman means, by comparing cases of freeholders in England with the freeholders here. What has this case to do with actions of trespass, or men's fencing their ground? The case before the Court is, Whether Mr. Zenger is guilty of libelling his excellency the governor of New-York, and indeed the whole administration of the government? Mr. Hamilton has confessed the printing and publishing, and I think nothing is plainer, than that the words in the information are scandalous, and tend to sedition, and to disquiet the minds of the people of this province. And if such papers are not libels, I think it may be said, there can be no such thing as a libel.

Mr. Hamilton. May it please your honour, I cannot agree with Mr. Attorney; for though I freely acknowledge that there are such things as libels, yet I must insist at the same time, that what my client is charged with, is not a libel; and I observed just now, that Mr. Attorney, in defining a libel, made use of the words, scandalous, seditious, and tend to disquiet the people; but (whether with design, or not, I will not say) he omitted the word false.

Mr. Attorney. I think I did not omit the word false: but it has been said already, that it may be a libel, notwithstanding it may be true.

Mr. Hamilton. In this I must still differ with Mr. Attorney; for I depend upon it, we are to be tried upon this information now before the Court and jury, and to which we hare pleaded Not Guilty, and by it we are charged with printing and publishing a certain false, malicious, seditious and scandalous libel. This word false must have some meaning, or else how 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. But to shew that it is the princi-

gal thing, which, in my opinion, makes a libel, I put the case, the information had been for printing and publishing a certain true libel, would that be the same thing? Or could Mr. Attorney support such an information by any precedent in the English law? No, the falshood makes the scandal, and both make the libel. And to shew the Court that I am in good earnest, and to save the Court's time, and Mr. Attorney's trouble, I will agree; that if he can prove the facts, charged upon us to be false, I'll own them to be scandalous, seditious, and a libel. So the work seems now to be pretty much shortened, and Mr. Attorney has now only to prove the word false, in order to make us guilty.

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

ing; but if it was necessary (as I insist it is not), how can we prove a negative? But I hope some regard will be had to the authorities that have been produced; and that supposing all the words to be true, yet that will not help them; that chief justice Holt, in his charge to the jury, in the case of Tutchin, made no distinction, whether Tutchin's papers were true or false; and as chief justice Holt has made no distinction in that case, so none ought to he made here; nor can it be shewn in all that case, there was any question made about their being false or true.

Mr. Hamilton. I did expect to hear, that a negative cannot be proved; but every body knows there are many exceptions to that general rule; for if a man is charged with killing another, or stealing his neighbour's horse; if be is innocent in the one case, he may prove the man said to be killed to be really alive; and the horse said to be stolen, never to have been out of his master's stable, &c. and this I think is proving a negative. But we will save Mr. Attorney the trouble of proving a negative, and take the onus probandi upon ourselves, and prove those very papers that are called libels to be true.

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

Mr. Hamilton. I am sorry the Court has so soon resolved upon that piece of law; I expected first to have been heard to that point. I have not in all my reading met with an authority that says, we cannot be admitted to give the truth in evidence, upon an information for a libel.

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

Mr. Hamilton. I own that, may it please your honour, to he so; but with submission I understand the word, justified, there to be a justification by plea, as it is in the case upon an indictment for murder, or an assault and battery; there the prisoner cannot justify, but plead Not Guilty: yet it will not be denied but he may, and always is admitted to give the truth of the fact, or any other matter in evi-

dence, which goes to his acquittal; as in murder he may prove it was in defence of his life, his house, &c. and in assault and battery, he may give in evidence, that the other party struck first, and in both cases he will be acquitted. And in this sense I understand the word justify, when applied to the case before the Court.

Mr. Chief Justice. I pray shew that you can give the truth of a libel in evidence. Mr. Hamilton. I am ready, both from what I understand to be the authorities in the case, and from the reason of the thing, to shew that we may lawfully do so. But here I beg leave to observe, that informations for libels is a child, if not born, yet nursed up, and brought to full maturity, in the Court of the Star-Chamber.

Mr. Chief Justice. Mr. Hamilton, you'll find yourself mistaken; for in Coke's Institutes you'll find informations for libels, long before the Court of Star-Chamber.

Mr. Hamilton. I thank your honour; that is an authority I did propose to speak to by and bye: but as you have mentioned it, I'll read that authority now. I think it is in the 3 Co. Inst. under title Libel; it is the case of John de Northampton for a letter wrote to Robert de Ferrers, one of the king's privy council, (Coke 3 Inst. 174,) concerning sir William Scot, chief justice, and his fellows; but it does not appear to have been upon information; and I have good grounds to say it was upon indictment, as was the case of Adam de Ravensworth, just mentioned before by lord Coke under the same title; and I think there cannot be a greater, at least a plainer authority for us, than the judgment in the case of John de Northampton, which my lord has set down at large. "Et quia prædictus Johannes cognovit dictam Literam per se scriptam Roberto de Ferrers, qui est de Concilio Regis, quæ litera continet in se nullam veritatem," &c. Now Sir, by this judgment it appears the libellous words were utterly false, and there the falshood was the crime, and is the ground of that judgment: and is not that what we contend for? Do not we insist that the falshood makes the scandal, and both make the libel? And how shall it be known whether the words are libellous, that is, true or false, but by admitting us to prove them true, since Mr. Attorney will not undertake to prove them false? Besides, is it not against common sense, that a man should be punished in the same degree for a true libel (if any such thing could be) as for a false one? I know it is said, that truth makes a libel the more provoking, and therefore the offence is the greater, and consequently the judgment should be the heavier. Well, suppose it were so, and let us agree for once, that truth is a greater sin than falshood: yet as the offences are not equal, and as the punishment is arbitrary, that is, according as the judges in their discretion shall direct to be inflicted; is it not absolutely necessary that they should know whether the libel is true or false, that they may by that means be able

to proportion the punishment? For would it not be a sad case, it the judges, for want of a due information, should chance to give as severe a judgment against a man for writing or publishing a lie, as for writing or publishing a truth? And yet this (with submission,) as monstrous and ridiculous as it may seem to be, is the natural consequence of Mr. Attorney's doctrine, that truth makes a worse libel than falshood, and must follow from his not proving our papers to be false, or not suffering us to prove them to be true. But this is only reasoning upon the case, and I will now proceed to shew, what in my opinion will be sufficient to induce the Court to allow us to prove the truth of the words, which in the information are called libellous. And first I think there cannot be a greater authority for us, than the judgment I just now mentioned in the case of John de Northampton, and that was in early times, and before the Star-chamber came to its fulness of power and wickedness. In that judgment, as I observed, the falshood of the letter which was wrote, is assigned as the very ground of the sentence. And agreeable to this it was urged by sir Robert Sawyer in the trial of the Seven Bishops,* that the falsity, the malice, and seditions of the writing, were all facts to be proved. But here it may be said, sir Robert was one of the Bishops' counsel, and his argument is not to be allowed for law: but I ofter it only to shew, that we are not the first who have insisted, that to make a writing a libel, it must be false. And if the argument of a counsel must have no weight, I hope there will be more regard shewn to the opinion of a judge; and therefore I mention the words of justice Powel in the same trial, where he says (of the Petition of the Bishops, which was called a libel, and upon which they were prosecuted by information,) that, to make it a libel, it must be false and malicious, and tend to sedition; and declared, as he saw no falshood or malice in it, he was of opinion, that it was no libel. Now, I should think this opinion alone, in the case of the king, and in a case which that king had so much at heart, and which to this day has never been contradicted, might be a sufficient authority, to entitle us to the liberty of proving the truth of the papers, which in the information are called false, malicious, seditious, and scandalous. If it be objected, that the opinion of the other three judges were against him, I answer, that the censures the judgments of these men have undergone, and the approbation justice Powel's opinion, his judgment and conduct upon that trial, has met with, and the honour he gained to himself, for daring to speak truth at such a time, upon such an occasion, and in the reign of such a king, is more than sufficient, in my humble opinion, to warrant our insisting on his judgment, as a full authority to our purpose; and it will lie upon Mr. Attorney to shew, that this opinion has, since that time, been denied to be law; or that

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

justice Powel, who delivered it, has ever been condemned or blamed fur it, in any law-book extant at this day; and this, I will venture to say, Mr. Attorney cannot do. But, to make this point yet more clear, if any thing can be clearer, I will, on our part, proceed and shew, that in the case of sir Samuel Barnardiston, his counsel, notwithstanding he stood before one of the greatest monsters that ever presided in an English court (judge Jefferies,) insisted on the want of proof to the malice and seditious intent of the author, of what was called a libel. And in the case of Tutchin, which seems to be Mr. Attorney's chief authority, that case is against him; for he was, upon his trial, put upon shewing the truth of his papers, but did not; at least the prisoner was asked by the king's counsel,* whether he would say they were true? And as he never pretended that they were true, the chief justice was not to say so. But the point will still be clearer, on our side, from Fuller's case,† for falsely and wickedly causing to be printed a false and scandalous libel, in which (amongst other things) were contained these words. "Mr. Jones has also made oath, that he paid 5,000l. more, by the late king's order, to several persons in places of trust, that they might complete my ruin, and invalidate me for ever. Nor is this all; for the same Mr. Jones will prove, by undeniable witness and demonstration, that he has distributed more than 180,000l. in eight years last past, by the French king's order, to persons in public trust in this kingdom." Here, you see, is a scandalous and infamous charge against the late king; here is a charge, no less than high treason, against the men in public trust, for receiving money of the French king, then in actual war with the crown of Great Britain; and yet the Court were far from bearing him down with that Star-chamber doctrine, to wit, that it was no matter, whether what he said was true or false; no, on the contrary, lord chief justice Holt asks Fuller, "Can you make it appear they are true? Have you any witnesses? You might have had subpoenas for your witnesses against this day. If you take upon you to write such things as you are charged with, it lies upon you to prove them true, at your peril. If you have any witnesses, I will hear them. How came you to write those books which are not true? If you have any witnesses produce them. If you can offer any matter to prove what you have wrote, let us hear it." Thus said, and thus did, that great man, lord chief justice Holt, upon a trial of the like kind with ours; and the rule laid down by him, in this case, is, that he who will take upon him to write things, it lies upon him to prove them at his peril. Now, Sir, we have acknowledged the printing and publishing of those papers, set forth in the information, and (with the leave of the Court) agreeable to the rule

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

† See his Case, vol. 14, p. 513.

laid down by chief justice Holt, we are ready to prove them to be true, at our peril. Mr. Chief Justice. Let me see the book.

Here the Court had the Case under consideration a considerable time, and every one was silent.

Mr. Chief Justice. Mr. Attorney, you have beard what Mr. Hamilton has said, and the cases he has cited, for having his witnesses examined, to prove the truth of several facts contained in the papers set forth in the information. What do you say to it?

Att. Gen. The law, in my opinion, is very clear: they cannot be admitted to justify a libel; for, by the authorities I have already read to the Court, it is not the less a libel because it is true. I think I need not trouble the Court with reading the cases over again; the thing seems to be very plain, and I submit it to the Court.

Mr. Chief Justice. Mr. Hamilton, the Court is of opinion, you ought not to be permitted to prove the facts in the papers: these are the words of the book, "It is far from being a justification of a libel, that the contents thereof are true, or that the person upon whom it is made had a bad reputation, since the greater appearance there is of truth in any malicious invective, so much the more provoking it is."

Mr. Hamilton. These are Star-chamber cases, and I was in hopes that practice had been dead with the Court.

Mr. Chief Justice. Mr. Hamilton, the Court have delivered their opinion, and we expect you will use us with good manners: you are not to be permitted to argue against the opinion of the Court.

Mr. Hamilton. With submission, I have seen the practice in very great courts, and never heard it deemed unmannerly to —

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

Mr. Hamilton. I will say no more at this time: the Court, I see, is against us in this point; and that I hope I may be allowed to say.

Mr. Chief Justice. Use the Court with good-manners, and you shall be allowed all the liberty you can reasonably desire.

Mr. Hamilton. I thank your honour. Then, gentlemen of the jury, it is to you we must now appeal, for witnesses to the truth of the facts we have offered, and are denied the liberty to prove; and let it not seem strange, that I apply myself to you in this manner; I am warranted so to do, both by law and reason. The law supposes you to be summoned out of the neighbourhood where the fact is alleged to be committed; and the reason of your being taken out of the neighbourhood is, because you are supposed to have the best knowledge of the fact that is to be tried. And were you to find a verdict against my client, you must take upon you to say, the papers referred to in the information, and which we acknowledge we

printed and published, are false, scandalous, and seditious; but of this I can have no apprehension. You are citizens of New York : you are really, what the law supposes you to be, honest and lawful men; and, according to my brief, the facts which we offer to prove were not committed in a corner; they are notoriously known to be true; and therefore in your justice lies our safety. And as we are denied the liberty of giving evidence, to prove the truth of what we have published, will beg leave to lay it down as a standing rule in such cases, That the suppressing of evidence ought always to be taken for the strongest evidence; and I hope it will have that weight with you. But since we are not admitted to examine our witnesses, I will endeavour to shorten the dispute with Mr. Attorney; and to that end, I. desire he would favour us with some standard definition of a libel, by which it may be certainly known, whether a writing be a libel, yea or not.

Att. Gen. The books, I think, have given a very full definition of a libel: they say (1 Hawk. chap. 73, § 1, et seq.) it is, "in a strict sense, taken for a malicious defamation, expressed either in writing or printing, and tending either to blacken the memory of one who is dead, or the reputation of one who is alive, and to expose him to public hatred, contempt or ridicule. § 2. But it is said, That, in a larger sense the notion of a libel may be applied to any defamation whatsoever, expressed either by signs or pictures, as by fixing up a gallows against a man's door, or by painting him in a shameful and ignominious manner. §. 3. And since the chief cause for which the law so severely punishes all offences of this nature, is the direct tendency of them to a breach of public peace, by provoking the parties injured, their friends and families, to acts of revenge, which it would be impossible to restrain by the severest laws, were there no redress from public justice for injuries of this kind, which, of all others, are most sensibly felt; and since the plain meaning of such scandal, as is expressed by signs or pictures, is as obvious to common sense, and as easily understood by every common capacity, and altogether as provoking as that which is expressed by writing or printing, why should it not be equally criminal? § 4. And from the same ground it seemeth also clearly to follow, that such scandal, as is expressed in a scoffing and ironical manner, makes a writing as properly a libel, as that which is expressed in direct terms; as where a writing, in a taunting manner reckoning up several acts of public charity done by one, says, You will not play the Jew, nor the Hypocrite, and so goes on in a strain of ridicule to insinuate, that what he did was owing to his vainglory; or where a writing, pretending to recommend to one the characters of several great men for his imitation, instead of taking notice of what they are generally esteemed famous for, pitched on such qualities only which their enemies charge them with the want of;

as by proposing such a one to be imitated for his courage, who is known to be a great statesman, but no soldier; and another to be imitated for his learning, who is known to be a great general, but no scholar, &c. which kind of writing is as well understood to mean only to upbraid the parties with the want of these qualities, as if it had directly and expressly done so."

Mr. Hamilton. Ay, Mr. Attorney; but what certain standard rule have the books laid down, by which we can certainly know whether the words or the signs are malicious? Whether they are defamatory? Whether they tend to the breach of the peace, and are a sufficient ground to provoke a man, his family, or friends, to acts of revenge, especially those of the ironical sort of words? And what rule have you to know when I write ironically? I think it would be hard, when I say, Such a man is a very worthy, honest gentleman, and of fine understanding, that therefore I meant he was a knave or a fool.

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

Mr. Hamilton. I agree the words are very plain; and I shall not scruple to allow (when we are agreed that the words are false and scandalous, and were spoken in an ironical and scoffing manner, &c.) that they are really libellous; but here stiil occurs the uncertainty, which makes the difficulty to know what words are scandalous, and what not; for you say, they may be scandalous, true or false : besides, how shall we know whether the words were spoke in a scoffing and ironical manner, or seriously? Or how can you know, whether the man did not think as he wrote? For, by your rule, if he did, it is no irony, and consequently no libel. But, under favour, Mr. Attorney, I think the same book, and the same section, will shew us the only rule by which all these things are to be known. The words are these; 'which kind of writing is as well understood to mean only to upbraid the parties with the want of these qualities, as if they had directly and expressly done so.' Here, it is plain, the words are scandalous, scoffing, and ironical, only as they are understood; I know no rule laid down in the books but this; I mean, as the words are understood.

Mr. Chief Justice. Mr. Hamilton, do you think it so hard to know when words are ironical, or spoke in a scoffing manner?

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

Mr. Chief Justice. That is certain. All words are libellous, or not, as they are understood. Those who are to judge of the words, must judge whether they are scandalous or ironical, tend to the breach of the peace, or are seditious : there can be no doubt of it.

Mr. Hamilton. I thank your honour; I.am glad to find the Court of this opinion. Then it follows, that those twelve men must understand the words in the information to be scandalous, that is to say, false; for I think it is not pretended they are of the ironical sort; and when they understand the words to be so, they will say we are guilty of publishing a false libel, and not otherwise.

Mr. Chief Justice. No, Sir. Hamilton; the jury may find that Mr. Zenger printed and published those papers, and leave it to the Court to judge whether they are libellous. You know this is very common: it is in the nature of a Special Verdict, where the jury leave the matter of law to the Court.

Mr. Hamilton. I know, may it please your honour, the jury may do so; but I do likewise know they may do otherwise. I know they have the right, beyond all dispute, to determine both the law and the fact; and where they do not doubt of the law, they ought to do so. This of leaving it to the judgment of the Court, whether the words are libellous or not, in effect, renders juries useless (to say no worse) in many cases; but this I shall have occasion to speak to by-and-bye : and I will, with the Court's leave, proceed to examine the inconveniences that must inevitably arise from the doctrines Mr. Attorney has laid down; and I observe, in support of this prosecution, he has frequently repeated the words taken from the case of Libellis Famosis, in 5 Co. This is indeed the leading case, and that to which almost all the other cases upon the subject of libels dx> refer; and I must insist upon saying, that, according as this case seems to be understood by the Court and Mr. Attorney, it is not law at this day : for though I own it to be base and unworthy to scandalize any man, yea, I think it is even villainous to scandalize a person of public character; and I will go so far into Mr. Attorney's doctrine as to agree, that if the faults, mistakes, nay even the vices, of such a person be private and personal, and don't affect the peace of the public, or the liberty or property of our neighbour, it is unmanly and unmannerly to expose them, either by word or writing. But when a ruler of the people brings his personal failings, but much more his vices, into his administration, and the people find themselves affected by them, either in their liberties or properties, that will alter the case mightily; and all the high things that are said in favour of rulers, and of dignities, and upon the side of power, will not be able to stop people's mouths when, they feel themselves op-

pressed, I mean in a free government. It is I true, in times past, it was a crime to speak truth; and in that terrible court of Star-chamber, many worthy and brave men suffered for so doing; and yet, even in that court, and in those bad times, a great and good man durst say, what I hope will not be taken amiss of me to say in this place, to wit, "The practice of informations tor libels is a sword in the hands of a wicked king, and an arrand coward, to cut down and destroy the innocent; the one cannot because of his high station, and the other dares not, because of his want of courage, revenge himself in another manner."

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

Mr. Hamilton. Sure, Mr. Attorney, you won't make any applications: All men agree, that we are governed by the best of kings; and I cannot see the meaning of Mr. Attorney's caution: My well known principles, and the sense I have of the blessings we enjoy under his present majesty, make it impossible for me to err, and, I hope, even to be suspected, in that point of duty to my king. May it please your honour, I was saying, that notwithstanding all the duty and reverence claimed by Mr. Attorney to men in authority, they are not exempt from observing the rules of common justice, either in their private or public capapacities; the laws of our mother-country know no exception. It is true, men in power are harder to be come at, for wrongs they do, cither to a private person, or to the public; especially a governor in the plantations, where they insist upon an exemption from answering complaints of any kind in their own government. We are indeed told, and it is true they are obliged to answer a suit in the king's courts at Westminster, for a wrong done to any person here: But do we not know how impracticable this is to most men among us, to leave their families, (who depend upon their labour and care for their livelihood) and carry evidences to Britain, and at a great, nay, a far greater expence, than almost any of us are able to bear, only to prosecute a governor for an injury done here? But when the oppression is general, there is no remedy even that way : No, our constitution has (blessed be God) given us an opportunity, if not to have such wrongs redressed, yet, by our prudence and resolution, we may in a great measure prevent the committing of such wrongs, by making a governor sensible, that it is his interest to be just to those under his care; for such is the sense that men in genera! (I mean freemen) have of common justice, that when they come to know that a chief magistrate abuses the power with which he is intrusted for the good of the people, and is attempting to turn that very power against the innocent, whether of high or low degree, I say, mankind in general seldom fail to interpose, and, as far as they can, prevent the destruction of their fellow subjects. And has it not often

been seen (and, I hope, it will always be seen) that when the representatives of a free people are, by just representations or remonstrances, made sensible of the sufferings of their fellow subjects, by the abuse of power in the hands of a governor, they have declared (and loudly too) that they were not obliged by any law to support a governor who goes about to destroy a province or colony, or their privileges, which by his majesty he was appointed, and by the law he is bound, to protect and encourage. But I pray it may be considered, of what use is this mighty privilege, if every man that suffers must be silent? And if a man must be taken up as a libeller, far telling his sufferings to his neighbour, I know it may be answered, Have you not a legislature? have you not a House of Representatives, to whom you may complain? And to this I answer, We have : But what then? Is an Assembly to be troubled with every injury done by a governor? Or are they to hear of nothing but what those in the administration will please to tell them? Or what sort of a trial must a man have? And how is he to be remedied; especially if the case were, as I have known it to happen in America in my time, that a governor who has places (I will not say pensions, for, I believe they seldom give that to another which they can take to themselves) to bestow, and can or will keep the same Assembly (after he has modelled them so as to get a majority of the House in his interest) for near twice seven years together? I pray, what redress is to be expected for an honest man, who makes his complaint against a governor to an Assembly, who may properly enough be said to be made by the same governor against whom the complaint is made? The thing answers itseif. No, it is natural, it is a privilege — I will go farther, it is a right which all freemen claim, and are intitled to, to complain when they are hurt; they have a right publicly to remonstrate against the abuses of power, in the strongest terms, to put their neighbours upon their guard, against the craft or open violence of men in authority, and to assert with courage the sense they have of the blessings of liberty, the value they put upon it, and their resolution at all hazards to preserve it, as one of the greatest blessings heaven can bestow. And when a House of Assembly, composed of honest freemen, sees the general bent of the people's inclinations, that is it which must and will (I'm sure it ought to) weigh with a legislature, in spite of all the craft, caressing, and cajoling, made use of by a governor, to divert them from hearkening to the voice of their country. As we all very well understand the true reason, why gentlemen take so much pains, and make such great interest, to be appointed governors, so the design of their appointment is not less manifest. We know his majesty's gracious intentions to his subjects; he desires no more than that his people in the plantations should be kept up to their duty and allegiance to the crown of Great Britain; that peace may be preserved amongst

them, and justice impartially administered; that we may be governed so as to render us useful to our mother-country by encouraging us to make and raise such commodities as may be useful to Great Britain. But will any one say, that all or any of these good ends are to be effected by a governor's setting his people together by the ears, and by the assistance of one part of the people to plague and plunder the other? The commission which governors bear, while they execute the powers given them, according to the intent of the royal grantor, expressed in their commissions, requires and deserves very great reverence and submission; but when a governor departs from the duty enjoined him by his sovereign, and acts as if he was less accountable than the royal hand that gave him all that power and honour which he is possessed of, this sets people upon examining and enquiring into the power, authority, and duty of such a magistrate, and to compare those with his conduct; and just as far as they find he exceeds the bounds of his authority, or falls short in doing impartial justice to the people under his administration, so far they very often, in return, come short in their duty to such a governor. For power alone will not make a man beloved; and I have heard it observed, that the man who was neither good nor wise before his being made a governor, never mended upon his preferment, but has been generally observed to be worse: for men who are not endowed with wisdom and virtue, can only be kept in bounds by the law : and by how much the farther they think themselves out of the reach of the law, by so much the more wicked and cruel they are. I wish there were no instances of the kind at this day. And wherever this happens to be the case of a governor, unhappy are the people under his administration, and in the end he will find himself so too; for the people will neither love him nor support him. I make no doubt but there are those here, who are zealously concerned for the success of this prosecution; and yet I hope they are not many; and even some of those, I am persuaded (when they consider to what lengths such prosecutions may be carried, and how deeply the liberties of the people may be affected by such means) will not all abide by their present sentiments; I say, not all: for the man who, from an intimacy and acquaintance with a governor, has conceived a personal regard for him; the man who has felt none of the strokes of his power; the man who believes that a governor has a regard for him, and confides in him; it is natural for such men to wish well to the affairs of such a governor; and as they may be men of honour and generosity, may, and no doubt will, wish him success, so far as the rights and privileges of their fellow-citizens are not affected. But as men of honour, I can apprehend nothing from them; they will never exceed that point. There are others that are under stronger obligations, and those are such as are in some sort engaged in support of a governor's cause, by their own or their relations dependence on his favour for

some post or preferment: such men have, what is commonly called, duty and gratitude to influence their inclinations, and oblige them to go his lengths. I know men's interests are very near to them, and they will do much, rather than forego the favour of a governor, and a livelihood at the same time; but I can with very just grounds hope, even from those men, whom I wilt suppose to be men of honour, and conscience too, that when they see the liberty of their country is in danger, either by their concurrence, or even by their silence, they will, like Englishmen, and like themselves, freely make a sacrifice of any preferment or favour, rather than be accessary to destroying the liberties of their country, and entailing slavery upon their posterity. There are indeed another set of men, of whom I have no hopes; I mean, such who lay aside all other considerations, and are ready to join with power in any shape, and with many or any sort of men, by whose means or interest they may be assisted to gratify their malice and envy, against those whom they have been pleased to hate; and that for no other reason, but because they are men of abilities and integrity, or at least are possessed of some valuable qualities far superior to their own. But as envy is the sin of the devil, and therefore very hard, if at all, to be repented of, I will believe there are but few of this detestable and worthless sort of men, nor will their opinions or inclinations have any influence upon this trial. But to proceed : I beg leave to insist, that the right of complaining or remonstrating is natural; and the restraint upon this natural right is the law only, and that those restraints can only extend to what is false : for as it is truth alone which can excuse or justify any man for complaining of a bad administration, I as frankly agree, that nothing ought to excuse a man who raises a false charge or accusation, even against a private person, and that no manner of allowance ought to be made to him who does so against a public magistrate. Truth ought to govern the whole affair of libels, and yet the party accused runs risk enough even then; for if he fails of proving every tittie of what he has wrote, and to the satisfaction of the Court and Jury too, he may find to his cost, that when the prosecution is set on foot by men in power, it seldom wants friends to favour it. And from thence (it is said) has arisen the great diversity of opinions among judges, about what words were or were not scandalous or libellous. I believe it will be granted, that there is not greater uncertainty in any part of the law, than about words of scandal: it would be mis-spending of the Court's time to mention the cases; they may be said to be numberless; and therefore the utmost care ought to be taken in following precedents; and the times when the judgments were given, which are quoted for authorities in the case of libels, are much to be regarded. I think it will be agreed, that ever since the time of the Star-Chamber, where the most arbitrary and destructive judgments and opinions

were given, that ever an Englishman heard of, at least in his own country: I say, prosecutions for libels since the time of that arbitrary court, and until the glorious Revolution, have generally been set on foot at the instance of the crown, or its ministers; and it is no small reproach to the law, that these prosecutions were too often and too much countenanced by the judges, who held their places at pleasure (a disagreeable tenure to any officer, but a dangerous one in the case of a judge). To say more to this point may not be proper. And yet I cannot think it unwarrantable, to shew the unhappy influence that a sovereign has sometimes had, not only upon judges, but even upon parliaments themselves.

It has already been shewn, how the judges differed in their opinions about the nature of a libel, in the case of the Seven Bishops. There you see three judges of one opinion, that is, of a wrong opinion, in the judgment of the best men in England, and one judge of a right opinion. How unhappy might it have been for all of us at this day, if that jury had understood the words in that information as the Court did? Or if they had left it to the Court to judge, whether the Petition of the Bishops was or was not a libel? No! they took upon them, to their immortal honour, to determine both law and fact, and to understand the Petition of the Bishops to be no libel, that is, to contain no falsehood nor sedition, and therefore found them Not Guilty. And remarkable is the case of sir Samuel Barnardiston, who was fined 10,000l, for writing a letter, in which, it may be said, none saw any scandal or falsehood but the Court and Jury; for that judgment was afterwards looked upon as a cruel and detestable judgment, and therefore was reversed by parliament. Many more instances might be given of the complaisance of court-judges about those times, and before; but I will mention only one case more, and that is the case of sir Edward Hales, who, though a Roman Catholic, was by king James 2, preferred to be a colonel of his army, notwithstanding the statute of 25 Ch. 2, chap. 2, by which it is provided, That every one that accepts of an office, civil or military, &c. shall take the oaths, subscribe the declaration, and take the sacrament, within 3 months, &c. otherwise he is disabled to hold such office, and the grant for the same to be null and void, and the party to forfeit 500l, Sir Edward Hales did not take the oaths or sacrament, and was prosecuted for the 500l. for exercising the office of a colonel by the space of three months, without conforming as in the act is directed. Sir Edward pleads, That the king, by his letters patent, did dispense with his taking the oaths and sacrament, and subscribing the declaration, and had pardoned the forfeiture of 500l. And whether the king's dispensation was good, against the said act of parliament? was the question. I shall mention no more of this case, than to shew how in the reign of an arbitrary prince, where judges hold their seats at pleasure, their determinations have not al-

ways been such as to make precedents of, but the contrary; and so it happened in this case, where it was solemnly judged, That, notwithstanding this act of parliament, made in the strongest terms, for preservation of the Protestant religion, that yet the king had, by his royal prerogative, a power to dispense with that law; and sir Edward Hales* was acquitted by the judges accordingly. So the king's dispensing power being by the judges set up above the act of parliament, this law, which the people looked upon as their chief security against Popery and arbitrary power, was, by this judgment, rendered altogether ineffectual. But this judgment is sufficiently exposed by sir Robert Atkins, late one of the judges of the Court of Common Pleas, in his Enquiry into the King's Power of Dispensing with Penal Statutes; wherein it is shewn, who it was that first invented dispensations; how they came into England; what ill use has been made of them there; and all this principally owing to the countenance given them by the judges. He says of the dispensing power, ' The Pope was the inventor of it; our kings have borrowed it from them; and the judges have, from time to time, nursed and dressed it up, and given it countenance; and it is still upon the growth, and encroaching, till it has almost subverted all law, and made the regal power absolute, if not dissolute.' This seems not only to shew how far judges have been influenced by power, and how little cases of this sort, where the prerogative has been in question in former reigns, are to be relied upon for law : but I think it plainly shews too, that a man may use a greater freedom with the power of his sovereign, and the judges in Great Britain, than it seems he may with the power of a governor in the plantations, who is but a fellow-subject. Are the words with which we are charged, like these? Do Mr. Zenger's papers contain any such freedoms with his governor, or his council, as sir Robert Atkins has taken with the regal power and the judges in England? And yet I never heard of any information brought against him for these freedoms.

If then, upon the whole, there is so great an uncertainty among judges (learned and great men) in matters of this kind; if power has had so great an influence on judges, how cautious ought we to be in determining by their judgments, especially in the plantations, and in the case of libels? There is heresy in law as well as in religion, and both have changed very much; and we well know that it is not two centuries ago that a man would have been burnt as an heretic, for owning such opinions in matters of religion as are publicly wrote and printed at this day. They were fallible men, it seems, and we take the liberty not only to differ from them in religious opinions, but to condemn them and their opinions too; and I must presume, that in taking these freedoms in thinking and speaking about matters of faith

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

or religion, we are in the right: For, though it is said there are very great liberties of this kind taken in New-York, yet I have heard of no information preferred by Mr. Attorney for any offences of this sort. From which I think it is pretty clear, that in New-York a man may make very free with his God, but he must take special care what he says of his governor. It is agreed upon by all men, that this is a reign of liberty; and while men keep within the bounds of truth, I hope they may with safety both speak and write their sentiments of the conduct of men in power, I mean of that part of their conduct only, which affects the liberty or property of the people under their administration; were this to be denied, then the next step may make them slaves. For what notions can be entertained of slavery, beyond that of suffering the greatest injuries and oppressions, without the liberty of complaining; or if they do, to be destroyed, body and estate, for so doing.

It is said, and insisted upon by Mr. Attorney: That government is a sacred thing; that it is to be supported and reverenced; it is government that protects our persons and estates; that prevents treasons, murders, robberies, riots, and all the train of evils that overturns kingdoms and states, and ruins particular, persons; and if those in the administration, especially the supreme magistrates, must have all their conduct censured by private men, government cannot subsist This is called a licentiousness not to be tolerated. It is said, that it brings the rulers of the people into contempt, and their authority not to be regarded and so in the end the laws cannot be put in execution. These, I say, and such as these, are the general topics insisted upon by men in power, and their advocates. But I wish it might be considered at the same time, how often it has happened, that the abuse of power has been the primary cause of these evils, and that it was the injustice and oppression of these great men, which has commonly brought them into contempt with the people. The craft and art of such men is great, and who, that is the least acquainted with history or law, can be ignorant of the specious pretences, which have often been made use of by men in power, to introduce arbitrary rule, and destroy the liberties of a free people. I will give two instances, and as they are authorities not to be denied, nor can be misunderstood, I presume they will be sufficient.

The first is the statute of 3d of Hen. 7, cap. 1. The preamble of the statute will prove all, and more than I have alleged. It begins: 'The king our sovereign lord remembereth, how by unlawful maintenances, giving of liveries, signs and tokens, &c. untrue demeanings of sheriffs in making of pannels, and other untrue returns, by taking of money, by injuries, by great riots and unlawful assemblies; the policy and good rule of this realm is almost subdued; and for the not punishing these inconveniencies, and by occasion of the premisses, little or nothing may be found by enquiry, &c. to the in-

crease of murders, &c. and unsureties of all men living, and losses of their lands and goods.' Here is a fine and specious pretence for introducing the remedy, as it is called, which is provided by this act; that is, instead of being lawfully accused by twenty-four good and lawful men of the neighbourhood, and afterwards tried by twelve like lawful men, here is a power given to the lord chancellor, lord treasurer, the keeper of the king's privy seal, or two of them, calling to them a bishop, a temporal lord, and other great men mentioned in the act, (who, it is to be observed, were all to be dependants on the court) to receive information against any person for any of the misbehaviours recited in that act, and by their discretion to examine, and to punish them according to their demerit.

The second statute I proposed to mention, is the 11th of the same king, chap. 3d, the preamble of which act has the like fair pretences as the former; for the king calling to his remembrance the good laws made against the receiving of liveries, &c. unlawful extortions, maintenances, embracery, &c. unlawful games, &c. and many other great enormities, and offences committed against many good statutes, to the displeasure of Almighty God, which, the act says, could not, nor yet can, be conveniently punished by the due order of the law, except it were first found by twelve men, &c. which, for the causes aforesaid, will not find nor yet present the truth. And therefore the same statute directs, that the justices of assize, and justices of the peace, shall upon information for the king before them made, have full power, by their discretion, to hear and determine all such offences. Here are two statutes that are allowed to have given the deepest wound to the liberties of the people of England of any that I remember to have been made, unless it may be said that the statute made in the time of Henry 8th, by which his proclamations were to have the effect of laws, might in its consequence be worse. And yet we see the plausible pretences found out by the great men to procure these acts. And it may justly be said, that by those pretences the people of England were cheated or awed into the delivering up their ancient and sacred right of trials by grand and petit juries. I hope to be excused for this expression, seeing my lord Coke calls it (4 Inst.) 'unjust and strange act, that tended in its execution to the great displeasure of Almighty God, and the utter subversion of the common law.'

These, I think, make out what I alleged, and are flagrant instances of the influence of men in power, even upon the representatives of a whole kingdom. From all which, I hope, it will be agreed, that it is a duty which all good men owe to their country, to guard against the unhappy influence of ill men when entrusted with power, and especially against their creatures and dependents, who, as they are generally more necessitous, are surely more covetous and cruel. But it is worthy of observation, that though the spirit of liberty was

borne down and oppressed in England that time, yet it was not lost; for the parliament laid hold of the first opportunity to free the subject from the many insufferable oppressions and outrages committed upon their persons and estates by colour of these acts, the last of which being deemed the most grievous, was repealed in the first year of Hen. 8th. Though it is to be observed, that Hen. 7th, and his creatures, reaped such great advantages by the grievous oppressions and exactions, grinding the faces of the poor subjects, as my lord Coke says, by colour of this statute by information only, that a repeal of this act could never be obtained during the life of that prince. The other statute being the favourite law for supporting arbitrary power, was continued much longer. The execution of it was by the great men of the realm; and how they executed it, the sense of the kingdom, expressed in the 7th of Charles 1st, (by which the Court of Star-Chamber, the soil where informations grew rankest) will best declare. In that statute Magna Charta, and the other statutes made in the time of Edw. 3, which, I think, are no less than five, are particularly enumerated as acts, by which the liberties and privileges of the people of England were secured to them, against such oppressive courts as the Star-Chamber, and others of the like jurisdiction. And the reason assigned for their pulling down the Star-Chamber, is, That the proceedings, censures and decrees of the Court of Star-Chamber, even though the great men of the realm, nay, and a bishop too (holy man) were judges, had by experience been found to be an intolerable burthen to the subject, and the means to introduce an arbitrary power and government. And therefore that court was taken away, with all the other courts in that statute mentioned, having like jurisdiction.

I do not mention this statute, as if by the taking away the Court of Star-Chamber, the remedy for many of the abuses or offences censured there, was likewise taken away; no, I only intend by it to shew, that the people of England saw clearly the danger of trusting their liberties and properties to be tried, even by the greatest men in the kingdom, without the judgment of a jury of their equals. They had felt the terrible effects of leaving it to the judgment of these great men to say what was scandalous and seditious, false or ironical. And if the parliament of England thought this power of judging was too great to be trusted with men of the first rank in the kingdom, without the aid of a jury, how sacred soever their characters might be, and therefore restored to the people, their original right of trial by juries, I hope to be excused for insisting, that by the judgment of a parliament, from whence no appeal lies, the jury are the proper judges of what is false at least, if not of what is scandalous and seditious. This is an authority, not to be denied, it is as plain as it is great, and to say, that this act indeed did restore to the people trials by juries, which was not the

practice of the Star-Chamber, but that it did not give the jurors any new authority, or any right to try matters of law, I say this objection will not avail; for I must insist, that where matter of law is complicated with matter of fact, the jury have a right to determine both. As for instance; upon indictment for murder, the jury may, and almost constantly do, take upon them to judge whether the evidence will amount to murder or manslaughter, and find accordingly; and I must say, I cannot see, why in our case the jury have not at least as good a right to say, whether our news-papers are a libel or no libel, as "another jury has to say, whether killing of a man is murder or manslaughter. The right of the jury to find such a verdict as they in their conscience do think is agreeable to their evidence, is supported by the authority of Bushel's case,* in Vaughan's Reports, page 135, beyond any doubt. For, in the argument of that case, the chief-justice who delivered the opinion of the Court, lays it down for law : (Vaughan's Rep. p. 150.) That in all general issues, as upon non. cul. in trespass, non tort. nul disseizin in assize, &c. though it is matter of law, whether the defendant is a trespasser, a disseizer, &c. in the particular cases in issue, yet the jury, find not (as in a special verdict) the fact of every case, leaving the law to the Court; but find for the plaintiff or defendant upon the issue to be tried, wherein they resolve both law and fact complicately. It appears by the same case, that though the discreet and lawful assistance of the judge, by way of advice to the jury, may be useful, yet that advice or direction ought always to be upon supposition, and not positive and upon coercion. The reason given in the same book is, (page 144, 147.) Because the judge (as judge) cannot know what the evidence is which the jury have, that is, he can only know the evidence given in court; but the evidence which the jury ha