USA > New York > New York City > Old New York : a journal relating to the history and antiquities of New York City, Vol. II > Part 15
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Mr. Hamilton .- I will say no more at this time; the Court I see is against us in this point ; and that I hope I may be allowed to say.
Mr. Chief Justice .- Use the Court with good manners, and you shall be allowed all the liberty you can reasonably desire.
Mr. Hamilton .- I thank your honor. Then, gentlemen of the jury, it is to you we must now appeal for witnesses to the truth of the facts we have offered, and are denied the liberty to prove; and let it not seem strange, that I apply myself to you in this manner; I am warranted so to do both by law and reason. The law supposes you to be summoned out of the neighborhood where the fact is alleged to have been committed ; and the reason of your being taken out of the neighborhood is because you are sup- posed 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, scan- dalous and seditious ; but of this I can have no apprehension. You are citizens of New York ; you are really what the law sup- poses 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 to lay it down as a standing rule in such cases, that the suppressing of evidence ought always to be taken for the strong-
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est evidence, and I hope it will have that weight with you. But, since we are not admitted to examine our witnesses, I will en- deavor to shorten the dispute with Mr. Attorney, and to that end I desire he would favor us with some standard definition of a libel, by which it may be certainly known, whether a writing be a libel, .yea or not.
Mr. Attorney .- The books, I think, have given a very full definition of a libel. They say # it is in a strict sense taken for a malicious defamation, expressed either in writing or printing and reading, either to blacken the memory of one who is dead, or the reputation of one who is alive, and to expose him to public hatred, contempt or ridicule. § 2. But it said that in a larger sense the notion of a libel may be applied to any defamation whatsoever, expressed either by signs or pictures; as by fixing up a gallows against a man's door, or by painting him in a shameful and ignominious manner. § 3. And since the chief cause for which the law so severely punishes all offenses of this nature is the direct tendency of them to a breach of public peace, by pro- voking the parties injured, their friends and families, to acts of revenge, which it would be impossible to restrain by the severest laws, were there no redress from public justice for injuries of this kind, which of all others are most sensibly felt; and since the plain meaning of such scandal, as is expressed by signs or pictures, is as obvious to common sense, and as easily understood by every common capacity, and altogether as provoking as that which is expressed by writing or printing, why should it not be equally criminal ? § 4. And from the same ground it seemeth also clearly to follow that such scandal as is expressed in a scoffing and ironical manner makes a writing as properly a libel as that which is ex- pressed in direct terms, as where a writing in a taunting manner reckoning up several acts of charity done by one, says: You will not play the Jew, nor the hypocrite, and so goes on in a strain of ridicule to insinuate that what he did was owing to his vainglory ; or where a writing, pretending to recommend to one the char- acters of several great men for his imitation, instead of taking notice of what they are generally esteemed famous for, pitched on such qualities only which their enemies charged them with the
* 1 Hawk., Chap. 23, § 1, and seq.
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want of, as proposing such a one to be imitated for his courage, who is known to be a great statesman, but no soldier; and another to be imitated for his learning who is known to be a great general, but no scholar, etc., which kind of writing is as well understood to mean only to upbraid the parties with the want of these quali- ties-as if it had directly and expressly done so.
Mr. Hamilton .- Aye, Mr. Attorney; but what certain stand- ard rule have the books laid down, by which we can certainly know whether the words or the signs are malicious? Whether they are defamatory ? Whether they tend to the breach of the peace ; and are a sufficient ground to provoke a man, his family or friends, to acts of revenge, especially those of the ironical sort of words ? And what rule have you to know when I write iron- ically ? I think it would be hard when I say such a man is a very worthy, honest gentleman, and of fine understanding, that there- fore I meant he was a knave or a fool.
Mr. Attorney .-- I think the books are very full ; it is said in 1 Hawk., p. 193, just now read : " That such scandal as is expressed in a scofiing and ironical manner makes a writing as properly a libel, as that which expressed in direct terms, as where a writing, in a taunting manner, reckoning up several acts of charity done by one, says: You will not play the Jew or the hypocrite ; and so goes on to insinuate that what he did was owing to his vain- glory, etc. Which kind of writing is as well understood to mean only to upbraid the parties with the want of these qualities, as if it had directly and expressly done so." I think nothing can be plainer or more full than these words.
Mr. Hamilton .- I agree the words are very plain, and I shall not scruple to allow (when we are agreed that the words are false and scandalous, and were spoken in an ironical and scoffing man- ner, etc.) that they are really libelous; but here still occurs the uncertainty, which makes the difficulty to know, what words are scandalous and what words not; for you say, they may be scan- dalous, true or false; besides, how shall we know whether the words were spoke in a scofling and ironical manner, or seriously ? Or . how can you know whether the man did not think as he wrote ? For, by your rule, if he did, it is no irony and consequently no libel. But under favor, Mr. Attorney, I think the same book
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and the same section will show us the only rule by which all these things are to be known. The words are these : " Which kind of writing is as well understood to mean only to upbraid the parties with the want of these qualities, as if they had directly and expressly done so." Ilere it is plain the words are scanda- lous, seoffing and ironical only as they are understood. I know no rule laid down in the books but this ; I mean, as the words are understood.
Mr. Chief Justice .- Mr. Hamilton, do you think it so hard to know when words are ironical, or spoke in a scoffing manner ?
Mr. Hamilton .- I own it may be known ; but I insist the only rule to know is, as I do or can understand them ; I have no other rule to go by ; I have no other rule to go by, but as I understand them.
Mr. Chief Justice .-- That is certain. All words are libelous or not, as they are understood. Those who are to judge of the words must judge whether they are scandalous or ironical, tend to the breach of the peace, or are seditious; there can be no doubt of it.
Mr. Hamilton .- I thank your honor; I am glad to find the Court of this opinion. Then it follows that these twelve men must understand the words in the information to be scandalous, that is to say, false ; for I think it is not pretended they are of the ironical sort ; and when they understand the words to be so, they will say we are guilty of publishing a false libel, and not otherwise.
Mr. Chief Justice .- No, Mr. Hamilton, the jury may find that Zenger published those papers, and leave it to the Court to judge whether they are libelous ; you know this is very common ; it is in the nature of a special verdict, where the jury leave the matter of law to the Court.
Mr. Hamilton .- I know, may it please your honor, the jury may do it; but I do likewise know, they may do otherwise. I know they have a right beyond all dispute, to determine the law and the fact, and where they do not doubt of the law, they ought to do so. This of leaving it to the judgment of the Court, whether the words are libelous or not, in effect renders juries useless (to say no worse) in many cases; but this I shall have occasion to speak by-and-by ; and I will, with the Court's leave, proceed to exam-
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ine the inconveniences that must inevitably arise from the doc- trines Mr. Attorney has laid down; and I observe, in support of this prosecution, he has frequently repeated the words taken from the case of Libel, Famosus in 5 Co. This is indeed the leading case, and to which ahnost all the other cases upon the subject of libels do refer ; and I must insist upon saying, that as this case seems to be understood by the Court and Mr. Attorney, it is not law at this day; for though I own it to be base and un- worthy to scandalize any man, nay, I think it is even villainous to scandalize a person of public character, and I will go so far into Mr. Attorney's doctrine, as to agree that if the faults, mistakes, nay, even the vices of such a person be private and personal, and do not affect the peace of the public, or the liberty or property of our neighbor, it is unmanly and unmannerly to expose them either by word or writing. But when a ruler of a people brings his personal failings, but much more his vices, into his administra- tion, and the people find themselves affected by them, either in their liberties or property, that will alter the case mightily, and all the high things that are said in favor of rulers, and of digni- ties, and upon the side of power, will not be able to stop peo ple's mouths when they feel themselves oppressed. I mean in a free government. 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 arrant 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 ; do not go too far, neither ; I do not like these liberties.
Mr. Hamilton .- Sure, Mr. Attorney, you won't make any ap- plications ; all men agree that we are governed by the best of Kings, and I cannot see the meaning of Mr. Attorney's caution ; my well known principles and the sense I have of the blessings we enjoy under his present Majesty makes it impossible for me
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to err, and I hope, even to be suspected, in that point of duty to my King. May it please your honor, I was saying, that notwith- standing all the duty and reverence claimed by Mr. Attorney to men in authority, they are not exempt from observing the rules of common justice, either in their private or public capacities ; the laws of our mother country know no exemptions, where they insist upon an exemption from answering complaints of any kind in their own government. We are indeed told, and it is true they are obliged to answer a suit in the King's courts at West- minster, for a wrong done to any person here, but do we not know how impracticable this is to most men among us, to leave their families (who depend upon their labor and their care for their livelihood) and carry evidences to Britain, and at a great, nay, a far greater expense than almost any of us are able to bear, only to prosecute a governor for an injury done here. But when the oppression is general, there is no remedy even that way; however, our constitution has (blessed be God) given us an oppor- tunity, if not to have such wrongs redressed, yet by our prudence and resolution we may in a great measure prevent the commit- ting of such wrongs, by making a Governor sensible that it is his interest to be just to those under his care ; for such is the sense that men in general (I mean freemen) have of common jus- -tice, that when they come to know that a chief magistrate abuses the power with which he is trusted for the good of the people, and is attempting to turn that very power against the innocent, whether of high or low degree; I say, mankind in general seldom fail to interpose, and, as far as they can, prevent the destruction of their fellow subjects. And has it not often been seen (and I hope it always will be seen) that when the rep- resentatives of a free people are, by just representations or re- monstrances, made sensible of the sufferings of their fellow sub- jects, by the abuse of power in the hands of a Governor, they have declared (and loudly too) that they were not obliged to sup- port a Governor who goes about to destroy a province or colony, or their privileges, which by his Majesty he was appointed, and by the law he is bound, to protect and encourage. But I pray it may be considered of what use is this mighty privilege, if every man that suffers must be silent? And if a man must be
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taken up as a libeler for telling his sufferings to his neighbor ? I know it may be answered, Have you not a Legislature ? Have you not a House of Representatives to whom you may complain ? And to this, I answer we have. But what then? Is an Assembly to be troubled by every injury done by a Governor ? Or are they to hear of nothing but what those in the administration will please to tell them ? Or what sort of a trial must a man have ? And how is it to be remedied ; especially if the case were, as I have known it happen in America in my time, that a Governor who has places (I will not say pensions, for I believe they seldom give that to another which they can take to themselves) to bestow, and can or will keep the same Assembly (after he has modeled them so as to get a majority of the house in his interest) for near twice seven years together? I pray, what redress is to be expected for an honest man, against a Governor, to an Assembly who may properly enough be said to be made by the same Governor against whom the complaint is made ? The thing answers itself. No, it is natural, it is a privilege ; I will go farther, it is a right which all freemen claim, and are entitled to complain when they are hurt; they have a right publicly to remonstrate against the abuses of power in the strongest terms, to put their neighbors upon their guard against the craft or open violence of men in authority, and to assert with courage the sense they have of the blessings of lib- erty, the value they put upon it, and their resolution at all haz- ards to preserve it, as one of the greatest blessings heaven can bestow. And when a House of Assembly composed of honest freemen sees the general bent of the people's inclinations, that is it which must and will (I am sure it ought to) weigh with a Leg- islature in spite of all the craft, caressing and cajoling, made use of by a Governor, to divert them from hearkening to the voice of their country. As we all very well understand the true reason why gentlemen take so much pains and make such great interest to be appointed governors, so is the design of their appointment not less manifest. We know his Majesty's gracious intentions to his subjects ; he desires no more than that his people in the planta- tions should be kept up to their duty and allegiance to the crown of Great Britain, that peace may be preserved amongst them, and jus- tice impartially administered ; that we may be governed so as to
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render ourselves useful to our mother country by encouraging us to make and raise such commodities as may be useful to Great Britain. But will any one say that all or any of these good ends are to be effected by a Governor's setting his people together by the ears, and by the assistance of one part of the people to plague and plunder the other? The commission which governors, while they execute the powers given them, according to the intent of the royal granter expressed in their commissions, requires and deserves very great reverence and submission ; but when a Gov- ernor departs from the duty enjoined him by bis sovereign, and acts as if he was less accountable than the royal hand that gave him all that power and honor which he is possessed of; this sets people upon examining and inquiring into the power, authority and duty of such a magistrate, and to compare those with his condnet, and just as far they find he exceeds the bounds of his authority, or falls short of doing impartial justice to the people under his administration, so far they very often, in return, come short in their duty to such a Governor. Power alone will not make a man beloved ; and I have heard it observed that the man who was neither good nor wise before his being made a Governor, never mended upon preferment, but has generally been observed to be worse; for men who are not endued with wisdom and vir- tue can only be kept in bounds by the law ; and by how much the further they think themselves out of the reach of the law, by so much the more wicked and cruel men are. I wish there were no instances of the kind at this day. And wherever this happens to be the case of a Governor, unhappy are the people under his administration, and in the end he will find himself so too ; for the people will neither love him nor support him. I make no doubt but that there are those here who are zealously concerned for the success of this prosecution ; and yet I hope there are not many, and even some of these, I am persuaded, (when they consider what lengths such prosecutions may be car- ried and how deeply the liberties of the people may be affected by such means) will not all abide by their present sentiments; I say, not all; for a man who from an intimacy and acquaintance with a Governor has conceived a personal regard for him ; the man who has felt none of the strokes of his power, the man who
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believes that a Governor has a regard for him and confides in him, it is natural for such men to wish well to the affairs of such a Governor ; and as they may be men of honor and generosity, may, and no doubt will, wish him success, so far as the rights and privileges of their fellow citizens are not affected. But as men of honor, I can apprehend nothing from them; they will never exceed that point. There are others that are under stronger obligations, and those are such as are in some sort engaged in support of a Governor's cause, by their own or their relations' dependence on his favor, for some post or preferment ; such men have what is commonly called duty and gratitude to influence their inclinations, and oblige them to go his lengths. I know men's interests are very near to them, and they will do much rather than forego the favor of a Governor and a livelihood at the same time; but I can with very just grounds hope, even from these men, whom I will suppose to be men of honor and conscience, too, that when they see the liberty of their country in danger, either by their concurrence, or even by their silence, they will, like Englishmen, and like themselves, freely make a sacri- fice of any preferment or favor rather than be accessory to destroying the liberties of their country, and entailing slavery upon their posterity. There are indeed another set of men, of whom I have no hopes. I mean such who lay aside all other considerations, and are ready to join with power in any shape, and with any man or sort of men, by whose means or interest they may be assisted to gratify their malice and envy against those whom they have been pleased to hate; and that for no other reason, but because they are men of abilities and integrity, or at least are possessed of some valuable qualities far superior to their own. But as envy is the sin of the devil, and therefore very hard, if at all to be repented of, I will believe there are but few of this detestable and worthless sort of men, nor will their opinions or inclinations have any influence upon this trial. But to proceed; I beg leave to insist, that the right of complaining or remonstrating is natural; and the restraint upon the natural right is the law only, and that those restraints can only extend to what is false ; for as it is truth alone which can excuse or justify any for complaining of a bad administration, I as
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frankly agree that nothing ought to excuse a man who raises a false charge or accusation even against a private person, and that no manner of allowance ought to be made him who does so against a public magistrate. Truth ought to govern the whole affair of libels, and yet the party accused runs risk enough even then ; for if he fails of proving every tittle of what he has wrote, and to the satisfaction of the Court and jury, too, he may find to his cost, that when the prosecution is set on foot by men in power it seldom wants friends to favor it. And from thence (it is said) has arisen the great diversity of opinions among judges, about what words were or were not scandalous or libelous. I believe it will be granted that there is not greater uncertainty in any part of the law than about words of scandal; it would be misspending of the Court's time to mention the cases; they may be said to be numberless ; and therefore the utmost care ought to be taken in following precedents ; and the times when the judgments were given which are quoted for authorities in the case of libels are much to be regarded. I think it will be agreed that ever since the time of the Star Chamber, where the most arbitrary and destructive judgments and opinions were given, that ever an Englishman heard of, at least in his own country, I say, prosecutions for libel since the time of that arbitrary court, and until the glorious rev- olution, have generally been set on foot at the instance of the crown or its ministers ; and it is no small reproach to the law, that these prosecutions were too often and too much counte- nanced by the judges, who held their places at pleasure (a disa- greeable tenure to any officer, but a dangerous one in the case of judge). To say more to this point may not be proper. And yet I cannot think it unwarrantable to show the unhappy influence that a sovereign has sometimes had, not only upon judges, but even upon parliaments themselves.
It has already been shown how the judges differed in their opinions about the nature of a libel, in the case of the seven bishops. There you see three judges of one opinion, that is, of a wrong opinion, in the judgment of the best men in England, and one judge of a right opinion. How unhappy might it have been for all of us at this day if that jury had understood the
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words in that information as the Court did ? Or, if they had left it to the Court to judge whether the petition of the bishops was or was not a libel ? No! they took upon them, to their immor tal honor, to determine both law and fact, and to understand the petition of the bishops to be no libel, that is to contain no false- hood nor sedition, and therefore found them not guilty. And remarkable is the case of Sir Samuel Barnardiston, who was fined £10,000 for writing a letter, in which, it may be said, none saw any scandal or falsehood but the Court and jury ; for that judg- ment was afterwards looked upon as a cruel and detestable judg- ment, and therefore was reversed by Parliament. Many more instances might be given of the complaisance of court judges, about those times and before ; but I will mention only one case more, and that is the case of Sir Edward Hales, who, though a Roman Catholic, was by King James II. preferred to be a colonel of his army, notwithstanding the statute of 25 Charles II., Chap- ter 2, by which it is provided " That every one that accepts of an office, civil or military, etc., shall take the oaths, subscribe the declaration, and take the sacrament, within three months, etc., otherwise he is disabled to hold such office, and the grant for the same to be null and void, and the party to forfeit £500." Sir Edward Hales did not take the oaths or sacrament within three months, etc., and was prosecuted for the £500 for exercising the office of colonel for the space of three months, without conform- ing as in the act is directed. Sir Edward pleads " That the King by his letters patents did dispense with his taking the oaths and sacrament and subscribing the declaration, and had pardoned the forfeiture of £500." And " whether the King's dispensation was good, against the said act of Parliament ?" was the question. I shall mention no more of this case, than to show how in the reign of an arbitrary prince, where judges hold their seats at pleasure, their determinations have not always been such as to make pre- cedents of, but the contrary; and so it happened in this case where it was solemnly judged, " that notwithstanding this act of Parliament, made in the strongest terms for preservation of the Protestant religion, that yet the King had, by his royal preroga- tive, a power to dispense with that law ;" and Sir Edward HIales was acquitted by the judges accordingly.
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