before they could pay her for any, as, by the time they could, to want but little, and defire still lefs. And, when things once came to this pafs, what fhould hinder their being, in a little more time, able to ferve their neighbours, the American Portuguese and Spaniards, with many articles, now the ftaple commodities of Great Britain, on fo much better terms than Great Britain herself, as might tempt both parties to force an intercourfe with each other, and enable them to maintain it, to the irreparable loss of Great Britain; fince the maritime strength the requires as a maritime country, and particularly as an island, cannot be fupplied in any eminent degree, or at leaft without facrificing to her fecurity fo great a fhare of her fubfiftence, as hardly to retain enough to be worth fighting for, but by a trade carried on in fhips belonging to, and navigated by, her own fubjects; circumAtances the cannot pretend to command in any trade with countries under a different head. . But allowing, that the ill advised meafures we have been speaking of were to be attended with no other ill confequence, than a temporary interruption in the commercial intercourfe between Great Britain and her North American colonies, that alone could not fail of being very prejuIdicial to the former. It is computed, that these colonies, not to mention the foreign goods they receive through our hands, take off yearly of our produce and manufactures to the amount of three millions. Now, almost all the perfons concerned in the preparation, the buying and the felling, and the transportation of thefe manufactures, from the fowing of the feeds of them in the fields of Great Britain, to the landing of them on the fhores of North America, must, during fuch ceffation, be fupported at the expence of the reft of the community, fince they have nothing else but the labour of their hands to live upon, and it is fearce poffible they fhould in the mean time be able to find any new kind of labour to put them to. The revenue, too, muft proportionably fuffer by the want of the export duties payable on the goods fent to the colonies, and the import duties payable on the goods we receive from foreign countries in return for what the colonies fend them; which duties, inconfiderable as the first may be, cannot but amount to a great August, 1766. deal more, than those to raise which a stop was now unhappily put to them. Thi lat is the most favourable idea, that could poffibly be formed of thefe measures. It is, therefore, very furprifing, how a miniftry composed of perfons, one of whom had fo long and with fuch applaufe prefided at the board of trade and plantations, and another at that of the treasury, fhould ever come to think of them. It is ftill more furprising, that thefe meafures fhould meet with the approbation of a British privy council and parliament. But that, after almoft the worft idea, that could well be formed of them, had been in a great degree realised, another meafure, the bare propofal of which had given fo much more offence, thould be approved even with oppofition, inftead of the firft being repealed, if not ftigmatized, argues fuch want of reflection, as can scarcely be paralleled in the public councils of any country. Sir Robert Walpole is faid to have had much clearer and jufter notions concerning the means of making the British colonies pay the mother country for their defence, and even contribute to her opulence. A fcheme for taxing them having been mentioned to him during that war with Spain, which broke out in the year 1739, he fmiled and faid. "I will leave that for fome of my fucceffors, who may have more courage than I have, and be lefs a friend to commerce than I am. It has been a maxim with me during my administration, to encourage the trade of the American colonies in the utmost latitude (nay it has been neceffary to pafs over fome irregularities in their trade with Europe) for by encouraging them to an extenfive growing foreign commerce, if they gain 500,000l. I am convinced that in two years afterwards full 250,000!. of their gains will be in his majesty's exchequer by the labour and product of this kingdom, as immenfe quantities of every kind of our manufactures go thither; and as they increase in their foreign American trade, more of our produce will be wanted. This is taxing them more agreeably both to their own conftitution and to ours." As to the legality of thefe laws, if we may be allowed the expreffion, we shall poftpone the confideration of it to the following chapters, in which it will arife of itself out of the subject. [To be continued.] The 470 Trial of John Peter Zenger. : (Continued from p. 625, in 1765. Aug. upon in the argument of that cafe, the chief juftice who delivered the opinion of the court, lays it down for a law, that in all general iffues, as upon non cul. in trefpafs, non tort. nul diffeizin in affize, &c. tho' it is matter of law, whether the defendant is a trefpaffer, a diffeizer, &c. Don't mention this ftature, as chamber, incompatisila cales in the taking away the court of star chamber, find not (as in a fpecial verdict) the fact the remedy for many of the abufes or of- of every cafe, leaving the law to the court; fences cenfured there, was likewife taken but find for the plaintiff or defendant away; no, I only intend by it to fhew, the iffue to be tried wherein they refolve that the people of England faw clearly the both law and fact complicately. Vaughdanger of trutting their liberties and pro- an's rep. p. 150. perties to be tried, even by the greatest cafe, that tho the difcreet and lawful afIt appears by the fame men in the kingdom, without the judg. fiftance of the judge, by way of advice, ment of a jury of their equals. They had to the jury, may be ufeful, yet that adfelt the terrible effects of leaving it to the vice or direction ought always to be judgment of thefe great men to lay what upon fuppofition, and not politive, and was fcandalous and feditious, falfe or upon coercion. p. 144. ironical. And if the parliament of En- ven in the fame book is, because the The reafon gigland thought this power of judging was judge (as judge) cannot know what the too great to be trufted with men of the evidence is which the jury have, that is, first rank in the kingdom, without the be can only know the evidence given in aid of a jury, how facred foever their cha- court; but the evidence which the jury racters might be, and therefore restored to have, may be of their own knowledge, the people their original right of tryal by as they are returned of the neighbourhood. juries, I hope to be excused for infifting, They may alfo know from their own that by the judgment of a parliament, Knowledge, that what is fworn in court from whence no appeal lies, the jury are is not true; and they may know the witthe proper judges, of what is falfe at leaft, neffes to be ftigmatized, to which the if not of what is fcandalous and feditious. court may be ftrangers; p. 147. But, This is an authority not to be denied, it what is to my purpofe, is, that fuppofe is as plain as it is great, and to fay, that that the court did really know all the evithis act indeed did reftore to the people dence, which the jury know, yet in that tryals by juries, which was not the prac- cafe it is agreed, that the judge and jury tice of the itar-chamber, but that did not may differ in the refult of their evidence, give the jurors any new authority, or any as well as two judges may, which often right to try matters of law, I fay this ob- happens. And in p. 148, the judge fubjection will not avail; for, I must infilt, joins the reafon, why it is no crime for a that where matter of law is complicated jury to differ in opinion from the court, with matter of fact, the jury have a right where he fays, that a man cannot fee to determine both. As for inftance; up- with another's eye, nor hear by another's on indictment for murder, the jury may, ear; no more can a man conclude or infer and almoft confiantly do, take upon them the thing by another's understanding or to judge whether the evidence will amount reafoning. From all which (I infilt) it to murder or manflaughter, and find ac- is very plain, that the jury are by law at cordingly; and I muft fay I cannot fee, liberty (without any affront to the judg why in our cafe the jury have not at Icaft ment of the court) to find both the law as good a right to fay, whether our news and the fact, in our cafe,' as they did in papers are a libel or no libel, as another the cafe I am fpeaking to, which I will jury has to fay, whether killing of a man beg leave just to mention, and it was this. is murder or manflaughter. The right Mr. Penn and Mead being quakers, and of the jury, to find fuch a verdict as they having met in a peaceable manner, after in their confcience do think is agreeable being hut out of their meeting-houfe, to their evidence, is fupported by the au- preached in Grace-Church-feet in Lonthority of Bufet's cafe, in Vaughan's re-don, to the people of their own perfuafion, ports, p. 135, beyond any doubt. For, and for this they were indicted; and it was was faid, that they with other perfons, to the number of 300, unlawfully and tumultuoufly affembled, to the difturbance of the peace, &c.' To which they pleaded, not guilty.' And the petit jury being fworn to try the iffue between the king and the prifoners, that is, whether they were guilty, according to the form of the indictment? Here there was no difpute but they were affembled together to the number mentioned in the indictment; but, whether that meeting together was riotoufly, tumultuously, and to the diftorbance of the peace,' was the question. And the court told the jury it was, and ordered the jury to find it fo; for (faid the court) the meeting was the matter of fact, and that is confeffed, and we tell you it is unlawful, for it is against the ftatute; and the meeting being unlawful, it follows of courfe that it was tumultuous, and to the difturbance of the peace. But, the jury did not think fit to take the court's word for it; for, they could neither find riot, tumult, or any thing tending to the breach of the peace' committed at that meeting; and they acquitted Mr. Penn and Mead. In doing of which they took upon them to judge both the law and the fact, at which the court (being themselves true courtiers) were fo much offended, that they fined the jury forty marks a-piece, and committed them till paid. But Mr. Bushel, who valued the right of a juryman, and the liberty of his country more than his own, refufed to pay the fine, and was refolved (tho' at a great expence and trouble too) to bring, and did bring, his habeas corpus, to be relieved from his fine and imprifonment, and he was releafed accordingly; and this being the judgment in his cafe, it is eftablished for law, that the judges, how great foever they be, have no right to fine, imprison, or punish a jury for not finding a verdict according to the direction of the court.' And this I hope is fufficient to prove, that jurymen are to fee with their own eyes, to hear with their own ears, and to make use of their own confciences and understandings, in judging of the lives, liberties, or eftates of their fellowfubjects. And fo I have done with this point. This is the fecond information for libelling of a governor, that I have known in America. And the firft, tho' it may look like a romance, yet as it is true, I will beg leave to mention it. Governor Nichollon, who happened to be offendedwith one of his clergy, met him one day upon the road, and as was ufual with him, (under the protection of his commiffion) ufed the poor parfon with the worlt of language, threatened to cut off his ears, fit his nofe, and at laft fhoot him thro the head. The parfon being a reverend man, continued all this time uncovered in the heat of the fun, until he found an opportunity to fly for it; and coming to a neighbour's houfe felt himself very ill of a fever, and immediately writes for a doctor, and that his phyfician might the better judge of his diftemper, he acquainted him with the ufage he had received ; concluding, that the governor was cer tainly mad, for that no man in his fenfes would have behaved in that manner. The doctor unhappily fhews the parfon's letter; the governor came to hear of it, and fo an information was preferred againit the poor man for faying he believed the governor was mad; and it was laid in the information to be falfe, fcandalous and wicked, and wrote with intent to move fedition among the people, and bring his excellency into contempt." But, by an order from the late queen Anne, there was a top put to the profecution, with fundry others fet on foot by the fame governor, against gentlemen of the greateft worth and honor in that government. And may not I be allowed, after allthis, to fay, that by a little countenance,' almost any thing which a man writes, may, with the help of that useful term of art, called an innuendo, be construed to be a libel, according to Mr. Attorney's definition of it, that whether the words are fpoke of a perfon of a public character, or of a private man, whether dead or living, good or bad, true or false," all make a libel; for, according to Mr. Attorney, ' after a man hears a writing read, or reads and repeats it, or laughs at it, they are punishable.' It is true, Mr. Attorney is to good as to allow, after the party knows it to be a libel,' but he is not fo kind as to take the man's word for it. [Here were feveral cafes put to fhew, that though what a man writes of a governor was true, proper and neceffary, yet according to the foregoing doctrine it might be conftrued to be a libel; but Mr. Hamilton after the trial was over, being informed. 0002 informed, that fome of the cafes he had put bad really happened in this government, be declared he had never heard of any fuch; and as he meant no perfonal reflections, he was forry he had mentioned them, and therefore they are omitted here.] Mr. Hamilton. If a libel is understood in the large and unlimited fenfe urged by Mr. Attorney, there is fcarce a writing I know that may not be called a libel, or fcarce any perion fafe from being called to account as a libeller: For Mofes, meek as he was, libelled Cain; and who is it that has not libelled the devil? For according to Mr. Attorney, it is no juftification to fay one has a bad name. Echard has libelled our good king William; Burnet has libelled among many others king Charles and king James; and Rapin has libelled them all. How muft a man fpeak or write, or what muft he hear, read or fing? Or when must he laugh, fo as to be fecure from being taken up as a libeller? I fincerely believe, that were some perfons to go thro' the streets of New-York now-a-days, and read a part of the bible, if it was not known to be fuch, Mr. Attorney, with the help of his innuendo's, would easily turn it into a libel. As for inftance, Ifa. xi. 16. The leaders of the people caufe them to err, and they that are led by them are defroyed. But fhould Mr. Attorney go about to make this a libel, he would read it thus: The leaders of the people [innuendo, the governor and council of NewYork] cauje them, [innuendo, the people of this province] to err, and they [the governor and council meaning] are deAroyed, [innuendo, are deceived into the lofs of their liberty] which is the wort kind of deftruction. Or if fame perfons fhould publickly repeat, in a manner not pleafing to his betters, the roth and the 11th verfes of the Ivith chap. of the fame book, there Mr. Attorney would have a large field to difplay his kill, in the artful application of his innuendo's. The words are, his watchmen are all blind, they are ignorant, &c. Yea, they are greedy dogs, that can never have enough.' But to make them a libel, there is, according to Mr. Attorney's doctrine, no more wanting but the aid of his fkill, in the right adapting his innuendo's. As for instance: His watchmen [innuendo, the governor's council and affembly] are blind, they are ignorant, [innuendo, will not fee the dangerous defigns of his excellency] yea, they [the governor and council meaning] are greedy dogs which can never have enough, [innuendo, enough of riches and power,] Such an initance as this feems only to be laughed at; but I may appeal to Mr. Attorney himself, whether these are not at least equally proper to be applied to his excellency and his minifters, as fome of the inferences and innuendo's in his information against my client. Then if Mr. Attorney is at liberty to come into court, and file an information in the king's name, without leave, who is fecure, whom he is pleated to profecute as a libeller? And as the crown law is contended for in bad times, there is no remedy for the greatest oppreffion of this fort, even tho the party profecuted is acquitted with honour. And give me leave to fay, as great inen as any in Britain, have boldly afferted, That the mode of profecuting by information (when a grand jury will not, or can not find billa vera) is a national grievance, and greatly inconfiftent with that freedom, which the fubjects of England claim and enjoy in most other cafes. But, if we are fo unhappy as not to be able to ward off this ftroke of power directly, let us take care not to be cheated out of our liberties, by forms and appearances; let us always be fure that the charge in the information is made out clearly even beyond a doubt; for, tho' matters in the information may be called form upon tryal; yet, they may be, and often have been found to be matters of fubftance upon giving judgment. Gentlemen; the danger is great, in proportion to the mifchief that may happen, through our too great credulity. A proper confidence in a court is commendable; but, as the verdict (whatever it is) will be yours, you ought to refer no part of your duty to the difcretion of other perfons. If you fhould be of opinion, that there is no falfhood in Mr. Zenger's papers, you will, nay, (pardon me for the expreffion) you ought, you are bound, to fay fo; because you don't know whether others (I mean the court) may be of that opinion: It is your right to do fo, and there is much depending upon your refolution, as well as upon your integrity. The lofs of liberty to a generous mind, is worse than death; and yet we know there have been thofe in all ages, who for the fake of preferment, or fome imagi nary nary honour, have freely lent a helping hand, to opprefs, nay, to destroy their country. This brings to my mind that faying of the immortal Brutus, when he looked upon the creatures of Cæfar, who were very, great men, but by no means good men. You Romans, faid Brutus, if yet I may call you fo, confider what you are doing; remember that you are affifting Cæfar to forge thofe very chains, which he will one day make yourselves wear. This is what every man (that values freedom) ought to confider: He fhould act by judgment, and not by prejudice, affection, or felf-intereft; for, where there prevail, no ties of either country or kindred are regarded, as upon the other hand, the man, who loves his country, prefers its liberty to all other confiderations, well knowing that without liberty, life is a mifery. A famous inftance of this you will find in the history of another brave Ronan of the fame name. I mean Lucius Junius Brutus, whole story is well known, and therefore I fhall mention no more of it, than only to fhew the value he put upon the freedom of his country. After this great man, with his fellow citizens, whom he had engaged in the cause, had banish ed Tarquin the proud, the laft king of Rome, from a throne he afcended by inhuman murders, and poffeffed by the most dreadful tyranny and profcriptions, and had by thefe means amaffed incredible riches, even fufficient to bribe to his intereft, many of the young nobility of Rome, to affift him in recovering the crown; but, the plot being discovered, the principal confpirators were apprehended, among whom were two of the fons of Junius Brutus. It was abfolutely neceffary that fome should be made examples, to deter others from attempting the reftoring of Tarquin, and destroying the liberty of Rome. And to effect this it was, that Lucius Junius Brutus, one of the confuls of Rome, in the presence of the Roman people, fat judge, and condemned his own fons, as traytors to their country: And to give the last proof of his exalted virtue, and his love of liberty, he with a firmnets of mind, (only becoming fo great a man) caufed their heads to be ftruck off in his own prefence; and when he obferved that his rigid virtue, occafioned a fort of horror among the people, it is obferved he only faid, My fellow citizens, do not think that this proceeds from any want of natural affec tion; no, the death of the fons of Brutus can affect Brutus only; but the lofs of liberty will affect my country. Thus highly was liberty esteemed in those days that a father could facrifice his fons to fave his country. But, why do I go to heathen Rome, to bring instances of the love of liberty? the best blood in Britain has been thed in the cause of liberty; and the freedom we enjoy at this day, may be faid to be (in a great meafure) owing to the glorious ftand the famous Hamden, and others of our countrymen, made against the arbitrary demands, and illegal impofitions, of the times, in which they lived; who rather than give up the rights of Englishmen, and fubmit to pay an illegal tax of no more, I think than three fhillings, refolved to undergo, and for the liberty of their country, did undergo the greatest extremities, in that arbitrary and terrible court of ftar-chamber, to whofe illicit proceedings, (it being com pofed of the principal men of the realm, and calculated to support defpotic government) no bounds or limits could he fet, nor could any other hand remove the evil but a parliament. Power may justly be compared to a great river; while kept within its due bounds, it is both beautiful and useful; but, when it overflows its banks, it is then too impetuous to be ftemm'd, it bears down all before it, and brings de Itruction and defolation wherever it comes. If then this is the nature of power, let us at least do our duty, and like wife men (who value freedom) use our utmost care to fupport liberty, the only bulwark against lawless power, which in all ages has facrificed to its wild luft and boundlefs ambition, the blood of the best men that ever lived. I hope to be pardoned, Sir, for my zeal upon this occation: It is an old and wife caution, that when our neighbour's houfe is on fire, we ought to take care of our own, For tho', bleffed be God! I live in a government where liberty is well understood, and freely enjoyed; yet, experience has fhewn us all (I'm fure it has to me) that a bad precedent in one government, is foon fet up for an authority in another; and therefore I cannot but think it mine, and every honest man's duty, that (while we pay all due obe |