He maintains the Affirmative of the Que&rehy;stion, both from what he understands to be the Authorities in the Case, and from the Reason of the Thing. Zeng. Trial, p. 16. All which shall be consider'd in their Order.

The Authorities cited by Mr. Hamilton to support the Proposition formerly stated consist principally of Four Cases, which I shall consider in the Order as they were pro&rehy;duced.

The first is the Case of John de Northampton, 18 Ed. III. 3 Inst. 174. which he ob&rehy;serves does not appear to have been a Case upon an Information, but that he has good Grounds to say it was upon an In&rehy;dictment. Zeng. Trial, p. 16. This is what I shall not contest with him, because it is not material, or in&rehy;deed easy to be determin'd, whithout seeing the Record; tho' I conceive there are Grounds to say it was not upon an Indict&rehy;ment, as was the Case of Adam de Ravens&rehy;worth, mentioned by LordCoke in the same Chapter. The Case, however, stands thus;

"John de Northampton, an Attorney of the King's Bench wrote a Letter to one Fer&rehy;rers, one of the King's Council, that nei&rehy;ther Sir William Scot Chief Justice, nor his Fellows the King's Justices, nor their Clerks, any great Thing would do by the Commandment of our Lord the King &c. which said John being called, con&rehy;fessed the Letter, &c. Et quia prædictus Johannes cognivit dictam literam per se scriptam, Roberto de Ferrers, qui est de con&rehy;cilio Regis, quæ litera continet in se nullam veritatem: Prætextu cujus Dom. Rex erga Curiam, & Justiciarios suos habere posset indignationem, quod esset in Scandalum Justic. & Curiæ. Ideo dictus Johannes committitur, &c." Here says the Barrister, by this Judgment it appears the libellous Words were utterly false, and there the Fals&rehy;hood was the Crime, and is the Ground of the Judgment. For my own part, I can neither see Truth nor Falshood in the Words at the Time they were wrote, for they refer to a future Contingency that might or might not be as he said; and in this respect, they were the same as if the Man had said, the Roof of Westminster-Hall would fall up&rehy;on Sir William Scot and his Fellows. Besides, the Words taken by themselves have no ill meaning; for I imagine it will be allowed that most of the great Things which Judges do, as Judges, are such as ought neither to be done nor left undone by the King's Com&rehy;mandment. Where then was the Offence? The Record, I think, shews that in the fol&rehy;lowing Words; prætextu cujus Dom. Rex erga Curiam & Justic. suos habere posset in&rehy;dignationem, &c. Ideo dictus Johannes com&rehy;mittitur, &c. It is observable, that the Au&rehy;thor of this Letter was an Attorney of the Court, and by the Contents thereof he pre&rehy;sumes to undertake for the Behaviour of the Judges in some great Matters that concern&rehy;ed their Office. The Letter was address'd to a Person who was of the King's Council and might possibly communicate the Con&rehy;tents of such a Letter to the King; the consequence of which might naturally be that Dom. Rex habere posset indignationem erga Curiam, &c. for great Things were some times done, in those Days, by the King's Commandment; and the Judges, besides, held their Posts at Will and Plea&rehy;sure.

The Words, quæ litera continet in se nul&rehy;lam veritatem, were therefore proper for the Judges to insert, in order to acquit themselves to the King; but they are no more the Ground of the Judgment than these other Words, qui est de Consilio Regis; both being only incidental Clauses that some in by way of Description: For it is not said; Quia litera a prædicta continet in se nullam ve&rehy;ritatem. After all, I would not have this Construction of the Case, plain and natural as it is, pass meerly upon my own Credit; for I shall shew that this Case was so under&rehy;stood by one of the greatest Lawyers of his Time, before Lord Coke's 3d Inst. ap&rehy;pear'd in the World.

21. Jac. B.R. Tanfield v. Hiron. Godb. 405, 6.

The Plaintiff brought an Action upon the Case against the Defendant, for delivering of a scandalous Writing to the Prince, &c. Noy for the Plaintiff cited, 18 Ed. III. a Let&rehy;ter was sent to Ferrers, one of the King's Council, the Effect of which was, that Scot Chief Justice, and his Companions of the same Bench, would not do a vain Thing at the Command of the King; yet because he sent such a Letter to the King's Council, altho' he spake no Ill, yet because it might in&rehy;cense the King against the Judges, he was punished. If no Ill was said, will it be pre&rehy;tended that the Falshood of what was said could be a Reason for punishing a Man? Is it not ridiculous to say that the Falshood of innocent or insignificant Words can be Criminal? This Book, therefore follows the Record of Northampton's Case, and says; because it might incense the King against the Judges he was punish'd; which is almost a Translation of prætextu cujus, &c. which was the Ground of the Judgment, Ideo Committitur.

The next Case which the Barrister called to his Aid, is that of the Seven Bishops. State Trials, Vol. 4 and here he relies on a Flourish of one of the Council for the Bishops, and a dubious Expression of one of the Judges, separated from the rest of his Discourse.

Sir Robert Sawyer, 'tis true says, Both the Falsity of it (the Libel) and that it was malicious and seditious, are all Matters of Fact, which they (the King's Council) have offer'd to the Jury no Proof of, &c. This I must confess, proves on Point to which the Barrister adduced it, viz. that he was not the first who insisted, that to make a Writing a Libel, it must be false. p. 17. And when I have allow'd this, I may almost venture to say, it is the only Point he does prove from the Beginning to the Ending of his long, elaborate Speech. Let me how&rehy;ever, oppose to this the Reply of Sir Thomas Powis, in these Words; whether a Libel be true or not, as to the Matter of Fact; was it ever yet permitted in any Court of Justice to be made a Question; on whether the Party is punishable for it? And therefore I wonder to hear these Gentlemen say, that because it is not a false one therefore it is not a Libel, fol. 382.

Mr. Justice Powel also does say, that to make it a Libel, it must be false; it must be malicious; and it must tend to Sedition. Upon which Words of this learned and worthy Judge; I would not presume to offer any Comments, except that which other Words of his own afford; that plainly shew in what Sense he then spoke. His subsequent Words are these; they (the Bishops) tell his Majesty, it is not out of Averseness to pay all due Obe&rehy;dience; nor want of tenderness to their Dissen&rehy;ting Fellow-Subjects; but because they do con&rehy;ceive the Thing that was commanded them, was against the Law of the Land; they say, they apprehend the Declaration is illegal, be&rehy;cause it is founded on a Dispensing Power; I do not remember in any Case in all our Law, that there is any such Power in the King; and the Case must turn upon that. In short, if there be no such Dispensing Power in the King, then that can be no Libel, which they presented to the King, which says that the Declaration, being founded upon such a pre&rehy;tended Power, is illegal. So that the Judge put the whole upon that single Point, whe&rehy;ther it be true that the King had such a Dispensing Power, or not; which is a Question of Law, and not of Fact; and accordingly the Judge appeals to his own Reading in the Law, not to Witnesses or other Testimony, for a Decision of it. In truth the Petition of the Bishops is not capable of having Falshood or Truth apply'd to it in any other Sense, there being nothing else affirm'd or deny'd in it, but that they thought they could not do what was commanded them because it was against the Law. This was the Behaviour; these were the Senti&rehy;ments of that upright Judge, that gain'd him so much Honour among all good Men, as the Barrister takes Notice; not any Opi&rehy;nion of his, that the Contents of a Libel must be false in Fact, to make it a Libel; as he would unfairly insinuate.

Sir Samuel Barnardiston's Case is the third that is touch'd upon; and here too the Gentleman finds nothing that can be strain'd to his Purpose, but the Defendant's Council insisting on the want of proof to the Malice and seditious Intent of the Author. He seems to have forgot that the same Gentleman insisted also to have it proved, that the Defendant was a Person of a turbulent and unquiet Spirit, because these Words were set forth in the Informa&rehy;tion,and he takes no manner of Notice how all this was answer'd, which I must now do for him, in the Words of the Court; cer&rehy;tainly the Law supplies the Proof, if the Thing it self speaks Malice and Sedition. As it is in Murder; we say always in the In&rehy;dictment, he did it by the Instigation of the Devil: Can the Jury, if they find the Fact, find he did it not by such Instigation? No, that does necessarily attend the very Nature of such an Action or Thing. So in Informa&rehy;tions for Offences of this nature, we say, he did it falsely, maliciously, and seditiously, which are the formal Words; but if the Nature of the Thing be such as necessarily imports Ma&rehy;lice, Reproach and Scandal to the Government, there needs no Proof but of the Fact done; the Law supplies the rest. How shall any Man prove another Person's Malice, which is a Thing that lies only in a Man's mind? How should any Man know that I am malicious against the Government, but by my Actions? These Words, indeed, were pronounc'd by the Chief Justice Jefferies, who was then the Mouth of the Court; but tho' he was really an intemperate Judge (or a Mon&rehy;ster, as the Barrister, in his Bar-Language, delights to call him) yet I may safely refer it to all Men of Law, whether these Words could have discre&rehy;dited the best Mouth that ever spoke upon that Bench. p. 17. State-Trials, vol. 3. 851.

An Instance of this Sort may not be im&rehy;pertinent, where a Chief Justice (who was no Monster) addresses himself to a Jury, that was trying a Libel, in this manner: I will not repeat the Particulars to you, only something to what the Defendant has said, that you may not be misled. He says, it does not appear that he did it maliciously or know&rehy;ingly. There are some Things that you that are of the Jury are not to expect Evidence for, which it is impossible to know but by the Act it self. Malice is conceiv'd in the Heart, no Man knows it, unless he declares it: As in Murder, I have Malice to a Man; no Man knows it. I meet this Man and kill him; the Law calls this Malice. If a Man speak scandalous Words against a Man in his Calling or Trade; he lays his Action, Malice; tho' he cannot prove it but by the Words themselves; you may see, there is Malice sup&rehy;posed to a private Person in that Slander, much more to the King and the State. State-Trials, vol. 2. 537.

Tuchin's Case, the Barrister does not pro&rehy;perly cite, but endeavours to answer as a Case urged against him by the King's Coun&rehy;cil; and therefore I shall observe upon it in another Place.

But the Case of Cases is still behind, which he reserved for the last, to make the Point clearer on his side, than all the rest put together could do. p. 17. It is Fuller's Case. State-Trials, vol. 5. 445, 6, 7, 8. And it deserves notice, that altho' Fuller was charged with writing a Libel, yet that was not the Gift of the In&rehy;formation. He was, in truth, prosecuted for being a Cheat and Impostor, by Order of the House of Lords, as the King's Council declare in the Opening.

The Information accordingly sets forth, "That W.F. intending the late King William and his Subjects to deceive, and to get several great Sums of Money fraudulently and deceitfully from the said King; con&rehy;cerning a Correspondency between di&rehy;vers Officers and Subjects of the said late King, and the late King James falsely pre&rehy;tended to be had; did write and Print a Libel, intituled, Original Letters, &c. with the Deposition of T.J. and T.F. Esqrs. proving the Corruption lately practised in this Nation; and the said W.F. afterwards did publish, utter, and for Truth affirm the said several false and scan&rehy;dalous Libels, without any lawful Autho&rehy;rity; whereas in Truth the said T.J. did not depose upon his Oath as is contained in the said false and scandalous Libel; but the said scandalous libels are false, feigned, and altogether contrary to Truth, &c." Here it is manifest he was accused of a Cheat, in Forging the Correspondence and the Deposi&rehy;tions just mentioned, with a Design of get&rehy;ting Money by his pretended Discovery. And hence it comes, that the Judge very properly asks him, have you any Witnesses? 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. How come you to write those Books that are not true? If you have any Witnesses, produce them. Thus said, and thus did that great Man, Lord Chief Justice Holt; p. 17 but not upon a Trial of the like kind with Mr. Zenger's, as his Council would have it thought. For in this Case the Cheat and the Imposture was the Offence, which consisted wholly in the falsity; that is, in affirming such Things for Realities, when they were nought but Fictions. On the contrary, had he been able to prove those Letters and those Depositions to be authentick, the discovery would have been valuable, and might intitle him perhaps to Favour and Protection in&rehy;stead of Punishment; however irregular he was in taking such a Method to publish Matters of that high Consequence. After this, let the learned Barrister, in all his Reading, shew an Information or Indict&rehy;ment for a Libel, where the Falsity is assigned in Form with ubi re vera, as the Foundation of the Offence; which is done in Fuller's Case; and then I will acknow&rehy;ledge that the Questions put here by Lord Holt, would have been proper upon the Trial of his Client.

This is the Sum of the Barrister's Law-Cases. And is it not high Time to ask, whe&rehy;ther such gross Misrepresentations of the Books can proceed from Ignorance or Disingenuity? Be that as it will; it might certainly be expected, that a Proposition ad&rehy;vanced with so much Assurance, by a Man of Years and Reading, should have been supported by some One Authority in Point, rather than by a Series of low Prevarication and Quibble. Could he not find in all the Book-Cases and Trials at large concerning Libels (which are sufficient of themselves to make a large Volume) one Example of Proof being received to the Truth or Falsity con&rehy;tained in a libellous Writing? Indeed there is nothing like it to be found; tho' the Oc&rehy;casions have been many, where such Proof might be had, if it were proper; nay, where the Truth of the Thing was notorious to all Men, and yet no Question ever moved concerning it. This shall fully appear in the Sequel.

If any thing can be necessary further to expose Mr. Hamilton's Doctrine of Libels after answering his own Cases, it is only to subjoin some others that will shew how much he is mistaken in almost every thing he has offer'd on the Subject. I shall there&rehy;fore mention a very few, that will bear a particular Application to his crude Notions, without entering into a Multitude of others, to tire the Reader.

16 Car. 2. The King v. Pym. I Sid. 219, B.R.

Pym was indicted at Exeter for a Libel, which he deliver'd to a Parson to be pub&rehy;lish'd in Church there, and was to this Ef&rehy;fect; you are desired to be wail the Sodomitry, Wickedness, Whoredom, Lewdness, that is of late broken out in this formerly well&rehy;govern'd City; that God would turn their Hearts from committing those Wickednesses which go unpunished by the Magistrates. Pym confess'd the Indictment, and was fined 100 l. He afterwards brought a Writ of Error, and assign'd for Error that this was no Offence, because tho' he says, go un&rehy;punished by the Magistrate; yet he does not say that the Magistrate knew of it, and Wickedness unknown can't be punished. It was answer'd by the Court, that this con&rehy;tains matter of great Scandal to the Govern&rehy;ment of the City, for it makes the late Government better than the present, &c. Hide, Twisden, Keelyng, Windham Just.

I have pitch'd upon this Case, because the Barrister is fond of comparing the Plan&rehy;tations to large Corporations; and he will find here, that even those are not left to the Mercy of Li&rehy;bellers, altho' they do not put in a Claim to the Sacred Rights of Majesty: Zeng. Trial, p. 14. And that a Misbehaviour of this kind to the Magistrates of a Corporation is not entirely innocent, because it is not to be judged of, or punished, as a like Undutiful&rehy;ness would be to our Sovereign. p. 14

This Case was adjudged about four Years after the Restoration, when the Memory of the preceding Usurpation was fresh in every body's Mind. It is strange therefore Mr. Pym did not put himself on his Trial at Exeter, for it was evident beyond Contradiction to the People of that Age, from their own knowledge, as it is now to us from History, that the Wickedness specified in the Libel was restrain'd by a stricter Hand before, than after the Restoration. But this noto&rehy;rious Truth, it seems, did not avail Mr. Pym.

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

Information for writing a scandalous Libel to H. Rich. who was indebted to him, and kept him out of his Money three Years by obtaining a Protection, and at length getting into the Prison of the King's Bench. Saun&rehy;ders wrote him a Letter, wherein he tells him; that if he had any Honesty, Civility, Sobriety or Humanity, he would not deal so by him; and that he would one Day be damned, and be in Hell for his Cheating; and cited several Places of Scripture to make good his Allegations. The Defendant was found Guilty, and moved in Arrest of Judgment, that the Substance of the Letter is not Scan&rehy;dalous, but impertinent and insignificant, &c. Cur. The Letter is provocativce, and tends to the incensing Mr. Rich to break the Peace. The Court adjudged the Letter scandalous, and fin'd him 40 Marks. Keelyng, Twisden, Rainsford, Moreton, Inst.

I would entreat the clear-sighted Barrister to look carefully into the Words of this Libel, and try if he can discover any Truth or Falshood in them that was capable of Proof. And I must remark upon both these Cases, that tho' they were adjudged in the Reign of K. Charles II. yet neither of them was upon a State Prosecution, or at a Time when the Spirit of Plots and Facti&rehy;ons had infested the Courts of Justice; but they remain unquestionable Authorities at this Day.

State-Trial vol. 5. The Case of Tutchin is strong against him; a Case adjudged since the Revolution, before that learn'd and up&rehy;right Judge Sir John Holt, and plainly shews the Fallacy that runs throughout his whole Argument.

The Points insisted on by this Chief-Justice, in his Charge to the Jury, were these; to say that corrupt Officers are appointed to ad&rehy;minister Affairs is certainly a reflection on the Government. If People should not be called to an Account for possessing the People with an ill Opinion of the Government, no Government can subsist; now you are to con&rehy;sider, whether these Words I have read to you do not tend to beget an ill Opinion of the Administration of the Government; to tell us that those that are employ'd know nothing of the Matter, and those that do know are not employ'd. Men are not adapted to Offices, but Offices to Men, out of a particular Regard to their Interest, and not to their Fitness for the Places. This is the Purport of these Papers. If this was the Purport of the Papers, and so criminal as hath been just said, it is amazing surely that Mr. Tutchin did not offer to prove the Truth of these Allegations, and thereby take out their Sting! Could not he possibly think of as many corrupt or incompetent Officers, Ecclesiastical, Civil or Military in England prefer'd by Interest rather than Merit, as there were Judges dis&rehy;placed and Courts erected in New-York? Or if he was restrain'd by the hard-hearted Judge, from desporting himself in this plea&rehy;sant and spacious Field; could he not apply to the private Knowledge which the Jurors (as well as the rest of Mankind) had of these Matters? For I imagine it will be allowed, that if no Instances of this sort could be shewn at the Time of Tutchin's Trial, it was the only Period within the Memory of Man, or the reach of History, that wanted the like.

But the misfortune was, the poor Man was not bless'd with such skilful Council as is to be had in Philadelphia, to think of these good things for him; p. 18. otherwise you might have heard an alert Advocate (after returning thanks to his Lord&rehy;ship for nothing) address himself to the Jury in this or the like eloquent Strain; then, Gentlemen of the Jury, it is to you we must appeal for Witnesses to the Truth of the Facts we have offer'd, and are deny'd the Liberty to prove; the Law supposes you to be summon'd out of the Neighbourhood where the Fact is alledged to be committed; and the Reason of your being taken out of the Neighbourhood is, because you are suppos'd 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 referr'd to in the Information, and which are proved to be written and published by us, are false, scandalous and se&rehy;ditious. You are Citizens of London, honest and lawful Men, and the Facts which we offer to prove were not committed in a Corner; they are notoriously known to be true. And as we are deny'd the Liberty of giving evi&rehy;dence to prove the truth of what we have published, I 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. Lay your hands upon your Hearts, Gentlemen, and recollect. Do none of you know; nay, do not all of you know certain Persons, who shall be nameless, that have been lately promoted by Favour and Interest, to Places of Trust and Profit both in Church and State, Army and Navy; whom you must know and believe in your Con&rehy;sciences to be ill Men and no way qualified for such Preferment; as my sagacious Client has most seasonably remonstrated to the Neigh&rehy;bours, by virtue of that right which every free-born Subject hath of publishing his Com&rehy;plaints, when the Matters so published can be supported with Truth? p. 12, 22. But is Lord Holt asleep all this Time? Can any reasonable Man, who has but common Notions of Judicature, imagine that this great Judge would suffer such Trash as this to be thrown out in any Court where he sat in Judgment? But what must he have said if the Libeller be&rehy;fore him had offer'd to prove, that the Law itself was at an end; that Trials by Juries were taken away when a Minister pleas'd; that no Man could call any thing his own, or enjoy any Liberty longer than those in the Administration would condescend to let him do it? Would he have said that these Things did not tend to possess the People with an ill Opinion of the Government; and that Governments might well subsist, tho' Men should not be call'd to an Account for pub&rehy;lishing the like? or would he have said, it was no matter what Opinion the People had of the Government, nor whether it subsisted or not, provided these Assertions were true; and so have discharged the Man as a Pub&rehy;lisher of precious and useful Truths to put the Neighbours on their Guard?

But here also the Barrister lays hold of a Random-Question, put by one of the King's Council to Mr. Montague, who was for the Defendant, and was then touching upon the Affairs of the Navy. Saith the former; will you say they are true? now the latter had hinted as much as that these Things were true, but did it with that Caution which a Man of Skill uses, when he would say something in Support of a lame Cause, but don't care to press an Impropriety too far. For that learned Gentleman was very sensible, that if he had presum'd to insist ex&rehy;pressly on the Truth of the Matters contain'd in his Client's Papers, a severe Reprimand was the best thing that could have befallen him. His Words are these; no body can say, that we never had any Mismanagements in the Royal Navy; and whenever that has hap&rehy;pen'd, the Merchants of Englandin all Pro&rehy;bability have suffer'd for it. But does the Judge, in his Charge to the Jury, vouchsafe to give this Matter any Answer, or so much as to mention it? Lord Holt did not usually pass by material Things that were offer'd in Defence of Persons tried before him; yet in this Case he makes no Questions or Scruple about the Truth or Falshood of Tutchin's Papers, altho' they contain'd many Things which his Lordship, the Jury, and all the World knew to be **** This candid Judge, however, puts the merits of the whole upon the Scandal of the Government, and the evil Tendency of such Writings. And therefore I must once more call upon the Northern Barrister to shew a single Instance where Witnesses have been produced by Council, and admitted by the Court to prove the Truth of a Libel. When he does this, it will deserve Consideration; but till then he may talk by the Hour without any Meaning.

I could mention some Cases of a more modern Date, that have been adjudged in Westminster-Hall, when this wild Doctrine was not so much as thought of, and when it would not have been altogether useless had it been practicable; but I have chose to mention such only as are reported, that the Books may speak for themselves, and judge between us.

But this Lawyer seems to be above hav&rehy;ing his Points of Law decided by the Au&rehy;thorities of the Law; and has something in Reserve, which may serve to overthrow not only what has been offer'd in this Paper, but even all the Books of the Law. This is what he calls the Reason of the thing, but is truly and properly a Sketch of his own Po&rehy;liticks; which leads me to shew that the true Reason of the thing here, agrees with the Law, and consequently both these are against this expert Master of Law and Reason.

The Reason of the Thing, as well as it can be collected from a Heap of Particulars huddled together without Order and Method, may be reduced to the three following Heads.

1. The Form of an Information for a Libel, and the Necessity of knowing the Truth of Falshood of its Contents, in or&rehy;der to direct the Judges in awarding arbi&rehy;trary Punishment.

2. The Right every Man hath of pub&rehy;lishing his Complaints, when the Matters so published can be supported with Truth.

3. The Necessity there is of using this Right, in the Plantations especially, by rea&rehy;son of the Difficulty of obtaining Redress against evil Governours by any other Means.

1. It will not be improper to premise, under the first Head, that a Gentleman of the Law, who takes upon him to pronounce so magisterially as the Northern Barrister has done concerning Libels, ought to have consider'd well the Nature and Extent of his Subject. It might be expected that he is not unknowing in any Part of Learning necessary to fix his Idea of a Libel. And yet the present Case would appear to be quite different. This learned Gentleman might have inform'd himself by reading some of the ancient Laws before the Conquest, that when the Falsity of virulent Writings and Speeches was taken into the Description of the Crime, there was a specifick Penalty annex'd, viz. Cutting out the Offender's Tongue, Lamb. Sax. Laws. But this Severity seems to have fallen into Disuse under the Norman Kings; and accordingly Bracton, who wrote in the Reign of Henry III. gives a Description of these Offences as they were understood in his Days, wherein Falsity is neither express'd nor imply'd. These are his Words; Fit autem injuria, non solum cum quis pugno percussus fuerit, verberatus, vulneratus, vel fustibus cæsus; verum cum ei Convitium dictum fuerit, vel de eo factum Carmen famo&rehy;sum & hujusmodi. Fol. 155. Indeed here is no mention of Libels against the King or the State; the Reason of which seems plainly to be, that Offences of this Sort were considered as a Species of Treason, not only in that Age, but in several Ages after, notwithstanding the Statute 25 Ed. III. and tho' they have by happy Degrees dwindled into Misdemeanours, yet no body except the Barrister will say they are come to have a greater Indulgence from the Law, than the like Offences against private Persons. How far therefore Bracton's Acceptation of a Libel has prevailed ever since, must be submitted upon what has been offer'd in the preceding Part of the Remarks.

Here the Barrister throws in a shrewd Question, arising from the Form of the In&rehy;formation which charges the Libel to be false. This Word FALSE, says he, must have some Mean&rehy;ing, 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. Zeng. Trial p. 15. By way of Answer to this, I must take Leave to put a Question or two in the same Strain. Suppose an Man brings an Action of Trespass, for violating his Wife, and he fairly sets forth the Truth of the Case, viz. That the Defendant by amorous Addresses, Letters, Presents, &c. did gain the Consent of the Plaintiff's Wife, and at length debauched her. I would ask whether an Action of Trespass thus laid can be supported? I fancy not; and yet this is a more just Account of the Matter, than when vi & armis, viz. Swords, Staves, Knives, &c. are introduced as Instruments of invading this tender part of our Neigh&rehy;bour's Property. Suppose further, a Man kills another whom he never saw or heard of before; and he is accused of Murdering him of Malice fore-thought. How come such Words to be put into an Indict&rehy;ment for a Fact so circumstanc'd? they must have some meaning, surely they are not put there by Chance; and I am of O&rehy;pinion the Indictment would not be good without them. Why, there is this short Answer to be given to all these Childish Questions: There are many Words used in Pleadings of most kinds, sometimes for Aggravation, sometimes for Comprehension, often in Compliance with Antient Usage, which are not traversable, and many times are incapable of Proof. The Form of In&rehy;dictments and Informations follows the Na&rehy;ture of the Fact, and sets it out in its worst Dress; and if the Fact is made appear to be unlawful, all the hard Names are sup&rehy;ply'd by Implication of Law.

This is not all quoth the Counsellor; it is said, that Truth makes a Libel the more provoking; well, 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; 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 pro&rehy;portion the Punishment: for would it not be a sad Case, if the Judges, for want of a due Information, should chance to give as severe a Judgment against a Man for writing or publishing a Lye, as for writing or publishing a Truth? p. 16. Now is it not a sad Case, that he should want to be told, that Human Laws don't strictly regard the moral Pravity of Actions, but their Tendency to hurt the Community, whose Peace and Safety are their principal Objects; so that by this Standard only are Punishments measured. If this profound Sophister is of another O&rehy;pinion, let him give a Reason why it should be a greater Crime in our Law, for a Man to counterfeit a silver Shilling than to cut his Father's Throat.

2. The right of remonstrating or pub&rehy;lishing just Complaints, the Barrister thinks the Right of all Freemen: and so think I, provided such Remonstrances and Com&rehy;plaints are made in a lawful way. But when he comes to explain, it is not a Court of Justice, it is not an House of Representa&rehy;tives, it is not a Legislature that is to be troubled (as he phrases it) with these Things. Who then, I pray, is to be troubled with them, for the King it seems is out of the Question? let the Barrister speak for himself; they have a Right (says he) publickly to remonstrate against the Abuses of Power, in the strongest Terms, to put their Neighbours upon their Guard, &c. and in another Place, he speaks of it as a Hardship, if a Man must be taken up as a Libeller, for telling his Sufferings to his Neighbour. Now tho' I wish and hope as earnestly as he can do, that a free People may never want the Means of uttering their just Complaints, and of redressing their Wrongs too, when their Complaints are not heard; yet I al&rehy;ways thought these Things were better un&rehy;derstood than expressed in a Court of Law; and I shall probably remain in that Opi&rehy;nion, till the learned Gentleman can pro&rehy;duce something from the Common or Sta&rehy;tute Law, to shew that a British Subject has a Right of appealing publickly to his Neigbours (that is, to the Collective Body of the People) when he is injur'd in his Person, Rights or Possessions. When I am assur'd that he can do this, I promise him I shall not grudge a Voyage to that Country, where Liberty is so well understood and so freely enjoyed, that I may receive the important Discovery from his own instructive Mouth. p. 29.

I know the Law-Books assert the Right of Complaining to the Magistrates and Courts of Justice, to the Parliament, to the King himelf; but a Right of Complaining to the Neigbours is what has not occur'd to me. After all, I would not be thought to derogate, by any thing I have said or shall say, from that noble Privilege of a free People, the Liberty of the Press. I think it the Bulwark of all other Liberty, and the surest Defence against Tyranny and Op&rehy;pression. But still it is a Two-edg'd Wea&rehy;pon, capable of cutting both Ways, and is not therefore to be trusted in the Hands of every Discontented Fool or designing Knave. Men of Sense and Address (who alone deserve publick Attention) will ever be able to convey proper Ideas to the Peo&rehy;ple, in a Time of Danger, without running counter to all Order and Decency, or cry&rehy;ing Fire and Murder thro' the Streets, if they chance to awake from a frightful Dream. But I must again urge, that these Points are not fit to be discuss'd in a Court of Justice, whose Jurisdiction is circumscri&rehy;bed by positive and known Laws. Besides, they take Place properly in a Sovereign State which has no Superiour on Earth; and where an injured People can expect no Re&rehy;lief but from an Appeal to Heaven. This is far from being the Case of Colonies; and therefore I come to shew, under the third Head, that the Barrister's Reason of the thingis no other than Reason inverted, which possibly may help the Projects of a Demagogue in America, but can never be reconciled to the Sentiments of a Lawyer, or the Principles of a Patriot; consider'd as a Subject of Great Britain.

3. I have hitherto been taught to believe, that when a brave and free People have re&rehy;sorted to Measures unauthoris'd by the or&rehy;dinary Course of the Laws; such Measured have been justified by the extraordinary Ne&rehy;cessity of the Case, which excluded all o&rehy;ther Means of Redress. And as far as I un&rehy;derstand the Constitution, and have heard Accounts of the British Colonies, such a Case cannot well hapen and has never yet happen'd among them. But here the Bar&rehy;rister is ready to ask, how must we behave when we are oppressed by a Governour, in a Country where the Courts of Law are said to have no coercive Power over his Per&rehy;son, and where the Representatives of the People are, by his Intrigues, made Accom&rehy;plices of his Iniquity? certainly it can't be a new Discovery to tell this Lawyer; that as the Governour is a Creature of the Crown, so the most natural and easy Course is to look up to the Hand that made him. And I imagine it may be affirm'd (without catch&rehy;ing an Occasion of offering Incense to Ma&rehy;jesty) that if one half of the Facts contained in Zenger's Papers, and vouched for true by his Council, had been fairly represented and proved at home, Mr. Cosby would not have continued much longer in his Govern&rehy;ment; and then the City of New-York might have applied to it self the Inscrip&rehy;tion of the Gold-Box; demersæ leges, timefacta libertas, hæ tandem emergunt; p. 32. with greater Propriety and Secu&rehy;rity, than could possibly be derived from the impetuous Harangue of any Lawyer whatsoever. I am the more embolden'd to say thus much, because tho' it is my Lot to dwell in a Colony, where Liberty has not always been well understood, at least not freely enjoy'd, yet I have known a Gover&rehy;nour brought to Justice, within these last twenty years, who was not only supported by a Council and Assembly, besides a nume&rehy;rous Party here, but also by powerful Friends at home; all which Advantages were not able to screen him from Censure, Disgrace, and a Removal from the Trust he had abu&rehy;sed.

It is not always necessary that particular Persons should leave their Affairs and Fa&rehy;milies in the Plantations, to prosecute a Go&rehy;vernour in Westminster-Hall, unless their Fortunes are equal to the Expence. For it is seldom seen that the Violence of a bad Governour terminates in private Injuries; inasmuch as he can't find his Account in any Thing less than what is of a general and publick Nature. And when this is the Case, I hope none of our Colonies are, even at this time, so destitute, but that they can find the means of making a regular Application to their Sovereign, either in Person or in his Courts at Westminster, as their Case may re&rehy;quire.

But the wild Inconsistency that shines through most parts of this O&rehy;rator's Speech, is peculiarly glaring in that part of it now before me. p. 20. The Re&rehy;medy which he says our Constitution prescribes for curing or preventing the Diseases of an evil Administration in the Colonies, I shall give in his own Words; has it not been of&rehy;ten seen (and I hope it will always be seen) that when the Representatives of a free Peo&rehy;ple are, by just Representations or Remon&rehy;strances made sensible of the Sufferings of their Fellow-Subjects, by the Abuse of Power in the Hands of a Governour, they have decla&rehy;red (and loudly too) that they were not obliged by any Law to support a Governour who goes about to destroy a Province or Colony, &c. One would imagine, at first Sight, that this Man had the same Notion, with the rest of Mankind, or just Representations and Re&rehy;monstrances to the Representatives of a free People, which has ever been understood to be by Way of Petition or Address directed and presented to them in Form; in which Case it is hoped, that they, being moved by the Complaints of the People will stretch forth their Arms to help them. p. 21. But alas! we are all mistaken; for he tells us, in the same Breath, that the right Way is by tell&rehy;ing our Sufferings to our Neighbours in Gazettes and News-Papers; for the Repre&rehy;sentatives are not to be troubled with eve&rehy;ry Injury done by a Governour; besides, they are sometimes in the Plot with the Go&rehy;vernour, and the injured Party can have no Redress from their Hands; so that the first Complaint (instead of the last Resort) must be to the Neighbours, and so come about to the Representatives through that Chan&rehy;nel.

Now I would be very glad to know, what the Neighbours can do towards effect&rehy;ing the desired Reformation, that will be at&rehy;tended with so good Success and so few ill Consequences, as a regular Application to his Majesty would be. I would be plea&rehy;sant, doubtless, to hear this Politician speak out and explain himself at large upon this Subject. I confess it surpasses my Com&rehy;prehension to conceive what the Neigh&rehy;bours inspired with weekly Revelations from the City Journalist, can do with their Go&rehy;vernour and Assembly, unless it be to re&rehy;form them by those persuasive Arguments which the Major vis never wants good Store of. If this be the Patriot's meaning, his Words may possibly be understood; but without this meaning they are meer Jar&rehy;gon.

In a word; I shall agree with the Bar&rehy;rister (and so take my leave of him) that the Liberty of exposing and op&rehy;posing arbitrary Power is the right of a free People; p. 29. and he ought at the same time to admit, That the Order of Things and the Peace of Society, require that extraordinary Means should not be used for this Purpose, till the ordinary have failed in the Experiment. The supreme Magistrate of an independent Kingdom or State cannot always be controul'd by the one, and then the other is justified by that Consideration. But in Colonies that are from their Creation subordinate to their Mother-Country, there is no Person who is not controulable by re&rehy;gular and well known Methods of pro&rehy;ceeding; and consequently there can be no absolute Necessity of flying to Extremi&rehy;ties, at least in the first Instance. From all which, I conceive, it follows, that local Considerations, upon which the Gentleman lays so great Stress, conclude directly against him; and I hope the Secu&rehy;rity which the British Constitution affords to every Man's Person, Property and Reputation, as well as to the publick Tranquilli&rehy;ty, is not lessen'd by any Distance from the Fountain of Power and Justice; but that a Libel is a Libel, and punishable as such in America as well as in Europe.

I am sensible, there is a Freedom of Expression used in these Papers, of which I should disapprove in the common Cases of Controversy; but I found my self under a Necessity of shewing no Respect to the Per&rehy;formance under Consideration, unless I were to forfeit the little that might be due to the Remarks. For tho' a Lawyer is free, nay oblig'd by the Duty of his Profession, to make the most of the Cause he espouses, (his real Sentiments being suspended for that Time, by reason of the Biass under which he acts) yet when he draws his pri&rehy;vate Opinion into the Debate, and interests his Passions in the success of it, he then de&rehy;parts from his Character, and becomes a Party rather than an Advocate. In short, there is an Air of Self-sufficiency and Con&rehy;fidence mixt with the whole lump, enough to give a disrelish even to good Sense and good Law, but is nauseous beyond all bear&rehy;ing, when neither of these is found. A&rehy;mong Lawyers, I was sure this Lawyer de&rehy;serv'd no Answer, and yet an Answer seem&rehy;ed indispensable, not only for the Reasons given at my setting out, but also in order to save many well meaning People from reve&rehy;rencing a piece of Buffoonry, that had been thrust into the World with so much florid Conceit and a Gold-Box tagg'd to the End of it. A piece, wherein the whole com&rehy;mon-place of popular Declamation (equally adapted to all popular Occasions) is exhausted, and the Holy Scriptures brought in to season his Jokes. p. 27. But as this last seems design'd only for a Sally of Wit and Humour, I shall not offer to detract from its Merit; considering too it had so happy an Effect as to set the good People a laughing, when they heard the Word of God most ingeniously burlesqu'd in a Christian Court. A Piece that hardly shews the Author to have been serious when he pronounc'd it, or his wise Benefactors when they rewarded him; but that his solemn Professions of Prin&rehy;ciple and Duty compel a charitable Mind to suspect his Knowledge rather than his Since&rehy;rity, and Citizens are ever thought to be in earnest when they part with their Gold and shew their Learning. p. 31;32.

Sir, I ought to make an Apology to you for trespassing so long upon your Patience, which might have been better employ'd; but I flatter my self with the Hopes of having some Allowance made for an honest, tho' weak Attempt to rescue the Profession of the Law, and the Interest of lawful Liberty from the Disgrace thrown upon both in One of our Sister Colonies. Ths is the Truth, and let it be my Excuse.

I am yours, &c. Anglo-Americanus. LETTER II.

SIR,

&Iic;T must be mortifying, no doubt, to a Person who has received peculiar Marks of Publick Approbation to be told, that the very Act which procur'd it was so far from being commendable, that it really deserved a severe Censure; and one wou'd the rather decline such an Office, how just soever the Occasion, because it cannot be done with&rehy;out condemning at the same Time, the Judgment of those whose Suffrage had been thus unworthily obtain'd. But when the Laws are openly perverted, and Courts of Justice, with an Air of Gravity, droll'd out of their established Rules by such whose Profession supposes them Ministers of Justice, and when this too shall be dignify'd with Applause, and made highly meritorious, I conceive neither Good-nature, nor the Solemnity of Publick Seals shou'd restrain an honest Pen from exploding the Practice, in order as well to stop the Progress of its evil Effects, as to prevent the like Attempts for the future.

Virtue and Merit, it is most certain, ought to be encouraged, especially by all in Au&rehy;thority; but when that which is meerly counterfeit shall gain Esteem, stand in the room of what is truly genuine, and be actually loaded with the Rewards thereof, it does not only frustrate the Original Inten&rehy;tion of such Rewards, but likewise give Countenance to the Impostor, and furnish him with still further Means of vending his false Wares, in Prejudice of the Publick. Now this, with all due Submission, I take to be the Case of the Corporation in North America, with Regard to the Honours they were lately pleased to confer, on a noted Barrister in those Parts, for his supposed Services in the Affair of Zenger the Printer, whose Trial has been so plentifully dispers'd here, and in other Places. Aggregate Bodies, we find may be mistaken, and too often are, as well as private Men; and when they do err, it is of the more dangerous Conse&rehy;quence, on account of the Extent of their Power and Influence. The Province in general of New-York, or the City in parti&rehy;cular might, for ought I know, have suf&rehy;ficient Cause of Complaint, in some Re&rehy;spects, against their then Commander in Chief and his Administration; but it is to be considered that as there never was one absolutely free from Faults, so it is the great Privilege of the Inhabitants of every Bri&rehy;tish Government that a proper Channel is chalk'd out, in all such Events, and a Way open for Relief. The Method therefore which the Constitution prescribes ought to be strictly pursued, and any illegal Devia&rehy;tion is not only inconsistent and unjustifiable in it self, but has, besides, a Tendency to introduce Mischiefs more to be dreaded even than those that were sought to be re&rehy;dress'd. It is the Law which must be the Standard of Right and Wrong; and who&rehy;ever has recourse to any other Aid, or knowingly advises thereto, in the Case of particular Grievances, cannot act on a true Principle of Publick Spirit, but must be in&rehy;fluenced by unworthy Motives; and is al&rehy;ways more or less an Enemy to the Com&rehy;munity, according to his Situation, and in proportion to the Talents he happens to possess. If Mr. Zenger then will avowedly publish Seditious Libels against the Govern&rehy;ment under which he lives, and his Coun&rehy;cil will offer to support him by Artifices un&rehy;becoming the long Robe, and advancing Propositions manifestly contrary to Law; as the former deserves to be punished by it, so the latter I humbly presume to say, what&rehy;ever he may claim from his Client, ought not to be paid his Wages by any Set of Men who owe their Being to the Law, and cannot exist without it.

But I shall not scruple to acknowledge here, and I do it on no superficial Observa&rehy;tion, that there can't be a more pernicious Creature in a distant Colony than that of a Practitioner of the Law, with much As&rehy;surance, little Knowledge, and no Morals; a Character not unheard of in more than one of his Majesty's Plantations, and which yet I would by no means apply to Mr. Ha&rehy;milton, any otherwise than may appear to be just from the performance he has, it seems, taken so much Pains to publish to the World. The judicious Remarks already made upon it by Anglo-Americanus will hardly leave room for any thing to be added that is very material, and therefore I shall content my self with a few Gleanings only, and make some cursory Reflections thereon, whilst they afford me an Opportunity of bearing my Testimony also against what I think the most indecent Behaviour at least, if it may not be called the boldest Out&rehy;rage that ever was exhibited from the Bar without a suitable Chastisement.

Whoever has enquired into the Doctrine of Libels, and the Reason of their Punish&rehy;ment, will perceive, that they take their De&rehy;grees as they affect private Persons, parti&rehy;cular Magistrates, or are aim'd against the Government it self; and I may venture to say, that no Lawyer of Reputation will de&rehy;ny but what is set forth in the Information against John-Peter Zenger was of this last Kind, and that too conceived in the grossest Terms, such as will not admit of a diffe&rehy;rent Construction, or of any other mean&rehy;ing than what is put upon them by the Prosecutor for the Crown. Now I am sensible, that great Allowances are with good Reason made to Council in the Heat of Argument, and when supposed to be ani&rehy;mated with a laudable Zeal for their Clients. Nor has it been usual to correct them for every harsh and hasty Expression, provided they keep within Bounds, and stick to that which is their Duty, without running into Matters that have no Relation to the Issue, and cannot fairly serve the Side they es&rehy;pouse. Yet, as the Lord Chancellor Not&rehy;tingham occasionally said, Council should not speak as if they would abet the Guilt of their Clients rather than advocate for their Innocency. And since your ingenious Cor&rehy;respondent has clearly evinced, that the Truth of a Libel cannot be given in Evi&rehy;dence, that it is no Justification, on the general Issue, and consequently no proper De&rehy;fence to a Charge of that Nature; (of all which Mr. Hamilton could not, or ought not to have been ignorant,) it is worthy of Consideration whether he did not involve himself in his Client's Crime, and partake of his Cuilt, by declaring in the most pub&rehy;lick Manner, that the Facts published in the News-Papers, and contained in the Infor&rehy;mation, were true, and offering to prove them to be so before a Court which had no Power to redress the Grievances com&rehy;plain'd of, 4 Co. 14. Hob. 166,7.

Sir Bartholomew Shower, I remember in his Argument in the Case of the King a&rehy;gainst Berchet & al. asserts, that "in all Cases of Contempts to a Court, no Pre&rehy;sentment is necessary, no not so much as to convict; for if done in Facie Curiæ, a Record may be made of it, and a Punish&rehy;ment judicially inflicted, and that exe&rehy;cuted immediately, Show. Rep. 110. And agreeable hereto, we find that in a late Case of the King against Thorogood, Trin. 9 Geor. primi, the Defendant having made an Affi&rehy;davit in C.B. and appearing on Summons, confess'd that he made it, and that it was false; whereupon the Court recorded his Confession, and ordered that he should be taken into Custody and stand in the Pillory, &c. which was executed accordingly the last day of the Term. Mod. Ca. in Law & Eq. 179, 180. This is the more remark&rehy;able, because it was in the Court of Com&rehy;mon-Pleas, which has ordinarily no Juris&rehy;diction in the Criminal Cases. &horfill; May it not from hence be inferr'd (I hint it with a due saving to all the just Privileges of the Bar) that the Court at New-York might well have recorded some of the most seditious Ex&rehy;pressions in Mr. Hamilton's Rhapsody, and committed him for the same, &c.? If they had, I doubt the Blame must have center'd in himself, and his own Conduct; of which therefore he might then have had leisure to repent, as well as of his long Journey to so ill a Purpose.

But it will not be amiss perhaps for Ex&rehy;ample sake, to give an Instance of what has been done on the like Occasion with that before us; and to this End I shall cite a Case in the Court of King's Bench many Years after that of the Star-Chamber was at an end, and which the Words of Sir Thomas Raymond was as followeth; "Me&rehy;morandum, June 18. 1680, Mr. Natha&rehy;niel Reading having been convicted (be&rehy;fore Justices of Oyer and Terminer by virtue of a Special Commission) for en&rehy;deavouring to persuade Bedlow, who was a Witness against the Noblemen impri&rehy;son'd in the Tower of London, to for&rehy;bear his Prosecution of them; and he the said Mr. Reading having had Judgment executed upon him by being set in the Pillory, and fin'd 1000l. and imprison'd for the same, but his Fine since pardon'd by the King, came this day into Court, and demanded that an Information which he there brought in his Hand might be received by Mr. Astrey against the Com&rehy;missioners who condemn'd him, of which my Brother Jones and Brother Dolben were two, and that the Information may be filed. But the Court did declare that he was in the wrong way to exhibit any Information in this manner, and did cause his Words, whereby he did accuse the two Judges of Oppression, to be recorded; and for these Words, and for that he was infamous by having been on the Pillory, the Gentlemen at the Bar did pray that his Gown might be pull'd over his Ears, he having been formerly a Practiser at the Bar, which was ordered and executed in Court; and he was also condemn'd in Court to pay the King 500l, and to lie in Prison till he paid it, Raym. Rep.376" The Trial of this Gentleman referr'd to here, may be seen in the State Trials, vol. 2 p. 253. on which Occasion the Lord Chief-Justice North made a Speech aggra&rehy;vating the Defendant's Offence as he was a Council, one who ought to be a Man of Know&rehy;ledge, and a Minister of Justice to assist the Court wherein he pleaded. He said he thought the Court ought to shew a more than ordi&rehy;nary Severity against such an one; and that 'tis a great Credit and Benefit to the Pro&rehy;fession, that the Members of it for such Of&rehy;fences should be dealt with more Severity than we should deal in other Cases. Id. p. 374, 5. Far be it from me to make any invidious Comparison here betwixt the present Prac&rehy;tiser in Pensilvania and the quondam one in Westminster-Hall, tho' they are both cele&rehy;brated, the one in the Trial of Mr. Zenger, and the other in his own. It may how&rehy;ever be noted that the latter was said to be artful, and affectedly eloquent, and to have strove to lead the Judges out of the Way, while he was told by the Chief-Jus&rehy;tice that his Defence was artificial, because it was nothing to the purpose; and by another of the Judges, that he disgrac'd his Profession by making so weak a Defence. But without adverting to any particular Beau&rehy;ties in the modern Performance, this is certain that Counsellor Reading lost the Bar-Gown by his Art, and Counsellor Hamilton got a Gold-Box of five Ounces, with the Freedom of the City of New-York by his. A pregnant Instance of the Caprici&rehy;ousness of Fate, and of the Justness of your late Correspondent's Observation at the En&rehy;trance to his excellent Remarks!

The Gentlemen of the Bar (as indeed it might well be expected from their Edu&rehy;cation, and the Nature of their Business) have been remarkable for observing the Re&rehy;gard that is due to all in Authority with the utmost Delicacy; and in Return, have al&rehy;ways been us'd with suitable Respect. But that the Lawyer of Philadelphia may see the Courts of Justice in former Ages, as well as of late Years, did not spare the unruly Members of the Profession, any more than others, for much less faulty Behaviour than that of the leading Councel in Zenger's Trial, I will refer him to a Case which happen'd Mich. 13 Eliz. Rot. 39, when Henry Blaund&rehy;ford a Counsellor at Law was committed to the Fleet, and fin'd for falsly reporting the Opinion of the Lord Leicester, and Secretary Cecil with these Words, Humanum est errare. And that even Noblemen met with the like Treatment, on such Occasions, will ap&rehy;pear from the Case of the Lord Stourton, who, 19 Hen. VIII. was committed by the Court, and fin'd for saying these Words, I am sorry to see Rhetorick rule where Law should.

Before I proceed, I will mention one Case more, purely to shew how dangerous it is to afford any unlawful Helps to Persons on their Trials in Criminal Prosecutions, even tho' it be merly by way of private In&rehy;structions, when such Instructions are to be publickly made use of, and import Scandal to the Government. It is the Case of the King against Aaron Smith, Mich. 35 Car. 2. in B.R. "This Term (says the Book which has the Allowance of all the Judges)Aaron Smith was brought into Court, being for&rehy;merly convicted on a Trial at Bar for de&rehy;livering to Stephen College, being upon his Trial at Oxford for High Treason, a Pa&rehy;per of Instructions, full of scandalous Re&rehy;flections upon the King and Government; as that they might as well have hang'd him at Tyburn as he came by, as brought him thither, only to murder him with a little more Formality. For which the Court gave Judgment that he should pay a Fine of 500l. stand upon the Pillory twice, and be of the good Behaviour for a Twelve&rehy;month, Skin Rep. 124. I shall only ob&rehy;serve this Case was upon an Information, so much inveigh'd against by Zenger's Coun&rehy;cel, and yet I never heard it censur'd at all, as was that of poor College, I own, with too good Reason.

It is now time to take notice, that there is, amidst a heap of Jargon and Absurdities, one obvious Mistake which runs throughout Mr. Hamilton's ostentatious Harangue, and that is in Relation to the Court of Star-Chamber. He wou'd suggest that because that Court was abolished by Act of Parlia&rehy;ment, on account of some insufferable Abuses that had crept into it, all the Cases that had been adjudged there, on Informa&rehy;tions for Libels, were consequently of no Authority. Whereas the Judgments given there, in Matters properly cognizable be&rehy;fore them, which Libelling especially was, are allowed to be good Law at this Day, and are constantly quoted, as such, in the Court of King's Bench. Indeed it is said that the Reasons of disallowing the Star-Chamber-Court, was because their Autho&rehy;rity was before and now is in B.R. and con&rehy;sequently that Court unnecessary, Comb. 36. So the Lord Chief Justice Holt declared that B.R. possest all the Lawful Power the Star-Chamber had, Id. 142. And that the Court of Star-Chamber was taken away, because the Crimes were punishable here, 5. Mod. 464; which is likewise intimated by the Statute itself. Now tho' I am as well satisfied, perhaps, with the taking away of the Court of Star-Chamber, considering the Occasion that had been given, as our Northern Barrister can possibly be, and shou'd equally rejoyce, I hope, at the re&rehy;dressing any other publick Grievance; yet I cannot, with him, condemn by the Lump, and argue that because that Court did some&rehy;things amiss, therefore it did nothing right. At this rate, every Court that had or has a Being may be in Danger of the same Epi&rehy;thets he loves to bestow on that we are speaking of; and it may as well be suppos'd that because a certain Set of Citizens not un&rehy;known to Mr. Hamilton, lately did a very silly thing, they therefore never did a wise one. For which Reason I presume it will not be altogether impertinent to produce the Sentiments of that Oracle of the Law, Sir Edward Coke, concerning the Court of Star-Chamber. "It is (says he) the most Honourable Court, our Parliament ex&rehy;cepted, that is in the Christian World, both in Respect of the Judges, and of their Honourable Proceedings according to their just Jurisdiction, and the ancient and just Orders of the Court. For the Judges of the same are, the Gran&rehy;dees of the Realm, the Lord Chancellor, the Lord Treasurer, the Lord President of the King's Council, the Lord Privy Seal, all the Lords Spiritual and Tempo&rehy;ral, and others of the King's most Ho&rehy;nourable Privy Council, and the Principal Judges of the Realm, and such other Lords of Parliament as the King shall name. And they Judge upon Confession, or De&rehy;position of Witnesses. And the Court cannot sit for hearing of Causes under the Number of eight at the least. And it is truy said, Curia Cameræ Stellatæ, si ve&rehy;tustatem spectemus, est antiquissima, si dignitatem, honoratissima. This Court, the Right Institution and ancient Orders thereof being observed, doth keep all England in quiet." 4th. Inst. p. 64. Confor&rehy;mable hereto, a late learned Writer who was advanced to the highest Post in the Law in a Neigbouring Kingdom to that of our Mo&rehy;ther Country, and wherein he dy'd, has a Paragraph, which I believe will give us a truer Account of the Court it self, and the Abolishment of it than what is to be learnt from our Barrister's Speech at New-York, and therefore I will insert it here. Disc. concerning Treasons and Bills of Attaind. p. 94. Printed Anno 1716. "The Court of Star-Chamber whilst kept with&rehy;in due Bounds, was certainly of the greatest use to preserve the Peace and Security of the Kingdom; and perhaps was the only Court which by its ordinary and proper Jurisdiction, cou'd effectually prevent and punish Riots, Perjuries and other Mis&rehy;demeanors of the highest Nature. But being made use of by the Court to sup&rehy;port Proclamations and Orders of State, and to vindicate illegal Commissions and Monopolies, that Extension of their Power became a Grievance insupportable, and the Nation was never easy till that Court was entirely suppress'd by Act of Parlia&rehy;ment. The House of Commons were so eager in their Zeal to destroy what they call'd a Court of Inquisition, that tho' the Bill was of so great Consequence, yet they sent it up to the Lords, with only once reading it, and without its being ever com&rehy;mitted, which was a Thing, perhaps never before heard of in Parliament. Cla. V. 1. 223.

I need only add on this Head that the Crime of Libelling is the same now, as it was while the Court of the Star-Cham&rehy;ber subsisted, and the Nature of the Of&rehy;fence the same then, as now; a Crime that must necessarily be punished as long as there are States and Communities esta&rehy;blished in the World. And our assuming Barrister will not find an Author that treats of the Crown Law since the Statute of 16 Cha. I Ch. 10. any more than before, but makes use of the Cases adjudged in the Star-Chamber generally as good Law, and of equal Authority in those Matters with such as were afterwards adjudged in the King's Bench. Some indeed are justly liable to Exception in the former, as we have also known too many in the latter, particularly during the next succeeding Reign of Ch. II. none whereof are, how&rehy;ever, God be praised, to be met with, or heard of since the glorious and happy Re&rehy;volution in 1688, which I trust has for ever excluded all Partiality and Oppressi&rehy;on from Westminster-Hall.

But the learned Lawyer of Philadelphia declares, that he has not in all his reading met with an Authority that says we can&rehy;not be admitted to give the Truth in Evi&rehy;dence upon an Information for a Libel. I don't know what this Gentleman's reading may be; but if he had read some of the Cases above-mentioned which could not well escape him, it might reasonably have been expected he would have taken Warn&rehy;ing, been a little more cautious, and not have ventur'd to incur the Penalties which others before him had so justly suffer'd. By all his Reading, he would insinuate, I sup&rehy;pose, that he had read all; and if that were true, it might well be thought he had read to very little Purpose, who could make so ill an Use of it, or think it a Duty on him to go to the utmost Parts of the Land, to propagate Doctrines and Principles dia&rehy;metrically opposite to, and just the Reverse of what he must have read. We shall soon discover that the Barrister's Reading is not quite so extensive as he would have it ima&rehy;gin'd. But it is previously to be ovserved, that if there were no such Authority in ter&rehy;minis as that he calls for, a Man who reads with any tolerable Understanding would of course infer the same Thing, when all the Books of the Subject of Libels lay it down as a Rule, which they unanimously do, that it is not material whether the Libel be true or false. For if that be not material, to what End should the Truth be offer'd in Evidence? Or, how should it be rejected before it was offer'd which undoubtedly is the Reason that there have been no late Instances of that Sort. It might suffice therefore to undertake as often as this well&rehy;read Lawyer produced a Precedent of its being demanded from the Bar to give Evi&rehy;dence of the Truth of a Libel, to shew that it was as often deny'd by the Court. And tho' I admit it has been attempted be&rehy;fore, on Trials for Libels of the less enor&rehy;mous Kinds, yet he is probably the only one that has done it in any Case within these hundred Years. However, if we would find an Instance of that Sort, we must necessarily have Recourse to the Pro&rehy;ceedings of the Court where that Crime was usually punished. The Star-Chamber Re&rehy;ports then may satisfy Mr. Hamilton, that Term Pasc. 7. Car. I. there was the Case of Coston, Gent. v. Hitcham Mil. Servient. ad legem, as follows. "The Defendent, the Morning before he went to the Sessions, being a Justice of the Peace, received scandalous and libellous Articles against the Plaintiff, carry'd them to the Sessions in his Pocket, and in open Court, in dis&rehy;grace of the Plaintiff, pull'd them out and said, you shall see what a lewd Fellow this is, and not fit to speak in this Place, and then caus'd the said libellous Articles to be read in the publick Sessions. And the Plaintiff then desiring a Copy of them, and to be tried upon them, the Witnesses to prove them being noted in the Margin, the Defendant did not suffer him to have a Copy, or to be tried thereupon, nor took any Course that he might at the next Sessions or at any Time after be questio&rehy;ned for them, but took the Articles again out of the Sessions and carried them away. And after, further to disgrace the Plain&rehy;tiff in his Practice (being an Attorney) sent the said Articles to Mr. Justice Harvey, at the Reference of a Cause to him, which Coston attended; and a Jury having given a Verdict against the Defendant, he sent for the Jurors and question'd them about their Verdict, and told them they were a Company of Fools, and that if there had been but one wise Man among them their Verdict had not been so. And for these Offences he was committed to the Fleet and fined 200l. In this Cause the De&rehy;fendant would have had Witnesses to prove the Matter of the said scandalous Articles to be true, but that was disallowed by the Court. Rush. Col. vol. 3. p. 36. in Ap&rehy;pend." This I presume the Barrister, when he is serious, will alow to be in Point, tho' it happen'd not to fall in the way of his Reading. He cannot object surely, that it does not appear to be on an Information preferr'd by the Attorney General, since it is a much stronger Case than if it had. For if the Court would not receive such Evi&rehy;dence in a Cause depending on the Com&rehy;plaint of a petty Sollicitor for being libell'd, and this too preferr'd against a Justice of Peace, a Knight, and a Serjeant at Law; a fortiori, they would never admit it on an Information exhibited by his Majesty's At&rehy;torney General, against a private Person for libelling the Government.