Attorney For tho' 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 have 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?

...

Mr. Ch. 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. Ch. Justice, The Law is clear, That you cannot justify a Libel. . . . 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 my self to you in this Manner, I am warranted so to do both by Law and Reason. The Last supposes you to be summoned, 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 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, 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.

. . . It is 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 for 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.

Mr. Attorney, 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 haye [have] of the Blessings we enjoy under his present Majesty, makes 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 publick Capacities; the Laws of our Mother Country know no Exception. . . . I hope to be pardon'd, Sir, for my Zeal upon this Occasion: It is an old and wise Caution, That when our Neighbour's House is on Fire, we ought to take Care of our own. For tho', blessed be God, I live in a Government where Liberty is well understood, and freely enjoy'd; yet Experience has shewn us all (I'm sure it has to me) that a bad Precedent in one Government, is soon set 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 Obedience to Men in Authority) we ought at the same Time to be upon our Guard against Power, wherever we apprehend that it may effect Ourselves or our Fellow-Subjects.

I am truly very unequal to such an Undertaking on many Accounts. And you see I labour under the Weight of many Years, and am born down with with great Infirmities of Body; yet Old and Weak as I am,

I should think it my Duty, if required, to go to the utmost Part of the Land, where my Service cou'd be of any Use in assisting to quench the Flame of Prosecutions upon Informations, set on Foot by the Government, to deprive a People of the Right of Remonstrating, (and complaining too) of the arbitrary Attempts of Men in Power. Men who injure and oppress the People under their Administration provoke them to cry out and complain; and then make that very Complaint the Foundation for new Oppressions and Prosecutions. I wish I could say there were no Instances of this Kind. But to conclude; the Question before the Court and you, Gentlemen of the Jury, is not of small nor private Concern, it is not the Cause of a poor Printer, nor of New-York alone, which you are now trying; No! It may in its Consequence, affect every Freeman that lives under a British Government on the Main of America. It is the best Cause. It is the Cause of Liberty; and I make no Doubt but your upright Conduct, this Day, will not only entitle you to the Love and Esteem of your Fellow-Citizens; but every Man, who prefers Freedom to a Life of Slavery, will bless and honour You, as Men who have baffled the Attempt of Tyranny; and by an impartial and uncorrupt Verdict, have laid a noble Foundation for securing to ourselves, our Posterity, and our Neighbours, That to which Nature and the Laws of our Country have given us a Right, The Liberty — both of exposing and opposing arbitrary Power (in these Parts of the World, at least) by speaking and writing Truth. . .

Mr. Ch. Just. Gentlemen of the Jury. The great Pains Mr. Hamilton has taken, to shew how little Regard Juries are to Pay to the Opinion of the Judges; and his insisting so much upon the Conduct of some Judges in Tryals of this kind; is done, no doubt, with a Design that you should take but very little Notice of what I may say upon this Occasion. I shall therefore only observe to you that, as the Facts or Words in the Information are confessed: The only Thing that can come in Question before you is, Whether the Words, as set forth in the Information, make a Libel. And that is a Matter of Law, no doubt, and which you may leave to the Court. But I shall trouble you no further with any Thing more of my own, but read to you the Words of a learned and upright Judge in a Case of the like Nature.

To say that corrupt Officers are appointed to administer Affairs, is certainly a Reflection on the Government. If People should not be called to account for possessing the People with an ill Opinion of the Government, no Government can subsist. For it is necessary for all Gov

ernments that the People should have a good Opinion of it. And nothing can be worse to any Government, than to endeavour to procure Animosities; as to the Management of it, this has been always look'd upon as a Crime, and no Government can be safe without it be punished.

do

'Now you are to Consider, whether these Words I have read to you, not tend to beget an Ill Opinion of the Administration of the Government? To tell us, that those that are employed know nothing of the Matter, and those that do know are not employed. Men are not adapted to Offices, but Offices to Men, out of a particular Regard to their Interest, and not to their Fitness of the Places; this is the Purport of these Papers!

Mr. Hamilton, I humbly beg Your Honour's Pardon; I am very much mis-apprehended, if you suppose what I said was so designed.

Sir, you know, I made an Apology for the Freedom I found my self under a Necessity of using upon this Occasion. I said, there was Nothing personal designed; it arose from the Nature of our Defence.

The Jury withdrew, and in a small Time returned, and being asked by the Clerk, Whether they were agreed of their Verdict, and whether John Peter Zenger was guilty of Printing and Publishing the Libels in the Information mentioned? They answered by Thomas Hunt, their Foreman, Not Guilty. Upon which there were three Huzzas in the Hall which was crowded with People, and the next Day I was discharged from my Imprisonment.

[A Brief Narrative of the Case and Tryal of John Peter Zenger, Printer of the New-York Weekly Journal], (no title-page, New York, 1738), 10-30 passim.

73. An Appeal Case in the Privy Council (1727/8)

BY EDWARD SOUTHWELL

This is the final judgment in one of the few cases actually brought to a decision on appeal to the English government. The practice prepared the way for appeals to our present Supreme Court. - Bibliography: P. L. Ford, List of some Briefs in Appeal

Cases.

T THE COURT AT ST. JAMES'S, THE 15TH DAY OF FEBRUARY,

AT

[L. S.]

Upon reading this day at the Board a Report from the Rt. Honble the Lords of the Committee for hearing Appeals from the Plantations, dated the 20th day of December last . . .

His Majesty, taking the same into his royal consideration, is pleased, with the advice of his Privy Council, to approve of the said report, and confirm the same in every particular part thereof; and pursuant thereunto, to declare, that the aforementioned act, entituled An Act for the settlement of intestate estates, is Null and Void; and the same is hereby accordingly declared to be null and void, and of no force or effect whatever. And his Majesty is hereby further pleased to order, that all the aforementioned sentences of the 29th June, 1725, of the 28th of Sept', 1725, and of the 22d March, 172§, and every of them, be and they are hereby reversed and set aside; and that the petitioner, John Winthrop, be, and he is hereby, admitted to exhibit an inventory of the personal estate only of the said intestate, and that the court of probates do not presume to reject such inventory because it does not contain the real estate of the said intestate. And his Majesty doth hereby further order, that the aforementioned sentence of the 22d of March, 172, vacating